JUDGMENT

Dalveer Bhandari, J.

Leave granted.

This appeal is directed against the judgment dated 16th July, 2004 passed in Criminal Miscellaneous Application No.248 of 2003 under section 482 of the Code of Criminal Procedure (for short Cr.P.C.) by the High Court of Uttaranchal at Nainital. The appellants had to file an application under Section 482 Cr.P.C. because the Special Judicial Magistrate, Rishikesh issued a non-bailable warrant against the appellants on the basis of First Information Report under Sections 420/467 IPC filed by the respondents. Basic FactsIn 1923, Pt. Madan Mohan Malviya founded Sanatan Dharma Pratinidhi Sabha, Punjab (hereinafter referred as the Sabha ). Some of the objects of the Sabha are to open and maintain temples, dharamshalas, ashrams and to manage schools and colleges for the overall development of children. Moreover, it seeks to open hospitals for the poor and to develop the physical and mental state of the youth etc. It is averred that the Sabha from its inception is engaged in the work of uplifting backward and downtrodden people and is a grass root organization in the field of social development. The Sabha was registered in the year 1949 under the Societies Registration Act. In order to develop a Ghat on the bank of river Ganga near Sapatrishi Ashram in Hardwar, the Sabha issued an advertisement in the newspapers; it invited bids from the eligible civil contractors to construct the Ghat in consideration of 13.5 Bighas (approximately) of its land situated in old Khasra No.140 and new Khasra Nos.61, 62, 63, 64, 65, 66, 67, 68 and part of 89, 90 in village Haripur Kalan, Rishikesh, Dehradun out of the total land of 26 Bighas owned by the Sabha. The Ghat was so constructed by one Himmat Rai Ahuja, respondent no.3 herein, on behalf of M/s Ahuja Builders.

On completion of the construction of the Ghat, the Sabha through its President Pt. Mohan Lal Sharma executed a General Power of Attorney on 13.12.1996 in favour of respondent no.3 in regard to the abovementioned land measuring 13.5 Bighas (out of the total of 26 Bighas approximately). On the same date, a receipt of Rs.17,92,000/- lakhs (approximately) was issued by the Sabha to respondent no.3 as an adjustment towards the cost of construction of the Ghat for which the said land of 13.5 Bighas was transferred by executing a General Power of Attorney dated 13.12.1996 in favour of respondent no. 3. On the same day the parties executed an agreement to sell the remaining land situated at Old Khasra No.140 and new Khasra No.89 in Village Haripur Kalan, Rishikesh at the rate of Rs.1,35,000/- per Bigha (which was approx. 11.19 Bighas). In pursuance to this, an earnest money of Rs.4,00,000/- was received by the Sabha from respondent no.3. As per the agreement, respondent no.3 had to pay another Rs.1,00,000/- to the Sabha by 31.1.1997. This amount was paid by respondent no.3 on 21.3.1997 and the balance amount of Rs.10,10,650/- had to be paid by 31.3.1997.

According to the appellants, time was the essence of the contract and respondent no.3 had failed to pay the balance amount by Rs.10,10,650/-. The Sabha had sent a legal notice dated 3.4.1999 (first legal notice) to respondent no.3 to fulfill his contractual obligations under the sale agreement and informing that if he failed to do so, the agreement to sell would stand cancelled and the amount paid as earnest money would be forfeited. In reply to the said notice, respondent no.3 vide his reply dated 5.5.1999 stated that he had not defaulted in payment of the remaining amount. He stated in the reply that as per the agreement the land had to be measured and that he was ready to pay the balance amount once that was done.

Pt. Mohan Lal Sharma, the President of the Sabha, expired on 30.8.1999. On 5.1.2000, both the parties i.e. the representative of the Sabha and the representatives of M/s Ahuja Builders met at the site of the disputed land in the presence of Patwari (Revenue Official). The