HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 21.08.2019
Delivered on 12.09.2019
1. Case :- APPLICATION U/S 482 No. – 39280 of 2016
Applicant :- Chhaya Rai Singhani
Opposite Party :- State Of U.P.And Another
Counsel for Applicant :- Amar Nath Singh, Deepak Kumar Tripathi, K.K.Dwivedi, Samit Gopal, Siddharth Nandan
Counsel for Opposite Party :- G.A., A.K. Rai, Amar Nath Singh, Amit Mishra, R.N.Rai
2. Case :- APPLICATION U/S 482 No. – 37761 of 2016
Applicant :- Sumit Rai Singhani And Another
Opposite Party :- State Of U.P.And Another
Counsel for Applicant :- Kamlesh Kumar Dwivedi, Samit Gopal
Counsel for Opposite Party :- G.A.,Ravindra Nath Rai
Hon’ble Om Prakash-VII,J.
Though present applications were heard alongwith connected matters yet for the sake of convenience and clarity, same are being decided separately.
Present applications under Section 482 CrPC have been filed by the applicants with the prayer to quash entire criminal proceeding of criminal case no. 2975 of 2013, arising out of case crime no. 431 of 2012, under Sections 406, Section419, Section420, Section467, Section468 and Section471 IPC, P.S. Cantt., District Gorakhpur pending before the Additional Chief Judicial Magistrate-I, Gorakhpur and further to stay the further proceeding of the aforesaid case.
Heard S/Shri G.S. Chaturvedi and Samit Gopal, learned Senior Counsel assisted by Mrs. Reema Pandey, learned counsel for the applicants, Shri Viresh Mishra, learned Senior Counsel assisted by S/Shri Sunil Singh and Sunil Vasishtha, learned counsel for the opposite party no.2 as well as the learned AGA for the State.
Prosecution case as disclosed in the present applications, in nutshell, is that on 16.12.2011 an agreement to sell was entered into between Ganga Devi and opposite party no.2 regarding the disputed property and rupees Twenty Five Lakhs was received as earnest money at the time of execution of the said agreement to sell and three years’ time was agreed to execute the sale deed as original papers of the disputed house were mortgaged with the Oriental Bank of Commerce. Allegations levelled against the applicants and other accused in the F.I.R. were that though original papers of the disputed property was returned back by the Bank concerned to Ganga Devi yet she did not execute the sale deed in favour of opposite party no.2 and when request was made she denied to comply with the terms and conditions of the said agreement to sell. She also did not return the earnest money. It is also alleged that despite having knowledge that an agreement to sell was executed by Ganga Devi in favour of opposite party no.2, Kishore Kumar, son of Ganga Devi, executed three sale deeds in regard to the disputed property on different dates i.e. 6.3.2012, 15.5.2012 and 25.5.2012 in favour of Chhaya Rai Singhani, Sumit Rai Singhani and Shrawan Kumar on the basis of power of attorney executed by Ganga Devi in his favour hatching conspiracy against opposite party no.2. It also appears that after investigation two separate charge sheets, first against Renu Rai, Kishore Kumar, Karam Chandra and Rahul Rai and another against Ganga Devi were submitted by the concerned Investigating Officer. It further appears that cognizance was taken in the matter on the charge sheet and processes were issued against accused persons. Further investigation was also conducted in the matter on the basis of permission granted by the Court concerned wherein a report was submitted that dispute between the parties was purely of civil nature. It further appears that during trial informant/opposite party no. 2 was examined and thereafter an application under Section 319 CrPC was moved which was allowed and applicants alongwith some other accused were summoned to face the trial.
It was submitted by learned Senior Counsel appearing for the applicants that applicants have no concern with the present matter. They are the bonafide purchaser of the disputed property. Allegation to this extent that on receipt of original record of the house in question, request was made by the opposite party no.2 to execute the sale deed but same was denied is also not related to the applicants. It was also submitted that power of attorney said to have been executed by Ganga Devi in favour of Kishore Kumar was of dated 16.1.2010 and 11.1.2011 and sale deeds in question were executed by Kishore Kumar on the basis of said power of attorney. It was next submitted that a civil suit for specific performance of contract instituted by the opposite party no.2 is already pending. Efficacious remedy available to the opposite party no.2 is civil proceeding. At this juncture, learned counsel for the applicants referred to the terms and conditions of the agreement to sell entered into between the parties and submitted that continuation of criminal proceeding on the basis of summoning order dated 11.3.2016 against the applicants is nothing but an abuse of process of law. Referring to the offences levelled against the applicants in the summoning order dated 11.3.2016 it was also submitted that none of the ingredients of the alleged offences are available against the applicants. Neither the applicants prepared any forged document nor the ingredients of offence under Section 406 IPC are available in the present matter. If sale deeds were executed by Kishore Kumar in favour of applicants on the basis of power of attorney then also mens rea to attract the aforesaid offences against the applicants cannot be attributed. It was next contended that order passed in respect of co-accused in criminal revision or in the application under Section 482 CrPC is not bar to allow the present applications as role of the present applicants is entirely different with the role of co-accused, namely, Renu Rai and others. No prima facie case is made out. In support of his submissions, learned counsel for the applicants placed reliance on the following case laws:
(i) SectionAnil Khadkiwala vs. State (Government of NCT of Delhi) and another (Criminal Appeal No(s). 1157 of 2019) (arising out of SLP (Cri) No. 2663 of 2017), decided on 30.7.2019.
(ii) Vasudev Dani vs. Purushottam Das Khandelwal and another, (2004) 13 SCC 506.
(iii) SectionBeni Chand vs. Kamla Kunwar, 1976 LawSuit (SC) 331.
(iv) SectionBalwant Vithal Kadam vs. Sunil Baburaoj Kadam, AIR 2018 SC 49.
(v) The Commissioner of Police others vs. Devender Anand others (Criminal Appeal No. 834 of 2017), decided on 8.8.2019.
Per contra, learned Senior Counsel appearing for the opposite party no.2 and the learned AGA submitted that a prima facie case is made out against the applicants. Ganga Devi had executed an agreement to sell in favour of opposite party no.2 and rupees Twenty Five Lakhs was paid by opposite party no.2 as an earnest money. Sale deed was to be executed after obtaining the original papers from the Bank concerned within three years of execution of said agreement to sell. Ganga Devi did not execute the sale deed in favour of opposite party no. 2, instead, her son, namely, Kishore Kumar, power of attorney holder, executed sale deeds in favour of applicants committing fraud and to defeat the agreement to sell. Co-accused, against whom charge sheet was submitted, had approached this Court but prayer made by them was refused. One of the accused summoned under Section 319 CrPC also approached this Court through criminal revision challenging the summoning order but the same was also dismissed. This Court cannot act as an appellate court to scrutinize the order passed by coordinate Bench in the matter of co-accused. Sale-deeds were executed by Kishore Kumar in collusion with the applicants and other family members. Offences levelled against the applicants are clearly attracted. There is no illegality, infirmity or perversity in the impugned order warranting interference by this Court. In support of his submissions, learned Senior Counsel appearing for opposite party no.2 placed reliance on the following cases laws:
(i) Rama Rani (Legal representative of late SectionShyam Lata) vs. Arun Kumar Sharma and another, (2018) 13 SCC 149.
(ii) SectionSampurna Nand Tiwari vs. State of U.P. through Principal Secretary, Home and others, 2016 (92) ACC 258.
(iii) Mohammad Zeeshan and others vs. State of U.P. and another (Criminal Misc. Application No. 30269 of 2011), decided on 25.1.2012.
I have considered rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws carefully.
In this matter, as is evident from record, one agreement to sell was executed by Ganga Devi (non applicant) on 16.12.2011 in favour of opposite party no. 2. Sale deed was to be executed within three years after release of original papers mortgaged with the Oriental Bank of Commerce. Rupees twenty five lakhs were paid by opposite party no. 2 as an earnest money at the time of execution of agreement to sell. It is also evident from the record that initially charge sheet was submitted only against four persons namely, Renu Rai, Kishore Kumar, Karam Chandra and Rahul Rai (non applicant). Subsequently another charge sheet was submitted against Ganga Devi for the alleged offences. During trial on the basis of statement of opposite party no. 2 applicants and some other accused were summoned on the application under Section 319 Cr.P.C. to face the trial. Role assigned to the applicants is that despite agreement to sell executed by Ganga Devi in favour of opposite party no.2, sale-deeds in question were executed in their favour by Kishor Kumar. It is also evident that one of applicants, namely, Sumit Rai Singhani had approached this court through Criminal Revision No. 820 of 2016 against the summoning order dated 11.03.2016, which was dismissed by another Bench of this Court vide order dated 06.04.2016. The said order is as under:
“Heard Sri Anurag Khanna, learned Senior Advocate assisted by Sri Udai Chandani, for the petitioner and learned A.G.A. for the State.
This criminal revision has been filed challenging the order dated 11.03.2016 passed by the Additional Chief Judicial Magistrate Ist, Gorakhpur, in Case No.2975 of 2013 arising out of case Crime No.431 of 2012 (State Vs. Kishore Kumar and others) under Sections 419, Section420, Section467, Section468, Section471 and Section406 I.P.C. registered at Police Station Cantt. District Gorakhpur.
By this order, the Additional Chief Judicial Magistrate Ist, Gorakhpur has summoned the revisionist in exercise of powers conferred by Section 319 of the Criminal Procedure Code.
The contention of the learned counsel for the revisionists is that the impugned order is bereft of any reason and its perusal reveals that it has been passed without any application of mind. The court below has accepted the version of the first informant in his application under Section 319 of the Criminal Procedure Code as gospel truth and passed the order impugned on its basis.
In support of his contention, learned counsel for the revisionist has relied upon in the Case of Hardeep Singh Vs. State of Punjab, 2004 Vol. 3 SC, page 92 especially paragraphs 50, 52, 59, 60, 61,87, 99, 104, 106 and 110 thereon.
Reliance has also been placed upon a Division Bench decision of this Court in the case of Rajesh Singh Vs. State of U.P. and another 2014 (14) AIC, 875 especially paragraphs 10 and 11 therein and upon Lal Suraj @ Suraj Singh and another Vs. State of Jharkhand, 2008, Sup. AIR (SC) 1114.
Learned AGA has supported the impugned order.
I have considered the submissions made by the parties and have perused the record.
The contention that the impugned order does not assign any reason for summoning the revisionist does not impress this Court. The Court below while passing the impugned order has observed that the revisionist was mentioned as an accused in the first information report as also in the statement recorded under Section 161 Cr.P.C. and that he has also been named in the statement of P.W. 1 recorded during the trial.
In my considered opinion, this reason given is enough to justify the order impugned. It would be relevant to note that the first information report had been filed on the allegations that the agreement to sell was executed by one Ganga Devi and a sum of Rs.25 Lacs was paid earnest money at the time of its execution. The son of Ganga Devi, namely Kishore Kumar was the marginal witness in this agreement to sell. After this agreement was executed and registered, the said Kishore Kumar, on the strength of power of attorney executed in his favour by Ganga Devi, sold 1/3 portion of the property, which was the subject matter of the agreement to sell, in favour of his nephew, the revisionist, Sumit Kumar. It therefore follows that Sumit Kumar (revisionist) is the grand son of Ganga Devi.
In the statement recorded during trial, the P.W. 1 has categorically stated that this sale deed was executed by the son of Ganga Devi, as her power of attorney holder, in favour his nephew which is a conspiracy amongst family members, to defraud the person in whose favour, the agreement to sell had been executed.
From the facts noticed above, it is also clear that the summoning order has also been passed on the basis of the statement of P.W.1 recorded during the trial. The Trial Court is fully competent to summon a person, who has not been charge sheeted, in case, there appears justification to try him along with other accused, already facing trial. The order therefore, cannot be said to suffer from any jurisdictional error, warranting interference. The reasons that have been assigned in the order may not be very elaborate but it cannot be said that the order impugned is totally bereft of any reason.
The next contention made is that some of the accused have preferred a petition, under Section 482 Cr.P.C. for quashing the first information report, which is the basis of the trial. This argument also does not help the revisionist. Mere pendency of an application under Section 482 Cr.P. is of no consequence. Merely because a 482 SectionCr.P.C. petition filed for quashing of the first information report, is pending consideration, the proceedings in the trial must continue till such time they are stayed. It is not the case of the revisionist that the order summoning him under Section 319 Cr.P.C. has been passed.
Besides the case of Hardeep Singh (supra) is to the effect that even a person not named in the first information report and who has not been charge sheeted, can be summoned in exercise of powers conferred under Section 319 Cr.P.C.
The only point that may be construed in favour of the revisionist is that this judgment holds that the degree of satisfaction for summoning the original accused viz-a-viz the subsequent accused ( under Section 319 Cr.P.C.) has to be different.
In my considered opinion, even this point does not help the revisionist, inasmuch as, there exists an allegation that a registered sale deed has been executed by the power of attorney holder of Ganga Devi, in favour of the revisionist, who is the nephew of the power of attorney holder and the grand son of Ganga Devi. The power of attorney holder was the marginal witness in the agreement to sell, who after the agreement to sell, executed a sale deed in favour of the revisionist. Moreover, the allegation is that the sale deed is an attempt to defraud the person in whose favour, the earlier agreement to sell was executed by Ganga Devi and that the revisionist, a subsequent purchaser, is a family member.
The Apex Court in the Case of Lal Suraj @ Suraj Singh has held that a person cannot be summoned to face trial on the basis of strong suspicion and the Court should satisfy itself that there is a strong possibility of conviction. In the instant case, the facts which are alleged to constitute a conspiracy amongst the accused who are family members will stand established from the agreement to sell and the sale deed in favour of the revisionist executed by his uncle on the basis of a power of attorney from his mother. The trial court, during trial is only to consider whether these documents constitute a conspiracy to defraud. Therefore, even this case does not help the revisionist.
Accordingly and in view of the above discussions, I do not find any jurisdictional error in the order impugned. The revision is accordingly dismissed.”
Since prayer made by applicant Sumit Rai Singhani has already been turned down by the order passed in the aforesaid criminal revision, no question arises to reconsider the prayer made by him in the present application under Section 482 Cr.P.C.
As far as role assigned to Chhaya Rai Sighangi and Shrawan Kumar is concerned, they are also vendee (purchaser) of disputed house. Though earlier application moved by Chhaya Rai Singhani was dismissed for want of prosecution yet considering the entire facts and circumstances of the case and the evidence available on record on merits and also the observations made by Coordinate Bench in the order dated 06.04.2016 passed in aforesaid criminal revision no. 820 of 2016 prayer made in the present applications in respect of applicants Chhaya Rai Singhani and Shrawan Kumar can also not be granted.
So far as submission of supplementary report under Section 173(8) Cr.P.C. is concerned, it will be in continuation of first police report submitted in the matter and same shall be dealt with as part of primary report and both report shall be read conjointly. Since prayer of one of the co-accused, namely, Sumit Rai Singhani, against the summoning order, in the criminal revision filed by him before another Bench of this Court has been refused and revision has been dismissed on merits, prayer made by applicants, namely, Chhaya Rai Singhani and Shrawan Kumar is also liable to be rejected in terms of the observations made in the order dated 06.04.2016 passed in the aforesaid criminal revision no. 820 of 2016.
In view of the above discussions, in my opinion, there is no substance in the submissions made by learned counsel for the applicants and the applications being devoid of merits are liable to be dismissed.
The applications are accordingly dismissed.
Copy of this order be also placed on the record of application u/s 482 no. 37761 of 2016.
Order Date :- 12.09.2019