HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 21.08.2019
Delivered on 12.09.2019
Case :- APPLICATION U/S 482 No. – 462 of 2016
Applicant :- Ganga Devi
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Ramesh Singh,Achint Ranjan Singh,Samit Gopal
Counsel for Opposite Party :- G.A.,Ashok Kumar Rai,Ravindra Nath Rai
Hon’ble Om Prakash-VII,J.
Though present application was heard alongwith connected matters yet for the sake of convenience and clarity, same is being decided separately.
Present application under Section 482 CrPC has been filed with the prayer to quash the charge sheet dated 1.11.2013 in 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 the non-bailable warrant dated 8.12.2015 issued against the applicant 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 applicant, 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 application, in nutshell, is that on 16.12.2011 an agreement to sell was entered into between the applicant and the 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. Allegation levelled against the applicant and other accused in the F.I.R. was that though original papers of the disputed property was returned back by the Bank concerned to the applicant 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 the applicant in favour of opposite party no.2, Kishore Kumar, son of applicant, 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 the applicant in his favour hatching conspiracy against the 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 present applicant were submitted by the concerned Investigating Officer. It also appears that cognizance was taken in the matter 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 was submitted by learned Senior Counsel appearing for the applicants that applicant is a senior citizen aged about 81 years. On receipt of the original record of the house in question, request was made from the opposite party no.2 for getting the sale deed executed but same was denied. It was also submitted that power of attorney said to have been executed by the applicant 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. Neither the applicant has signed the said sale deeds nor was the witness thereof. It was also submitted that a civil suit for specific performance of contract instituted by the opposite party no.2 is already pending. Efficacious remedy will be available to the opposite party no.2 in civil proceeding. At this juncture, learned counsel for the applicant 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 charge sheet against the applicant is nothing but an abuse of process of law. Referring to the offences levelled against the applicant in the charge sheet it was also submitted that none of the ingredients of the alleged offences are available against the applicant. Neither the applicant 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 Chhaya Rai Singhani, Sumit Rai Singhani and Shrawan Kumar, mens rea to attract the aforesaid offences against the applicant 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 will not create any bar to allow the present application as role of the present applicant 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 applicant. Applicant had executed 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. Applicant did not execute the sale deed in favour of opposite party no. 2, instead, her son, Kishore Kumar, power of attorney holder, executed the sale deeds in favour of other persons committing fraud and to defeat the agreement to sell. Co-accused, against whom charge sheet was also 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 applicant and other family members. Offences levelled against the applicant 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, it is admitted fact between the parties that an agreement to sell was executed by the applicant in respect of the disputed property on 16.12.2011 in favour of opposite party no.2. One of the terms and conditions of the said agreement was that after receiving the original record of the disputed property from the Bank concerned, where property was mortgaged, sale deed would be executed in favour of opposite party no.2 within three years. Applicant had also received rupees Twenty Five Lakhs as earnest money. Power of attorney, on which basis sale deeds were executed by Kishore Kumar in favour of Chhaya Rai Singhani, Sumit Rai Singhani and Shrawan Kumar, was of dated 16.1.2010 and 11.1.2011. Applicant has not signed the said sale deeds nor was the witness of the same. Initially charge sheet was submitted against Renu Rai and three others and they approached this Court through application under Section 482 No. 10432 of 2014 but prayer made by them in the said application was refused by this Court. One of the co-accused Sumit Rai Singhani challenged the summoning order dated 11.3.2016 passed on the application under Section 319 CrPC through criminal revision no. 820 of 2016 which was also dismissed by another Bench of this Court on 6.4.2016. A civil suit no. 42 of 2013 for specific performance of contract entered into between the applicant and the opposite party no.2 was filed by opposite party no.2 in the Court of Civil Judge (SD), Gorakhpur, which is still pending. Since neither the applicant was party in the sale deed said to have been executed by co-accused Kishore Kumar in favour of other co-accused nor was the attesting witness of the said sale deeds, Court is of the opinion that offences levelled against the applicant in the present matter are not attracted against her. No such document was prepared by the applicant to satisfy the ingredients of the offence under Sections 419, Section420, Section467, Section468 and Section471 IPC. None of the ingredients of offence under Section 406 IPC are also available in the present matter against the applicant. If the entire prosecution case is taken into consideration then also in case sale deed was not executed by the applicant, efficacious remedy was available to the opposite party no.2 to file civil suit for specific performance of contract as it was purely a case of breach of contract. Mens rea to attract the offence of cheating was not available in the present matter from the very beginning. Hon’ble Supreme Court in Full Bench decision in similar circumstances in a case of Commissioner of Police and others (supra) has held that dispute between the parties to be of civil nature dispute and in that situation entire proceeding was closed. Thus, keeping in view the entire facts and circumstances of the case and the role assigned to the applicant and also the nature of dispute between the parties as well as the ingredients of offences levelled against her, in the opinion of Court, criminal prosecution cannot be permitted to continue against her merely on this basis that applicant did not execute the sale deed in lieu of the agreement to sell. No benefit goes to the opposite party no.2 from the law laid down in the cases relied upon by the learned counsel for the opposite party no.2 as the role assigned to the present applicant is entirely different with the role of other co-accused earlier approached this Court and whose prayer has been turned down.
In view of the above discussions, I am of the opinion that there is substance in the submissions made by the learned counsel for the applicant. The application is liable to be allowed and the entire proceeding of aforesaid criminal case is liable to be quashed.
Accordingly the application is allowed and the entire 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 are quashed against the applicant.
Order Date :- 12.09.2019