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Mohammad Ibrahim vs State Of U.P. And Another on 28 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 79

Case :- APPLICATION U/S 482 No. – 9348 of 2018

Applicant :- Mohammad Ibrahim

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Sharib Salaman Ahmad Ansari,A/V0429

Counsel for Opposite Party :- G.A.,Vinod Singh

and

Case :- APPLICATION U/S 482 No. – 11224 of 2018

Applicant :- Siftain Khan Qadri @ Sonu

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Sharib Salaman Ahmad Ansari

Counsel for Opposite Party :- G.A.,Vinod Singh

Hon’ble Harsh Kumar,J.

Photo copy of Nikahnama of applicant Siftain Khan Qadri @ Sonu filed by learned counsel for applicants today in the Court is taken on record.

The two applications u/s 482 Cr.P.C. have been moved by two accused (father and son) separately, which were heard together and are being disposed of by one and the same order.

Heard Sharib Salaman Ahmad Ansari learned counsel for applicants, Shri Vinod Singh learned counsel for opposite party no.2, learned A.G.A. for State and perused the record.

The application under Section 482 Cr.P.C. No. 9348 of 2018 has been filed for quashing the entire proceedings of Case No.3084 of 2016 (State vs. Mohammad Ibrahim Khan) and application under Section 482 Cr.P.C. No. 11224 of 2018 has been filed for quashing the entire proceedings of Case No.3356 of 2017 (State vs. Siftain khan Qadri @ Sonu) both arising out of Case Crime No.3249 of 2014, under Sections 420, 406 I.P.C. P.S. Kotwali Orai, District Jalaun pending in the Court of C.J.M. Jalaun at Orai.

Learned counsel for applicants contends that applicant Mohammad Ibrahim is father and applicant Siftain Khan Qadri @ Sonu is his son; that marriage of Siftain Khan Qadri @ Sonu was settled with opposite party no.2 Smt. Shazia Begum and engagement ceremony was performed on 10.3.2013 with the understanding that marriage/Nikah will be solemnized on 27.10.2013; that as per averments made in complaint filed by Mohd. Usman, the father of opposite party no.2, applicant Siftain Khan Qadri @ Sonu and his family members made demand of Car or Rs.3.00 lacs cash which was accepted by him and Rs.2.00 lacs were paid in cash on 21.4.2013 before Salim Ahmad and Rs.1.00 lac was agreed to be paid on the day of marriage; that after a period of two months demand of INDIGO Car was also made, and he was unable to comply so dissolved the proposed Nikah with agreement that both parties will return the money/articles given by each of them, but in August, 2013 Siftain khan Qadri @ Sonu denied to return the money and articles on which complainant moved application before S.S.P. Jalaun and sent notice to applicants on 4.9.2013 through counsel which was correctly replied by applicants through their counsel Shri V.K. Srivastava, Advocate on 15.9.2013 and in the meantime complainant allegedly settled marriage (Nikah) of his daughter Smt. Shazia Begum opposite party no.2 with Mohd. Umar Khan resident of Kabir Nagar, Orai on 27.10.2013 as Radha Palace Guest House had been earlier booked for Nikah of Shazia and upon getting knowledge of above development, applicant with an intention to usurp the money and articles allegedly prepared a forged Nikahnama of marriage between Smt. Shazia Begum and Siftain khan Qadri @ Sonu and with mala fide intention also filed a petition for restitution of conjugal rights in the Principal Judge Family Court, Lucknow, apart from which he also moved an application for obstructing Nikah between Smt. Shazia Begum and Mohd. Umar Khan and in order to misguide Mohd. Umar Khan sent him a copy of forged Nikahnama; that all the allegations made in complaint case are absolutely false and incorrect; that in complaint case, Magistrate passed summoning order on 18.9.2015 and in the meantime opposite party no.2 also lodged F.I.R. against applicant Siftain khan Qadri @ Sonu on 30.8.2014 with similar allegations at Case Crime No.3249 of 2014 upon which applicants seeking quashing of proceedings of summoning order dated 18.9.2015 under Sections 406, 467, 468 and 471 I.P.C. moved an application under Section 482 Cr.P.C. No.1953 of 2016, copy at A-8 which was disposed of on 10.2.2016 by refusing to quash summoning order or proceedings of the complaint case and directing the Magistrate for taking recourse of the provisions of Section 210 Cr.PC.; that in furtherance of above order dated 10.2.2016 passed by this Court, the learned Magistrate exercising powers under Section 210 Cr.P.C. merged the proceedings complaint case in case crime no.3249 of 2014 in which separate charge sheets have been submitted against applicants under Section 420 and 406 I.P.C. on the basis of which upon taking of cognizance by Magistrate on 8.9.2016 and 31.7.201`7, at A-12 in each application Criminal Case No.3084 of 2016  and Criminal Case No.3356 of 2017 is pending against applicants; that the real fact is that opposite party no.2 made a proposal to applicants that Nikah ceremony should be performed on 21.8.2013 because his son was going out of country for earning livelihood, so that relationship may become firm between two families and accordingly Nikah was performed between Smt. Shazia Begum and Siftain khan Qadri @ Sonu on 21.8.2013 with the understanding that Vidai would be done after return of applicant Siftain Khan Qadri @ Sonu from foreign and if Siftain khan Qadri @ Sonu could not go out of country for any reason whatsoever Vidai of opposite party no.2 would be performed on 27.10.2013; that since the parents of opposite party no.2 turned dishonest, they kept all valuables and made a complaint to S.P. Jalaun with regard to demand of dowry so the applicant Siftain khan Qadri @ Sonu had to file a petition for restitution of conjugal rights in the Court of Principal Judge Family Court, Lucknow on 11.10.2013, copy at A-1; that the Nikahnama between applicant Siftain khan Qadri @ Sonu and opposite party no.2 Smt. Shazia Begum, Mohammad Ibrahim is genuine one not forged on which Mohammad Ibrahim the father of Siftain khan Qadri @ Sonu is not a witness, so in any case he may not be considered to be involved in fabricating forged Nikahnama of marriage between applicant Siftain khan Qadri @ Sonu and opposite party no.2 Smt. Shazia Begum; that no offence under Section 420 is made out against applicants or in any case against applicant Mohammad Ibrahim; that applicants have not committed any criminal breach of trust and have not usurped any money of opposite party no.2 or her father so no offence under Section 406 I.P.C. is made out against them; that in fact applicants had paid Rs.1,85,000/- and Rs.10,000/- to father of opposite party no.2 for getting it prepared jewelry for opposite party no.2; that even if for the sake of arguments all the allegations made by opposite party no.2 are accepted no offence is made out against applicants and at the most of only offence under Section 4 of D.P. Act may be made out against applicants; that otherwise also in case of preparation of forged Nikahnama provisions of Sections 467, 468 and 471 I.P.C. must be attracted but no charge sheet has been filed under above Sections; that the prosecution of applicants is totally unwarranted and is liable to be quashed.

Per contra learned A.G.A. and learned counsel for opposite party no.2 vehemently opposed the prayer made in two applications u/s 482 Cr.P.C. The learned counsel for opposite party no.2 contended that complaint case was filed with absolutely correct allegations and the applicants may have no grievance with regard to lodging of F.I.R. by opposite party no.2 because in furtherance of order of this Court dated 10.2.2016; that on application u/s 482 Cr.P.C. two proceedings have been merged and there is no apprehension of double jeopardy to applicants; that the forgery committed by applicants is very much clear from the fact that on 4.9.2013 the father of opposite party no.2 sent a notice to two applicants Mohammad Ibrahim and Siftain khan Qadri @ Sonu, through counsel Shri R.K. Shukla copy at page 17 of CA-2 of which reply was sent by applicants through their counsel Shri V.K. Srivastava, Advocate on 15.9.2013 copy at page 19, A-CA-2; that in above reply of notice dated 15.9.2013 in paragraph nos.6 and 7 applicants have not made any whisper about the alleged Nikah or Nikahnama dated 21.8.2013 between Siftain khan Qadri @ Sonu and Smt. Shazia Begum which has been claimed by applicant Siftain khan Qadri @ Sonu in paragraph 12 of petition for restitution of conjugal rights, A-1 rather has tried to make a counter claim by making counter allegations of making payment of a sum of Rs.1,85,000/- to father of opposite party no.2 for getting jewelry prepared for Smt. Shazia Begum apart from Rs.10,000/- for ring on 25.1.2013; that it is wrong to say that no offences under Sections 406, 420, 467, 468 and 471 I.P.C. is made out against applicants; that in complaint case the learned Magistrate after considering the statements under Sections 200 and 202 Cr.P.C. had passed summoning order under Section 204 Cr.P.C. summoning the applicants for offences under Sections 406, 467, 468 and 471 I.P.C.; that if the charge sheet has been submitted under Sections 406 and 420 I.P.C. it will not be correct to say that applicants may not be considered for other offences because it is settled principle of law that at the time of framing of charges upon hearing parties counsel, it may also frame charges for offences under Sections mentioned in charge sheet or for different offences under other sections; that the applications have been moved with absolutely false and incorrect allegations and are liable to be dismissed.

Upon hearing parties counsel and perusal of record and particularly the copy of reply of notice given by applicants in reply to notice of father of opposite party no.2, which is at page 19 of CA-2, it is very much clear that in the entire reply there is no averment about alleged Nikahnama dated 21.8.2013 between applicant Siftain khan Qadri @ Sonu and opposite party no.2 Smt. Shazia Begum. The contention that Nikahnama dated 21.8.2013 does not bear signature of Mohd. Ibrahim so he may not be held guilty for offence under Section 420 I.P.C. has no force in view of fact that he is none other than father of Siftain and, whether he played any role in fabrications of forged Nikahnama (if the same is found to be forged), is a matter based on evidence to be adduced before trial.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed questions of fact, which require evidence and cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, and the applicants have failed to prove any prima facie case.

In view of discussions made above, I have come to the conclusion that learned counsel for the applicants has failed to show that there is any abuse of process of court or likelihood of miscarriage of justice for prevention of which the exercise of inherent powers by this Court is required. Both the applications are devoid of merits  and are liable to be rejected.

Both applications u/s 482 Cr.P.C. are rejected accordingly.

However, if the applicants appear before the court below and move applications for bail, the same shall be disposed of expeditiously in accordance with law.

Interim order, if any, stands vacated.

Order Date :- 28.1.2020

VS

 

 

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