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Smt. Mahadevi And 9 Others vs State Of U.P. And Another on 24 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgement reserved on 16.09.2019

Judgment delivered on 24.10.2019

Court No. – 65

Case :- APPLICATION U/S 482 No. – 4741 of 2015

Applicant :- Smt. Mahadevi And 9 Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Rakesh Kumar Singh

Counsel for Opposite Party :- Govt. Advocate,Hemendra Pratap Singh

Hon’ble Dinesh Kumar Singh-I,J.

1. Heard Sri Rakesh Kumar Singh, learned counsel for the applicants, Sri Hemendra Pratap Singh, learned counsel for opposite party no. 2, Sri G.P. Singh, learned A.G.A. and perused the record.

2. This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned charge-sheet dated 12.11.2014 arising out of Case Crime No. 261 of 2014 under Sectionsections 420 and Section406 IPC Police station Hathras Gate, District Hathras registered as Case No.73 of 2015 (SectionState vs. Smt. Mahadevi and others) pending in the Court of A.C.J.M., Hathras and to direct that no coercive action may be taken against the applicants in pursuance of the charge-sheet dated 12.11.2004.

3. The main argument of the learned counsel for the applicant is that the FIR was lodged 11 years after the date of occurrence and in the grounds taken by him in affidavit filed in support of the application it has been mentioned that the opposite party no. 2 had filed an original suit no. 200 of 2004 (Prem Singh and another vs. Smt. Mahadevi and 4 others) in which he had also moved an application under Order 39 Rule 2(A) CPC seeking punishment for committing contempt of court but when he did not succeed there, he lodged this FIR. This is nothing but purely civil dispute between the parties. There is no independent witness of the occurrence and the statements of the witnesses are stereo typed. The facts mentioned in the FIR and the complaint cannot be taken as gospel truth, this is nothing but malicious prosecution and entire proceeding needs to be quashed.

4. Learned counsel for the opposite party no.. 2 though had appeared but has not filed any counter affidavit and his main argument has been that no averment was made by the applicant that the agreement to sell was a fraudulent document.

5. In order to appreciate the arguments of the respective parties, it is essential to give here the facts of the case in brief, which are as follows:

6. As per FIR, the opposite party no. 2 Ranveer Singh, one Indal Singh son of Deepa resident of Khera Baramai, P.S. Mursan had executed an agreement to sell on 03.02.2003 of his land in favour of opposite party no. 2 Ranveer Singh, Prem Singh and Preetam Singh after having received Rs.one lac and thereafter Indal Singh died. In the said agreement to sell the wife of Indal Singh Smt. Maha Devi accused-applicant no. 1 was a witness but Maha Devi and her sons namely, Har Prasad, Mahendra, Satya Prakash, Kailashi had executed a sale deed on 19.10.2013 playing fraud upon opposite party no. 2 and his co-sharers in favour of Nem Singh, accused-applicant no. 6, Prem Singh accused-applicant no.7, Raj Kumar accused-applicant no. 8 in collusion with Omwati accused-applicant no.10, Sushma Chaudhary and Omveer Rana fraudulently, in which witnesses were namely Rameshwar, Jagdish Prasad Sharma, Subodh Kumar, Pritam Singh, Ajit Singh and Chandravir who were also involved in this conspiracy despite the fact that there was a status quo order passed by the court below on 25.5.2006 in respect of the said property.

7. After investigating the case, the Investigating Officer has submitted charge-sheet, which is annexed Annexure-1 to the affidavit. Out of the total 17 persons named in the FIR, only against 10 persons charge sheet has been submitted while proceedings were dropped against seven persons by the Investigating Officer.

8. It is revealed from the perusal of the record that on 03.02.2003 one Indal had entered into an agreement to sell with Prem Singh, Preetam Singh and Ranveer Singh (opposite party no..2) under certain conditions which were to be fulfilled within a certain period of time, failing which agreement to sell was to have no force and its copy has been annexed as Annexure-3 to the affidavit. The said conditions incorporated in the agreement to sell were flouted and hence the same became non est. In the meantime, Indal Singh i.e. father of the applicant nos. 2 to 5 and husband of applicant no. 1 died, thereafter on 8.10.2013 the wife of Indal accused-applicant no. 1 and her sons executed a registered sale deed in favour of the applicant nos. 6, 7 and 8 by which certain portion of their property was sold by Mahadevi and her sons i.e. accused applicants nos. 1 to 5. After the conditions of the agreement to sell were flouted and the said property was not transferred through registered sale deed in favour of Prem Singh and Ranveer Singh then they filed civil suit being Civil Suit No. 200 of 2004 (Prem Singh and another vs. Smt. Mahadevi and 4 others) before the Civil Judge (S.D.), copy of the plaint is annexed as Annexure-5, with a prayer to issue a direction to the opposite parties to execute sale deed after having taken remaining consideration amount and an alternative prayer was also made that if the sale deed is not possible to be executed then an amount of Rs.66,667/- be directed to be paid to the opposite party no. 2.

9. The opposite parties in the suit, accused in the present case had filed their objection on 14.12.2004 in which it was mentioned that the deceased Indal Singh was not competent to sell the disputed property as he was suffering from mental ailment for which he was being treated since 2011. This fact was known to the opposite party no. 2. Therefore, the opposite party no. 2 taking advantage of the mental illness of the deceased Indal Singh had got prepared a forged agreement to sell, benefit of which cannot be taken by opposite party no. 2. There was no question of payment of any consideration amount to the deceased Indal Singh. The allegation that an amount of Rs.10.00 lace was paid from the side of the opposite party no. 2 to the applicants was concocted. There was no obligation on the part of the applicant nos. 1 to 5 to be bound by the agreement to sell allegedly executed by Indal as it was void document. The notice which was served upon the applicant nos. 1 to 5 from the side of opposite party no. 2 post death of Indal Singh was appropriately replied by the applicants. It was very apparent that from the side of the opposite party no. 2 an attempt was being made to grab the property of the deceased Indal Singh. The applicant nos. 1 to 5 did not have any knowledge of such agreement to sell. It is further mentioned that on 25.5.2006 the trial court passed an order of the status quo in regard to that property which is annexed as Annexure-7 to the affidavit. On 25.11.2013 the opposite party no.. 2 moved an application no. 144 of 2013 in the said suit under order 39 rule 2A seeking punishment to be awarded to the applicant nos. 1 to 5 for committing contempt of court for executing registered sale deed on 21.10.2013 and 26.10.2013, copy of which is annexed as Annexure-8 to the affidavit. When he failed to get a relief in the said application before civil court, this false FIR has been lodged against the applicants after 11 years. Matter is purely of civil nature. The charge-sheet indicates that the Investigating Officer has recorded statements of three witnesses namely Ranveer Singh opposite party no. 2, Dhiraj Singh and Nihal Singh and rest of the four witnesses are formal witnesses and on the basis of their statements a prima-facie case is made out, charge-sheet has been submitted under Sectionsection 420 and Section406 IPC against the 10 accused-applicants named above.

10. This court has to see as to whether offences under Sectionsection 406 and Section420 IPC are made out or not in the light of the averments made in the FIR because if it is found that on the basis of averments made in the FIR, the offences under the abovementioned sections would not be constituted then only charge-sheet could be quashed.

11. Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:

“15. The High Court should have seen that when a specific grievance of the applicant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, Section379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “SectionCr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

(Emphasis added)

12. It is clear that from the side of the applicant, copies of the statement of witnesses have not been annexed but as per averments made in the FIR it is being scrutinized whether the offence under the abovementioned sections is found to be made or not.

13. For offence under Sectionsection 406 IPC, following ingredients are required to be satisfied.

i) Entrusting any persons with property or with any dominion over property;

ii) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person to so to do in violation.

(i) of any direction of law prescribing the mode in which such trust is to be discharged, or

(ii) of any legal contract made touching the discharge of such trust.

14. And as for as offence under Sectionsection 420 IPC is concerned following are the necessary ingredients.

(i) There must be deception i.e. the accused must have deceived someone;

(ii) That by the said deception, the accused must induce a person,

(a) to deliver any property; or

(b) to make, alter or destroy the whole or part of the valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property.

(iii) That the accused did so dishonestly.

15. In the present case the plea taken by the opposite party no. 2 is that applicant nos. 1 to 5, who are wife and children of deceased Indal Singh, who is alleged to have executed an agreement to sell of his property in favour of Ranveer Singh, (opposite party no.2), Prem Singh and Pritam Singh for an amount of Rs.3,97,000/- and out of the said amount Rs.one lac was taken as advance on 03.02.2003 i.e. on the date of registered agreement while rest of the amount was to be paid at the time of execution of sale deed within one year. In the said agreement, wife of Indal i.e. accused-applicant no. 1 (Smt. Maha Devi) was witness. Later on Indal was served notice to execute sale deed but to no avail. Subsequently, Indal died, a notice thereafter was served upon his legal heirs i.e accused-supplicant nos. 1 to 5 to execute sale deed but they did not execute the same in favour of opposite party no. 2. Then O.S. No. 200 of 2004 was filed by opposite party no. 2 for specific performance of contract. While the said O.S. was pending, the applicant nos. 1 to 5 executed a registered sale deed of the said land in favour of accused-applicant nos. 6 to 8 on 19.10.2013 in which accused nos. 9 to 10 were also colluding. It is apparent that in the said civil suit no.200 of 2004 the accused nos. 1 to 5 had set up plea that Indal was not in a fit mental state to execute the agreement to sell nor did he take any consideration amount from the side of opposite party no. 2 and that therefore they had liberty to execute the sale deed in favour of opposite party nos. 6 to 8 and that no cheating or criminal breach of trust was committed by them.. On the other hand, the case of opposite party no. 2 is that an amount of Rs.one lac has been received by deceased Indal who was husband of applicant no. 1 and father of applicant nos. 2 to 5, therefore, being legal heirs of Indal, they were duty bound to execute the sale deed in favour of opposite party no. 2 in pursuance of terms and conditions of the agreement to sell dated 07.02.2003. Since till 2013 they did not execute the sale deed in favour of opposite party no. 2, instead executed the sale deed in favour of applicant nos. 6 to 8 who, in collusion with co-accused purchased the said land, therefore all the accused-applicants have committed offence under Sectionsection 420 and Section406 IPC because applicant nos. 1 to 5 never intended to sell the said land and had, with ill intention to usurp the advanced sum of Rs. One lac, taken the said amount.

16. I find that whether accused had intention to cheat opposite party no.2 from the very beginning or not is subject matter of evidence because if they had taken Rs. One lac under the agreement to sell without having any intention to fulfill the said agreement, both the offences of criminal breach of trust as well as cheating would be constituted. It would appear that the accused never had any intention to honour the agreement and kept the money extended to them (i.e. the deceased who was the husband of applicant no.1 and father of applicant nos. 2 to 5) which would be nothing but criminal misappropriation of the said amount. Whether the said amount was paid to deceased by opposite party no. 2 or not is again a subject matter of evidence. Hence, in my opinion, at this stage, it cannot be said that no prima-facie case under Sectionsection 420 and Section406 IPC would be made out.

17. In a catena of judgments of Apex Court, it has been held that even if a civil suit is maintainable for specific performance of contract that would not mean that a criminal proceedings would not lie if a criminal breach of trust or cheating has been committed. In civil proceedings the remedy of getting the contract executed would be granted but in criminal proceedings the punishment would be awarded for having committed offence under Sectionsection 406 and Section420 IPC.

18. I would like to rely on SectionV. Ravi Kumar vs. State 2018 SCC Online SC 2811, paragraphs nos. 29, 33, 37 are as under.

“29. There can be no doubt that a mere breach of contract is not in itself a criminal offence, and gives rise to the civil liability of damages. However, as held by this Court in Mridaya Ranjan Prasad Verma. v. State of Bihar8, the distinction between mere breach of contract and cheating, which is a criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In this case, in the FIR, there were allegations of fraudulent and dishonest intention including allegations of fabrication of documents, the correctness or otherwise whereof can be determined only during trial when evidence is adduced.”

33. SectionIn Vesa Holdings (P) Ltd.v.State of Kerala, this Court observed:

“12. The settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception.”

13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not.”

“37. In this case, it cannot be said that there were no allegations which prima facie constitute ingredients of offences under Sections 420, Section409 and Section34 of the Indian Penal Code in complaint. There were clear allegations of fraud and cheating which prima facie constitute offences under Section 420 of the Indian Penal Code. The correctness of the allegations can be adjudged only at the trial when evidence is adduced. At this stage, it was not for the High Court to enter into factual arena and decide whether the allegations were correct or whether the same were a counter-blast to any proceedings initiated by the respondents.”

19. In view of above, I am of the view that it would be inappropriate to interfere in the present matter under inherent jurisdiction of the Constitution. Accordingly, application deserves to be dismissed and is dismissed.

Order Date:24.10.2019

AU

 

 

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