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Tashish Rai Singhani vs State Of U.P.And Another on 12 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 21.08.2019

Delivered on 12.09.2019

Case :- APPLICATION U/S 482 No. – 7808 of 2017

Applicant :- Tashish Rai Singhani

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

Counsel for Applicant :- Kamlesh Kumar Dwivedi,Samit Gopal

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

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 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 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 Ganga Devi and the opposite party no.2 regarding the disputed property and Rupees Twenty Five Lakh 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, who is attesting witness of the said agreement to sell, 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 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 favour of Kishore Kumar 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 Ganga Devi 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 further appears that during trial on the basis of application under Section 319 CrPC applicant and other co accused were summoned to face the trial on 11.3.2016.

It was submitted by learned Senior Counsel appearing for the applicant that no specific role has been assigned to the applicant. He was summoned taking recourse to the provisions of Section 319 CrPC on 11.3.2016 to face the trial. It is also alleged that on receipt of the original record of the house in question, request was made by Ganga Devi from the opposite party no.2 to get the sale deed executed but same was denied. 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. 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 available to the opposite party no.2 is 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 summoning order dated 11.3.2016 against the applicant is nothing but an abuse of process of law. Referring to the offences levelled against the applicant 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 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 is not 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 is the witness of agreement to sell executed in favour of opposite party no.2 and rupees Twenty Five Lakh 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 other persons committing fraud and to defeat the agreement to sell. Some of 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 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, initially applicant was named in the F.I.R. but no charge sheet was submitted against him. Two charge sheets, first against Renue Rai and three others and another against Ganga Devi were filed. It is also evident that during trial opposite party no.2 was examined as PW-1, thereafter one application under Section 319 CrPC was moved. Trial Court vide order dated 11.3.2016 summoned the applicant and other co accused to face the trial. It further appears that co-accused Sumit Rai Singhani approached this Court through Criminal Revision No. 820 of 2016 but prayer made in the said revision was refused and revision was dismissed. Role assigned to the present applicant in the F.I.R. as well as in the statement recorded before the Court on oath is that applicant was the witness of the agreement to sell said to have been executed by Ganga Devi in favour of opposite party no.2. Despite receipt of rupees Twenty Five Lakhs and obtaining the original record from the Bank concerned, Ganga Devi did not execute the sale deed in collusion with the applicant and other family members, instead, three sale deeds, as mentioned here-in-above, were executed by Kishore Kumar, son of Ganga Devi on the basis of power of attorney executed in his favour by Ganga Devi. Thus, on the basis of above factual matrix submissions of the learned counsel for the parties is to be scrutinized.

Before dealing with the submissions raised by the learned counsel for the parties, I find it necessary to quote the judgment and order dated 6.4.2016 passed by another Bench of this Court in Criminal Revision No. 820 of 2016, which 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.”

Though criminal revision filed by co-accused Sumit Rai Singhani, summoned on the application under Section 319 CrPC, was dismissed yet at no point of time case of present applicant was decided on merits by this Court. Sumit Rai Singhani is also family member of Ganga Devi and sale deed was executed by Kishore Kumar in his favour. Role of applicant is that he is the attesting witness of the said agreement to sell executed by Ganga Devi in favour of opposite party no.2. Applicant is not the witness of sale deeds executed by Kishore Kumar in favour of Chhaya Rai Singhani, Sumit Rai Singhani and Shrawan Kumar nor took part in any way in execution of disputed sale deeds. Thus, only allegation against the applicant levelled by opposite party no.2 is that aforesaid three sale deeds were executed in collusion with the present applicant also. If role assigned to the present applicant is taken into consideration in light of entire evidence available on record, it emerges that a civil suit instituted by opposite party no.2 for specific performance of contract is pending. Efficacious remedy available to opposite party no.2 is civil proceeding. Since applicant has not executed the sale deeds in question nor is the witness thereof, only on this basis that he is the family member of Kishore Kumar and is the witness of agreement to sell, mens rea to attract the alleged offences against him cannot be inferred. If ingredients of alleged offences are compared with the facts and evidence of the present matter, then also none of the ingredients are available in the present matter against the applicant. It appears that the trial court as well as the lower revisional court did not appreciate the evidence against the applicant and the legal position in right perspective. There was no occasion to summon the applicant to face the trial for the alleged offences, as no specific role was assigned to the applicant. If entire evidence available on record is taken into consideration then also there is bleak chance of conviction of applicant in the present matter. Role assigned to the applicant is distinguishable with the role of co-accused Sumit Rai Singhani.

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 and keeping in view the law laid down by the Hon’ble Supreme Court in Full Bench decision in similar circumstances in the case of Commissioner of Police and others (supra), 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 against the applicant.

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

safi

 

 

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