Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 880 (ALL)

ADESH KUMAR v. STATE OF U P

2009-03-23

RAVINDRA SINGH

body2009
RAVINDRA SINGH, J. This appli cation has been filed by the applicants Adesh Kumar, Vijay Singh, Suneel and Shree Niwas with a prayer to quash the charge-sheet dated 14. 8. 2008 in case crime No. 897 of 2008 P. S. Jansath, District Muzaffarnagar and the proceedings arising out of the charge-sheet pending in the Court of learned Addition Chief Judicial Magistrate 1st, Muzaffarnagar in criminal case No. 3821/9 of 2008 under sections 420, 467, 468 and 471i. P. C. 2. The facts, in brief, of this case are that the FIR of this case has been lodged by O. P. No. 2 Ram Pal on 14. 9. 2008 at 1. 30 P. M. in respect of the alleged incident dated 11. 6. 2008 alleging therein that by playing a fraud after providing liquor to the first informant, he was taken to Tehsil Jansat on the pretext of obtaining the money as accident claim, where a sale deed was executed and no consideration of al leged sale was given to O. P. No. 2, after investigation, the I. O. has submitted the charge-sheet against the applicants on which the learned Magistrate concerned has taken the cognizance and summoned the applicants to face the trial. 3. Heard Sri Amit Daga, learned Counsel for the applicants, learned A. G. A. for the State of U. P. and Sri M. K. Rajvanshi, learned Counsel appearing on behalf of O. P. No. 2. 4. It is contended by learned Counsel for the applicants that O. P. No. 2 has exe cuted a sale deed with his free will and consent, no fraud has been played upon him and the proper consideration of the land purchased by the applicants has been given to O. P. No. 2. The amount of consid eration has been withdrawn from the joint account of applicants Adesn Kumar and Vijay Singh from their Account No. 04362010040450 of Oriental Bank of Com merce. But without doing the fair investi gation, the charge- sheet has been submit ted against the applicants, on which in a mechanical manner, the learned Magistrate has taken the cognizance and summoned the applicants. 5. But without doing the fair investi gation, the charge- sheet has been submit ted against the applicants, on which in a mechanical manner, the learned Magistrate has taken the cognizance and summoned the applicants. 5. It is further contended by learned Counsel for the applicants that O. P. No. 2 has filed Original Suit No. 325 of 2008 against the applicant Adesh Kumar in whose favour the sale deed was executed, for cancellation of the sale deed in the Court of Civil Judge (Junior Division) Mu zaffarnagar, the same is pending. During pendency of the civil suit, the submission of the charge-sheet is illegal. The issue in volved in the present case, is purely of civil in nature, therefore, the prosecution of the applicants is illegal. The charge-sheet submitted against the applicants and the further proceedings arising out of the charge-sheet, pending in the Court of learned A. C. J. M. 1st, Muzaffarnagar in criminal case No. 3821/9 of 2008 may be quashed. 6. In reply to the above contentions, it is submitted by learned A. G. A. and learned Counsel appearing on behalf of O. P. No. 2 that in the present case by play ing a fraud the applicants have obtained a sale deed allegedly executed by O. P. No. 2 and no consideration of sale has been given to the applicants. During the investigation, the I. O. has collected cogent material dis closing the fact that consideration of the sale of land has not been given to O. P. No. 2. After doing the proper investigation, the charge-sheet has been submitted disclosing the offence punishable under sections 420, 467, 468 and 471 I. P. C. and there is suffi cient material to proceed further against the applicants. Learned Magistrate has not committed any error in taking the cogni zance and summoning the applicants to face the trial. There is no illegality in the prosecution of the applicants also. The O. P. No. 2 has availed a civil remedy for the purpose of canceling the sale deed other wise he shall not be able to claim his loss. On the basis of the pendency of the civil suit, the proceedings of the present case may not be quashed because the issue in volved in the present case is not of civil in nature, it is an independent act done by the applicants disclosing the offence. On the basis of the pendency of the civil suit, the proceedings of the present case may not be quashed because the issue in volved in the present case is not of civil in nature, it is an independent act done by the applicants disclosing the offence. At this stage, the material collected by the I. O. is to be considered which is disclosing the of fence. The present application is devoid of the merit, the same may be dismissed. 7. Considering the submissions made by learned Counsel for the apple-learned A. G. A. , learned Counsel Appearing on behalf of O. P. 2 and from the perusal of the record, it appears that the material collected by the I. O. during inves tigation, prima facie, discloses the com mission of the offence. The fabric of the case is of purely criminal in nature, there fore, on the basis of pendency of the civil suit, the proceedings of this case cannot be quashed because the filing of the civil suit is a proper remedy for canceling the sale deed. The I. O. has not committed any error in submitting the charge-sheet because there is sufficient material to proceed fur ther against the applicants. The learned Magistrate has also not committed any er ror in taking the cognizance and summon ing the applicants to face the trial. So far as the withdrawal of the money from the Bank account of applicant Nos. 1 and 2 is concerned, it may be a ground of defence which may be considered at the stage of the trial. The application filed by the applicants is having no substance, the prayer for quashing the charge-sheet of case crime No. 897 of 2008 under sections 420, 467, 468 and 471 I. P. C. P. S. Jansath, District Muzaffarnagar and the criminal proceedings arising out of charge-sheet pending in the Court of learned A. C. J. M. 1st Muzaffarnagar vide criminal case No. 3821 of 2008 is refused. 8. However, considering the facts, circumstances of the case and submissions made by learned Counsel for the applicants that the arrest of the applicants was stayed during investigation of the case by a Divi sion Bench of this Court on 1. 10. 2008 in Criminal Misc. 8. However, considering the facts, circumstances of the case and submissions made by learned Counsel for the applicants that the arrest of the applicants was stayed during investigation of the case by a Divi sion Bench of this Court on 1. 10. 2008 in Criminal Misc. Writ Petition No. 18127 of 2008, it is directed that the applicants shall appear before the Court concerned within 25 days from today, till then the bailable warrant/n. B. W. , if any, issued against the applicants shall be kept in abeyance. In case they apply for bail, the same shall be heard and disposed of on the same day by the Courts below. With this direction, this application is disposed of finally. .