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2012 DIGILAW 1244 (ALL)

SATYENDER KAUR v. STATE OF U. P.

2012-05-24

VIJAY PRAKASH PATHAK

body2012
JUDGMENT Hon’ble Vijay Prakash Pathak, J.—The instant petition under Section 482 Cr.P.C. has been filed by the applicants Smt. Satyendra Kaur, Gurdeep Singh, Ahmad Mian and Yaseen Mian seeking the relief of quashing the proceedings of Case No. 938 of 1998, State v. Gurdeep Singh and others, under Sections 420, 419, 467, 468 IPC, PS Kotwali, District Pilibhit arising out of Case Crime No. 266/96, State v. Smt.Satyendra Kaur and the charge-sheet submitted therein on 3.2.98 pending in the Court of CJM, Pilibhit. 2. The brief facts of the case are that Late Sri Naushey Khan father of the applicant Nos. 3 and 4, was the recorded tenure holder of Arazi No. 64/4, area .03 acre and 66/1/2, area .03 acre, apart from other Arazies situated in village Desh Nagar Anderchunji, District Pilibhit. Late Sri Naushey Khan executed a sale-deed on 2.2.1983 in favour of Sri Rajendra Kumar Wadhwa (informant) and his brother Kewal Krishna Wadhwa, sons of late Aishi Lal in respect of some constructions stated to be standing on Khasra No. 64/4, area .01 decimal. Subsequently on 11/2/85, he executed another sale-deed in favour of said Sri Rajendra Kumar Wadhwa in respect of some area of the aforesaid plot alongwith the constructions standing thereon. After the death of said Sri Naushey Khan, the applicant Nos. 3 and 4, namely Ahmad Miyan and Yaseen Mian inherited the rights of their father in respect of agricultural holdings and other properties and their names were mutated in the revenue records. After a considerable period since the death of their father, opposite parties No. 3 and 4 learnt that the property transferred by their father in favour of Sri Rajendra Kumar Wadhwa and Sri Kewal Krishna Wadhwa was situated over plot No. 66/1/2 and was a part and parcel of the said plot but inadvertently the number of the said plot had been stated in the two sale-deeds executed by late Sri Naushey Khan as plot No. 64/4 instead of plot No. 66/1/2. On coming to know this fact, the applicant Nos. 3 and 4 requested Sri Rajendra Kumar Wadhwa to get Titimma sale-deed (corrected sale-deed) executed from them regarding correction of Arazi number shown in the two sale-deeds. 3. In the year 1991, applicant No. 1 Smt.Satyendra Kaur wife, of Sri Gurdeep Singh (applicant No. 2) approached the applicant Nos. On coming to know this fact, the applicant Nos. 3 and 4 requested Sri Rajendra Kumar Wadhwa to get Titimma sale-deed (corrected sale-deed) executed from them regarding correction of Arazi number shown in the two sale-deeds. 3. In the year 1991, applicant No. 1 Smt.Satyendra Kaur wife, of Sri Gurdeep Singh (applicant No. 2) approached the applicant Nos. 3 and 4 for purchase of the open land lying near the houses and shop of Rajendra Kumar Wadhwa and his bother. The applicant Nos. 3 and 4 agreed to sell the open land and executed a sale-deed on 4.6.1991 in respect of Arazi No. 64/4, area .03 acre situated at village Desh Nagar Anderchungi, Paragana, Tehsil and District Pilibhit and handed over the possession of the same to the purchaser Smt.Satyendra Kaur (applicant No. 1). In pursuance of the said sale-deed, the name of applicant No. 1 was mutated over Arazi No. 64/4, referred to above, in the revenue records. Rajendra Kumar Wadhwa, son of Sri Aishi Lal lodged an FIR on 7.9.1996 at PS Kotwali, under Sections 420,419,467 and 468 IPC against applicant Nos. 1 to 4 and Naresh Chandra Saxena and Tahir Ali and the same was registered as Case Crime No. 266/96 at PS Kotwali. Pursuant to the said FIR, the case was investigated and after investigation the Investigating Officer came to the conclusion that no offence as alleged in the FIR had been committed by the accused persons and regarding the plot No. 64/4, a civil suit was also pending between the parties. Hence the Investigating Officer submitted final report. When Sri Rajendra Kumar Wadhwa did not agree to get Titimma Bainama (corrected sale-deed) for correction of Arazi number actually transferred to him by two sale-deeds executed by the father of the applicant Nos. 3 and 4 and lodged an FIR against the applicants, the applicant No. 3 filed suit No. 35/97 in the Court of Civil Judge (Sr.Division), Pilibhit on 6.2.1997 against Sri Rajendra Kumar Wadhwa and his brother Kewal Krishna Wadhwa. In the said civil suit, the opposite party No. 3 sought the relief of mandatory injunction directing the defendants to get Arazi number in the sale-deeds dated 2.2.1983 and 11.2.1985 corrected from 64/4 to 66/1/2. In the said suit, under order of the Court, Amin was directed to make a spot inspection and prepare a site plan. In the said civil suit, the opposite party No. 3 sought the relief of mandatory injunction directing the defendants to get Arazi number in the sale-deeds dated 2.2.1983 and 11.2.1985 corrected from 64/4 to 66/1/2. In the said suit, under order of the Court, Amin was directed to make a spot inspection and prepare a site plan. The Amin appointed by the Court submitted his report on 26.4.1997 wherein he has specifically stated that there is no construction on plot No. 64/4, which is a part of the plot No. 64 in the village map. From the said report, it is evident that the piece of land which was transferred in favour of informant Rajendra Kumar Wadhwa and his brother by late Naushey Khan cannot be plot No. 64/4. 4. When the final report was submitted by the Investigating Officer, the informant approached the police officials and persuaded them to submit a charge-sheet against the applicants, whereupon, the Circle Officer, District Pilibhit vide letter dated 4.6.1997 directed to reinvestigate the matter and after reinvestigation the charge-sheet was submitted against the applicants,. The CJM, Pilibhit on the basis of said charge-sheet passed an order on 6.3.1998 taking cognizance of the matter and directed to register a case and summon the accused persons. 5. Aggrieved against the said order of the CJM. Pilibhit, the present petition has been filed by the petitioners. Heard learned counsel for the petitioners as as well as learned AGA for the opposite parties and perused the record. Learned counsel for the petitioners has submitted that from a perusal of FIR, no offence under Sections 420,419,467 and 468 IPC is made out against the applicants and the case was rightly investigated and final report was submitted on 3.4.1997. It is further submitted that the informant Rajendra Kumar Wadhwa never wanted that the applicant Nos. 3 and 4 should transfer plot No. 64/4 in favour of applicant No. 1 and as such, for harassing the applicants, he had persuaded the police to submit a charge-sheet and arrest the applicants. It is further submitted that learned CJM without applying his mind to the facts of the case and simply on the basis of charge-sheet, had passed the order dated 6.3.1998 and summoned the accused persons. It is further submitted that learned CJM without applying his mind to the facts of the case and simply on the basis of charge-sheet, had passed the order dated 6.3.1998 and summoned the accused persons. It is further contended that neither any cheating has been committed with the informant by any of the applicants, nor has he been induced or deprived of his property by fraud and forgery. He and his brother are still in occupation and possession of the property transferred in their favour by late Sri Naushey Khan and no part of it has been transferred or taken out of their possession by the subsequent sale-deed executed by the applicants 3 and 4 in favour of applicant No. 1. It is also contended that as soon as the applicant Nos. 3 and 4 came to know that property which was transferred by their father in favour of Rajendra Kumar Wadhwa and his brother was plot No. 66/1/2 and not plot No. 64/4 as described in the sale-deed, they requested the informant to get Titimma Bainaama (corrected sale-deed) executed in his favour on the expenses of the applicant Nos. 3 and 4. There is no dishonesty or fraudulent intention on the part of the applicants. It is further contended that the matter pertains purely to civil nature i.e. only to correction of the Gata No. as 66/1/2 instead of 64/4 in the two sale-deeds executed in favour of the informant and his brother and for the said purpose the Civil Suit No. 35/97 has also been filed before the learned Civil Judge (Sr,.Division), Pilibhit by applicant No. 3 against the informant and his brother for getting the said plot number corrected, which is still pending. It is lastly contended that no prima facie offence under Sections 420,419,467 and 468 IPC is made out and a matter of civil nature has unnecessarily been dragged in criminal proceedings. On the other hand, learned AGA has argued that the entire plot No. 64/4 was sold by Naushey Khan, father of the applicant Nos. 3 and 4, in favour of Rajendra Kumar Wadhwa and his brother by two sale-deeds and knowing fully well that no part of the said plot remained under their legal ownership, the applicant Nos. On the other hand, learned AGA has argued that the entire plot No. 64/4 was sold by Naushey Khan, father of the applicant Nos. 3 and 4, in favour of Rajendra Kumar Wadhwa and his brother by two sale-deeds and knowing fully well that no part of the said plot remained under their legal ownership, the applicant Nos. 3 and 4 dishonestly and fraudulently executed the sale-deed of the said plot again in favour of Smt. Satyendra Kaur, applicant No. 1 and hence the applicants have committed the offence of forgery and cheating. 6. In support of his contention, learned counsel for the petitioners relied upon a verdict of Hon’ble Supreme Court given in Central Bureau of Investigation v. A. Ravishankar Prasad and others, 2009(2) UPCrR 460. In the said verdict the Hon’ble Apex Court has been pleased to observe that the High Court possesses inherent powers under Section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the Court. Inherent power under Section 482 Cr.P.C. can be exercised in following category of cases: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. The Hon’ble Apex Court has also observed that the extraordinary power under Section 482 Cr.P.C. should be exercised sparingly and with great care and caution. The Court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. 7. The Hon’ble Apex Court in R.P. Kapur v. State of Punjab, (1960) 3 SCR 388 , has summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: “(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the First Information Report or complaint taken at their face value and accepted in their entirity do not constitute the offence alleged; (iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.” 8. In case of State of Karnataka v. L. Muniswamy and others, (1977) 2 SCC 699 , the Hon’ble Apex Court has been pleaded to observe that the wholesome power under Section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. 9. In another leading case State of Haryana and others v. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, the Hon’ble Apex Court has been pleased to observe that relating to exercise of extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C, the following categories of cases by way of illustration has been given wherein such power can be exercised either to prevent abuse of process of Court or otherwise to secure the ends of justice. The Hon’ble Apex Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list to myriad kinds of cases wherein such powers should be exercised: 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials. If any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 10. The Hon’ble Apex Court in Janata Dal v. H.S. Chowdhary and others, (1992) 4 SCC 305 , has observed that the power possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Courts must be careful to see that its decision in exercise of its power is based on sound principles. 11. Learned counsel for the petitioners also relied upon the Apex Court verdict given in V.P. Srivastava v. Indian Explosives Ltd and others, 2011 (1) UPCrR 30. In the said verdict, the Hon’ble Apex Court has been pleased to observe that Section 482 Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised,namely; (i) to give effect to order under the code; (ii) to prevent an abuse of process of Court; and (iii) to otherwise secure the ends of justice. 12. In the said verdict, the Hon’ble Apex Court has been pleased to observe that Section 482 Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised,namely; (i) to give effect to order under the code; (ii) to prevent an abuse of process of Court; and (iii) to otherwise secure the ends of justice. 12. In G. Sagar Suri and another v. State of U.P. and others, (2000) 2 SCC 636 , the Hon’ble Apex Court has opined as follows: “Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 13. In Ram Jas v. State of U.P., (1970) 2 SCC 740 , the Hon’ble Apex Court has been pleased to lay down the ingredients to constitute an offence of cheating as follows: “(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property” 14. Now coming to the facts of the present case, admittedly late Naushey Khan father of the applicant Nos. Now coming to the facts of the present case, admittedly late Naushey Khan father of the applicant Nos. 3 and 4 Ahmad Mian and Yaseen Mian executed two sale-deeds on 2.2.1983 and 11.2.1985 in favour of the informant Rajendra Kumar Wadhwa and his brother Keval Krishna Wadhwa. After the death of said Naushey Khan, the applicant Nos. 3 and 4 learnt that the constructions raised by the informant and his brother exist on plot No. 66/1/2 and not on plot 64/4 and they had requested the informant to get Titimma bainama (corrected sale-deed) executed in their favour from the applicant Nos. 3 and 4 regarding correction of plot No. 66/1/2 instead of 64/4, to which the informant did not agree. In 1991, the applicant Nos. 3 and 4 executed a sale-deed in favour of applicant No. 1 Smt. Satyendra Kaur of the plot lying adjacent to the shop and house of the informant and his brother. In the said sale-deed executed by applicants 3 and 4 in favour of applicant No. 1, plot No. 64/4 was mentioned as it was learnt that the said land was situated in plot No. 64/4 instead of 66/1/2. On the basis of said sale-deed, the name of the applicant No. 1 was also mutated in revenue records. After five years from execution of the said sale-deed in favour of the applicant No. 1, the informant lodged the FIR in the year 1996 under Sections 420, 419, 467 and 468 IPC as Case Crime No. 266/96 against applicant Nos. 1 to 4 and Naresh Chandra Saxena and Tahir Ali, Lekhpal. 15. Now the test of the principles laid down by the Hon’ble Apex Court in the aforesaid verdicts have to be applied to the facts of the present case. In the FIR lodged by the informant Rajendra Kumar Wadhwa, it is alleged that the informant purchased the property of plot No. 64/4 from Naushey Khan through a registered sale-deed and had constructed residential house and shop over the area purchased by him after demolishing the existing constructions. He has been residing therein and carrying out the business of medical store in the shop since 1982. It is further alleged that Tahir Ali Beg, Lekhpal fraudulently started showing the said Gata to be agricultural land in the revenue records. This he did for the benefit of Ahmad Mian and Yasin Mian(applicant Nos. 3 and 4). He has been residing therein and carrying out the business of medical store in the shop since 1982. It is further alleged that Tahir Ali Beg, Lekhpal fraudulently started showing the said Gata to be agricultural land in the revenue records. This he did for the benefit of Ahmad Mian and Yasin Mian(applicant Nos. 3 and 4). It is further alleged that Smt.Satyendra Kaur and Gurdeep Singh, applicant Nos. 1 and 2 and Ahmad Mian,Yaseen Mian (applicant Nos. 3 and 4) in collusion with Tahir Ali got executed the sale-deed of the aforesaid Gata No. 64/4, area 0.03 decimal on 7.6.1991 despite the opposite parties No. 3 and 4 knowing fully well that their father had already sold the entire land of Gata No. 64/4. Hence they executed a farzi Bainama and got the name of the purchaser Smt.Satyendra Kaur entered in the revenue records. 16. It will not be out of place to mention here that according to the petitioners when the applicant Nos. 3 and 4 learnt that the property sold to the informant was situated in Gata No. 66/1/2 and not in 64/4, they requested the informant to get corrected Gata No. as 66/1/2 in place of 64/4 in the two sale-deeds so executed on their expense but without considering the said request, the present FIR was lodged by Rajendra Kumar Wadhwa on the aforesaid facts. When the request of the applicants No. 3 and 4 was not acceded to by the informant, the applicant No. 3 filed a civil suit No. 35/97 before the Civil Judge (Senior Division), Pilibhit against Rajendra Kumar Wadhwa and his brother Keval Krishna Wadhwa stating therein the entire facts and circumstances of the matter and seeking the relief of permanent injunction directing the defendants to get the plot number corrected as 66/1/2 in place of 64/4 in the two sale-deeds dated 2.2.1983 and 11.2.1985. The said suit is still pending. This is a matter of fact that in the said suit, under order of the Court, Amin Commissioner was directed to make spot inspection and survey of the property in question. The said suit is still pending. This is a matter of fact that in the said suit, under order of the Court, Amin Commissioner was directed to make spot inspection and survey of the property in question. The Amin Commissioner surveyed the property in dispute in presence of both the parties and submitted a report dated 26.4.1997 stating therein that according to the measurement and map, the shop and house of defendants (Rajendra Kumar Wadhwa, informant and his brother Keval Krishna Wadhwa) are found to be situated on the east northern corner of plot No. 66. Thus, prima facie it is clear that the property sold by two registered sale-deeds executed by late Naushey Khan, father of applicants No. 3 and 4, in favour of the informant and his brother, is found to be situated in plot No. 66. It also shows that the request of applicant Nos. 3 and 4 prima facie appeared to be genuine to get corrected the two sale-deeds executed in favour of the informant and change the plot number as 66/1/2 in place of 64/4 and regarding the said correction, civil suit No. 35/97 as aforesaid is still pending, which also shows the bona fide of the applicant Nos. 3 and 4. 17. In the FIR, it is nowhere mentioned that the property purchased by the informant was in any way damaged or caused any loss. The only question in this matter remains that whether in two sale-deeds executed in favour of the informant, the property is situated in plot No. 64/4 or in plot No. 66/1/2 and this may be decided only by the Civil Court, regarding which a civil suit is also pending. Considering the contents of the FIR clubbed with entire facts and circumstances of the case, prima facie no offence under Sections 420, 419, 467 and 468 of the IPC is made out against the applicants and the Investigating Officer had rightly submitted the final report on 3.4.1997 stating therein that the matter pertains to civil nature and civil suit was also pending but it appears that subsequently under some persuasion, the order of re-investigation was made and charge-sheet was submitted on the same facts and evidence. 18. 18. After considering the entire matter in its totality, it prima facie appears that the matter pertains to civil nature and a civil suit is also pending, where it will be decided as to whether the property in the two sale-deeds executed in favour of the informant is situated in plot No. 64/4 or 66/1/2. In view of the aforesaid consideration and in view of the facts and circumstances of the case, in my opinion, as the matter pertains to civil nature, the charge-sheet submitted on 3.2.1998 in pursuance of the FIR of Case Crime No. 266/96 and the cognizance taken by the learned CJM dated 6.3.1998 issuing summons to the applicants and proceedings in Case No. 938/98 are nothing but an abuse of the process of law, which are liable to be quashed. Accordingly, this petition under Section 482 Cr.P.C. is allowed and the proceedings in Case No. 938/98, State v. Gurdeep Singh and others, arising out of Case Crime No. 266 of 1996, under Sections 420, 419, 467 and 468 IPC, PS Kotwali, District Pilibhit and the charge-sheet dated 3/2/98 in pursuance of the FIR and the cognizance taken by the CJM dated 6.3.98 and issuing the summons to the applicants, are hereby quashed. ——————