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2015 DIGILAW 701 (ALL)

Bimal Kumar Sureka v. State of U. P.

2015-04-03

KARUNA NAND BAJPAYEE

body2015
JUDGMENT Karuna Nand Bajpayee, J. This criminal misc. application under section 482 of Cr.P.C. has been preferred by the applicants Bimal Kumar Surekha, Aayushman Surekha, Smt. Nirupma Surekha and Smt. Anshu Surekha with a prayer for quashing of the order dated 21.11.2014 as well as entire proceedings of criminal case no. 11481 of 2014 (State of U. P. Vs. Bimal Kumar Surekha) arising out of Case Crime No. 46 of 2013 under sections 419, 420, 467, 468 and 471 of IPC, police station Kotwali Katra, District Mirzapur pending in the court of Chief Judicial Magistrate, Mirzapur. 2. Brief facts of the case emerging from the memo of said application, accompanying affidavit and its annexures are that the opposite party no.2 lodged a first information report dated 08.01.2013 as case crime no. 46 of 2013, under section 419, 420, 467, 468 and 471 of IPC, police station Kotwali Katra, District Mirzapur against the applicant no.1 to 4 and one another person Rahul Tandon with allegations that the opposite party no.2 is the auction purchaser of a landed property with building having area measuring 7 bighas, 6 biswas and 4 dhoors belonging to M/s. E. Sefton and company private limited situated at Jabalpur Road, Mauja Mirzapur Kala and Bathua, district Mirzapur through the advertisement dated 18.12.2009 for which the auction was held on 07.01.2010 and the opposite party no.2 was declared successful bidder having highest bid of Rs. 3 crore and 1 lac. The opposite party no.2 completed all the requisite formalities in accordance with law and deposited the said amount of bid and thereafter, the applicant no.1 as well as other persons namely Ramji Lal Maheshwari (Ex-Chairman / Managing Director, M/s. E. Sefton and Company Private Limited), Mr. Satya Narayan Dhanuk (Director of said Company), Mr. Himanshu Maheshwari (Director of the said Company) and one Mr. Hemant Maheshwari raised several objections at various levels before the recovery officer, D.R.T., Allahabad, which were ultimately turned down vide order no. DRC-122/2006, dated 13.02.2012 passed by the recovery officer. Thereafter, the certificate of sale was issued and the Sub-Registrar, Mirzapur was intimated for registration of sale-deed in favour of opposite party no.2. Despite all this, the applicant no.1 in connivance with applicant no. 2, 3 and 4 got executed the sale-deed of part of the same property which had come under the title of opposite party no.2 under the auction sale. Despite all this, the applicant no.1 in connivance with applicant no. 2, 3 and 4 got executed the sale-deed of part of the same property which had come under the title of opposite party no.2 under the auction sale. The said illegal sale-deed was executed on 22.02.2012 by aforesaid person by committing fraud and forgery. The first information report mentions a chart of the properties included into the said illegal sale-deed, in which the arazi number, the total area in revenue record, the area transferred by DRT in favour of informant and the area mentioned by the applicants in the sale deed has been mentioned to show that the area mentioned in the sale deed in question is more or less same as has been purchased by the informant from the DRT in auction sale. The area so mentioned in the FIR is being reproduced hereinbelow: - Sl. No. Arazi No. Total area in revenue record Area transferred by DRT in favour of Shrikant Pandey Area illegally mentioned by the opposite side in the sale-deed (1) (2) (3) (4) (5) 1. 568 9 Biswa 07 Biswa, 3 dhoor 9 Biswa 2. 569/12 11 Biswa 11 Biswa 11 Biswa 3. 570/12 2 Biswa 2 Biswa 2 Biswa 4. 571 4 Biswa 4 Biswa 4 Biswa 5. 573 2 Biswa 2 Biswa 2 Biswa 6. 574 10 Biswa 10 Biswa 10 Biswa 7. 575 13 Biswa 8 Biswa 19 Dhoor 13 Biswa 8. 578 14 Biswa 8 Biswa 13 Dhoor 14 Biswa 9. 582 10 Biswa 8 Dhoor 10 Biswa 10. 583 9 Biswa 9 Biswa 9 Biswa 11. 585 10 Biswa 4 Biswa 10 Dhoor 10 Biswa 12. 584 10 Biswa 9 Biswa 6 Dhoor 10 Biswa 3. The first information report further contains allegations that the applicants have conspired with the seller Rahul Tandon and all of them are guilty of commission of offences of forgery, fraud and cheating. 4. The said first information report was investigated by the local police and after recording statements of informant and other persons, the investigating officer forwarded a final report no. 23 of 2013, dated 10.05.2013 with a closure report having opinion that the entire case is false and incorrect and no offence whatsoever is made out. 4. The said first information report was investigated by the local police and after recording statements of informant and other persons, the investigating officer forwarded a final report no. 23 of 2013, dated 10.05.2013 with a closure report having opinion that the entire case is false and incorrect and no offence whatsoever is made out. Thereafter, an order dated 18.10.2013 was passed by the D.I.G. Varanasi Zone, Varanasi for further investigation, in compliance where of, the station officer, police station Chopan, District Sonbhadra submitted intimation report dated 12.11.2013 before the concerned court below for further investigation which was allowed vide order dated 13.12.2013 by the court below and thereafter, further investigation was conducted and ultimately, the charge sheet no. 178/2014, dated 19.11.2014 has been submitted against the applicants and above-named Rahul Tandon under sections 419, 420, 467, 468 and 471 of I.P.C. and the learned court below passed order dated 21.01.2014 accepting the charge sheet on record and issuing summons to the accused persons. 5. It has been averred in the affidavit of criminal misc. application that initially the property in dispute was under the lease hold rights of M/s. Mirzapur Electrical Supply Company Ltd., which eventually transferred the lease hold rights of property in dispute in favour of M/s. E. Sefton and Company Private Ltd. through a deed dated 05.04.1955, wherein the name of owners of the land were mentioned as Mr. K.P. Tandon for land situated in village Bathua, Raja of Kantit for land situated in village Mirzapur Kalan and Mrs. Bhagwati Devi widow of Pt. Mata Prasad for land situated in village Mirzapur Khurd. Subsequently, a deed of sale was executed on 19.02.1965 between M/s. Mirzapur Electrical Supply Company Ltd. and M/s. E. Sefton and Company Private Ltd. for transfer of the lease hold rights of the said land. 6. It is also averred in the affidavit that the said M/s. E. Sefton and Company Private Ltd. was registered with BIFR as a sick industrial unit and the applicant no. 1 through his Firm M/s. B.K. Sureka and Associates joined the rehabilitation efforts of M/s. E. Sefton and company on 30.01.1997 and thereby acquired majority shares of said company from one another firm R.L. Maheshwari Associates. On 20.11.2001, a chunk of 4 bighas of land (included 19 biswas NZA land in mauza Bathua) was auctioned by the District Collector, Mirzapur and the applicant no. On 20.11.2001, a chunk of 4 bighas of land (included 19 biswas NZA land in mauza Bathua) was auctioned by the District Collector, Mirzapur and the applicant no. 2 Ayushman Sureka was declared as successful auction purchaser. 7. It is further averred in the affidavit that since the loan could not be repaid, the matter reached the Debt Recovery Tribunal in the year 2002 proceeding were started, during which the applicant no. 2 Ayushman Sureka filed an application dated 23.02.2008 before the recovery officer DRT, Allahabad praying therein that his right of easement by way of 18 feet wide passage in the property of M/s. E. Sefton and Company Private Ltd. may not be disturbed and such arrangement be specified while issuing the proclamation of the sale orders by the recovery officer, which was rejected vide order dated 19.11.2008 passed by the recovery officer concluding that the matter may be referred to Civil Court regarding such relief. Thereafter, the applicant no. 1 Bimal Kumar Sureka filed an objection dated 19.10.2009 before the recovery officer against the auction dated 21.10.2009, mentioning therein the illegalities and irregularities of the said auction schedule and its adverse effect on the interest of Bimal Kumar Sureka and Associates. Thereafter, another objection dated 01.01.2010 was submitted by the applicant no. 1 before the recovery officer, against which the Central Bank of India was asked to file its reply by staying the confirmation of bids till further orders, which was to be made on the date of auction i.e. 07.01.2010, vide the order of recovery officer dated 05.01.2010. On 07.01.2010, total 3 bidders were present including the opposite party no. 2 Shrikant Pandey, on which date the advocate commissioner conducted the auction and declared the opposite party no. 2 as the auction purchaser having highest bid. This act of advocate commissioner was in absolute defiance of the order of recovery officer dated 05.01.2010. This was objected by the applicant no.1 before the recovery officer later on, whereupon the recovery officer passed order dated 28.01.2010 setting aside the auction proceedings and fixing the next date as 03.02.2010 for disposal of objection of applicant no.1 as well as the objection of Employees Provident Fund. 8. It is further averred in the affidavit that the recovery officer passed order dated 29.01.2010 directing the opposite party no.2 to take his bid amount back due to cancellation of auction. 8. It is further averred in the affidavit that the recovery officer passed order dated 29.01.2010 directing the opposite party no.2 to take his bid amount back due to cancellation of auction. However, later on the aforesaid order dated 28.01.2010 setting aside the auction was itself set aside by the Presiding Officer, DRT, Allahabad vide order dated 13.01.2011 with a direction to confirm the bids and sale by fixing the next date as 27.01.2011. In between, the co-owner of Non-Zamidari Abolition (NZA) land in Mauza Bathua namely Mr. Ramesh Kumar Tandon filed an objection dated 24.01.2011 before the Recovery Officer, DRT, Allahabad and one Civil Suit was also filed by him as " Ramesh Kumar Tandon Vs. Central Bank of India and others". The applicant of this application also filed an application before the Recovery Officer, DRT, Allahabad intimating therein that M/s. E. Sefton and Company Private Ltd. has been declared dissolved under section 560(5) of Indian Companies Act, 1956 w.e.f. 02.06.2008 vide order passed by the Registrar of Companies, Kolkata, rendering the auction sale of 07.01.2010 as illegal. The applicant no. 2 Ayushman Sureka also filed a civil suit in the Court of Civil Judge, Senior Division, Mirzapur having relief to restrain the opposite party no. 2 from creating obstruction in peaceful use of passage running through the property in dispute auctioned by the Recovery Officer, DRT, Allahabad. 9. It is further averred in the affidavit that the applicant no. 1 Bimal Kumar Sureka filed an appeal dated 14.03.2012 before the Presiding Officer, DRT, Allahabad against the order of Recovery Officer dated 13.02.2012. The sale-deed of auctioned property was executed by the Recovery Officer in favour of opposite party no. 2 on 13.03.2012. 10. It is further averred in the affidavit that the land claimed by the opposite party no.2 through auction purchase is a leasehold property and only the lease hold rights of said property may be said to be transferred to opposite party no.2. The sale-deed executed by alleged co-accused Rahul Tandon dated 22.02.2012 confers ownership / property rights in favour of applicant no.3 and 4 Smt. Nirupama Sureka and Anshu Sureka in as much as the property in question was initially owned by Mr. The sale-deed executed by alleged co-accused Rahul Tandon dated 22.02.2012 confers ownership / property rights in favour of applicant no.3 and 4 Smt. Nirupama Sureka and Anshu Sureka in as much as the property in question was initially owned by Mr. K.P. Tandon and after his death, the property devolved upon Ram Narayan Tandon and his three brothers and after the death of Ram Narayan Tandon, his ¼ share in the property devolved upon Rahul Tandon, who is son of Ram Narayan Tandon. 11. Heard Sri. Gopal Chaturvedi, learned Senior Counsel of applicants assisted by Sri. Samit Gopal, learned A.G.A. for the opposite party no. 1 and Mr. Manish Tiwary, learned counsel for informant opposite party no. 2 who have filed counter affidavit and in reply to it a rejoinder affidavit has been filed by applicants. Both sides have submitted written submissions also which all are taken on record. 12. With the strength of such factual averments, Mr. Gopal Chaturvedi, Senior Advocate assisted by Mr. Samit Gopal, Advocate learned counsels for the applicants submits with vehemence that the applicants have not committed any offence in view of the intrinsic civil dispute about the rights and interests of parties of alleged criminal case. The land-in-dispute is a Non-Zamidari Abolition (NZA) land i.e. beyond Zamidari Abolition and is a non-agricultural land since decades. Civil dispute in the shape of proceedings of civil suits and otherwise are pending before the competent courts / authorities. The opposite party no.2 has no claim over the property in dispute more than its lease hold right, which is different from the ownership. The applicant no. 1 and 2 are interested and necessary parties of these civil disputes pending till date and the applicant no. 3 and 4 are rightful purchaser of ownership right of the property in dispute from the rightful heir / owner of property in dispute. The investigating officer had initially reached to the conclusion that no offence is made out against the applicants. 3 and 4 are rightful purchaser of ownership right of the property in dispute from the rightful heir / owner of property in dispute. The investigating officer had initially reached to the conclusion that no offence is made out against the applicants. However the high handedness of opposite party no.2 gave occasion to further investigation, during which the subsequent investigating officer did not collect any new / further evidence which could have substantiated the criminal liability of present applicants and as such, the criminal case in question is untenable and is an outcome of high handedness of opposite party no.2 and hence, the same is liable to be quashed in exercise of the inherent jurisdiction of this Court under section 482 of Cr.P.C. 13. The learned AGA strenuously refutes the submissions of learned counsels for the applicants and submits that the perusal of materials available with the criminal misc. application makes it amply clear that the applicants were well aware about the proceeding of auction sale concluded in favour of opposite party no.2 and were participating therein by filing their objections and despite this, the sale-deed dated 22.02.2012 does not mention a single word about such facts, moreover the applicants have not been able to clarify the ownership rights of co-accused Rahul Tandon regarding the property in question justifying his authority to execute the sale-deed dated 22.02.2012. The facts and circumstances of the case, in totality, makes out a clear case of cheating, forgery and fraud for the purpose of causing wrongful loss to opposite party no.2 and for making wrongful gain to the applicants, who all are family members. Moreover, the highly disputed questions of fact are not liable to be examined and scrutinized by this Court in exercise of inherent jurisdiction under section 482 of Cr.P.C., which should be used sparingly in rare cases and not as a matter of course . Submission is that this Court exercising powers u/s 482 Cr.P.C. must not act as a trial court and should neither substitute nor usurp the function and powers of trial court. 14. Mr. Manish Tiwary, learned Counsel for Opposite Party No. 2 also vehemently argues that by virtue of section 17 of U. P. Zamindari Abolition and Land Reforms Act, 1956, the occupier tenant/ lessee of land in question became Bhumidhar of the land and the rights became absolute. 14. Mr. Manish Tiwary, learned Counsel for Opposite Party No. 2 also vehemently argues that by virtue of section 17 of U. P. Zamindari Abolition and Land Reforms Act, 1956, the occupier tenant/ lessee of land in question became Bhumidhar of the land and the rights became absolute. Mere mentioning of lease hold rights in the documentation cannot change the legal status of the land or the rights of opposite party no. 2 arising out of it. This alleged dispute of legality of auction sale in which similar issue of ownership / lease-hold right was involved has already been set at rest by D.R.T., Allahabad in Case no.122 of 2006 vide judgment and order dated 13.02.2012 and the Writ Petition No. 48099 of 2013 preferred against said judgment has been dismissed as withdrawn without any further challenge to the higher court resulting into confirmation thereof. The facts of said litigation have been deliberately concealed in the sale-deed dated 22.02.2012. After losing the battle of said civil litigation, the applicants have invented this dishonest way of getting the sale-deed executed to any-how douse the resultant effect of civil dispute. The auction price of the land in question was Rs. 3.1 crore but the sale-deed has been got executed for a meager consideration of Rs. 1 lac only, which fact strengthens the allegation of the opposite party no. 2. So far as final report is concerned, it is submitted that the erstwhile investigating officer was adamant to conclude the investigation into final report by joining hands with accused applicants and as such, the statement of informant was distorted and recorded after twisting it with a pre-disposed mind so that the filing of final report may be facilitated. 15. The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. 16. The Apex Court decisions given in the case of R.P. Kapur Vs. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. 16. The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 . It was observed by the Hon'ble Apex Court in Bhajan Lal's case as follows: - "The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power 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 F.I.R. 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) 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. (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 ismaliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 17. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case. 18. The scope of inherent power under section 482 of Code of Criminal Procedure is limited and is exercised rarely. All the contentions raised by the applicants' counsel relate to disputed questions of fact. The court has also been called upon to adjudge the nature of land in dispute and evaluate the same on the basis of various intricacies of factual details which have been touched upon by learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. In the process of invoking its inherent jurisdiction, this court cannot be persuaded to have a pre trial before the actual trial begins. The submissions made by the learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. 19. The submissions made by the learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. 19. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But in the light of respective submissions and the record available before the court, it may be easily ascertained that there has been a hotly contested civil litigation in between the parties, wherein the applicants at some stage appear to have lost their case of having right and interest over the property in question. Parties are pressing their respective arguments on the strength of nature of land. The applicant's side claims the land in question as Non-Zamidari Abolition (NZA) land i.e. beyond Zamidari Abolition and as non-agricultural land since decades, whereas the informant claims that the land in question falls within the purview of section 17 of U. P. Zamindari Abolition and Land Reforms Act, 1956, which makes it bhumidhari tenure-holding giving absolute right to him by virtue of auction sale. Such factual dispute requires appreciation of evidence specifically in view of the allegation of getting the sale-deed executed by the applicants to any-how douse the resultant effect of civil dispute, in which they lost in terms of judgment and order dated 13.02.2012 passed in Case no. 122 of 2006 as well as other allegations including sale of land of high worth for a meager consideration. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the impugned order dated 21.11.2014 or the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. 20. I do not find any justification to quash the impugned order dated 21.11.2014 or the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. 20. The prayer for quashing the same is refused as I do not see any abuse of the court's process either. 21. However, a request has been made by the counsel that as it is being desired by the accused to obtain bail after surrendering in the court below, a protective direction may be issued to the lower court to decide the proposed bail application on the same day in the light of the law laid down in Full Bench decision of Amarawati and others Vs. State of U.P. 2004(57), ALR 290. 22. It may be observed that the law regarding the hearing of bail applications on the same day and all its related aspects have been comprehensively dealt with in the aforesaid Full Bench decision of Amarawati and others Vs. State of U.P. 2004(57), ALR 290 relied upon by the counsel which was also approved by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009(3) ADJ 322(SC). All the courts must endeavour to decide the bail applications on the same day in suitable cases, if it is possible for them to do so depending upon the peculiar facts and circumstances of the case in question. This is a matter of lower court's discretion which they must exercise judiciously in appropriate cases. 23. Above mentioned Full Bench decision of this Court and the decision of Hon'ble Apex Court are binding on the lower courts. They must be followed in letter and spirit. There is no need to pass separate orders in this regard. 24. However, it the peculiar facts and circumstances of the case it may be observed that if after surrendering in the court below an application for bail is moved on behalf of the accused within three months from today, the same shall be decided in accordance with law as has been laid down in aforementioned cases. 25. No coercive measures shall be taken or given effect to in the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier. 26. 25. No coercive measures shall be taken or given effect to in the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier. 26. It is made clear that no application for extension of time shall be entertained if this order is not availed by the accused in the stipulated period of time. 27. It is further clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court. 28. With the aforesaid observations this application is finally disposed off.