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2016 DIGILAW 3733 (ALL)

KAMLESH KUMAR v. STATE OF U. P.

2016-11-17

RAMESH SINHA, REKHA DIXIT

body2016
JUDGMENT Hon’ble Mrs. Rekha Dixit, J.—This writ petition has been filed with a prayer to quash the impugned FIR dated 5.7.2015 in case crime No. 481 of 2015, under Sections 419, 420, 467, 468, 471 IPC, P.S. Colonelganj, District Allahabad. 2. In brief, the allegations as per FIR dated 5.7.2015 are that the wife of complainant Smt. Beena Rani Srivastava purchased a house old No. 93-A and new No. 99, Dilkusha Park, New Katra, District Allahabad from the previous owner Brijesh Kumar Saxena & Smt. Indra Saxena through a registered sale-deed on 18.10.2007. The previous owner got this house through partition deed dated 19.11.1983 in which Kamlesh Kumar s/o late Jagjiwan Prasad was in possession of southern area as licencee. He convinced the complainant that he will vacate the house at the earliest and hand over the possession to Smt. Beena Rani Srivastava. Inspite several reminders Kamlesh Kumar Saxena did not vacate the said house. Subsequently a civil suit No. 825 of 2013 (Smt. Beena Rani Srivastava v. Kamlesh Kumar) was filed in the Court of Civil Judge, Allahabad which is still pending and Kamlesh Kumar Saaxena has filed unregistered document dated 2.4.1984 pertaining to property in question disputing the rights of the parties. 3. Heard Sri Chetan Prakash, learned counsel for the petitioner and Sri Ashish Pandey, learned AGA for the State and perused the record. Respondent No. 3 has not responded to the notice issued to him, hence notice upon him is deemed to be sufficient. 4. Learned counsel for the petitioner submitted that a suit No. 825 of 2013- Bena Rani Srivastava v. Kamlesh Kumar, is going on before Court of the Civil Judge (Senior Division), Allahabad. It is also contended that the right of the parties is to be decided in the said suit in which questionable unregistered document dated 2.4.1984 is being relied upon with full force by submitting that the said document is genuine one and the validity of the said document would be examined by the Civil Court, therefore, lodging of present FIR is nothing but misuser of criminal forum. 5. It is further argued that the dispute between the parties, if any, is purely of civil Nature and the investigating officer has not yet collected any cogent evidence against the petitioner to connect him with the criminal case. 6. 5. It is further argued that the dispute between the parties, if any, is purely of civil Nature and the investigating officer has not yet collected any cogent evidence against the petitioner to connect him with the criminal case. 6. Per contra learned AGA for the State has placed reliance upon the judgment of the Apex Court in the case of Ganga Dhar Kalita v. The State of Assam and others, (2015) 9 SCC 647 , Gopakumar B. Nair v. C.B.I. and another, (2014) 5 SCC 800 and Sushil Suri v. C.B.I. and another, (2011) 2 SCC (Cri) 764 and submits that mere pendency of civil suit between the parties cannot be a ground for quashing of the criminal proceedings. 7. We have considered the submissions advanced by the learned counsel for the parties and perused the record. It transpires from the record that the entire dispute between the parties is with regard to their respective shares in the property in question and the genuineness of the said document, thus it appears that the dispute between the parties, if any, is purely of civil Nature 8. The Apex Court in the case of Rajib Ranjan and others v. R. Vijay Kumar (supra) has held that if the allegations are made mischievously as afterthought, just to give colour of criminality to a civil case, then the filing of complaint or FIR could not be said to be bona fide and it only amounts to misuse and abuse of process of law. Hence, it has quashed the proceeding of the said case. 9. Similarly, the Apex Court in the case of Inder Mohan Goswami and another v. State of Uttranchal and others (supra) has laid down certain parameter for quashing of the proceeding and it has held that while exercising the powers under Section 482 Cr.P.C., the Court must ensure that the criminal prosecution is not used as harassment and for seeking private vendetta or with an ulterior motive to pressure the accused. 10. From the perusal of the FIR and the material collected during investigation, no offence under Sections 419, 420,, 467, 468, 471 IPC, P.S. Colonelganj, District Allahabad. I.P.C. is made out against the petitioner and a civil dispute between the parties is being converted into criminal liability by respondent No. 3 which amounts to misuse of process of law and also gross abuse of the process of Court. 11. I.P.C. is made out against the petitioner and a civil dispute between the parties is being converted into criminal liability by respondent No. 3 which amounts to misuse of process of law and also gross abuse of the process of Court. 11. The case law of the Apex Court which has been cited by the learned learned AGA for the State is distinguishable from the facts and circumstances of the present case. 12. Thus, in view of the law laid down by the Apex Court in the case of Rajib Ranjan and others v. R. Vijay Kumar (supra) and Inder Mohan Goswami and another v. State of Uttranchal and others (supra) and the foregoing discussions, it is a fit case for this Court to exercise its power in a writ jurisdiction under Article 226 of the Constitution of India to prevent gross abuse of the process of the Court and to quash impugned FIR dated 5.7.2015 and all consequential proceedings of the aforementioned case against the petitioner are hereby quashed accordingly. 13. The present writ petition stands allowed.