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2017 DIGILAW 1190 (ALL)

PRAMOD KUMAR GUPTA v. STATE OF U. P.

2017-05-04

AMAR SINGH CHAUHAN

body2017
JUDGMENT Hon’ble Amar Singh Chauhan, J.—Heard Ms. Monica Vaish as counsel for the revisionist. Sri Amit Saxena as counsel for the opposite party Nos. 5, 6, 7 and 8, holding brief of Mrs. Manjari Singh, Advocate and learned A.G.A. None turned up on behalf of opposite party Nos. 3 and 4 in spite of sufficient service through publication. 2. The revisionist, Pramod Kumar Gupta, has preferred this criminal revision against the order dated 1.10.2011 passed by Chief Metropolitan Magistrate, Kanpur Nagar, in Misc. Case No. 1187 of 2010 arising out of Case Crime No. 6 of 2010, under Sections 420, 467, 468, 471, 447 I.P.C., Police Station Nazirabad, District Kanpur Nagar whereby the learned Magistrate after rejecting the protest petition accepted the final report. 3. The facts which are requisite to be stated for adjudication of this revision are that an FIR was lodged with the allegation that father of the revisionist, namely, Puttu Lal Gupta, applied for a plot in Kanpur Development Authority in the year 1951. Subsequently, vide Board’s proposal No. 11(5) dated 12.3.1951, the father of the revisionist was allotted plot No. 11, Block R-1 area 334 Sq. Yards. Later on, an application preferred by Late Puttu Lal Gupta, the allotment was modified in the name of his firm namely, M/s Yashodanandan Puttu Lal, vide proposal No. 2(25)(Ga) dated 26.12.1951. Accordingly, a lease deed was executed in favour of the aforesaid firm on 24.6.1952. Subsequently, the firm was dissolved and the property devolved in the name of Puttu Lal i.e. father of the revisionist and thereafter Puttu Lal Gupta died on 15.11.1993 and the said property devolved in the name of the revisionist/Promod Kumar Gupta. The accused namely Mukesh Pandey prepared a forged Will and got his name entered in the records of Nagar Nigam and on the basis of the same he transferred the said property in the name of his wife namely Smt. Ruchi Pandey and thereafter a forged sale-deed was executed without there being any authority under law by Smt. Ruchi Pandey in favour of Vijay Kumar Malhotra on 22.2.2008. The Investigation Officer after concluding the investigation submitted the Final Report against which protest petition was filed, the learned Magistrate after hearing the parties rejecting the protest petition accepted the Final Report. 4. The Investigation Officer after concluding the investigation submitted the Final Report against which protest petition was filed, the learned Magistrate after hearing the parties rejecting the protest petition accepted the Final Report. 4. It is submitted by learned counsel for applicant that the learned Magistrate has accepted the Final Report on the ground that documents are not found to be forged from the perusal of the case diary and the other ground taken for acceptance of Final Report is that a civil suit is also pending regarding the title. Both the aforesaid grounds mentioned in the impugned order are baseless and misconceived. The records have been forged by the accused persons. The said fact is amply clear from RTI information as well as notings of Kanpur Development Authority in as much as Nagar Nigam Kanpur. In this regard, the revisionist is also placing on record a detailed report submitted by Chief Executive Officer, Kanpur Development Authority. So far as pendency of civil suit is concerned, the same has been filed on behalf of Vijay Kumar Malhotra, one of the accused. The said suit has absolutely no relevance at all. The impugned order passed is clearly arbitrary and against the record placed before the Chief Metropolitan Magistrate, Kanpur Nagar. 5. Per contra learned counsel for respondent Nos. 5, 6, 7 and 8 states that Puttu Lal Gupta retired and in his place Putti Lal Pandey was inducted as partner in the business. Thus Jasoda Nandan and Putti Lal Pandey, real brothers became the joint partners of the aforesaid plot. It is specifically denied that the aforesaid firm i.e. partners being Yasoda Nandan and Puttu Lal Gupta was ever dissolved. Moreover after the relinquishment deed signed by Puttu Lal Gupta he relinquished his share in the joint property of the firm in the name of Putti Lal Pandey and retired hence he or any of his heirs have no right over the aforesaid property. The revisionist has legal right to approach the Civil Court and initiate proceedings to decide the authenticity of the Will, merely putting baseless allegations against the repondent in criminal proceeding amounts to misuse and abuse of law and should not be permitted. The allegation about the death certificates of Yasoda Nandan and Putti Lal Pandey being forged documents is absolutely baseless and incorrect. The allegation about the death certificates of Yasoda Nandan and Putti Lal Pandey being forged documents is absolutely baseless and incorrect. The aforesaid death certificates have been illegally cancelled by Nagar Nigam ex parte and without giving the respondent any opportunity of hearing and after a passage of almost four years of its registration. Any subsequent transfer by Mukesh Pandey in this case to his wife is absolutely valid and legal. Ruchi Pandey got the title of the property from Mukesh Pandey and so she had full and absolute rights to further transfer the property. Any allegations with regard to registration of the property on the basis of forged documents is absolutely false and baseless as the said documents have yet not been proved to be forged in any Court of Law. The allegation in the First Information Report are absolutely false and baseless and the respondents have been falsely implicated in the case. The Investigating Officer has conducted a free and a fair investigation on the basis of evidences and documents on record and thereafter filed a Final Report in the matter. The Chief Metropolitan Magistrate, Kanpur Nagar after perusal of the case diary and evidences and documents on record passed a detailed and speaking order accepting the Final Report in case. The learned Magistrate in his order specifically mentioned that the instant matter is of purely civil nature with regard to determination of title which has to be decided by the Civil Court and Kanpur Development Authority. This case has is out of the purview of the police department as no criminal offence is proved on the basis of evidences and documents on record against the respondents. Before adverting the claim of the parties it is necessary to reproduce the Section 190 Cr.P.C.: “190.(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to enquire into or try.” 6. A Division Bench of this Court in the case of Pakhandu v. State of Uttar Pradesh, 2001 LawSuit(All) 620, held that where that Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require : “(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in perfunctory manner, or. (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.” 7. [16] Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation and Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code and consequently the proviso to Section 202(2), Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is no permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the Code and calls upon the complaint to examine himself and the witnesses present if any under Section 200. 8. It is no permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the Code and calls upon the complaint to examine himself and the witnesses present if any under Section 200. 8. In the instant case FIR was lodged with the allegation that the Mukesh Pandey prepared a forged Will and got his name entered in the records of Nagar Nigam and on the basis of the same he transferred the said property in the name of his wife namely Smt. Ruchi Pandey and thereafter a forged sale-deed was executed without there being any authority. It is also alleged that the respondent Mukesh Pandey also got forged death certificates which were cancelled by Nagar Nigam, Kanpur. The Investigation Officer after concluding the investigation submitted the Final Report. After rejecting the protest petition the said Final report was accepted by the Chief Metropolitan Magistrate, Kanpur Nagar on two counts : “1. That the documents are not found to be forged from perusal of the case diary and the Magistrate is not empowered to consider the documents annexed with the protest petition. 2. Civil suit is also pending regarding the title.” 9. Where the Magistrate receives final report four courses are open to him out of which one course is that he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. But in case in hand the Magistrate from the very inception took a view that he will not consider any document in support of the protest petition, which is in violative of proceeding provide under Section 190(1) (a) Cr.P.C. So far as civil material is concerned, civil dispute is some cases may also contain ingredients of criminal offences such disputes have to be entertained notwithstanding they are also civil disputes. Resultantly learned Magistrate passed the order without applying its judicial mind. 10. Resultantly learned Magistrate passed the order without applying its judicial mind. 10. The Hon’ble Supreme Court in the case of Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751 , wherein it has been held that “This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.” 11. Having considered the submissions of legality, propriety and correctness of the order impugned is not justified one and liable to be set aside. 12. Revision is allowed and the impugned order dated 1.10.2011, passed by Chief Metropolitan Magistrate, Kanpur Nagar in Misc. Case No. 1187 of 2010, arising out of Case Crime No. 06 of 2010, under Sections 420, 467, 468, 471, 447 I.P.C., Police Station Nazirabad, District Kanpur Nagar is hereby set aside. 13. The matter is remanded back to the concerned Court to decide the protest petition in view of the above observation according to law.