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2017 DIGILAW 266 (ALL)

CHHOTEY LAL v. STATE OF U. P.

2017-01-19

PRABHAT CHANDRA TRIPATHI

body2017
JUDGMENT : Hon'ble Prabhat Chandra Tripathi, J. Heard Sri Sanjay Singh, learned counsel for the revisionist, Sri R.J. Shahi, learned counsel for the opposite party nos. 2, 3 and 4 and learned A.G.A. for the opposite party no. 1 and perused the material available on record. The facts of this case are enumerated as below:- The revisionist Chhotey Lal has presented an application under Section 156(3) Cr.P.C. against the opposite party nos. 2, 3 and 4 namely, Saud Bin Akhtar, Smt. Shahida Khatoon and Smt. Naushaba Akhtar, before the court of learned Chief Judicial Magistrate, Shahjahanpur on 30.3.2012 mentioning therein that the applicant Chhotey Lal was the resident of Mohalla Gauharpura, Shahjahanpur. He was informed by Tahsin and Mukesh Verma, both resident of District Shahjahanpur that a piece of land situated at Mohalla Bijalipura was under the sale proceeds and the owner of that piece of land was known to them. On 20.12.2007 while demonstrating the piece of land, Saud Bin Akhtar identified about the land and informed him that the name of legal heirs is to be decided. When that piece of land would be mutated in the names of his mother Smt. Naushaba Akhtar and aunt (Mausi) Smt. Shahida Khatoon, he would execute sale-deed in the name of the applicant. Saud Bin Akhtar settled the transaction for sale of the land at the value of Rs. 6 lacs before Tahsin and Mukesh Verma and demanded Rs. 4 lacs as advance of the sale consideration. On 26.12.2007 Saud Bin Akhtar alongwith his mother Smt. Naushaba Akhtar and aunt (Mausi) Smt. Shahida Khatoon received Rs. 4 lacs as advance money of a notorised agreement before the son of the applicant Ajay Pal, Tahsin and Mukesh Verma at Collectorate and appended his signature. After the names of mother and aunt (Mausi) of Saud Bin Akhtar were mutated as heirs, the applicant on 25.01.2012 requested to execute the sale-deed, on this, Saud Bin Akhtar and his mother abused and intimidated the applicant and denied to execute the sale-deed. Later on, it came to the knowledge of the applicant that the alleged piece of land was disputed and Saud Bin Akhtar, his mother and his aunt (Mausi) have cheated several persons by taking money in lieu of that piece of land. Later on, it came to the knowledge of the applicant that the alleged piece of land was disputed and Saud Bin Akhtar, his mother and his aunt (Mausi) have cheated several persons by taking money in lieu of that piece of land. It was prayed by the applicant that the opposite parties Saud Bin Akhtar, Smt. Shahida Khatoon and Smt. Naushaba Akhtar may be punished for the offences of cheating, forgery and fabricating the forged documents. Learned counsel for the revisionist has stated that the court of learned Judicial Magistrate II, Shahjahanpur has treated the application under Section 156 (3) Cr.P.C. as complaint case and after recording the statements under Section 200 Cr.P.C. of the applicant Chhotey Lal and under Section 202 Cr.P.C. of the witnesses Mukesh Verma, Tahsin Ahmad and Sudhpal Singh, has dismissed the complaint case under Section 203 Cr.P.C. It has been argued by learned counsel for the revisionist that this is a case where the learned Judicial Magistrate II, Shahjahanpur should have exercised its judicial discretion and should have summoned the opposite party nos. 2, 3 and 4 as accused persons under the relevant penal sections of the Indian Penal Code. The learned Judicial Magistrate II, Shahjahanpur has failed to exercise jurisdiction vested in it. Learned counsel for the opposite party nos. 2, 3 and 4 has vehemently opposed the arguments of the learned counsel for the revisionist and has submitted that in paragraph 5 of the counter affidavit of the opposite party no. 2 Saud Bin Akhtar, it has been specifically mentioned that on 26.12.2007 the opposite party no. 3 was not in India. Since 18.12.2007 to 22.01.2008 she was in Ireland. In support of his contention, the opposite party nos. 2 to 4 have filed Passport visa and Air Ticket of opposite party no. 3 as Annexure CA-1. So far as the payment of Rs. 4 lacs in hard cash as sale consideration by the applicant Chhotey Lal to the opposite party nos. 2, 3 and 4 on a notorised agreement on a stamp of Rs. 100/- that too; without verifying the ownership of the land does not appear to be a correct and true statement of fact. It is a coloured and concocted version without support of any reliable evidence. 2, 3 and 4 on a notorised agreement on a stamp of Rs. 100/- that too; without verifying the ownership of the land does not appear to be a correct and true statement of fact. It is a coloured and concocted version without support of any reliable evidence. Moreover, the complete matrix of the facts vividly infer that in order to seek redressal for the civil grievance, if any, the application under Section 156(3) Cr.P.C. has been preferred. It is difficult to believe that the applicant would handover Rs. 4 lacs in hard, cash that too; even without verifying the ownership of the disputed land in anticipation that the piece of land for which he is paying such a huge amount, later on be mutated in the names of mother and aunt (Mausi) of Saud Bin Akhtar. The inference drawn by the learned Judicial Magistrate II, Shahjahanpur suffers from no illegality, perversity or impropriety. The revision lacks merit and is liable to be dismissed. The revision is, accordingly, dismissed.