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2018 DIGILAW 455 (JK)

Bal Krishan v. State

2018-07-03

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In the instant petition filed under Section 561-A Cr.P.C. petitioner seeks quashment of the order dated 23rd September passed by the learned Sub-Judge, Jammu, whereby charge has been framed against him under Sections 420, 427 and 448 RPC, as the same is the abuse of the process of law. The petitioner also seeks quashment of the proceedings initiated against him by virtue of the impugned order and for discharging the petitioner under the provisions of Sections 268 Cr. P.C in FIR No. 25/2016 dated 18th March, 2016 under Sections 448, 427/34 RPC. 2. The factual matrix of the case is that on 18th March, 2016, an FIR No. 25/2016 was lodged by one Mrs. Suman Bansal through authorized caretaker-Girish Arora S/o Pratap Chand Arora in Police Station, Janipur, Jammu for commission of offences mentioned under Sections 427, 448 and 34 RPC, whereby she alleged that she has purchased a plot of land bearing No. 48 measuring 40’ x 80’ along with strip measuring 1560 sq. ft. situated in Sector-3, Roop Nagar, Jammu vide an Agreement registered with the office of said Sub-Registrar, Municipal Magistrate, Jammu on 10th March, 2016. She further alleged that since the execution of the deed, she is in peaceful possession of double storeyed house built upon the abovesaid land. The said Girish Arora is authorized by her to be the caretaker of the abovesaid house, who visited the same for the purpose of its routine maintenance, whereupon he found that the locks of the main gate and main door had been broken upon and around four unknown persons were sitting inside the house having trespassed into the said property. It was further noticed by the said Girish Arora that the unknown persons had removed the furniture and fixtures from the house and immediately after being informed by Mr. Girish Arora, the complainant, i.e., Suman Bansal has filed the complaint before the respondents. 3. The police investigated the matter and later on, challan was produced before the Court of learned Chief Judicial, Jammu under Sections 448, 427/34 RPC and the same was transferred to the Court of Sub-Judge, Jammu. The matter was argued over the charges before the Sub-Judge, Jammu and during the course of arguments, petitioner categorically stated that both the offences leveled against the petitioner are not made out prima-facie. The matter was argued over the charges before the Sub-Judge, Jammu and during the course of arguments, petitioner categorically stated that both the offences leveled against the petitioner are not made out prima-facie. The petitioner had further argued that after the execution of the abovesaid deed of conveyance with the complainant, the said Conveyance Deed was rescinded/dissolved and the sale consideration of Rs. 41.00 Lacs was transferred by the petitioner in the Account of the husband of the complainant, namely, Dewan Chand Bansal. Copy of the bank statement of the accused (Annexure-B) reflects the transfer of money in the Bank Account of Dewan Chand Bansal. 4. It is pleaded in the instant petition that soon after the sale consideration was refunded back by the petitioner in the Account of the husband of the complainant, the petitioner served a Legal Notice dated 09th March, 2016 to Vice Chairman, Jammu Development Authority, Jammu through his counsel for recession of transfer of the abovesaid property belonging to the petitioner in the name of the complainant, in which the petitioner has categorically stated that after the execution of the abovesaid Deed of Conveyance/transfer, the same was rescinded/dissolved between the parties and the sale consideration to the tune of Rs. 41.00 Lacs was refunded by the petitioner to the husband of the complainant by way of cheques in the name of the firms of the husband of the complainant and the same were cashed on 14th September, 2015. The complainant herself told the petitioner to refund the sale consideration to her husband. 5. It is averred in the instant petition that after receiving the Legal Notice served by the petitioner to Vice Chairman, JDA, the transfer proceedings were withheld by the JDA and the possession and allotment letter were not issued by the JDA in favour of the complainant and the proceedings for possession and allotment of the abovesaid property were withheld by the JDA. The same is evident from the Suit (Annexure-C) filed by the complainant (plaintiff-Suman Bansal) as the owner of the abovesaid property, which is pending before the Court of learned Municipal Magistrate, Jammu. The same is evident from the Suit (Annexure-C) filed by the complainant (plaintiff-Suman Bansal) as the owner of the abovesaid property, which is pending before the Court of learned Municipal Magistrate, Jammu. It is also evident from the Suit filed by the complainant (Suman Bansal) that till date, she has not been declared as the owner of the abovesaid property, i.e. double storeyed house along with land underneath and appurtenant thereto comprising of Plot No. 48 measuring 40’ x 80’ along with strip measuring 1560 sq. ft. situated in Sector-3, Roop Nagar, Jammu by JDA and the said plot still stands in the name of the petitioner, so the petitioner is fully authorized to use the said plot on his own will, so the petitioner in February, 2016 executed a Rent/Tenancy Agreement with one-Kumar Gourav S/o Sh. Thakur Dass R/o Flora Nagbani, Jammu, vide which he rented out the said accommodation to the said Kumar Gourav, who was residing in the abovesaid house as a legal tenant of the petitioner. The double storied house and the land beneath along with the strip of land allotted by the JDA still stand in the name of the petitioner and the same has not been transferred in the name of Suman Bansal till date, which can be concluded from the reply of RTI dated 21st November, 2017 given by the JDA, in which the JDA has clearly admitted that the property is not transferred in the name of Suman Bansal till date. 6. It is also pleaded in the instant petition that the complainant after being hand in glove with the abovesaid Kumar Gourav, who was residing in the house at the time of lodging of FIR against the petitioner lodged the abovesaid FIR against the petitioner in order to harass and humiliate him and further in order to grab/encroach upon the property of the petitioner by illegal means. All the abovesaid facts were argued before the Court below by the petitioner, but the Court below has not taken into consideration the facts and circumstances of the case and has not appreciated the documents submitted therewith and has passed the impugned orders thereby framing charges under Sections 420, 427 and 448 RPC against the petitioner. 7. All the abovesaid facts were argued before the Court below by the petitioner, but the Court below has not taken into consideration the facts and circumstances of the case and has not appreciated the documents submitted therewith and has passed the impugned orders thereby framing charges under Sections 420, 427 and 448 RPC against the petitioner. 7. In the instant petition, the petitioner has challenged impugned order dated 23rd September, 2016 on the following grounds:- A. The impugned order is bad in the eyes of law and is an abuse of the process of law, so the same is liable to be quashed and set aside. B. The impugned order has been passed in a haste manner and without application of mind and law. C. Section 420 cannot be charged/incorporated against the petitioner because the complainant (Suman Bansal) till date has not been declared as the owner of the abovesaid property by the JDA. As such, the petitioner is the owner in possession of the abovesaid property and has every right to lease out the said property. Further, the matter is a civil dispute and can only be adjudicated by way of a civil litigation, which has already been filed by the complainant-Suman Bansal and is pending before the Court of Municipal Magistrate, Jammu. The petitioner cannot be charged under Section 448 RPC as to how he can trespass into the house, which is the property of the petitioner. The petitioner cannot be charged for the offence under Section 427 RPC, as the possession of the house has never been given to the said complainant and also keeping into consideration of the above sated facts, the questions framing charges under Section 427 RPC does not arise and further, no recovery or seizure memo has been prepared by the police. As such, there is no damage to the property and the particulars of the property are not mentioned in the Complaint as well as in the Challan. So on this count, the order impugned is liable to be quashed, as the same is an abuse of the process of law. D. The Hon’ble Court has held that prima-facie offence under Sections 420, 427 and 448 RPC are made out against the petitioner. So on this count, the order impugned is liable to be quashed, as the same is an abuse of the process of law. D. The Hon’ble Court has held that prima-facie offence under Sections 420, 427 and 448 RPC are made out against the petitioner. The Hon’ble Court is erred and wrong in holding this view, as the matter between the parties was of civil nature, as the sale consideration was already paid back/refunded by the petitioner to the husband of the complainant by way of cheques in the name of the firms of the husband of the complainant and the same were cashed on 14th September, 2015. Further, the Complainant has not been declared as the owner of the property/house till date and the land in question, which is clear from the Suit filed by the Complainant herself, pending before the Court of learned Municipal Magistrate, Jammu. Therefore, the petitioner could not have been charged under Sections 420, 427 and 448 RPC by the Court below. So the Court below has erred in framing he charge against the petitioner, which is liable to be quashed, as the same is an abuse of the process of law. E. The property, for which the charges have been framed by the Court below is the property of the petitioner and has not been transferred in the name of the Complainant, i.e. Suman Bansal, so the petitioner could not be charged for the commission of offences, as described in Sections 420, 427 and 448 RPC. Therefore, the order impugned is not maintainable in the eyes of law and the same deserves to be quashed out rightly. F. The impugned order illegal and against the provisions of law, hence, the same requires to be set aside. 8. I have considered rival contentions. Petitioner has relied on 2016 (7) SCALE 597 case titled Prem Kumar vs. State of Rajasthan and Others, wherein it is held:- “The impugned complaint was clear abuse of court’s process. It was not the case of the respondent that any proceedings were taken for the enforcement of the agreement to sell for a period of more than 10 years. The proceedings against the appellant were quashed.” 9. Law is clear that while invoking inherent powers, the High Court does a triple function. It gives effect to orders passed under the Code. The proceedings against the appellant were quashed.” 9. Law is clear that while invoking inherent powers, the High Court does a triple function. It gives effect to orders passed under the Code. It prevents the abuse of the process of the Court, and it secures the ends of justice. Then there are principles of law applied as yardsticks to the situations which call for High Court's interference. One such principle is that the High Court does not interfere at a premature stage of the proceedings pending before the subordinate court. This involves interference at the threshold as well as, at the investigation stage. Another principle is that matters which are specially dealt with in the Codes are kept outside the pale of inherent powers. Matters which are specifically included under the Code are made immune to inherent powers. Thus while exercising inherent powers there is no determination of facts. Determination of facts is one of the activities necessary for final judicial decisions by trial court. 10. The plea taken by counsel for petitioner that Section 420/447 cannot be charged/ incorporated against the petitioner because the complainant (Suman Bansal) till date has not been declared as the owner of the above said property by the JDA and as such, the petitioner is the owner in possession of the above said property and has every right to lease out the said property, is not tenable. Because petitioner himself has stated that he entered into conveyance deed with complainant, but same was rescinded thereafter. Now he cannot dispute that complainant was not given property in question at all. Petitioner has not attached copy of conveyance deed, so presumption can be drawn that complainant was put in possession of property. The certified copy of plaint of complainant in civil suit filed against petitioner and others attached by petition, clearly reveals in para no. 3 that she was put in possession of suit property. 11. Second ground taken that matter is a civil dispute and can only be adjudicated by way of a civil litigation, which has already been filed by the complainant-Suman Bansal and is pending before the Court of Municipal Magistrate, Jammu, is also not tenable, because there is thin line difference between civil and criminal liability. In criminal liability criminal intention of accused should be right from beginning of entering into transaction. In criminal liability criminal intention of accused should be right from beginning of entering into transaction. This criminal intention is a fact which can be gathered during trial and not under petition under section 561-A Cr.P.C. when all the facts are not before courts. The petitioner after execution of sale deed (conveyance deed) with complainant again executed a deed of transfer by virtue of which Tenancy right of same property were transferred in favour of one Kumar Gorav on 28.2.2016, in order to defeat the right conferred on complainant vide sale deed dated 11.9.2015 pertaining to purchase of lease hold right of property in dispute. Further Criminal and civil proceedings can go together. 12. Third ground taken that petitioner cannot be charged under Section 427 RPC, as the possession of the house was never given to the said complainant, is also not tenable. Because certified copy of plaint annexed as Annexure-C herein, clearly reveals in para no. 4 that after execution of further tenancy right in favour of one Kumar Gorav by petitioner, belongings of complainant-Suman Bansal were removed by petitioner. Further, mere annexing the statement of account of husband of complainant-Suman Bansal, it cannot be inferred that petitioner returned the money to complainant and conveyance deed was rescinded. 13. I have gone through the law cited by counsel for petitioner. This law is not applicable in present set of case, as facts are quite different. Firstly, facts are to be seen, then law is to be applied. 14. Further while framing of charge, the trial court is not required to appreciate the evidence, which are required to be appreciated at the time of final decision. Because at the time of framing of charge, Court has to see prima-facie grounds to believe that accused has committed offence. But at the time of final conclusion of trial, court has to come to definite conclusion that offence charged has been proved beyond reasonable doubts against accused. Detail appreciation of evidence on record cannot be done by this court while exercising power under section 561-A Cr.P.C. 15. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated.