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2019 DIGILAW 1372 (ALL)

Arjun v. State of U. P.

2019-05-17

SAUMITRA DAYAL SINGH

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ORDER : Saumitra Dayal Singh, J. 1. Heard Sri. Suneel Kumar Mishra, learned counsel for the applicants, Sri. Ravi Chandra Srivastava, learned counsel for the opposite party No. 2 and learned A.G.A. for the State. 2. The present 482, Cr.P.C. application has been filed to quash the entire proceedings as well as summoning order dated 10.08.2016 passed by Judicial Magistrate Ist, Bhadohi, in Complaint Case No. 340 of 2013 (Ram Abhilakh v. Arjun & others), under Sections-419, 420, I.P.C., Police Station-Suriyawan, District- Bhadohi, pending in the court of Judicial Magistrate Ist, Bhadohi. 3. Learned counsel for the applicants submits that the dispute between the parties was purely civil in nature and there was no occurrence of any criminal offence. It is thus submitted that undisputed facts of the case are that the applicants Arjun, Bheem and Ramu (Applicant Nos. 1, 2 and 3) had executed a general Power of Attorney in favour of opposite party No. 2 on 24.12.1993 with respect to their agricultural land. Acting under the said general Power of Attorney, opposite party No. 2 executed a registered sale deed on 08.03.1999 in favour of his sons Lal Chandra, Suresh Chandra, Mata Shankar and Dinesh Chandra. 4. According to the applicants, prior to execution of the aforesaid sale deed, applicant No. 1 had revoked the general Power of Attorney executed in favour of the opposite party No. 2 on 10.02.1999. Since, opposite party No. 2 had proceeded to execute the sale deed in favour of his sons after cancellation of the general Power of Attorney, the applicants further instituted Civil Suit No. 193 of 1999 on 31st March, 1999 seeking cancellation of the sale deed dated 08.03.1999. The said suit is stated to be still pending. 5. More than 13 years thereafter, the applicants, during pendency of the aforesaid civil suit, appear to have executed the sale deed dated 08.01.2013. 6. While, the opposite party No. 2 had knowledge of the aforesaid facts, solely for the purpose of causing pressure on the applicants to withdraw from the civil proceeding, the present criminal prosecution was lodged by adopting the complaint procedure. 6. While, the opposite party No. 2 had knowledge of the aforesaid facts, solely for the purpose of causing pressure on the applicants to withdraw from the civil proceeding, the present criminal prosecution was lodged by adopting the complaint procedure. Relying on the complaint allegation, it has been submitted, while the execution of the general Power of Attorney sale deed dated 08.03.1999; institution of Original Suit No. 193 of 1999 for cancellation of that sale deed and execution of agreement to sell dated 08.01.2013 had been specifically mentioned in the complaint, by means of paragraph No. 4 thereof, it has also been mentioned that the general Power of Attorney executed in favour of opposite party No. 2 was revoked. Referring to paragraph No. 5 of Original Suit No. 193 of 1999, it has been stated that the date of cancellation of the general Power of Attorney was duly disclosed to the opposite party No. 2. Since the filing of the aforesaid suit proceeding is admitted to opposite party No. 2 in the complaint, it has to be assumed and that the said opposite party No. 2 had knowledge of the date of cancellation of the general Power of Attorney. 7. Thus, it has been submitted that whatever rights, the opposite party No. 2 may claim against the applicants would remain confined to the domain of the civil courts. Those defences being open, there did not ever occur any offence of cheating, inasmuch as there was no deceptive act on the part of the applicants as may have caused any harm to opposite party No. 2. 8. Responding to the above, learned counsel for opposite party No. 2, would submit that the general Power of Attorney could not have been revoked except in accordance with the terms specified therein. Since, the applicants did not revoke the general Power of Attorney executed in favour of opposite party No. 2 in accordance with those terms, the plea of revocation of general Power of Attorney is an eye wash. In any case, the said opposite party No. 2 has no notice of the cancellation of the general Power of Attorney and, therefore, the sale deed executed by him dated 08.03.1999 would bind the applicants. In any case, the said opposite party No. 2 has no notice of the cancellation of the general Power of Attorney and, therefore, the sale deed executed by him dated 08.03.1999 would bind the applicants. Only for the purpose of defeating the claim of opposite party No. 2, the applicants have mischievously instituted a civil proceeding for which purpose they had set up a false plea of cancellation of general Power of Attorney. He has relied on the principle that the termination of the contract of agency may be made only in accordance with the Contract Act. Referring to Section 202, it has been submitted that the revocation of the Power of Attorney is wholly contrary to law. Reliance has been placed on the decision of the Supreme Court in Seth Loon Karan Sethiya v. Ivan E. John, AIR 1969 SC 73 (Paragraph No. 3) and another decision of the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & another, AIR 2012 SC 206 (Paragraph No. 13). Further reliance has been placed on another decision of the case in The Church of Christ Charitable Trust & Education Charitable Society, represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee 2012 AIR SC 3912. 9. Also, it has been submitted that there is no bar in the civil and criminal proceedings being continued together, inasmuch as the scope of those proceedings is mutually exclusive. According to him, ingredients of the offence are made out. Therefore, both civil and criminal proceedings are liable to be continued simultaneously. He has relied on the decision of the Supreme Court in R. Kalyani v. Janak C. Mehta & others (2009) 1 SCC 516 : (2009 AIR SCW 1836), and a Division Bench of this court in Bindu Devi & another v. State of U.P. Thru Secy. & 3 others, 2014 (9) ADJ 439 . 10. Having heard learned counsel for the parties and having perused the record, in the first place, while there may be no dispute to the proposition that in a given set of facts where ingredients of a criminal offence as also civil injury are made out, proceedings of criminal prosecution may be pursued simultaneously along with civil proceeding, however, it will remain to be seen whether the ingredients of the offence alleged are made out in each case. 11. 11. In the facts of the present case, while execution of the general Power of Attorney is undisputed, according to the applicants, they had revoked the same on 10.02.1999 of which information is claimed to have been given to opposite party No. 2, on 13.02.1999. In view of the sale deed dated 08.03.1999 having been executed by opposite party No. 2, ostensibly under the general Power of Attorney dated 24.12.1993, the applicants have filed a suit for cancellation of the sale deed being Original Suit No. 193 of 1999 which is still pending. In those suit proceedings opposite party No. 2 is defendant No. 1. Apparently, he has been served with the notice in those proceedings and has thus acknowledged knowledge of the general Power of Attorney, as is clear from the bare perusal of the complaint. 12. Thus, the applicants are claiming that the applicants are the owners, and title holders of the property in question. The opposite party No. 2 is a simple general Power of Attorney holder who does not claim any interest in the property. In such circumstances, though opposite party No. 2 may question the validity of the revocation of the general Power of Attorney, however, once the real owner had revoked such general Power of Attorney, in absence of any Court's order or other legal impediment, it cannot be said that the said applicants were, in any way, restrained from executing any transfer deed or an agreement to sell with respect to such property or that they had committed any criminal offence in execution of such a document. The plea set up by opposite party No. 2 that the cancellation was not in accordance with law, would remain a matter to be pleaded and established by them in the civil proceedings. It being a matter of contract, the legality of the cancellation cannot itself become a scope of adjudication in a criminal complaint merely because opposite party No. 2 presumes or alleges that the cancellation was not in accordance with law. 13. In the facts of the case noted above, there is no application of Section 202 of the Contract Act, as the opposite party No. 2 does not claim interest in the property in question. In view of the above, it remains a document revocable by the principal of his own free will. 13. In the facts of the case noted above, there is no application of Section 202 of the Contract Act, as the opposite party No. 2 does not claim interest in the property in question. In view of the above, it remains a document revocable by the principal of his own free will. No rights may be vested in the agent merely by virtue of execution of general Power of Attorney. 14. Thus, leaving the opposite party No. 2 to set up such plea as he may be advised to question the cancellation of general Power of Attorney and the consequences that may follow therefrom, at present, no ingredient of offence of cheating is found to be made out. 15. Accordingly, the present application is allowed. The proceeding against the applicants in the aforesaid case are hereby quashed.