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2021 DIGILAW 1066 (ALL)

Anjana Agrawal @ Anjani Agrawal v. State of U. P.

2021-09-16

VIVEK AGARWAL

body2021
JUDGMENT : Vivek Agarwal, J. 1. Heard Sri Swapnil Kumar, learned counsel for the applicants, Sri Janardan Prakash, learned AGA for the State and Sri Swetashwa Agarwal, learned counsel for the opposite party no.2. 2. This Application U/S 482 Cr.P.C. has been filed by the applicant for quashing of supplementary charge-sheet dated 25.07.2020, under Sections 420, 467, 468, 471, 120-B arising out Case Crime No.556 of 2009, Police Station-Sadar Bazar, District-Mathura and order dated 24.09.2020 passed by the court of Judicial Magistrate, Mathura taking cognizance of the charge-sheet and the entire criminal proceedings of Criminal Case No.809/12/20. 3. Sri Swapnil Kumar, learned counsel for the applicant submits that brief facts of the present case are that, a sale transaction was made between Sri Om Prakash Mittal son of late Sri Ramji Das Mittal, Sri Gaurav Mittal son of Om Prakash Mittal (sellers) and Paras Garg son of Anil Kumar Gupta (purchasers) in regard to plot no.B-11 measuring 679.35 sq. yards = 568.00 sq. meters situated at Mauja Jaisinghpura Bangar Tehsil and District-Mathura. 4. It is submitted that sellers represented themselves to have 40% share in the property of Ramji Das Mittal on the strength of 20% share being devolved on Om Prakash Mittal upon death of Sri Ramji Das Mittal and 20% share being transferred to Gaurav Mittal by his grandmother, Smt. Pushpa Devi, thus, totaling 40% of the total plot area and accordingly sale deed was executed on 04.07.2013. 5. Case of the complainant is that, Pushpa Devi died on 24.12.2016 and when complainant reached the plot in question, he was informed that Sri Ramji Das Mittal had executed a Will bequeathing his property in favour of his four sons and, therefore, Pushpa Devi had no share in the property as a result, the gift deed executed by Pushpa Devi in favour of Gaurav Mittal is null and void, therefore, cheating and fraud was alleged to have been committed qua the complainant. 6. Sri Swapnil Kumar, learned counsel for the applicant submits that in terms of the provisions contained in Section 169 of the U.P.Z.A. & L.R. Act, no Will could have been executed in regard to agriculture property unless said Will is registered. 6. Sri Swapnil Kumar, learned counsel for the applicant submits that in terms of the provisions contained in Section 169 of the U.P.Z.A. & L.R. Act, no Will could have been executed in regard to agriculture property unless said Will is registered. It is therefore, submitted that since Will was null and void and could not have been acted upon in terms of the provisions contained in U.P.Z.A. & L.R. Act, therefore, property had devolved in favour of all the five legal heirs namely, four sons and wife of late Sri Ram Ji Das Mittal and on the basis of such legal position, entry was made in the revenue record, land was transferred by Smt. Pushpa Devi in favour of her grandson Gaurav Mittal through a gift deed. It is submitted that there is no element of cheating and applicants have been falsely implicated. 7. Sri Swapnil Kumar, learned counsel for the applicants further submits that in Application under Section 482 No.7352 of 2021, applicant is neither a seller, nor has any share in the property and is only a marginal witness to the transaction of sale deed, therefore, she has been falsely implicated. 8. Similarly, it is submitted that once property had devolved upon the son and grandson of Ramji Das Mittal, then there is no element of cheating in selling the property in favour of the complainant. It is further submitted that complainant is still in possession of the property and no cause of action has accrued in his favour. 9. Sri Swapnil Kumar, learned counsel for the applicant has placed reliance on the judgment of Supreme Court in case of Ramesh Dutt and others Vs. State of Punjab and others; (2009) 15 SCC 429 , wherein in para-14 it is mentioned that "Title in or over an immovable property has many facets. Possession is one of them. Unless there exists a statutory interdict, a person in possession may transfer his right, tile and interest in favour of third party." 10. It is further held that only because the appellants transferred a portion of the property without having complete ownership over it by itself do not satisfy the ingredients of Sections 467 and 468 and 469 IPC. 11. Unless there exists a statutory interdict, a person in possession may transfer his right, tile and interest in favour of third party." 10. It is further held that only because the appellants transferred a portion of the property without having complete ownership over it by itself do not satisfy the ingredients of Sections 467 and 468 and 469 IPC. 11. In para-19, it is held that institution of a criminal case must be held to be an Act of mala fide on the part of the respondents in the aforementioned backdrop of units and, therefore, quash the proceedings. 12. Sri Swetashwa Agarwal, learned counsel for the opposite party no.2, in his turn, submits that element of cheating is evident from the fact that on the date of 'Uthavna' of Ramji Das Mittal who had died on 28.08.2005 and 'Uthavna' had taken place on 30.08.2005, a document namely, 'Will Execution Deed' was drawn through which, it was decided that Om Prakash Mittal being the eldest son of HUF, Sri Girrajmal Ramji Das will be appointed as 'Karta'. His brothers Vinod, Govind and Anil were accepted to be joint owners. Smt. Pushpa Devi will continue to be member of the HUF. It was further decided that after giving Rs.71,000/-(seventy one thousand) to daughter of Ramji Das Mittal, namely, Beena or 10 tolas' of gold, remaining property and shares etc. be equally distributed between the four sons of Ramji Das Mittal, whereas, furniture of Sri Ramji Das Mittal be given to Smt. Pushpa Devi. It is submitted that Smt. Pushpa Devi, Om Prakash, Anjana Garg are signatories to this family settlement drawn in execution of the Will, therefore, once they have acted on the Will by entering into a family settlement for execution of the Will, it is not open to the applicants to blow hot and cold and submit that Will was incapable of being executed as it was not registered and, therefore, Smt. Pushpa Devi became co-sharer and property was divided in five shares, out of which, Pushpa Devi gifted her share in favour of son of Om Prakash Mittal, which was transferred in favour of the complainant by way of registered sale deed. It is submitted that element of cheating is writ large and needs to be taken cognizance of and no interference is required at this stage. 13. It is submitted that element of cheating is writ large and needs to be taken cognizance of and no interference is required at this stage. 13. Sri Swetashu Agarwal, in his turn, has placed reliance on judgment of Supreme Court in case of Kamal Shivaji Pokarnekar Vs. State of Maharashtra and others; (2019) 14 SCC 350 , wherein, it is held that defenses that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not. 14. Similarly, reliance is placed on decision of Supreme Court in case of Priti Saraf Vs. State of NCT of Delhi and another decided on March, 2021 in Criminal Appeal No(s).296 of 2021 arising out of S.L.P. (Criminal) No(s).6364 of 2019, wherein, again in para-32 it is held that "whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings". 15. After hearing learned counsel for the parties and going through the judgment rendered in case of Ramesh Dutt and others (supra), it is evident that to come out of the rigours of the provisions contained in Section 467, 468, 469, the transferor must be in possession of the land and that possession should not be symbolic but actual. In the present case, facts of the case are different. Plea of the applicants is that, Will was incapable of being acted and, therefore, property devolved upon five persons against the narration in the Will and 5th person namely, Pushpa Devi alienated her share in favour of Gaurav Mittal who is her grandson. Therefore, there is no element of criminality in transferring joint share of Gaurav Mittal and Om Prakash Mittal. 16. Therefore, there is no element of criminality in transferring joint share of Gaurav Mittal and Om Prakash Mittal. 16. This argument is too technical. The aim and object of amendment in Section 169 of U.P.Z.A. & L.R. Act is to save poor agriculturists from alienation of their property in favour of unscrupulous elements. In the present case, once all the brothers and wife of late Ramji Das Mittal decided to honour of his Will and there was no dispute as to the authenticity of the Will, then act of Om Prakash Mittal and Gaurav Mittal in getting her share carved out for themselves on the basis of some mutation proceedings which does not prima facie confer any title constitutes elements of cheating as defined under Section 415 of IPC punishable under Section 420 IPC. There is also an element of forgery and making of a false document as provided under Section 463, 464 IPC capable of being punished under Section 467, 468 and 471 IPC and, therefore, law laid down in case of Ramesh Dutt and others (supra) will be of no aid to the present applicants. 17. In fact, the act of the applicants Om Prakash Mittal and Gaurav Mittal amounted to acquiescence. Silent acquiescence amounts to admission may also be implied from the acquiescence of the party, but acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary de-manner or conduct of the party. 18. In the present case, once applicants decided to be a signatory to the family settlement in terms of the Will, then principle of acquiescence i.e. doctrine "standing by" will come into play. 19. It is settled principle of law as has been laid down in Duke of Leeds Vs Amherst; 1846, 78 RR. 47 : 2 Philips 117; when Lord Chancellor, Cottenham observed that "if party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence". 20. Similarly, Lord Campbell in Cairncross Vs. That is the proper sense of the word acquiescence". 20. Similarly, Lord Campbell in Cairncross Vs. Lorrimer; 3 LT 130 observed that "generally speaking if a party having an interest to prevent an act being done as full notice of its being done, an acquiesce in it, so as to induce a reasonable belief that he consents to it and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license" 21. Similarly, Halsbury's Law of England describes the expression "Acquiescence" in Volume-I of 4th Edition "The term is, however, properly used where a person having a right, and seeing another person about to commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed; a person so standing by cannot afterwards be heard to complaint of the act". 22. Thus, Om Prakash Mittal and Gaurav Mittal after consented to abide by the Will are estopped from taking a plea that under provisions of Section 169, U.P.Z.A. & L.R. Act, Will, could not have been acted upon. This plea prima facie reflects their guilty mind and dis-honest intention, which has been rightly inferred by the court below while taking cognizance of the charge-sheet. 23. However, I would like to add that case of Anjana Agarwal is on a different footing than that of applicants in Application under Section 482 No.7572 of 2021, inasmuch as, Anjana Agarwal is only a marginal witness to the sale deed and, therefore, it cannot be said that she understood the import and meaning of the transaction and had constructive knowledge of cheating and forgery being committed by the beneficiaries of the transaction, namely, Om Prakash and Gaurav Mittal and, therefore, her case being different on facts deserves to be allowed and proceedings qua her deserves to be quashed and are hereby quashed. 24.. However, case of Om Prakash Mittal and Gaurav Mittal are on different footing. Om Prakash Mittal is a signatory to the family settlement, which accepted execution of the Will. 24.. However, case of Om Prakash Mittal and Gaurav Mittal are on different footing. Om Prakash Mittal is a signatory to the family settlement, which accepted execution of the Will. Once, execution of Will was accepted on the date of 'Uthavana' of Sri Ramji Das Mittal and it is mentioned that partition will be made in terms of the Will of Shri Ramji Das Mittal, subsequent contention of Om Prakash that he was not having any knowledge of the execution deed drawn on the advice of their chartered accountant and auditor, prima facie, depicts that revenue documents were prepared in a fraudulent manner so to corner extra share in the property of Ramji Das Mittal, then what was admissible to Om Prakash Mittal and, therefore, in the light of the law laid down in case of Priti Saraf (supra) and Kamal Shivaji Pokarnekar (supra), since prima facie offence appears to have been made out, no indulgence is required for quashing the proceedings, qua Om Prakash Mittal and Gaurav Mittal, Application fails and is dismissed.