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2022 DIGILAW 1334 (ALL)

Awadhesh Pratap Singh v. State Of U. P.

2022-08-24

DINESH KUMAR SINGH

body2022
JUDGMENT : 1. Present petitions under Section 482 Cr.P.C. have been filed for quashing of the charge-sheet dated 24.09.2021 in FIR No.0085 of 2021 under Sections 420, 467, 468, 471, 120B IPC registered at Police Station Wazirganj, District Lucknow as well as summoning order/cognizance order dated 05.10.2021 passed by leaned Special Additional Chief Judicial Magistrate (CBI AP), Lucknow in Criminal Case No.NIL and entire proceedings of FIR No.0085 of 2021 under Sections 420, 467, 468, 471, 120B IPC, Police Station Wazirganj, District Lucknow. 2. The Bank of India Karamchari Sahkari Avas Samiti Ltd., Lucknow (hereinafter referred to as "Society") was constituted and registered on 24.05.1983. This Society constituted by serving employees of the Bank of India. The object of the Society is to provide affordable houses to the employees of the Bank of India. It is said that only employees of the Bank of India, who applied for membership of the Society, were enrolled as members on payment of membership fee. All members were issued Share Certificates. By laws of the Society do not permit "Nominal Membership". 3. The Society purchased land on 02.08.1985. In pursuance to the demand notice, the petitioners and other members paid their contribution. Society constructed 20 Flats over the land purchased by it on 02.08.1985. These Flats were allotted to its members on 01.04.1990. Each member paid cost of a Flat of Rs.1.41 Lakh. 4. It is further stated that membership of the Society was restricted to employees of the Bank of India. The petitioners started living in their respective Flats after their allotment since 1990. However, sale deeds of the Flats allotted to the petitioners were executed by then Secretary of the Society on 04.05.2007. 5. One of the 20 Flats, Flat No.D-1 (initially 2/1) was allotted by the Society to one of its founder member, Mr.Sudarsh Awasthi. Mr.Kailash Nath Singh (Retd. Deputy Superintendent of Police), opposite party No.3 in petition No.4432 of 2021 started residing in the said flat as a licensee. The complainant and his family members have been occupying the said Flat for about two decades. Mr.Sudarsh Awasthi had given Flat on rent in the name of Mrs. Maya Singh w/o Mr. Kailash Nath Singh which is evident from the affidavit given by Mr. Sudarsh Awasthi for electricity connection in the name of Ms. Maya Singh. 6. The complainant and his family members have been occupying the said Flat for about two decades. Mr.Sudarsh Awasthi had given Flat on rent in the name of Mrs. Maya Singh w/o Mr. Kailash Nath Singh which is evident from the affidavit given by Mr. Sudarsh Awasthi for electricity connection in the name of Ms. Maya Singh. 6. The complainant, Mr.Kailash Nath Singh approached the petitioners, Mr.Awadhesh Pratap Singh (President), Mr.Anil Kumar Agarwal (Vice President) and Mr. Ajai Kumar Gupta (then Secretary), who were office bearers of the Society, and tried to pressurize them to register the Flat No.D-1 in his name. Since the Flat No.D-1 was allotted to Mr.Sudarsh Awasthi, a founder member, the Society refused to accede to the request of Mr.Kailash Nath Singh. Mr. Kailash Nath Singh was not even eligible to be the member of the Society as he was not an employee of the Bank of India. 7. Mr.Kailash Nath Singh, (opposite party No.3) approached U.P. Avas & Vikas Parishad, Lucknow with a request for direction to the Society to register Flat No.D-1 in his name. Avas Vikas Parishad did not grant any relief to him. 8. Mr.Kailash Nath Singh, thereafter, approached U.P. Real Estate Regulatory Authority (UP RERA). However, he could not get any relief from UP RERA. He failed to show proof of any payment and membership details before the UP RERA in the society. 9. The complainant, Kailash Nath Singh, then approached District Consumer Forum, Jaunpur, U.P. in November, 2020 and obtained an ex parte order dated 01.02.2021 within 3 months from its filing directing the Society to register Flat No.D-1 in his name within a period of one month else the registration of Flat would be done by the Forum through their own Agency. The District Consumer Forum also issued non bailable warrant against the Secretary of the Society on 31.05.2021 for non compliance of the order dated 01.02.2021. It is submitted that no cause of action even partly arose within the jurisdiction of District Forum Jaunpur and order passed by the District Forum, Jaunpur is perverse and void ab initio inasmuch as the District Forum, Jaunpur had no territorial jurisdiction to entertain and decide the complaint.. 10. The Society filed an appeal against the said order before the State Consumer Redressal Commission (State Commission), Lucknow and State Commission has stayed the order of the District Forum. 10. The Society filed an appeal against the said order before the State Consumer Redressal Commission (State Commission), Lucknow and State Commission has stayed the order of the District Forum. The dispute is still pending before the State Commission. 11. While the dispute is still at large before the Consumer Forum/Commission, Mr.Kailash Nath Singh lodged a complaint in Police Station Wazirganj, Lucknow against the petitioners alleging that allotment of the Flats to the petitioners were made by the Society on 29.01.1986 whereas the land was purchased by the Society on 28.06.1986. It was further alleged that the sale-deed executed by the Secretary of the Society in favour of the petitioners on 04.05.2007 was on the basis of fabricated and forged documents. On the basis of aforesaid complaint, FIR No.85 of 2021 came to be registered under Sections 420, 467, 468, 471, 120B IPC dated 21.02.2021 against the petitioners. It is said that the petitioners despite submitting documentary proof to the police authorities that the land was purchased on 02.08.1985, demand cum provisional allotment was made on 29.01.1986 and possession was handed over in 1990, ignoring all these facts and documents, the FIR in question came to be registered against the petitioners as the complainant is an ex-police officer. 12. The petitioners filed Writ Petition No.19773 (MB) of 2021, 19795 (MB) of 2021 and 19799(MB) of 2021 for quashing of the FIR. This Court vide interim order dated 07.09.2021 while issuing notice, stayed arrest of the petitioners and directed the respondents to file their affidavits. 13. State authorities did not file any affidavit in the said writ petitions, and hurriedly filed impugned charge-sheet. Though in the FIR there was no allegation that the Secretary of the Society was not empowered/authorized to execute sale-deed dated 04.05.2007 in favour of the petitioners, but in the charge-sheet this allegation was also leveled. It is further said that the petitioners were never questioned/interrogated and no statement of the petitioners was ever taken by the Investigating Officer before filing the charge-sheet. It is submitted that lodging of FIR, preparing and filing charge-sheet hurriedly by the police and further proceedings in pursuance of the filing of the charge-sheet are nothing but a complete abuse of the process of the Court, which smacks mala fide. 14. Mr. It is submitted that lodging of FIR, preparing and filing charge-sheet hurriedly by the police and further proceedings in pursuance of the filing of the charge-sheet are nothing but a complete abuse of the process of the Court, which smacks mala fide. 14. Mr. Satya Prakash, learned counsel for the petitioners has submitted that the Society was dissolved by the Housing Commissioner in the year 1999. However, on an appeal made by the members in 2006, the Society was reinstated by the Appellate Authority vide order dated 18.04.2006. In the Order dated 18.04.2006, it was said that even after handing over the possession of the Flats to its members in the year 1990 after receiving full payment, sale-deeds were not executed in favour of the most of the allottees. Taking cognizance of the order of the appellate authority, Assistant Housing Commissioner, appointed Mr. L.P. Dwivedi as Administrator of the Society vide order dated 27.05.2006. As per the power vested under Section 29(5) of the U.P. Cooperative Societies Act, 1965, the Administrator appointed Ajay Kumar Gupta (one of the petitioners) as Secretary of the Society vide order dated 10.08.2006, and issued written directions to the Secretary to execute sale deeds vide his letter dated 18.06.2006 in favour of the allottees of the Flats, whose sale deed could not be executed earlier. 15. Mr. Ajay Kumar Gupta was never removed from the post of Secretary by the Administrator, and he continued to discharge his assigned duties including execution of sale-deeds. Mr. Ajay Kumar Gupta had no role in allotment of the Flats to members. He merely executed sale-deeds in favour of allottees on behalf of the Society, who had paid full amount to the Society way back in 1990. He acted on the written direction of the Administrator as pointed out earlier. 16. Mr.Satya Prakash, learned counsel for the petitioners has submitted that allegation made by the complainant/opposite party No.3 that elections of Managing Committee of the Society were due when sale deeds were executed on 04.05.2007 is wholly incorrect. Process of conducting elections was initiated by the competent authority on 20.06.2007 whereas the sale-deeds were executed on 04.05.2007, and the complainant had no business/locus in respect of the execution of the sale deed being a stranger. The petitioners were officers/employees of the Bank of India, and they were founder members of the Society from its very inception. Process of conducting elections was initiated by the competent authority on 20.06.2007 whereas the sale-deeds were executed on 04.05.2007, and the complainant had no business/locus in respect of the execution of the sale deed being a stranger. The petitioners were officers/employees of the Bank of India, and they were founder members of the Society from its very inception. They had paid full cost of the Flats allotted to them by taking loans from the Bank. The Bank sanctioned loan after verifying all the details of the project and at no point of time raised any objection. 17. It has been further submitted that altogether 5 sale deeds were executed by the Secretary after his appointment on 10.06.2006 till 20.06.2007. The complainant misusing his reach and approach in police department being Former Deputy Superintendent of Police got the FIR in question registered and charge-sheet filed against the petitioners without there being an iota of evidence against the petitioners for commission of the offence for which charge-sheet has been filed. 18. The complainant wanted to get the sale-deed registered in his favour for Flat No.D-1, which was allotted to Mr. Sudarsh Awasthi, a founder Member of the Society. When office bearers of the Society refused and did not buzz under the pressure put on by the complainant/opposite party No.3, he has resorted to criminal proceedings. The impugned proceedings are nothing but a sheer abuse of the process of the Court and law and a malicious and capricious prosecution of the petitioners for ulterior purposes. 19. Mr.Ajay Kumar Gupta was never removed from the post of Secretary by the Administrator and he continued to discharge the assigned duties including the execution of the sale deeds. He had no role in allotment of flats to the members. He merely executed sale deeds in favour of allottees who had paid full amount to the Society way back in the year 1990 as per the written orders of the Administrator. It is also submitted that total 5 sale-deeds were executed by the Secretary since appointment till 20.06.2007. However, charge-sheet has been filed only against two allotees, who are the petitioners herein and the Secretary. 20. It is important to note here that all three petitioners against whom charge-sheet has been filed are office bearers of the Society. It is also submitted that total 5 sale-deeds were executed by the Secretary since appointment till 20.06.2007. However, charge-sheet has been filed only against two allotees, who are the petitioners herein and the Secretary. 20. It is important to note here that all three petitioners against whom charge-sheet has been filed are office bearers of the Society. Three other allotees in whose favour sale-deeds were executed in the same fashion as in respect of the two petitioners have not been implicated. It has been submitted that the FIR, charge-sheet and the impugned proceedings are only to put undue pressure on the office bearers of the Society to execute the sale deed of the flats belonging to Mr.Sudarsh Awasthi in favour of the complainant, opposite party No.3 in an illegal manner. The allegations against the petitioners, Mr. Awadhesh Pratap Singh, and Anil Kumar Agarwal do not hold ground as both of them had made full payment before 1990 and they were living in the same Flats since then. Only sale-deeds have been executed in their favour in the year 2006. 21. It has been further submitted that neither the Society nor any member of the Society has ever raised question regarding ownership or sale-deeds in favour of the petitioners, Awadesh Pratap Singh and Anil Kumar Agarwal, and the complainant himself never challenged the said sale-deeds before any court of law for their cancellations. In view thereof, it has been submitted that this court in order to prevent misuse of the process of the Court and in the interest of justice may quash the impugned proceedings. 22. On the other hand, Mr.Sushil Kumar Singh, learned counsel appearing for opposite party No.3 has submitted that Nazul land in Khasra Plot No.58 and 58A, area 1,19,351 sq ft situated at Mohalla Batlerganj, Ram Mohan Rai Ward, Prag Narayan Road, near Bhainsa Kund was given by the State Government on lease to Karan Trehan, Kishore Trehan and their family. The said lease was registered vide registration dated 07.10.1947 in Sub Registrar Office, Lucknow for a period of 90 years subject to two renewals in interval of 30 years each. 23. A Housing Society was established in the name of Bank of India Employees Cooperative Housing Society, which was registered in the office of Registrar/Housing Commissioner Avas Vikas. In 1985, Uma Builder Company, Lucknow was established by Mr.Sudarsh Awasthi. 23. A Housing Society was established in the name of Bank of India Employees Cooperative Housing Society, which was registered in the office of Registrar/Housing Commissioner Avas Vikas. In 1985, Uma Builder Company, Lucknow was established by Mr.Sudarsh Awasthi. This Company started construction on behalf of the Society. Mr. Sudarsh Awasthi was later on dismissed /terminated from service in the year 1999 by Bank of India. 24. Agreement to sell was entered into between the Bank of India Employees Housing Society and Original Lessee of the land in Plot Nos.58 and 58A and, thereafter, sale-deed was executed on 28.06.1986. It is stated that vide Resolution dated 01.09.1988 by-laws of the Society were amended to have more members other than the bank employees to raise funds for construction of the Flats. 25. Mr. Sushil Kumar Singh, learned counsel for the opposite party No.3 has submitted that ownership of the land of Khasra Plot Nos.58 and 58A is of the State Government as it is a Nazul land and the sale deed dated 28.06.1986 by the original lessee in favour of the Society was an illegal act and would not confer any right in favour of the Society. It has been further submitted that the Society was dissolved and the registration was cancelled on 07.10.1999. It is the appellate authority which vide order dated 18.04.2006 restored the Society's registration, and thereafter Mr.L.P. Dwivedi, an Officer of the Co-operative Department was appointed as Administrator of the Society vide order dated 27.05.2006 by the Assistant Registrar for the purposes of holding elections of the Society. 26. Mr. L.P. Dwivedi joined on 30.05.2006 as Administrator, and thereafter, he held a meeting on 09.06.2006 and proposed to appoint Mr. Ajay Kumar Gupta, as acting Secretary of the society. He submits that appointment of Mr. Ajay Kumar Gupta, as acting Secretary of the Housing Society was required to be approved by the Registrar under Sections 121, 122, 122A of the Cooperative Societies Act. 27. It has, therefore, been submitted that since Mr.Ajay Kumar Gupta's appointment was never approved by the Registrar, his appointment as Secretary was void and non-est, and any act done by him would be a nullity in the eyes of law. 28. It has been further submitted that Mr. L.P. Dwivedi was removed on 18.11.2006, and, thereafter a three members Committee was constituted on 20.06.2007 to look after the work of the society. 28. It has been further submitted that Mr. L.P. Dwivedi was removed on 18.11.2006, and, thereafter a three members Committee was constituted on 20.06.2007 to look after the work of the society. Thus, there was no Administrator between 18.11.2006 and 20.06.2007. It has, therefore, been submitted that when Administrator himself was removed, and no one was there till 3 members Committee was constituted, sale deeds executed by Mr.Ajay Kumar Gupta on 04.05.2007 in favour of the petitioners, Awadhesh Pratap Singh and Anil Kumar Agarwal amounts to a fraudulent act and against the mandate of the Administrator, who was appointed only with a limited mandate to get the election of the Society conducted. 29. It has been further submitted that once the Administrator was removed on 17.11.2006, no authority remained vested in the acting Secretary, Mr. Ajay Kumar Gupta to execute the sale-deeds on 04.05.2007. He submits that the petitioners connived with each other and committed offences for which charge sheet has been filed against them. 30. It has been further submitted that after Mr.L.P. Dwivedi was removed as Administrator, one Mukesh Dixit was appointed as Administrator but he did not join, and thereafter, a 3 Member Committee was constituted vide order dated 20.06.2007 by Joint Registrar/Joint Commissioner, Avas for purposes of holding elections and elections were held on 03.11.2017. 31. Mr. Sushil Kumar Singh, learned counsel appearing for opposite party No.3 has further submitted that entire action of the Society on the basis of the sale-deed of the Nazul land is a nullity in the eyes of the law. The Society could not become the owner or could not have acquired any right over the land because Nazul land cannot be transferred by sale to a third party. 32. It has been further submitted that Awadhesh Pratap Singh, one of the petitioners herein appointed his brother, U.P. Singh as Secretary after Ajay Gupta. Mr. U.P. Singh sold the flat allotted to Mr.Sudarsh Awasthi to one Ayush Tripathi on 13.10.2020. It has been submitted that the petitioners, who are office bearers of the Society, could not produce balance sheet, accounts of the Society and allegation is that office bearers of the Society had embezzled large amount of the Society. He has further submitted that the Investigating Officer has collected sufficient evidence against the petitioners for commission of offences by them, and the charge-sheet has been accordingly filed. He has further submitted that the Investigating Officer has collected sufficient evidence against the petitioners for commission of offences by them, and the charge-sheet has been accordingly filed. This Court is not required to exercise its discretion under Section 482 Cr.P.C. to interfere with the impugned proceedings. 33. I have considered the submissions of learned counsel for the petitioners and learned counsel appearing for opposite party No.3. 34. Opposite party No.3 is a retired Deputy Superintendent of Police and belonged to U.P. Police. He was not an employee of Bank of India. Bank of India employees Cooperative Housing Society was established for providing affordable houses to the officers/employees of the Bank of India who became the members of the Society. 35. There are primarily three allegations in the FIR: (i) that the land of Kahsra Plots No.58 and 58A being Nazul land could not have been transferred by the original lessee in favour of the Society. (ii) that sale-deeds dated 04.05.2007 executed by Ajay Kumar Gupta in favour of the petitioners, Mr. Awadhesh Pratap Singh, and Anil Kumar Agarwal were without any authority and it was a fraud as Ajay Kumar Gupta, Secretary did not have any authority to execute the sale deeds; and (iii) that in the sale deed allotment date has been mentioned as 29.01.1986 whereas the land was purchased only on 28.06.1986 and on 29.01.1986 neither land was in possession of the Society not any flat was constructed and thus the petitioners had forged and fabricated the documents. 36. This Court fails to understand that how for these allegations, FIR in question came to be registered. The complainant himself claims to be the Member of the Society, however, he could not provide any proof of his Membership or making payment of contribution towards purchase and construction of the Flats, but at the same time he is alleging that the land could not have been sold by the Original Lessee in favour of the Society and the construction of flats by the society on Nazul land, their allotment and registration in favour of the allottees are illegal and amounts to crime. 37. I find that the stand of the complainant somewhat confusing and untenable. 37. I find that the stand of the complainant somewhat confusing and untenable. If he claims to be the member of the Society and the Society had indulged in criminal activity by purchasing the Nazul land, then he being member of the Society is also an accused for the said illegal and offending act done by the Society. 38. This Court is of the considered view that it is for the State Government to take action if there was any violation/infraction of the lease deed executed in favour of the Original Lessee who sold the land in favour of the Housing Society but for this fact the FIR could not have been registered against the Society or its Members on behalf of the opposite party No.3 who himself claims to be the member of the Society. 39. This Court finds that the charge-sheet filed for this allegation is wholly untenable and deserves to be quashed. 40. In respect of the second allegation, it is worthwhile to note that the land was purchased on 02.08.1985. Demand cum provisional allotment was made on 29.01.1986, and final possession of the Flats was given in 1990. Therefore, there is no substance in the allegation that the land was purchased by the Society on 28.06.1986 and, therefore, allotment date in the sale-deeds as on 29.01.1986 was a fraud and this allegation does not hold ground. Even if it is considered that wrong allotment date was mentioned in the sale deeds of the two petitioners, the offence under Sections 420, 467, 468, 471 would not get attracted against the petitioners. 41. Under Section 47 of the Registration Act, 1908 it is provided that a registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. If the allotment was made on 29.01.1986 and the possession was handed over in 1990, this Court finds no substance in the allegations that this would amount to a fraud/forgery for the allegation that allotment date was mentioned in the sale deed as 29.01.1986. 42. If the allotment was made on 29.01.1986 and the possession was handed over in 1990, this Court finds no substance in the allegations that this would amount to a fraud/forgery for the allegation that allotment date was mentioned in the sale deed as 29.01.1986. 42. Mr.L.P. Dwivedi, who was appointed as Administrator in exercise of powers under Section 29(5) of the U.P. Cooperative Societies Act, 1965 appointed Ajay Kumar Gupta (one of the petitioners) as Secretary of the Society vide order dated 10.08.2006, and the copy of the appointment order was also endorsed to U.P. Awas and Vikas Parishad, Lucknow. Members of the Society, who were allotted Flats and were living since 1990 after paying full cost, brought it to the notice of the Administrator that several sale deeds had not been executed by the Society in favour of the allottees. The Administrator issued written directions to the Secretary to execute the sale-deed vide his letter dated 18.06.2006. The Secretary, Ajay Kumar Gupta (one of the petitioner) thereafter executed sale-deeds in favour of the members of the Society who were allotted the flats and living since 1990. Though new Administrator Mr. Mukesh Dixit was appointed but he never took over charge as Administrator and as such Mr. L.P. Dwivedi continued as Administrator and Mr. Ajay Kumar Gupta was never removed as Secretary by the Administrator and he continued to discharge his assigned duties including execution of the sale-deeds. It is not the case of opposite party No.3 that Mr. Ajay Kumar Gupta executed the sale-deed to any person who was not the member of the Society or to a member who had not paid the contribution. 43. This Court fails to understand that what offence can be said to have been committed by Mr.Ajay Kumar Gupta in executing the sale-deed in favour of two petitioners on 04.05.2007 inasmuch as till the said date he was functioning as Secretary and nobody had any objection to his appointment as Secretary. No one challenged his appointment and continuation as Secretary of the Society. No member of the Society has made any grievance in this respect. It is also relevant to mention here that sale-deeds were executed on 04.05.2007 but the FIR in question came to be registered in 2021 i.e. after 14 years from the date of alleged illegal sale deeds by Mr. Ajay Kumar Gupta in favour of the petitioners. No member of the Society has made any grievance in this respect. It is also relevant to mention here that sale-deeds were executed on 04.05.2007 but the FIR in question came to be registered in 2021 i.e. after 14 years from the date of alleged illegal sale deeds by Mr. Ajay Kumar Gupta in favour of the petitioners. The complainant is a stranger to the acts of the society and its members and no criminal proceedings are maintainable on his behest. 44. This Court having considered the material brought on record and also taking into account the fact that the dispute in respect of possession and execution of the sale-deed in respect of Flat No.D-1 allotted to Mr.Sudarsh Awasthi in favour of opposite party No.3 has been given a cloak of criminal proceedings to put undue pressure on the petitioners and the Society. This is nothing but a gross abuse of the process of the Court. This Court is of the considered view that continuance of the proceedings would be wholly unjustified and liable to be quashed. The Investigating Officer has filed the charge-sheet without there being any adequate evidence to support the allegations for offences under Sections 420, 467, 468, 471, 120B IPC. 45. In view of the aforesaid discussion, the petitions are allowed and impugned proceedings of charge-sheet dated 24.09.2021 in FIR No.0085 of 2021 under Sections 420, 467, 468, 471, 120B IPC registered at Police Station Wazirganj, District Lucknow as well as summoning order/cognizance order dated 05.10.2021 passed by leaned Special Additional Chief Judicial Magistrate (CBI AP), Lucknow in Criminal Case No.NIL and entire proceedings of FIR No.0085 of 2021 under Sections 420, 467, 468, 471, 120B IPC, Police Station Wazirganj, District Lucknow are hereby quashed.