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2023 DIGILAW 1735 (ALL)

Karan Singh v. State of U. P.

2023-07-20

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Counter affidavit has been filed and the same is taken on record. 2. Heard learned counsel for the revisionists, learned counsel for the opposite party no. 2 and learned A.G.A. for the State are present. 3. Instant criminal revision has been preferred against judgment and order dated 3.1.2023 passed by learned Judicial Magistrate-Ist, Hapur in Crl. Case No. 670 of 2022 (State vs. Karan Singh and Others), arising out of Case Crime No. 29 of 2022, under Sections 420, 406 IPC, P.S. Babugarh, District Hapur, whereby discharge application moved by the revisionist accused has been dismissed. 4. Factual matrix of the case are that opposite party no. 2 lodged an F.I.R. with P.S. concerned on 20.1.2022 against revisionists with averment that informant is a senior citizen and physically disabled person. He is Bhumidhar of Khasra No. 955, Area 0.2530 hectare agricultural land which he had purchased for earning livelihood for his family. His co-villager Karan Singh S/o Chhidda Singh asked him to be a witness in a gift deed which was to be executed by him in favour of his daughter-in-law Monika Tyagi and the informant conceded to be a witness of proposed gift deed, however, on 21.8.2019 when he reached at Sub-Registrar Officer, Hapur, accused persons had got him intoxicated by administering him liquor and made him to sign a sale deed with regard to said agricultural land in collusion with Amarpal (revisionist no. 3). Informant came to know about this fraudulent deed when he got a copy of the same from Sub-Registrar Office. No consideration passed in respect of said sale deed and cheques which were described at the foot of sale deed belong to account of Karan Singh but the amount of cheques was not deposited in said account. In fact, no consideration passed between the vendor and vendee in respect of said sale deed. 5. Police investigated the case and filed charge sheet against accused revisionists after finding the complicity of accused persons in said offence. Accused persons were enlarged on anticipatory bail by the order of Court of Session. 6. Learned counsel for the revisionists submitted that the revisionists were enlarged on anticipatory bail vide order dated 20.1.2023. Dispute is essentially of civil nature, inasmuch as the informant/opposite party no. Accused persons were enlarged on anticipatory bail by the order of Court of Session. 6. Learned counsel for the revisionists submitted that the revisionists were enlarged on anticipatory bail vide order dated 20.1.2023. Dispute is essentially of civil nature, inasmuch as the informant/opposite party no. 2 has filed a civil suit in Court of Civil Judge, J.D.-Ist Hapur cited as Case No. 148 of 2019 (Husanchand vs. Monika Tyagi) on 20.10.2019 in which he has sought relief of cancellation of alleged sale deed. Opposite party no. 2 never presented the cheques before his banker for encashment with mala-fide intention. Revisionists are still prepared to pay the amount of Rs. 7,60,000/-. The present F.I.R. was lodged after two and half years of the incident with mala fide intention as the rate of land escalated; with a view to deprive the revisionist no. 2 for purchasing land. The F.I.R. was lodged on 20.1.2022 subsequent to filing of civil suit. 7. Learned counsel for the revisionist cited a judgment of Hon'ble Apex Court in the case of Mitesh Kumar J. Sha vs. State of Karnataka and Others, 2021 (0) Supreme (SC) 628, wherein Hon'ble Apex Court in paragraph no. 44 has observed as under: 44. Furthermore, in the landmark judgment of State of Haryana and Others vs. Ch. Bhajan Lal and Others regarding exercise of inherent powers under section 482 of Cr.P.C. this Court has laid down following categories of instances wherein inherent powers of the can be exercised in order to secure the ends of justice. These are: “(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 8. Learned court below has dismissed the application for discharge moved by the revisionist against the weight of evidence on record. Out of total consideration of Rs. 7,60,000/- Rs. 10,000/- was paid by the revisionist in cash and for remaining amount, two post dated cheques bearing date 15.1.2020 for Rs. 6,00,000/- and other cheque bearing date 15.10.2019 of Rs. 1,60,000/- were given to the vendor (opposite party no. 2). 9. It is further submitted that it is settled law that while one civil proceeding is pending, criminal proceedings on the same cause of action is not maintainable but this fact has not been considered by the court below, in fact no offence has been committed by the revisionist and they have falsely been implicated in the present case due to mala fide intention, therefore revision should be allowed and the impugned order may be set aside. 10. Per contra, learned counsel for the opposite party no. 2 and learned A.G.A. for the State submitted that in counter affidavit, photocopy of the disputed cheques has been filed at page nos. 10. Per contra, learned counsel for the opposite party no. 2 and learned A.G.A. for the State submitted that in counter affidavit, photocopy of the disputed cheques has been filed at page nos. 3o to 31, which reveals that the date mentioned in cheques is not identical to that mentioned in disputed sale deed, as the cheque of Rs. 1,60,000/-bears date 15.10.2019 and the cheque amounting to Rs. 6,00,000/-bears the date of 15.1.2020 whereas in sale deed date of cheques is mentioned as 15.1.2020 and 15.10.2020 respectively. 11. Learned counsel for the respondent also cited a judgment of Hon'ble Apex Court in the case of Sau. Kamal Shivaji Pokarnekar vs. State of Maharashtra and Others, 2019 (0) Supreme (SC) 145, wherein Hon'ble Apex Court in paragraph no. 9 has observed as under: “9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.” 12. It is settled law that on same set of facts civil and criminal liability both may occur and there is no prohibition of initiating criminal proceedings where on the basis of similar facts, criminal liability is also made out against accused persons. In disputed cheques, name of drawee is not mentioned which also shows mala-fide intention of revisionist from the very beginning. Revisionist no. 1 never deposited the amount covered in said cheques in his account to get said cheques encashed by drawee. In fact, opposite party no. In disputed cheques, name of drawee is not mentioned which also shows mala-fide intention of revisionist from the very beginning. Revisionist no. 1 never deposited the amount covered in said cheques in his account to get said cheques encashed by drawee. In fact, opposite party no. 2 never intended to execute a sale deed of land and he was defrauded by the revisionist regarding nature of instrument and he was made to execute sale deed in manipulation of a gift deed. 13. Investigating officer recorded statements of bank officer, Ravish Kumar under Section 161 Cr.P.C. who stated that maximum balance lying in the account of Karan Singh (revisionist no. 1) between August, 2019 to February, 2022 was only Rs. and said cheques were issued by his bank but the amount thereof has not been debited from the bank as yet. 14. He lastly submitted that this is admitted fact that possession of respondent no. 2 is still continuing on the land shown to have been sold to revisionist no. 2. There is no infirmity or illegality in impugned order passed by learned court below, therefore, the revision is liable to be dismissed. Accused revisionist is a man of criminal antecedent and his criminal history is mentioned in counter affidavit. 15. Discharge application was filed by the revisionist pursuant to order of this Court passed in Application under Section 482 Cr.P.C. No. 32456 of 2022, wherein this Court while dismissing the prayer made by the present revisionist, for quashing the charge sheet, non bailable warrant issued by the court as well as entire proceedings in present Case Crime No. 29 of 2022, under Sections 420, 406 IPC, P.S. Babugarh, District Hapur in the court of Judicial Magistrate, Hapur, gave an opportunity to accused persons to appear before court concerned within one month and move an application for discharge and the same shall be considered and disposed of by the court concerned in accordance with law after affording opportunity of hearing to both the parties. It was also directed that for a period of one month and till disposal of application for discharge, no coercive action shall be taken against the applicants. It was also directed that for a period of one month and till disposal of application for discharge, no coercive action shall be taken against the applicants. The accused persons moved an application under Section 239 Cr.P.C. praying for discharge which was dismissed by impugned order by the trial court and it is also observed that therein that as accused persons are not enlarged on bail till date and they are having every knowledge of the case, therefore, let non bailable warrant be issued against them. 16. Section 239 Cr.P.C. and Section 240 Cr.P.C. read as under: “239. When accused shall be discharged - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 240. Framing of charge. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 17. From perusal of above provisions, it is obvious that magistrate can only discharge an accused where it is found that discharge is groundless and while discharging the accused in such case he will record the reasons for so doing. Hon'ble Apex Court in Amit Kapoor vs. Ramesh Chandra, (2012) 9 SCC 460 , considered scope of provisions of Section 397, 482 Cr.P.C. at length in a case where High Court had quashed the charge framed against respondent under Section 306 IPC in a criminal revision while exercising its jurisdiction under Section 397 Cr.P.C. and 482 Cr.P.C. Hon'ble Apex Court held that well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C. Right from the case of State of West Bengal and Others vs. Swapan Kumar Guha and Others, (1982) 1 SCC 561 , which was reiterated with approval in the case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, the courts have stated the principle that if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. It is further stated that the legal position appears to be that if an offence is disclosed, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to have been committed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Whether an offence has been disclosed or not, must necessarily depend on the facts and circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed in order to collect materials for proving the offence. In Bhajan Lal's case (supra), the Court also stated that though it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of an FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; where there is an expressed legal bar engrafted in any of the provisions of the Code; and where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. 18. The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases. 19. In present case, learned trial court has rejected the discharge application moved by accused-revisionist while passing a reasoned order and discussing the facts of the case at length. This is admitted case that accused persons belong to one family. The allegation is that accused persons got a sale deed executed in the favour of Monika by playing deception on the informant who was owner of plot in question. It is also alleged that said sale deed was got executed by the informant at the instance of accused persons by keeping him in dark regarding nature of instrument which he was going to execute. It is also alleged that said sale deed was got executed by the informant at the instance of accused persons by keeping him in dark regarding nature of instrument which he was going to execute. The informant executed the said sale deed in the impression that he was to be witness of gift deed to be executed by accused Karan in favour of his daughter-in-law Monika Tyagi regarding his own land and on the date of execution of sale deed he was intoxicated by accused persons. Even cheques which were mentioned at the foot of disputed sale deed, were not drawn on bank account of accused Karan and not on account of purchaser Smt. Monika Tyagi. The cheques were bearing the name of payee (vendor). Even the fund was insufficient to encash the said cheques. All these facts cannot be ignored at this stage and accused persons will get opportunity to establish their bona fide alleged transaction and refute the allegations made in F.I.R. as well as in statement of witnesses recorded under Section 161 Cr.P.C. Learned court below has rightly observed in impugned order that the documents filed by the revisionist in support of their claim for discharge cannot be taken into account at the stage of hearing and disposal of discharge application. 20. On facts of the case a prima facie case is made out against accused persons to put them on trial for the charges levelled against them and it cannot be held that the charge against accused revisionist is groundless, therefore, I find no good reason to interfere in impugned order passed by learned court below as it does not suffer from irregularity, illegality or any proprietary. Revision is devoid of merit and is liable to be dismissed. Revision stands dismissed, however, as offence is punishable with maximum term of seven years of imprisonment, it is directed that the revisionists shall surrender before the concerned court below within one month from today and in case a regular bail application is filed, the same be decided in view of the law laid down by the Supreme Court in case of Satender Kumar Antil vs. Central Bureau of Investigation and Another, 2022 SCC Online SC 825. 21. 21. For the period of one month from today or till the time of surrender of the revisionists before the concerned court below, whichever is earlier, no coercive action shall be taken against the revisionists, in the above case. 22. With the above observations and directions, this application is disposed of.