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2023 DIGILAW 2481 (ALL)

Dinesh Kumar Srivastava v. State of U. P.

2023-11-02

ARUN KUMAR SINGH DESHWAL

body2023
JUDGMENT : (Arun Kumar Singh Deshwal, J.) 1. Heard Sri Rakesh Kumar Srivastava, learned counsel for the applicant, Sri Raj Kumar Sharma, learned counsel for the opposite party no.2 and Sri Rajeev Kumar Singh, learned AGA for the State. 2. Present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 01.02.2013 passed by the Chief Judicial Magistrate, Jaunpur in Case No.380 of 2012 arising out of Case Crime No 559 of 2012, under Sections 419, 420, 467, 468, 471 IPC, Police Station Machhali Shahar, District Jaunpur, pending in the court of Chief Judicial Magistrate, Jaunpur. 3. Contention of learned counsel for the applicant is that the applicant was deed writer of sale deed executed by Jahra Devi, who executed a sale deed in favour of Chandra Devi claiming herself daughter of deceased Algoo, who was elder brother of father of opposite party no.2. It is further submitted that on the basis of succession, name of Jahra Devi mutated in the revenue record in place of Algoo. Thereafter being a legal heir and daughter of Algoo, she executed a sale deed dated 02.07.2011 in favour of Chandra Devi. On the basis of aforesaid sale deed, name of Chandra Devi was also recorded in revenue record. Against that order, an objection was filed by the opposite party no.2 which was rejected and name of Chandra Devi was mutated in the revenue record and the sale deed executed by Jahra Devi was found to be valid. Though this order was challenged by the opposite party no.2 but no interim order was granted. 4. It is further submitted by learned counsel for the applicant that opposite party no.2 had also filed a suit bearing Suit No.116 of 2012 for cancellation of sale deed dated 02.07.2011 executed by Jahra Devi in favour Chandra Devi. The said suit is still pending. It is further submitted that the present dispute is purely civil dispute. Whether Jahra Devi is daughter of Algoo, this issue can very well be decided in pending suit filed by the opposite party no.2. It was further submitted that the report of Nayab Tehsildar which was also considered while rejecting the mutation application of the opposite party no.2 substantiated the claim of Jahra Devi that she was daughter of Algoo. 5. Whether Jahra Devi is daughter of Algoo, this issue can very well be decided in pending suit filed by the opposite party no.2. It was further submitted that the report of Nayab Tehsildar which was also considered while rejecting the mutation application of the opposite party no.2 substantiated the claim of Jahra Devi that she was daughter of Algoo. 5. Percontra, learned counsel for the opposite party no.2 has stated that though after the investigation of allegations of FIR dated 02.07.2012, police had submitted final report but on protest petition, he brought on record certain material that shows Jahra Devi was not daughter of Algoo. Thereafter aforesaid protest petition was registered as complaint case and applicant was summoned. It is further submitted that from perusal of complaint as well as statements, clear case of cheating on the part of the applicant is made out though he was sale deed writer. He also submitted that there is no barred to continue criminal proceeding along with civil proceeding if case is made out. It is also submitted by learned counsel for the opposite party no.2 that all the disputes raised by the counsel for the applicant are factual in nature that can be considered during trial. That cannot be agitated at this stage while challenging the proceeding of complaint case. 6. Learned AGA also adopted the argument of opposite party no.2. 7. After hearing the learned counsel for the parties and on perusal of record, it reveals that undisputedly, after the death of Algoo name of Jahra Devi as his daughter mutated in revenue record and at the time of execution of sale deed dated 02.07.2011 name of Jahra Devi was recorded as tenure holder being the successor of Algoo, who died in the year 1990. It is also clear from the record that till execution of sale deed, no objection was filed by the opposite party no.2 against mutation of name of Jahra Devi as successor of Algoo. Apart from this, it is also undisputed that the opposite party no.2 had filed the suit being Suit No.116 of 2012 for cancellation of sale deed executed by Jahra Devi in favour of Chandra Devi. Apart from this, it is also undisputed that the opposite party no.2 had filed the suit being Suit No.116 of 2012 for cancellation of sale deed executed by Jahra Devi in favour of Chandra Devi. Whether Jahra Devi was daughter of late Algoo or not, same is complicated question of fact that can be decided only on the basis of evidence to be produced by the parties during trial of civil suit, therefore, the dispute between the parties is purely of civil dispute. 8. The Apex Court in number of judgements reiterated the legal position that it has become tendency to convert the civil litigation in criminal litigation by initiating criminal proceeding and also deprecated such practice. 9. In the case of Neeharika Infrastructure Pvt. Ltd vs State of Maharashtra and others; 2021 SCC Online SC 315, the Apex Court observed that a civil dispute is converted into a criminal dispute only with a view to pressurise the accused, then criminal proceeding itself amount to abuse of process of law. Para 60 of the aforesaid judgement is quoted hereinbelow; "60. In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation. However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process. However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice." 10. In the case of Randheer Singh vs State of U.P. and other; 2021 (14) SCC 626 , the Hon'ble Apex Court again reiterated the legal position that though a complaint disclosing civil transactions may also have a criminal texture. While exercising power under Section 482 Cr.P.C., the High Court has to see whether the dispute of civil nature has been given colour of criminal offence and in such circumstances the High Court should not hesitate to quash the criminal proceeding. Paras 33 and 34 of Randheer Singh (supra) case are quoted hereinbelow; "33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the appellant is concerned. There is no whisper of how and in what manner, this appellant is involved in any criminal offence and the charge-sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482CrPC should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra [Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673 : (2012) 4 SCC (Cri) 76] extracted above. 34. The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the charge-sheet so far as this appellant is concerned. The other accused Rajan Kumar has died." 11. In the recent judgement of Gulam Mustafa vs State of Karnatka and another 2023 SCC Online 603, the Hon'ble Apex Court reiterating the legal position and observed that where purely civil dispute, more often than not, relating to land and/or money are given the colour of criminality, only for the purpose of exerting extra-judicial pressure on the parties concerned is nothing but abuse of process of court. Para 36 of the Gulfam Mustafa (supra) case is being quoted hereinbelow : "36. What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no. 2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance." 12. 2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance." 12. From the above mentioned judgements of the Apex Court, the legal position is clear where dispute between the parties is purely civil dispute then permitting to continue criminal proceeding is amount of abuse of process of court. 13. In the present case, undisputedly name of Jahra Devi was recorded in revenue record as successor being the daughter of late Algoo and thereafter being recorded tenure holder Jahra Devi executed sale deed in favour of Chandra Devi. Now suit filed by opposite party no.2 for cancellation of sale deed is pending before the civil court and that issue will be decided by the civil court. There is also unexplained delay of 10 years for making objection against the name of Jahra Devi and his vendor in revenue record and it is also admitted fact that though Algoo has died in the year 1990 but name of the opposite party No.2 was never entered into revenue record as successor being nephew of Algoo regarding land in question. It is not the case of opposite party no.2 that his name was mutated in revenue record regarding land of Late Algoo being his nephew and same was deleted by substituting the name of Jahra Devi as daughter of late Algoo through forgery. The present applicant is deed writer and he has prepared the sale deed on perusal of Khatauni in which name of Jahra Devi was recorded, therefore, no offence is made out against the applicant and even otherwise dispute is purely civil in nature permitting the impugned proceeding against the applicant will definitely amount to abuse of process on the part of opposite party no.2. 14. In view of above, the proceeding of Case No.380 of 2012 arising out of Case Crime No 559 of 2012, under Sections 419, 420, 467, 468, 471 IPC, Police Station Machhali Shahar, District Jaunpur, pending in the court of Chief Judicial Magistrate, Jaunpur as well as summoning order dated 01.02.2013 passed by the CJM, Jaunpur in the aforesaid case against the applicant is hereby quashed. 15. The application is, accordingly, allowed.