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2024 DIGILAW 1888 (ALL)

Vandana Malviya v. State of Uttar Pradesh

2024-08-13

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : SAURABH SHYAM SHAMSHERY, J. 1. Heard Sri Shashi Kant Shukla, learned counsel for applicant, learned AGA for State and Sri Aditya Gupta, Advocate for Opposite Party No. 2. 2. In the present case there are few undisputed facts that applicant is the sister of complainant. She has two other brothers also. Complainant and his two brothers have executed a registered General Power of Attorney (hereinafter referred to as “GPA”) on 05.07.2021 in favour of present applicant to sale out share of scheduled property situate in Uttarakhand. Relevant Clause 10 of GPA is reproduced hereinafter: “10. To sell our share in the said Scheduled Property in whole or in parts, to any persons, to execute proper sale deeds, to present the same for registration, before the concerned Sub-Registrar of Assurances, to admit the execution thereof, to receive sale consideration by cheque/demand draft/RTGS/bank transfer in her name or in our names and to handover the possession to the purchasers on site and to issue receipt thereof.” 3. Further, undisputedly applicant has sold some part of scheduled properties by different sale deeds. Later on only complainant has executed a registered cancellation deed of GPA on 21.12.2021. It is also not under much dispute that even thereafter on basis of GPA applicant had sold some part of scheduled property by different sale deeds (from 30.11.2021 to 30.12.2021 as many as five sale deeds were executed on basis of GPA). It is the case of applicant that as soon as she came to know about cancellation of GPA she does not further execute any sale deed on basis of said GPA. 4. In aforesaid circumstances, only complainant, and not his two other brothers, filed a criminal complaint against applicant under Sections 323, 504, 506 419, 420 IPC on 19.04.2023. Relevant paragraphs of complaint are mentioned hereinafter: 5. In pursuance of above complaint statement of complainant was recorded under Section 200 Cr.P.C. as well as statements of witnesses were also recorded under Sections 202 Cr.P.C. and they are reproduced hereinafter: 6. Chief Judicial Magistrate, Prayagraj vide impugned order dated 16.01.2024 summoned present applicant to face trial under Sections 323, 506, 420 IPC. In pursuance of above complaint statement of complainant was recorded under Section 200 Cr.P.C. as well as statements of witnesses were also recorded under Sections 202 Cr.P.C. and they are reproduced hereinafter: 6. Chief Judicial Magistrate, Prayagraj vide impugned order dated 16.01.2024 summoned present applicant to face trial under Sections 323, 506, 420 IPC. Relevant part of impugned order is reproduced hereinafter: “From perusal of documents, it transpires that a General Power of Attorney was executed by the complainant and his two brothers in favour of Vandana Malwiya on 08.07.2021 authorising her to execute sale deeds and receive consideration in her name or in the name of the brothers. This General Power of Attorney was cancelled by the complainant on 21.12.2021. The complainant has also filed copies of various sale deeds executed by Vandana Malwiya after the cancellation of the General Power of Attorney stating that the General Power of Attorney has not been revoked by its executants. The complainant has stated that he has not been given his share of the consideration by Vandana Malwiya and filed his bank statements in support thereof. A bare perusal of the bank statements show that no money was received from Vandana Malwiya. The complainant has also stated that Vandana Malwiya had threatened him and also beat him. The evidence produced on record prima facie suggest that Vandana Malwiya had committed cognizable offences u/s 420, 323, 506 IPC. Hence, sufficient grounds exist to summon the accused. Order Vandana Malwiya is summoned u/s 420, 323, 506 IPC in complaint case no. 928/2023. The complainant shall take appropriate steps within 10 days. The office shall thereafter issue process. Fix 27.02.2024.” 7. The reasons assigned to summon applicant in aforesaid impugned order was that according to GPA share of proceeds of sale deeds was required to be given to applicant as well as his two brothers, however, with dishonest intention applicant though executed number of sale deeds but has not handed over share of proceeds thereof to complainant and his brothers. 8. Learned counsel for both parties have interpreted relevant clause of said GPA in their favour, however, no much resistance was made at the behest of counsel for complainant that even prima facie on basis of material before Magistrate concerned, no case is made out under Sections 323, 506 IPC. 9. 8. Learned counsel for both parties have interpreted relevant clause of said GPA in their favour, however, no much resistance was made at the behest of counsel for complainant that even prima facie on basis of material before Magistrate concerned, no case is made out under Sections 323, 506 IPC. 9. So far as offence under Section 420 IPC is concerned, said Section is quoted hereinafter: “420. Cheating and dishonestly inducing delivery of property: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 10. Learned counsel for applicant submits that GPA was executed by three brothers including complainant in favour of their sister, i.e. applicant. In entire complaint or statements recorded before Magistrate, no allegation was made that GPA was itself executed on dishonest inducement of applicant. Even the GPA was revoked only by complainant and not by his two other brothers. Even other two brothers have not produced as witnesses under Section 202 Cr.P.C. 11. Learned counsel for applicant further submits that only allegation made in complaint as well as in the statements is that the proceeds of sale deeds were usurped by applicant and its due share was not given to complainant as well as his two brothers. However, for that relevant clauses of GPA has to be interpreted but the same can be done in civil suit and not in criminal proceedings. 12. Learned counsel appearing for complainant has referred the contents of complaint as well as statements that despite a specific clause in GPA due share of complainant from proceeds of various sale deeds was not handed over, thus the applicant has committed an offence of cheating. He also refers the details of different sale deeds executed by applicant on basis of GPA and total proceed thereof was around Rs. 7 crores. Various notices were issued to applicant, however, terms of GPA were violated with dishonest intention. 13. Heard learned counsel for parties and perused the material available on record. 14. He also refers the details of different sale deeds executed by applicant on basis of GPA and total proceed thereof was around Rs. 7 crores. Various notices were issued to applicant, however, terms of GPA were violated with dishonest intention. 13. Heard learned counsel for parties and perused the material available on record. 14. Undisputed facts have already been referred above that complainant and his two brothers have executed a GPA in favour of applicant, i.e., their sister, to sell out the scheduled property. Applicant has executed various sale deeds on basis of GPA even after its revocation at the behest of complainant. 15. There is no material on record that share of proceeds was handed over to complainant and his brothers. Counsel for both parties have interpreted clauses of GPA in their favour and as already observed the interpretation of GPA can be done only in civil proceedings on basis of evidence and not in criminal proceedings. It has already been observed earlier that on basis of contents of complaint and statements even prima facie no ingredients of offence under Sections 323, 506 IPC are made out. Therefore, only consideration left is, whether on basis of material available and rival submissions ingredients of Section 420 IPC are made out or not as well as whether requisite reasons were assigned while passing impugned summoning order as required under Section 204 Cr.P.C. 16. It has already been referred above that there is no allegation against applicant that she has induced complainant and his two brothers with dishonest intention to execute a registered GPA in her favour. Therefore, only consideration left is, whether after GPA was executed and on basis of it various sale deeds were executed by applicant, she with an dishonest intention, does not part away due share of complainant and his two brothers from proceeds of sale deeds. 17. In this regard contents of revocation of deed of GPA executed by complainant on 21.12.2021 would be relevant and relevant part thereof is mentioned hereinafter: 18. Aforesaid reasons assigned for revocation of GPA does not indicate that reason for it was the dishonest intention developed with applicant after sale deeds were executed for not sharing the due share, if any, from proceeds of sale deeds to complainant and his brothers. Therefore, even till date of revocation of GPA, i.e., 21.12.2021, there was no allegation of dishonest intention of applicant. Therefore, even till date of revocation of GPA, i.e., 21.12.2021, there was no allegation of dishonest intention of applicant. The criminal complaint was filed on 19.04.2023, i.e., after a substantial period of about two and half years and appears to be only due to reason to put pressure on applicant supposedly on ground that negotiations were failed. Complainant has not challenged any sale deed or has not filed any civil suit so that clauses of GPA, now revoked, can be interpreted on basis of rival submissions. 19. At this stage, I have carefully perused the statement of complainant recorded under Section 200 Cr.P.C. that it talks about assurance only and nothing has been mentioned about any clauses of GPA that it was provided therein that proceeds of sale deeds have to be shared amongst the complainant and his brothers. 20. As referred above, Section 420 IPC provides cheating and dishonest inducement of property. Therefore, the allegation would have substance only when the complainant had put a case that applicant has dishonestly induced three brothers to execute GPA. Subsequent dishonest, if any, would depend on basis of clauses of GPA. Since on face of it there is ambiguity on the issue of share of proceeds of sale deeds, therefore, for said purpose civil remedy is appropriate remedy. In this regard Para 38 of a judgment passed by Supreme Court in C. Subbiah alias Kadambur Jayaraj and Others vs. Superintendent of Police and Others, 2024 SCC Online SC 935 is relevant and the same is reproduced hereinafter: “38. It is thus clear that from the complaint, there is no such allegation therein which can persuade the Court to hold that the intention of the accused appellants was to defraud the complainant right from the inception of the transactions. The accused appellants have unquestionably, passed on some plots as well as part profits from the land deals to the complainant but the dispute is regarding the quantification of profits and full satisfaction of the share claimed by the complainant proportional to the investments made by him.” 21. In aforesaid circumstances, this Court is of the considered opinion that complainant has failed to make out a case even prima facie that applicant has dishonestly induced complainant and his brothers to execute GPA or even thereafter. In aforesaid circumstances, this Court is of the considered opinion that complainant has failed to make out a case even prima facie that applicant has dishonestly induced complainant and his brothers to execute GPA or even thereafter. Even otherwise, at the stage of revocation of GPA, at the behest of applicant, there was no reference of any dishonest intention. The only grievance left with complainant is that proceeds of sale deeds were not shared. However, for that an interpretation of clauses of GPA would be required, which cannot be done in criminal proceedings and for that civil remedy appears to be the best remedy. 22. In view of above, impugned order dated 16.01.2024 passed under Section 204 Cr.P.C. also does not take note of clauses of GPA and in a very cursory manner only on ground that proceeds of sale deeds were not shared to applicant, applicant was summoned under Section 420 IPC also. Therefore, as discussed above, ingredients of Section 420 IPC were not made out as well as ingredients of Section 323, 506 IPC are also not made out. 23. In the result, application is allowed. Impugned summoning order dated 16.01.2024 passed by Additional Chief Judicial Magistrate, Room No. 7, Prayagraj in Complaint Case No. 628 of 2023 (Pankaj Malviya vs. Smt. Vandana Malviya), under Sections 420, 323, 506 IPC, Police Station George Town, District Allahabad as well as further proceedings thereof are also hereby quashed.