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2024 DIGILAW 2167 (ALL)

Anuj Murarka v. State Of U. P.

2024-09-30

RAJEEV MISRA

body2024
JUDGMENT : Rajeev Misra, J. 1. Heard Mr. Pranav Tiwari along with Mr. Atharva Dixit, the learned counsel for revisionist, the learned A.G.A. for State, Mr. Amit Saxena, the learned Senior counsel assisted by Mr. Nishant Mehrotra, the learned counsel representing opposite party 2 and Mr. Vinay Saran, the learned Senior counsel assisted by Mr. M. K. Maurya, the learned counsel representing opposite parties 3 to 11. 2. Perused the record. 3. Challenge in this criminal revision is to the order dated 18.10.2022, passed by Chief Judicial Magistrate, Pilibhit, whereby Criminal Misc. Case No. 900 of 2022 (Anuj Murarka Vs. Bharat Swaroop and Others), under Section 156 (3) Cr.P.C., Police Station- Sungarhi, District Pilibhit, filed by applicant has been rejected. 4. Record shows that Jyoti Swaroop, maternal grand father (Nana) of applicant Anuj Murarka executed gift deed dated 16.3.1970, whereby 12.50 acres of land comprised in Survey Plot No. 411 was gifted to revisionist. Since the revisionist was residing at Delhi, he appears to have executed a power of attorney dated 16.3.1985 in favour of his maternal uncle (Mama) Bharat Swaroop on 16.3.1985. Copy of the said power of attorney is on record as Annexure-2 to the affidavit filed in support of present criminal revision. Subsequently, Bharat Swaroop, the power of attorney holder of revisionist, obtained agricultural loan to the tune of Rs. 2,75,000/- by mortgaging the land of which he was the power of attorney holder. According to the revisionist, the loan amount was misappropriated by Bharat Swaroop, the power of attorney holder as the entire amount obtained under the loan was syphoned of in the account of opposite party-2 Bharat Swaroop and his wife. 5. Subsequently, Bharat Swaroop, the power of attorney holder executed a registered sale-deed dated 21.1.2014 in respect of the land in dispute whereby and whereunder the entire land of which opposite party-2 Bharat Swaroop was power of attorney holder came to be transferred to one L.H. Sugar Factory Limited, Pilibhit. On the basis of aforesaid registered sale- deed dated 21.1.2014, the Sugar Factory namely, L.H. Sugar Factory Limited, Pilibhit applied for mutation under section 34 of U.P. Land Revenue Act. The same was allowed, vide order dated 19.5.2014, passed by concerned Tehsildar. Revisionist Anuj Murarka is alleged to have acquired knowledge of the aforesaid sale-deed dated 12.1.2014 in the year 2022. He, accordingly, filed Original Suit No. 105 of 2022 (Anuj Murarka Vs. The same was allowed, vide order dated 19.5.2014, passed by concerned Tehsildar. Revisionist Anuj Murarka is alleged to have acquired knowledge of the aforesaid sale-deed dated 12.1.2014 in the year 2022. He, accordingly, filed Original Suit No. 105 of 2022 (Anuj Murarka Vs. L.H. Sugar Factory Limited, Pilibhit and another) for a decree of cancellation of registered sale-deed dated 21.1.2014 and for a decree of mandatory injunction directing the defendant-1 to hand over vacant peaceful possession of the land in dispute in favour of plaintiff i.e. applicant- Anuj Murarka. The said suit is reported to be pending. Ultimately, revisionist-Anuj Murarka filed an application dated 6.7.2022, under section 156(3) Cr.P.C. praying therein that in respect of the illegality committed by Bharat Swaroop, the power of attorney holder of applicant and the beneficiaries of the illegal act of the power of attorney holder Bharat Swaroop be brought to books by directing the Station House Officer of concerned Police Station to register an F.I.R. and further conduct an enquiry qua the allegations made in the application filed under section 156(3) Cr.P.C. 6. Aforementioned application filed by applicant came to be registered as Criminal Misc. Case No. 900 of 2022 (Anuj Murarka Vs. Bharat Swaroop and Others), under Section 156 (3) Cr.P.C., Police Station- Sungarhi, District Pilibhit. The Jurisdictional Magistrate, proceeded with the application. He, accordingly, called for a Police report from the Police Station concerned. The order passed by Jurisdictional Magistrate was duly complied with and an enquiry report regarding the allegations made in aforementioned application under section 156 (3) Cr.P.C. filed by applicant was submitted in aforementioned criminal case. 7. Concerned Magistrate examined the allegations made in the application under section 156(3) Cr.P.C. in the light of the facts that emerged in the report referred to above. On the basis of evaluation and examination undertaken by concerned Magistrate in the light of above regarding the allegations made in the application under section 156(3) Cr.P.C., he came to the conclusion that no good ground is made out to direct the Station House Officer of Police Station concerned to register an FIR and thereafter, conduct an enquiry qua the allegations made in the application under section 156(3) Cr.P.C. filed by revisionist. In view of above, the concerned Magistrate, vide his order dated 18.10.2022, rejected the application under section 156(3) Cr.P.C. filed by revisionist. 8. In view of above, the concerned Magistrate, vide his order dated 18.10.2022, rejected the application under section 156(3) Cr.P.C. filed by revisionist. 8. Thus feeling aggrieved by the order dated 18.10.2022, passed by the Chief Judicial Magistrate, Pilibhit, in Criminal Misc. Case No. 900 of 2022 (Anuj Murarka Vs. Bharat Swaroop and Others), under Section 156 (3) Cr.P.C., Police Station- Sungarhi, District Pilibhit, revisionist-Anuj Murarka has now approached this Court by means of present criminal revision. 9. Mr. Pranav Tiwari, the learned counsel for revisionist, in support of this criminal revision has submitted as follows: (i) According to the learned counsel for revisionist, from perusal of application under section 156(3) Cr.P.C., filed by revisionist Anuj Murarka, commission of a cognizable offence is clearly disclosed. On the above premise, the learned counsel for revisionist contends that in view of above, the concerned Magistrate had no other option but to allow the application under section 156(3) Cr.P.C. filed by applicant. To buttress his submission he has referred to the Five Judges Bench Judgement of Supreme Court in Lalita Kumari Vs Goverment of Uttar Pradesh and Another , 2014 (2) SCC 1 , wherein the Apex Court has clearly held that if the application under section 156(3) Cr.P.C. discloses the commission of a cognizable offence then the Concerned Magistrate has no option but to allow the application. It is thus urged that in view of aforementioned clear mandate expressed by Apex Court, the order impugned in present application is not only illegal but also arbitrary. As such, the same is liable to be set aside by this Court. (ii). It was next contended by the learned counsel for revisionist that from perusal of the application under section 156(3) Cr.P.C. filed by revisionist, it is evident that clear and categorial allegations were made against opposite party-2 Bharat Swaroop, the power of attorney holder of revisionist. It was specifically pleaded that under the power of attorney executed by the revisionist in favour of opposite party-2 Bharat Swaroop, limited rights were given to the power of attorney holder. It was specifically pleaded that under the power of attorney executed by the revisionist in favour of opposite party-2 Bharat Swaroop, limited rights were given to the power of attorney holder. However, in derogation of the same and further contrary to the objective behind the execution of power of attorney, opposite party-2 Bharat Swaroop, the power of attorney holder has acted in excess of the same inasmuch as, he has firstly obtained an agricultural land by mortgaging the property, which he was to only look after at the behest of power of attorney holder and subsequently executed a registered sale-deed dated 21.1.2014 in favour of L.H. Sugar Factory Limited, Pilibhit, which is beyond the scope of the power of attorney itself. 10. Apart from the aforementioned principal arguments, the learned counsel for revisionist has further addressed the Court with various submissions, the categories of which have been crystallized and they read as under:- (a) The role of other opposite parties needs to be investigated. (b) Mere pendency of civil proceedings is no bar to initiate criminal proceedings. With reference to above, the learned counsel for applicant contends that though Original Suit No. 105 of 2022 (Anuj Murarka Vs. L.H. Sugar Factory Limited, Pilibhit and another) has been instituted by revisionist for cancellation of registered sale-deed dated 21.1.2014, yet that by itself cannot be taken as a ground for not allowing the application under section 156(3) Cr.P.C. filed by revisionist. According to the learned counsel for revisionist, irrespective of the pendency of civil proceedings, the criminal proceedings yet can be initiated against the prospective accused. To lend legal support to aforesaid submission, the learned counsel for revisionist has relied upon the following judgements of Supreme Court:- (i). Kamala Devi Agarwal Vs. State of West Bengal , (2002) 1 SCC 555 , (ii). M/s Indina Oil Corporation Vs. M/s NEPC India Ltd. and Others , (2006) 6 SCC 736 , (iii). Devendra and Others Vs. State of Uttar Pradesh , (2009) 7 SCC 495 and (v). Vishnu Dutt Sharma Vs. Daya Sapra , (2009) 13 SCC 729 (c). Delay in filing the application under section 156(3) Cr.P.C. is by itself not so sufficient a ground, so as to deny criminal prosecution of prospective accused. Devendra and Others Vs. State of Uttar Pradesh , (2009) 7 SCC 495 and (v). Vishnu Dutt Sharma Vs. Daya Sapra , (2009) 13 SCC 729 (c). Delay in filing the application under section 156(3) Cr.P.C. is by itself not so sufficient a ground, so as to deny criminal prosecution of prospective accused. Referring to section 469 Cr.P.C., the learned counsel for revisionist contends that immediately upon gaining knowledge regarding execution of registered sale-deed dated 21.1.2014 by the power of attorney holder i.e. opposite party-2 in favour of others, the application under Section 156(3) Cr.P.C. was filed by applicant. As such, it cannot be said that the delay in filing the application under section 156(3) Cr.P.C. by revisionist is either accentuated by mala-fide or it can be said that no sufficient and truthful explanation has been offered regarding the delay in initiating the criminal proceedings. Furthermore, since no indefeseable right has accrued in favour of the prospective accused or others, the Court below has erred in law and fact in rejecting the application under section 156(3) Cr.p.C. filed by revisionist. (d) It is lastly contended that the concerned Magistrate could have treated the application under section 156(3) Cr.P.C. filed by applicant as a complaint and tried the same as a complaint case. Since the concerned Magistrate has rejected the application under section 156(3) Cr.P.C. filed by revisionist merely on the ground that dispute between the parties is basically a civil dispute and the criminal proceedings are sought to be engineered for dragging a purely civil dispute into criminal litigation is patently erroneous, inasmuch as, by no stretch of imagination the said reasonings can be relied upon to support the conduct of opposite party-2- Bharat Swaroop, the power of attorney holder of revisionist. On the above conspectus, Mr. Pranav Tiwari the learned counsel for revisionist, submits that present criminal revision is liable to be allowed. 11. Per contra, the learned A.G.A. for State-opposite party-1 has opposed the present criminal revision. He submits that irrespective of the law laid down by the Five Judges Bench of Apex Court in Lalita Kumari (Supra) , subsequent a two Judges Bench of Supreme Court in Priyanka Srivastava Vs. State of U.P. , (2015) 6 SCC 287 observed that jurisdiction under Section 156(3) Cr.P.C. should not be exercised in a routine manner. He submits that irrespective of the law laid down by the Five Judges Bench of Apex Court in Lalita Kumari (Supra) , subsequent a two Judges Bench of Supreme Court in Priyanka Srivastava Vs. State of U.P. , (2015) 6 SCC 287 observed that jurisdiction under Section 156(3) Cr.P.C. should not be exercised in a routine manner. Courts are required to exercise more care, caution and circumspection, while dealing with an application under Section 156(3) Cr.P.C. It is in line with above that concerned Magistrate called for a police report and thereafter examine the allegation in the light of material which emerged in the police report. It is upon aforesaid evaluation and examination undertaken by Court below that it has come to the conclusion that the dispute between the parties is basically a civil dispute, which is being sought to be dragged into criminal litigation. Court below has also observed that subsequent to the disputed registered sale deed dated 21.01.2014, the name of vendee i.e. L.H. Sugar Factory Limited, Pilibhit has been mutated. 12. Learned A.G.A. thus contends that there is no dispute between the parties that a power of attorney was executed by revisionist in favour of Bharat Swaroop, a prospective accused under the terms of the power of attorney so executed, the power of attorney holder had right under the power of attorney to obtain loan and execute sale deed regarding the land in dispute. As such, prima facie, it cannot be said that act of prospective accused Bharat Swaroop has a criminal intent. He, therefore, concludes that ex-facie no criminality can be attached to the act of prospective accused Bharat Swaroop. 13. On the above premise, the learned A.G.A. contends that though varied submissions have been urged by the learned counsel for revisionist, the findings recorded by Court below in the order impugned on the basis of which, the Court below has arrived at the conclusion that no good ground is made out to entertain the application under Section 156(3) Cr.P.C. filed by revisionist could be dislodged by the learned counsel for revisionist as being illegal, perverse or erroneous. It is well settled that if the finding cannot be dislodged, the conclusion cannot be altered. 14. Mr. Amit Saxena, the learned Senior counsel assisted by Mr. Nishant Mehrotra, the learned counsel representing opposite party 2 has vehemently opposed the present application. It is well settled that if the finding cannot be dislodged, the conclusion cannot be altered. 14. Mr. Amit Saxena, the learned Senior counsel assisted by Mr. Nishant Mehrotra, the learned counsel representing opposite party 2 has vehemently opposed the present application. In opposition to present criminal revision, he has submitted as follows: " a. Clause (f) of the said power of attorney clearly empowered the answering respondent to open and operate any banking account opened in the name of the said farm or any person named in any bank which my attorney thinks proper and expedient, and in that connection sign and execute such letters or documents as may be required. b. Clause (m) of the said power of attorney clearly empowered the answering respondent to transfer any of assets of the revisionist connected with the said farm or holding to the bank and/ or its nominee for the purpose of paying off the dues of the bank. c. Clause (o) of the said power of attorney clearly empowered the answering respondent to mortgage as the agricultural land and all appurtenances there to including tube wells, channels agricultural implements, or other moveable or immovable properties pertaining to the farm and/or holding howsoever in favour of Bank for payment of any advance. d. Clause (p) of the said power of attorney clearly empowered the answering respondent to open the accounts of the farm and/or holding with the Bank whether they are in debit or credit and to issue receipt etc., e. Clause (r) of the said power of attorney clearly empowered the answering respondent to sell or transfer the agricultural lands and all appurtenances there to including moveable or immovable properties pertaining the farms and or holding howsoever in favour of any one. 2. None of the finding of the learned court below in respect of the rights granted under the said power of attorney have been challenged in the present revision. 3. Original suit no. 105 of 2022 filed by revisionist on the same grounds as application under section 156 (3) Cr.P.C., and filed earlier in time than the said application under section 156 (3) Cr.P.C., and thus is an alleged pure civil dispute which has been given an attempt to be made an alleged criminal act. It is noticeable that no recovery of any amount has been sought in the said civil suit. It is noticeable that no recovery of any amount has been sought in the said civil suit. Moreover, the said suit was dismissed on 02.09.2023. 4. As regard the alleged siphoning of funds, assuming, without admitting, the same to be true, the same constitute merely a breach of terms of power of attorney, and thus, is an alleged civil dispute. Further submitted that the application under section 156 (3) Cr.P.C. has to read in entirety and a bare perusal of the same shows that the allegations are with respect to that there was no such authority given to respondent no. 2 under the power to attorney, which is completely incorrect, and reading of the power of attorney demonstrates that the authority was given to the respondent no. 2 qua the farm land to deal with it in any manner whatsoever If it is the contention of the revisionist that the respondent no. 2 did not use the funds for the purpose mentioned in the power of attorney, the same would only constitute a breach of terms of power of attorney, which again is a purely civil dispute and no criminal action shall lie far the alleged breach of the terms of power of attorney. 5. Mutation proceedings resulted in favor of the respondents and the restoration petition of the revisionist was dismissed. 6. Till date the said power of attorney has not been revoked. 15. Mr. Vinay Saran, learned Senior counsel assisted by Mr. M.K. Maurya, the learned counsel representing opposite parties 3 to 11 submitted as follows in opposition to present application: " 1. Respondents no. 3 to 11 are the directors of company L.H. Sugar Factory Ltd. the said company is the bonafide purchaser in the sale dead dated 21.01.2014 executed by respondent no. 2 in view of the power of attorney granted to the respondent no. 2 by the revisionist. 2. A perusal of the said power of attorney shows that Clause (r) of the said power of attorney clearly empowered the answering respondent to sell or transfer the agricultural lands and all appurtenances there to including moveable or immovable properties pertaining the farms and or holding howsoever in favour of any one. 3. L.H. Sugar Factory Ltd. is a bona-fide purchaser of the aforementioned land, and its directors respondents no. 3 to 11 have unnecessarily been falsely implicated in the present case. Moreover, the respondents no. 3. L.H. Sugar Factory Ltd. is a bona-fide purchaser of the aforementioned land, and its directors respondents no. 3 to 11 have unnecessarily been falsely implicated in the present case. Moreover, the respondents no. 6, 7, 8, 9 and 10 were not even the directors of the said company on the date and at the time of execution of the sale deed dated 21.01.2014. 16. Having heard the learned counsel for revisionist, the learned A.G.A. for State and Mr. Amit Saxena, the learned Senior counsel assisted by Mr. Nishant Mehrotra, the learned counsel representing opposite party 2 and Mr. Vinay Saran, the learned Senior counsel assisted by Mr. M.K. Maurya, the learned counsel representing opposite parties 3 to 11 and upon perusal of record, this Court finds that the following issues arise for consideration;- 17.1. Whether in the facts and circumstances of the case, the dispute in between the parties is a purely civil dispute, which is being sought to be dragged into criminal litigation? 17.2. Whether the dispute between the parties is regarding the scope and content of the power of attorney executed by the revisionist and vice- versa whether the act of prospective accused Bharat Swaroop, the power of attorney holder of revisionist is contrary to the terms of the power of attorney itself? 17.3. Whether in view of the law laid down by the Apex Court that where the dispute relates to a registered sale deed, remedy lies to the aggrieved person to approach the Civil Court? 18. All the three issues that have emerged for consideration before this Court are interlinked and intertwined. Consequently, they cannot be dealt with separately nor segregation can be made. As such, all the three issues are taken up together. 19. As already noted, it is an undisputed fact that revisionist executed a power of attorney dated 16.03.1985 in favour of opposite party-2 Bharat Swaroop, a prospective accused. It is also an undisputed fact that on the basis of aforementioned power of attorney executed by revisionist, the power of attorney holder i.e. Bharat Swaroop, a prospective accused executed a registered sale deed dated 21.01.2014 in favour of L.H. Sugar Factory Limited, Pilibhit. The power of attorney so executed by revisionist empowers the power of attorney holder to obtain loan and further execute sale deed. The power of attorney so executed by revisionist empowers the power of attorney holder to obtain loan and further execute sale deed. Therefore, prima-facie it cannot be said that the sale deed was executed by the power of attorney holder beyond the terms of the power of attorney. As such, ex-facie no criminality can be said to have been committed by the prospective accused Bharat Swaroop in executing the sale deed. It is also an undisputed fact that revisionist has already instituted Original Suit No. 105 of 2022 (Anuj Murarka Vs. L.H. Sugar Factor Limited, Pilibhit and Another) for a decree of cancellation of registered sale-deed dated 21.01.2014 and for a decree of mandatory injunction directing the defendant-1 to hand over vacant peaceful possession of the land in dispute in favour of plaintiff i.e. applicant- Anuj Murarka. Admittedly, the disputed sale deed dated 21.01.2014 is a registered document, therefore, by reason of above, the same shall continue to hold the field till it is cancelled by the competent Court of civil jurisdiction. The Criminal Court is denuded of it’s jurisdiction to cancel a registered document. In view of the clear stipulations contained in the power of attorney dated 16.03.1985 executed by revisionist himself, the disputed sale deed cannot be termed as void but shall be voidable. Therefore, ex-facie it cannot be said that any criminality has been committed by the power of attorney holder i.e. opposite party-2 Bharat Swaroop in executing the disputed sale deed. Furthermore, the Apex Court in the case of Sardar Ali Khan Vs. State of U.P. , (2020) 12 SCC 51 has held that where the dispute is regarding a sale deed, remedy lies to the aggrieved person by filing a civil suit and not a criminal complaint. The Court below has thus neither committed a jurisdictional error in passing the order impugned nor has it exercised it’s jurisdiction with material irregularity so as to warrant interference by this Court in exercise of jurisdiction under Sections 397 /401 Cr.P.C. 20. As a result, the present criminal revision fails and is liable to be dismissed. 21. It is, accordingly, dismissed 22. In the facts and circumstances of the case, the parties shall bear their own costs.