Tuphail Ahmad And 5 Others vs State Of U.P. And 3 Others on 23 August, 2023

[Cites 12, Cited by 3]

Allahabad High Court

Tuphail Ahmad And 5 Others vs State Of U.P. And 3 Others on 23 August, 2023

1. Heard Sri Agnivesh holding brief of Sri Vineet Pandey, learned counsel for the petitioners, Sri Sumit Goyal, learned counsel for the informant, Sri Virendra Kumar Pal, learned A.G.A for the State respondents and perused the records.

2. The relief sought in this petition is for quashing of the first information report dated 11.07.2023, registered as Case Crime No. 249 of 2023, under Sections 420, 467, 468, 471 IPC, Police Station Cantt., District Bareilly.

3. The FIR impugned herein has been lodged in respect of sale deed executed on 24.02.1992. Allegation in the FIR is that one Raj Kumar Malhotra, who was having registered power of attorney dated 10.04.1991 in his favour executed by Tuphail Ahmad (petitioner no.1) for selling the plots of the property, which was being developed by the petitioner no.1-Tuphail Ahmad known as Bukhara Enclave, District Bareilly. He had executed a sale deed dated 24.02.1992 in respect of plot no.18, area 229 sq.yard, in favour of the informant-Dr. Rajesh Tandon possession whereof was also handed over. Thereafter, again by registered sale deed dated 04.02.2004 the petitioner no.1-Tuphail Ahmad alongwith others executed through Raj Kumar Malhotra, his power of attorney holder sold the said plot no.18 to the petitioner no.2-Vijay Prakash and petitioner no.3-Ritesh Agarwal, who in turn sold the said plot no.18 to the petitioner no.4-Rafikan Begam, daughter-in-law of the petitioner no.1-Tuphail Ahmad by registered sale deed dated 14.07.2011 wherein, the petitioner no.5/Accused no.6-Tasleem Ahmad (son of Tuphail Ahmad) and petitioner no.6/Accused No.7-Budhpal Singh are the witnesses. It is stated that whereas the informant throughout remained in possession of the said plot no.18. The allegation in the present first information report is that the subsequent sale deeds are nothing but a fraud played upon the informant, as all accused were aware of all the facts right since the beginning, therefore, the offences have been committed.

4. It is submitted by the learned counsel for the petitioner that the present criminal prosecution has been lodged after a delay of about 31 years and prior to lodging of the impugned first information report Original Suit No.191 of 2023 (Tuphail Ahmad vs. Rajesh Tandon) for cancellation of sale deed dated 24.02.1992 executed in favour of the informant-Dr.Rajesh Tandon filed by the petitioner no.1 has already been instituted on 05.07.2023. He submits that petitioner no.1 is an old man aged about 80 years; the petitioner nos.2, 3 and 4 are bona fide purchaser and the petitioner nos.5 and 6 are only witnesses of the sale deed dated 14.07.2011. Submission, therefore, is that a civil dispute is being given colour of criminal prosecution and is liable to be quashed. It was also pointed out that Raj Kumar Malhotra had died in the year 2013.

5. Per contra, learned counsel for the informant pointed out that the informant is a Doctor by profession and is employment in Delhi and his wife is also Professor of Radiology in University, College of Medical Science in Delhi and at present are resident of Delhi who had purchased the plot through registered sale deed dated 24.02.1992 executed by one Raj Kumar Malhotra, power of attorney holder of Tuphail Ahmad- petitioner no.1. The same person had executed the subsequent registered sale deed dated 04.02.2004 of the property in question to the accused-petitioner no.2-Vijay Prakash and accused petitioner no.3-Ritesh Agrawal, who subsequently re-sold the property to the accused-petitioner no.4-Rafikan Begam, daughter-in-law of the petitioner no.1-Tuphail Ahmad by registered sale deed dated 14.07.2011, wherein Tasleem Ahmad (petitioner no.5) son of the petitioner no.1 is one of the witness and as such a fraud has been played by Tuphail Ahmad (alongwith all the other accused persons), who had sold the property to the informant as back in the year 1992. He submits that clearly the property in question which has now been fraudulently reconveyed to his immediate family member i.e daughter-in-law and son being a witness to such sale deed. He further submits that as per his instructions Raj Kumar Malhotra, power of attorney holder had executed at least 10 sale deeds on behalf of petitioner no.1-Tuphail Ahmad, which were never questioned by him. It is next submitted that just before 5 days a suit for cancellation of sale deed has been filed for cancelling the sale deed dated 24.02.1992 executed in favour of the informant on coming to know that the informant is initiating criminal proceedings. He further submits that therefore, taking defence of civil dispute by itself would not be sufficient in the present case as the offences as alleged have been clearly made out against the petitioners and in no uncertain terms criminality is attached to this act.

6. Learned AGA opposed the prayer for quashing of the FIR and has adopted the arguments of learned counsel for the informant.

7. We have considered the rival submissions of the learned counsel for the parties and perused the records.

8. Apart from finding force in the arguments of the learned counsel for the informant we further find that the Original Suit No.191 of 2023 (Tuphail Ahmad vs. Rajesh Tandon) filed by the the petitioner no.1-Tuphail Ahmad nowhere mentions that two sale deeds were subsequently executed in respect of the same plot no.18 by Raj Kumar Malhotra, power of attorney holder on 04.02.2004. This fact has also been concealed in the suit that the same plot no.18 had been sold by the petitioner no.2-Vijay Prakash and petitioner no.3-Ritesh Agarwal to the petitioner no.4- Rafikan Begam- daughter-in-law of the plaintiff-Tuphail Ahamd- petitioner no.1 herein by registered sale deed dated 14.07.2011 wherein his son is one of the witness. Therefore, the suit filed after about 31 years concealing all these materials of facts is nothing but an attempt to cover up the criminality of the act committed by the petitioner no.1 in collusion with other co-accused persons.

9. The Hon'ble Apex Court in Trisuns Chemical Industry vs. Rajesh Agarwal and Others, (1999) 8 SCC 686 has held in paragraphs 7, 8 and 9 as under:-

"7. Time and again this Court has been pointing out that quashment of FIR or a complaint in exercise of inherent powers of the High Court should be limited to very extreme exceptions [vide State of Haryana vs. Bhajan Lal (1992 suppl.(1) SCC 335) and Rajesh Bajaj vs. State NCT of Delhi (1999(3) SCC 259)].

8. In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations:

"10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions."

9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana vs. Bhajaj Lal (Supra).

(Emphasis supplied)

10. The Hon'ble Apex Court in Paramjeet Batra vs State Of Uttarakhand & Others, (2013) 11 SCC 673 has clearly held that the complaint disclosing civil transactions may also have criminal texture. Para 12 of the said judgment reads as under:-

"12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court."

(Emphasis supplied)

11. In Vesa Holdings Pvt. Ltd. & Anr. Vs State of Kerala & Ors, (2015) 8 SCC 293 the Hon'ble Apex Court has held that given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. Relevant extract of para 13 of the said judgment reads as under:-

"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not...."

(Emphasis supplied)

12. A Co-ordinate Bench of this Court in Criminal Misc. Writ Petition No.18302 of 2022 (Dilip Kumar Singh @ Deepu Singh vs. State of U.P. and 3 Others) has held as under:-

"Considering the aforesaid facts, it cannot be denied that there is no express bar to the simultaneous continuance of a criminal proceeding as well as civil proceedings. Citing the decision rendered by Hon'ble Supreme Court in (1999) 8 SCC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwal & Others). It has been held that criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit.

Thus, even if the civil proceedings are subjudice before the Provident Fund Commissioner, Varanasi, the criminal prosecution can still proceed against the petitioner.

Having considered the submissions advanced by learned counsel for the parties and from the perusal of records, it is apparent that the allegations in the FIR do constitute ingredients of a cognizable offence."

(Emphasis supplied)

13. In this view of the matter and the law laid down by the Hon'ble Apex Court in the case of Trisuns Chemical Industry (supra), Paramjeet Batra (supra), Vesa Holdings (supra) as well as judgment passed by a Co-ordinate Bench of this Court in the case of Dilip Kumar Singh @ Deepu Singh (supra) and considering the facts and circumstances of the case as alleged in the first information report and the contents of the Original Suit No.191 of 2023 (Tuphail Ahmad vs. Rajesh Tandon) as already discussed in the proceeding paragraphs, we find that the argument of the learned counsel for the petitioners that as a civil dispute is pending and no criminality is attached in the act, is not sustainable in the eye of law hence, stands rejected.

14. We also find that on a bare reading of the impugned FIR a cognizable offence is made out. Therefore, in view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and in Special Leave to Appeal (Crl.) No.3262/2021 (Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh) decided on 07.10.2021, no case has been made out for interference with the impugned first information report.

Order Date :- 23.8.2023 Nitendra

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Allahabad High Court