Allahabad High Court
Rasik Agarwal And 2 Others vs State Of U.P. And Another on 5 September, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:144620 Court No. - 74 Case :- APPLICATION U/S 482 No. - 11304 of 2024 Applicant :- Rasik Agarwal And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nitinjay Pandey Counsel for Opposite Party :- G.A.,Janardan Yadav And Case :- APPLICATION U/S 482 No. - 5235 of 2024 Applicant :- Parag Agarwal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nitinjay Pandey Counsel for Opposite Party :- G.A.,Janardan Yadav Hon'ble Saurabh Shyam Shamshery,J.
1. Both cases are arising out of a same controversy, therefore, are being decided simultaneously.
2. Heard Sri Nitinjay Pandey, learned counsel for applicants and Sri Janardan Yadav, learned counsel for opposite party No.2.
3. It is the case of Applicant No.1 in Application under Section 482 No.-11304 of 2024 and sole applicant in connected application under Section 482 No.5235 of 2024 that they have purchased a land from one Prithviraj Singh, whose name was recorded as tenure holder, by a registered sale-deed dated 04.06.2011. Applicant Nos. 2 and 3 of Application under Section 482 No. 11304 of 2024 were witnesses of said registered sale-deed. After possession of land, a cold storage was also constructed by applicants.
4. The complainant i.e. opposite party No.2 in both applications, has filed an application under Section 156(3) Cr.P.C. on 12.03.2013 against all applicants, alleging that vendor has sold part of her land also by cheating. On basis of an order passed by Magistrate a first information report was lodged under Sections 420, 467, 468, 471 I.P.C., in Case Crime No. 123 of 2013, P.S.- Aliganj, District-Etah, wherein after investigation, a final report was submitted on 25.09.2013.
5. The complainant filed a protest petition and by an order dated 28.05.2014, final report was rejected and a direction was passed for further investigation.
6. In pursuance of said order, further investigation was conducted and a report of Lekhpal was also taken note by Investigating Officer that no case was made out of any forgery or cheating as such again a final report was submitted on 11.04.2016.
7. Before filing of second final report, the complainant has also filed an original Suit No.451 of 2015 (Smt. Jalebshree Vs. Sri Parag Agarwal and others) for permanent injunction, wherein a written statement on behalf of applicants were also filed. The said suit was dismissed by an order dated 08.07.2016 since none appears on behalf of either parties in terms of Order IX Rule 3 C.P.C. No attempt has been made by complainant to restore the suit.
8. The Complainant again filed a protest petition on 22.01.2018 on which, learned Magistrate passed an order dated 15.02.2018, whereby the protest petition was treated as a complaint case. Thereafter, statement of complainant and witnesses were recorded. For reference, statement of complainant recorded under Section 200 Cr.P.C. on 04.06.2018 is reproduced hereinafter :-
"ब्यान अन्तर्गत धारा 200 दण्ड प्रक्रिया संहिता दिनांक-04.06.2018 नाम- जलेव श्री पत्नी रूपलाल शाक्य निवासी ससौता दोषपुर थाना अलीगंज जिला एटा ने सशपथ बयान किया कि -
ससौता दोषपुर मौजा में मुझे सवा छह विसे का पट्टा हुआ था जिस पर में कबजेदार थी । मेरे गाँव के पृथ्वीराज सिंह ने अपनी जमीन के साथ साथ मेरी इस जमींन का भी बैनामा पराग अग्रवाल व रसिक अग्रवाल को कर दिया जो कायमगंज के रहने वाले है बैनामा के गवाहान महेन्द्र सिंह व सत्यनरायन की साजिश से धोखाधडी व जालसाजी कर कूटरचित दस्तावेज तैयार करके तहसील अलींगज में करीब सात साल पूर्व उक्त लोगों ने पंजीकृत कराया इसकी जानकारी होने पर मैं मेरे पति मेरा बेटा आदि ने उक्त भूमि क्रेता विक्रेता व गवाहान से उक्त फर्जी बैनामा का खण्डन कराने को बार बार कहा किन्तु वह लोग नहीं माने तब मैं थाना अलीगंज रिपोर्ट लिखाने गयी किन्तु रिपोर्ट नही लिखी कप्तान साहब को रजि० प्रा०पत्र भेजा किन्तु कोई कार्यवाही नहीं हुयी तब न्यायालय के माध्यम से रिपोर्ट लिखी गयी किन्तु पुलिस ने विपक्षीगण से साज करके एफ.आर. लगा दी। उसके बाद न्यायालय द्वारा एफ.आर. खारिज कर पुनः जॉच करायी गयी किन्तु विवेचक ने पुनः पुरानी एफ. आर. का समर्थन करते हुए मुकदमा की जाँच समाप्त कर दी। अभियुक्तगण को दण्डित करने की कृपा की जाए।"
9. Learned Magistrate thereafter passed the impugned order dated 05.07.2023, whereby all applicants were summoned under Sections 4201, 468, 120-B I.P.C. For reference relevant part of order is reproduced hereinafter :-
"8- परिवादिया ने धारा 200 दं०प्र०सं० के बयानो में परिवाद पत्र के कथनों का समर्थन किया है तथा धारा 200 दं०प्र०सं० के अन्तर्गत प्रस्तुत साक्षीगण पी०डब्लू०-1, व पी०डब्लू०-2 के द्वारा भी परिवादी के कथनों का समर्थन किया गया है। परिवादी व उसके गवाहान को साक्ष्य के आधार पर विपक्षीगण पृथ्वीराज सिंह, पराग अग्रवाल, रसिक अग्रवाल, सत्यनारायण व महेन्द्र सिंह के विरूद्ध 420, 468, 120 बी भा०दं०सं० का अपराध बनता प्रतीत होता है, जिसके परीक्षण हेतु पृथ्वीराज सिंह, पराग अग्रवाल, रसिक अग्रवाल, सत्यनारायण व महेन्द्र सिंह को तलब किया जाना न्यायोचित होगा।
आदेश अभियुक्तगण/विपक्षीगण पृथ्वीराज सिंह, पराग अग्रवाल, रसिक अग्रवाल, सत्यनारायण व महेन्द्र सिंह के विरूद्ध 420, 468, 120 बी भी०दं०सं० का अपराध बनता प्रतीत होता है, जिसके परीक्षण हेतु विपक्षीगण को पृथ्वीराज सिंह, पराग अग्रवाल, रसिक अग्रवाल, सत्यनरायण व महेन्द्र सिंह के विरूद्ध 420, 468, 120 बी भा०दं०सं० थाना अलीगंज, जिला एटा के अभियोग में जरिये सम्मन तलब किया जाता है। परिवादी पैरवी अन्दर सप्ताह करें। अभियुक्तगण को धारा 204(2) दं०प्र०सं० में सूची गवाहान प्रस्तुत करने पर आदेशिकाएं दिनांक 20.07.2023 नियत करते हुए निर्गत हो।"
10. Learned counsel for applicants submits that few of applicants are resident of Farrukhabad i.e. beyond jurisdiction of learned Magistrate at Etah, however, the mandatory requirement of police report as provided under Section 202(1) Cr.P.C. was not complied with. Learned counsel further submits that the contents of complaint and statements have disclosed a civil dispute and for which, a suit was also filed by complainant earlier, but it got dismissed for want of prosecution and by present proceedings, complainant has given a colour of criminal case to a dispute which was essentially of a civil nature.
11. Learned counsel for applicants refers following paragraphs of Deepak Gaba and others Vs. State of U.P. and another (2023) 3 SCC 423 in support of his submission :-
"18. In order to apply Section 420IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415IPC have to be satisfied. To constitute an offence of cheating under Section 415IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201]
19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security.
32. While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479; Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192; and Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713.] In the present case, the said exercise has not been undertaken.
34. We must also observe that the High Court, while dismissing the petition filed under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge. [Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713]; Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]; R.P. Kapur v. State of Punjab, AIR 1960 SC 866; and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426.] Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued."
12. Learned counsel also refers the report of Lekhpal being part of charge-sheet that there was an error in number allotment of 'Patta' to complainant which was corrected. For reference, Lekhpal's report dated 11.04.2016 is reproduced hereinafter :-
"महोदय, मौजा ससोता दोषपुर परगना आजमनगर तहसील अलीगंज जिला एटा ने सरकारी अभिलेख जिल्द बन्दोबस्त चकबन्दी में खाता सं० 930 बंजर में गाटा सं० 835 का रकबा 0.26 डेसीमल है जिसके 0.105 हे० होते है। दर्ज है। उक्त गाटा सं० 835 रकबा 0.105 हे० मे से पृथ्वीराज सिंह पुत्र राम चन्द्र सिंह निवासी ग्राम के खाते में 0.100 हे० रकबा अंकित किया गया है जिसका बैनामा पृथ्वीराज सिंह पुत्र राम चन्द्र सिंह निवासी ग्राम ने पराग अग्रवाल व रसिक अग्रवाल पुत्रगण सत्य नारायण अग्रवाल के नाम कर दिया है। तथा गाटा सं० 835 में केवल 0005 हे० रकबा शेष बचता है जिसका पट्टा नसबन्दी आपरेशन के अन्तर्गत जलेब श्री पत्नी रूप लाल निवासी ग्राम के नाम किया गया था। उसमें पट्टा करते समय भूल वश गाटा सं० 835 रकबा 0005 हे० के स्थान पर 0025 हे० कर दिया है जो गलत है पट्टेदार जेलब श्री पत्नी रूपलाल नि० ग्राम को गाटा सं० 835 में रकबा 0025 हे० दिया है। सरकारी अभिलेखानुसार गाटा सं० 835 का रकबा 0005 हे० ही शेष बचता है। पट्टेदार को मूल रकबे से 0020 हे० रकबा ज्यादा आवन्टन किया गया है जो निरस्त होने योग्य है निरस्तीकरण हेतु पहले भी आख्या भेजी जा चुकी है।
अतः पट्टेदार जेलब श्री पत्नी रूपलाल निवासी ग्राम के खाता संख्या 191 व गाटा सं० 835 रकबा 0025 हे० के स्थान पर सही रकबा गाटा सं० 835 रकबा 0005 हे० किये जाने हेतु रिपोर्ट सेवा में प्रेषित है।"
13. Learned counsel refers the paragraph 8 of impugned order that it does not disclose application of mind that there are sufficient grounds to proceed against applicant which was also not taken note that a civil suit of complainant was already dismissed for non prosecution. It could a reason that complainant has not disclosed said facts during proceedings.
14. Learned counsel for opposite party No.2 has supported the impugned order that Investigating Officer has not conducted investigation in a fair manner and submitted final report twice. Learned Magistrate has summoned the applicants on basis of material available. Fact of filing of suit and its dismissal for want of prosecution is not being seriously disputed by counsel for complainant.
15. Heard counsel for parties and perused the record.
16. As referred above, on FIR lodged by complainant, Investigating Officer has submitted repeatedly final report that no offence was made out i.e. the land belonged to complainant was not part of sale-deed. The second final report also takes the similar view, after taking note of Lekhpal's report also.
17. The subsequent protest petition was considered as a complaint wherein the statement of complainant and witnesses were recorded under Sections 200 and 202 Cr.P.C. respectively. At this stage, the Court takes note of statement of complainant recorded under Section 200 Cr.P.C. which has repeated version of statement of complainant as recorded by Investigating Officer.
18. The complainant has not disclosed that earlier a civil suit was filed on her behalf for injunction against applicants, however, the same was dismissed for want of prosecution and no attempt was made to restore it.
19. No document was placed for consideration that land of 'Patta' allotted to complainant was part of sale-deed executed by co-accused Pritviraj Singh as well as no material was placed how applicants being bonafide purchasers and witnesses to sale-deed have committed any offence of cheating or forgery. The Lekhpal's report is very specific about error in area of excess land, which was allotted to complainant after which corrective measures were already taken.
20. In the aforesaid circumstances, the Court takes note of above referred judgment Deepak Gaba and others (supra) and A.M. Mohan Vs. State Represented by SHO and another, 2024 SCC OnLine SC 339 that on basis of material available, dispute if any case was of civil nature and attempt of complainant remained unfutile since civil suit filed by complainant was dismissed for want of prosecution and for that it has made attempt to colour it as a criminal case. Relevant paragraphs of A.M. Mohan(supra) are reproduced hereinafter :-
"10. The Court has also noted the concern with regard to a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court observed that this is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court also recorded that there is an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. The Court, relying on the law laid down by it in the case of G. Sagar Suri v. State of U.P.,(2000) 2 SCC 636 held that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. The Court also observed that though no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law.
11. This Court, in the case of Prof. R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 has culled out the ingredients to constitute the offence under Sections 415 and 420 of IPC, as under:
"15. Section 415 of the Penal Code reads thus:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
16. The ingredients to constitute an offence of cheating are as follows:
16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:
16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
18. Section 420 of the Penal Code reads thus:
"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."
19. The ingredients to constitute an offence under Section 420 are as follows:
19.1. A person must commit the offence of cheating under Section 415; and 19.2. The person cheated must be dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
12. A similar view has been taken by this Court in the cases of Archana Rana v. State of Uttar Pradesh, (2021) 3 SCC 751, Deepak Gaba v. State of Uttar Pradesh, (2023) 3 SCC 423 and Mariam Fasihuddin v. State by Adugodi Police Station, 2024 SCC OnLine SC 58.
13. It could thus be seen that for attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. In other words, for attracting the provisions of Section 420 of IPC, it must be shown that the FIR/complaint discloses:
(i) the deception of any person;
(ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and
(iii) dishonest intention of the accused at the time of making the inducement."
21. So far as, Section 468 I.P.C. is concerned since, the Court is of opinion that no offence of cheating was made out specifically by applicants who are bonafide purchasers and witnesses to sale-deed, therefore, no offence could be made out under Section 468 I.P.C. also. The allegation of conspiracy is also absolutely not made out since there is no material that applicants have hatched a conspiracy to cheat the complainant.
22. At this stage, the Court also takes note of report of Lekhpal, which has already been recorded that no land of complainant was part of sale-deed. The Court also takes note of submission that learned Magistrate has not assigned any reason which could reflect the application of mind that there were sufficient grounds to proceed against applicants, therefore, impugned order is contrary to judgment passed by Supreme Court in case of Lalankumar Singh and others Vs. State of Maharashtra, (2022) SCC OnLine SC 1383. Accordingly, impugned order dated 05.07.2023 passed in Complaint Case No.7150 of 2023, under Sections 420, 468, 120-B I.P.C., Police Station- Aliganj, District- Etah, pending in the Court of Additional Chief Judicial Magistrate, Court No.-18, District- Etah become illegal and it is hereby quashed.
23. Accordingly, applications are allowed.
Order Date :- 5.9.2024 P. Pandey