Allahabad High Court
Vinod And 3 Others vs State Of U.P. And Another on 3 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 318
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- APPLICATION U/S 482 No. - 1487 of 2021 Applicant :- Vinod And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga,Kamlesh Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Amit Daga, learned counsel for applicants and learned AGA for State.
2. Perused the record.
3. This application under section 482 Cr.PC has been filed for following relief:
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the instant application by quashing the Charge-Sheet dated 24.6.2019, being C.S. No. 204 of 2019, as well as entire proceedings registered in its pursuance as Criminal Case No. 2200 of 2019 (C.N.R. No. UPJS 0400092492019)," (State of U.P. Vs.Vinod and Others) under sections 420, 467, 468, 471, 504, 506, 448 and 387 IPC, P.S. Nawabad, District Jhansi (arising out of Case Crime No. 183 of 2019, registered under aforesaid Sections at Police Station-Nawabad, District-Jhansi), including order of cognizance and summoning dated 13.8.2019 passed by Court below in aforesaid proceedings, presently pending before the Court of learned Chief Judicial Magistrate, Jhansi, so that justice be done otherwise accused applicants shall suffer irreparable loss and hard injury, which cannot be compensated in any terms.
May also be pleased to stay the further proceedings of Criminal Case No. 2200 of 2019 (C.N.R. No. UPJS0400092492019), 'State of U.P. VS. Vinod and Others' under sections 420, 467, 468, 471, 504, 506, 448 and 387 IPC, presently pending before the Court of learned Chief Judicial Magistrate, Jhansi during the pendency of the instant application (under section 482 Cr.P.C.) before this Hon'ble Court, otherwise the accused applicants shall suffer irreparable loss and hard injury. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the present circumstances of the case."
4. It transpires from record that opposite party-2 Atul Shukla filed an application dated 29.1.2019 under section 156(3) Cr.P.C. which was allowed by concerned Magistrate. As a consequence of aforesaid an F.I.R. dated 2.4.2019 came to be registered as Case Crime No. 183 of 2019, under sections 420, 467, 468, 471, 504, 506, 447, 386 IPC, P.S. Nabad, District Jhansi. In the aforesaid F.I.R. four persons namely, Vinod, Ashish, Ramesh Chanda and Rinki Sharna (applicants herein) have been nominated as named accused. The date of occurrence has been shown as 12.02.2019.
5. Susequent to aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of above mentioned Case Crime Number in terms of Chater XII Cr.P.C. On the basis of material collected by Investigating Officer, during course of Investigation, he formed an opinion that a charge should be submitted. Accordingly, Investigating Officer submitted the charge-sheet dated 24.6.2019, whereby named accused i.e. applicants herein have been charge-sheeted under sections 420, 467, 468, 471, 504, 506, 448, 387 IPC. Upon submission of above charge-sheet C.J,M Jhansi. The date of occurrence has been shown as 15.02.20196 by a common order dated 13.8.2019 took cognizance upon the same and simultaneously summoned the accused. As a result Criminal Case No. 2200 of 2019 (State of U.P. Vs. Vinod and others) under Sections 420, 467, 468, 471, 504, 506, 448 and 384 I.P.C. came to be registered in the Court of Chief Judicial Magistrate, Jhansi.
6. Feeling aggrieved by aforesaid, applicants who are charge sheeted accused have now approached this Court by means of present application under section 482 Cr.P.C.
7. The dispute relates to House No. 189, Mohalla Madia, Kanpur Road, Jhansi which was purchased by Shravan Kumar Gupta by means of a registered sale deed dated 4.5.1977. Subsequently, a family settlement took place in the family comprising of Ram Kumari widow of Raja Ram Gupta and her four sons namely, Ramesh Chandra Gupta, Ashok Kumar, Shravan Kumar, Vinod Kumar. Accordingly a memorandum regarding above was drawn on 19.08.2006. Photocopy of same is on record as Annexure 1 to the affidavit. As per the aforesaid settlement, the house in dispute namely, House No. 189, Mohalla Madia Kanpur Road Jhansi came in the share of Vinod Kumar Gupta i.e. applicant herein. Subsequently, the original owner Shravan Kumar Gupta, executed a registered sale deed dated 22.12.2018of the house in dispute in favour of informant opposite party-2 Atul Shukla. According to informant opposite party-2, who is the vendee of above mentioned registered sale-deed possession right title and interest of Shravan Kumar Gupta in the house i dispute came to be transferred in his favour as possession of the same was also handed over to him.
8. Mr. Amit Daga, learned counsel for applicant contends that house in dispute was purchased in the name of Shravan Kumar Gupta vide registered sale deed dated 4.5.1977. However, the consideration was paid by father of Shravan Kumar Gupta namely, Raja Ram Gupta. Consequently, Raja Ram Gupta is the real owner whereas Shravan Kumar Gupta, is the ostensible owner of the house in dispute.
9. It is next contended that on account of above, the disputed house was included in the family settlement of the properties of Raja Ram Gupta, which settlement took place in between wife of Raja Ram Gupta and her four sons. Accordingly, a memorandum of same was drawn on 19.8.2006 on stamp paper of Rs.100. Photo copy of same is annexure-1 to the affidavit.
10. Mr. Amit Daga, learned counsel for applicants, on the basis of above, then contends that Shravan Kumar Gupta is a signatory to above mentioned memorandum. Aforesaid memorandum has not been challenged by him. He, therefore, contends that on account of aforesaid memorandum, the right title and interest of Shravan Kumar Gupta in the house in dispute came to be extinguished and the same devolved upon applicant-1 Vinod. As such, applicant-1 Vinod became the real owner in possession of the house in dispute.
11. On the aforesaid premise, it is urged that since Shravan Kumar Gupta had no right title or interest left in the house in dispute, therefore, he had no transferable interest in the property in dispute. It is also urged that no person can pass on a better title than what he has. In view of above, the disputed sale-deed dated 22.12.2018 executed by Shravan Kumar Gupta in favour of informant opposite party-2 Atul Shukla is a sham transaction and does not create any right, title or interest in favour of Atul Shukla regarding the house in dispute.
12. It is lastly submitted that on the basis of settlement deed dated 19.8.2006, Applicant-1, Vinod Kumar has filed Original Suit No. 91 of 2015 (Vinod Kumar Vs. Shravan Kumar Gupta) for a decree of permanent injuction restraining the defendant Shravan Kumar Gupta from transferring the house in dispute in favour of any other person nor to create any obstructions in the proposed construction by plaintiff Vinod Kumar or create any obstruction in the peaceful possession and occupation of plaintiff over land in dispute. During pendency of aforesaid suit, the sale-deed dated 22.12.2018 was executed by Shravan Kumar Gupta. It is thus urged that the disputed sale-deed has been executed during the pendency of civil suit. Subsequently, the vendee Atul Shukla has also filed Original Suit no. 21 of 2019 (Atul Shukla Vs. Vinod Shukla and Others) for a decree of permanent injunctions restraining the defendants therein from creating any obstruction in peaceful possession and occupation of plaintiff Atul Shukla. On the basis of above, it is urged that a purely civil dispute has been dragged into criminal litigation. Consequently, present application under section 482 Cr.P.c. is liable to be allowed.
13. Per contra, learned A.G.A has opposed this application. He contends that admittedly, the house in dispute was purchased in the name of Shravan Kumar Gupta by means of registered sale deed dated 4.5.1977. Therefore, in law Shravan Kumar Gupta shall be recognized as the rightful owner of the house in dispute as long as the sale-deed dated 4.5.1977 subsists. In view of above, argument raised by learned counsel for applicant that since consideration was paid by Raja Ram Gupta father of Shravan Kumar Gupta and therefore, Shravan Kumar Gupta is the ostensible owner, whereas Raja Ram Gupta was the real owner is wholly misconceived. It is next contended that no proceedings have been initiated for cancellation of sale-deed dated 4.5.1977 nor any civil proceedings have been initiated for declaration that Raja Ram Gupta father of Shravan Kumar Gupta is the real owner. In view of aforesaid nothing adverse can be construed regarding the sale deed dated 4.5.1977.
14. Learned A.G.A. then submits that no reliance can be placed upon the alleged memorandum dated 19.8.2006. A family settlement is not required to be registered but it is also well settled that family settlement can take place in respect of co-sharers. A property which is owned by one person cannot be transferred in favour of another person except by a registered instrument. Since no registered sale-deed or surrender deed has been executed by Shravan Kumar Gupta in favour of Vinod Kumar, coupled with the fact that the alleged memorandum dated 19.8.2006 is an unregistered document, no right stood transferred under the same. He has also referred to provisions of Section 17 of Indian Registration Act in support of above submission that a document which creates a right in part or in full in present or in future has to be a registered document. He, thus concludes that no transfer of ownership rights has taken place under the alleged memorandum dated 19.8.2006. Consequently, Shravan Kumar Gupta continued to be the rightful owner of the house in dispute. Therefore, no illegality can be attached to registered the sale-deed dated 22.12.2018.
15. Learned A.G.A. also contends that the disptued sale-deed was executed on 22.12.2018 but till date no civil proceedings have been initiated by applicant-1 seeking cancellation of registered sale-deed dated 22.12.2018. He, therefore, submits that the sale-deed dated 22.12.2018, being a registered document has a statutory presumption regarding its genuiness. In the absence of any proceedings having been initiated for cancellation of the same, right title and interest of Atul Shukla informant opposite party-2 over the house in dispute on the basis of aforesaid registered sale-deed, remains intact. Therefore, the plea raised by learned counsel for applicants that applicant-1, Vinod Kumar became rightful owner on account of memorandum dated 19.8.2006 is wholly misconceived.
16. Countering the submissions urged by learned counsel for applicants, learned A.G.A. further contends that no criminal proceedings have been inititated by applicant-1 Vinod Kumar against Shravan Kumar in the light of memorandum dated 19.8.2006. The only inference that can be drawn is that applicant-1Vinod Kumar and Shravan kumar want to deprive the informant/opposite party-2 of the property purchased by him vide registered sale deed dated 22.12.2010. No explanation regarding above, has come come forward in the affidavit filed in support of present application under section 482 Cr.P.C.
17. Learned A.G.A. also submits that original suit. i.e. O.S. No. 91 of 2015 (Vinod Kumar Vs. Shravan Kumar Gupta has been filed by applicant -1. He, further contends that nothing has been brought on record to indicate the proceedings of above mentioned suit. No interim order has been passed in aforesaid suit either. Further, above mentioned suit is an injunction suit and therefore, same is binding only upon parties to the suit. Admittedly, Atul Shukla is not a party to the aforesaid suit and therefore, the submission urged that Civil dispute is pending between parties is wholly misconceived.
18. It is lastly contended by learned A.G.A. that none of the submission urged by learned counsel for applicant are cogent enough for quashing the proceedings of above mentioned criminal case. The charge sheet has been submitted by Investigating Officer on the basis of material collected during course of investigation. The supporting statements of witnesses whose statements have been recorded in terms of section 161 Cr.P.C. by Investigating Officer, have neither been brought on record nor a foundation has been laid in the affidavit that from the statements of the witnesses, no offence under either of the charging sections is made out against applicants.
19. On the cumulative strength of aforesaid, learned A.G.A.contends that civil and criminal proceeding can continue simultaneously as held by Apex Court in Kamla Devi Agarwal Vs. State of West Bengal and Others, reported in 2002 (1) SCC 555. No case for quashing the charge sheet has been made out as per the parameters laid down in Babubhai Vs. State of Gujarat and Others, 2010 (12) SCC 254. He, therefore, submits that present application is liable to be dismissed.
20. Having heard learned counsel for applicant and learned A.G.A. for State, this Court finds that the issue as to whether criminal proceedings cannot continue on account of pendency of civil dispute is no longer res intigra in view of Kamla Devi Agarwal Vs. State of West Bengal and Others, 2002 (1) SCC 555, A.yyasamy Vs. A.A. Paramniwaswami & Ors., 2016 (10) SCC 495, Indian Oil Corporation v. NEPC India Ltd. & Others, (2006) 6 SCC 736, Devendra and Others Vs. State of Uttar Pradesh and another, 2009 (7) SCC 495, Gangadhar Kalita Vs. State of Assam and Others, 2015 (9) SCC 647, Mahesh Chaudhary Vs. State of Rajasthan and Another, 2009 (4) SCC 439, K Jagadish Vs. Udaya Kumar G.S. and Another, 2020 SCC Online SC 318.
21.Apart from above, Apex Court in the case of Babubhai (Supra) has held that charge-sheet can be quashed, but in exceptional circumstances. Following has been observed in paragraphs in paragraph 45 of the judgement:
"Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation."
22. When the case in hand is examined in the light of aforesaid observations, court finds that neither the statements of witnesses examined under section 161 Cr.P.C. has been appended along with affidavit filed in support of present application nor a factual foundation has been laid in the affidavit filed in support of application under Section 482 Cr.P.C. stating therein that from the statement of witnesses whose statements were recorded by Investigating Officer none of the ingredients of each of the charging sections are satisfied against applicants.
23. Further no such material has come on record to demonstrate that registered sale-deed dated 22.12.2018 has been executed by Shravan Kumar Gupta in derogation of any order of interim injunction passed by Civil Court. No explanation has come forward as to why criminal proceedings have not been initiated against Shravan Kumar Gupta in the light of memorandum dated 19.8.2006, which appears to be the basis of title claimed by Vinod Kumar applicant-1. The court further finds that memorandum dated 19.8.2006, extinguishes and creates new rights which admittedly can be done only by a registered document i.e. sale or a surrender deed. Since the memorandum dated 19.8.2006 is an unregistered document, therefore, no rights and obligations are created under the aforesaid document as the same is clearly hit by section 17 of Indian Registration Act.
24.From perusal of material on record and looking into the facts of the case as noted above, at this stage it cannot be said that no offence is made out against applicants. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
25. Accordingly prayer for quashing proceedings of aforesaid case pending before the court concerned is refused.
26. However, it is provided that if the applicants appear and surrender before court below within 45 days from today and apply for bail court below shall consider and decide the bail application of applicants as per law laid in Smt. Amarawati and another v. State of U.P., reported in 2004 (57)ALR 290, Brahm Singh and Ors. Vs. State of U.P. and Others, reported in 2016 (7) ADJ 151 and Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and others, reported in (2009) 3 ADJ 322 (SC).
27. For a period of 45 days from today or till disposal of the application for bail whichever is earlier, no coercive action shall be taken against applicants.
28. However, in case, applicants do not appear before court below within the aforesaid period, Court below shall be free to proceed against applicants in accordance with law.
29. With the above directions, present application is disposed of.
Order Date :- 3.2.2021 Arshad