Allahabad High Court
Vandana Pathak & Anr. vs State Of U.P.Thru.Prin.Secy.Home ... on 13 November, 2019
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- MISC. SINGLE No. - 31368 of 2018 Petitioner :- Vandana Pathak & Anr. Respondent :- State Of U.P.Thru.Prin.Secy.Home Deptt.Civil Sectt.Lko.&Ors. Counsel for Petitioner :- Murli Manohar Srivastava,Rachit Gupta Counsel for Respondent :- Govt.Advocate,Shikha Srivastava,Shubham Gupta,Suneel Kumar Singh Kalhan Hon'ble Rajeev Singh,J.
Heard learned counsel for the petitioners, learned A.G.A. as well as learned counsel for the respondent no. 2.
This petition has been filed seeking the following main reliefs:
?(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.5.2018 passed by Special Judge (EC Act), Lucknow in Criminal revision No. 123/2016 (Vandana Pathak and another vs. Dr. B.D. Gupta and another), contained as Annexure No. 1;
(ii) issue a writ, order or direction in the nature of certiorari quashing the impugned order of cognizance dated 15.5.2015 passed by ACJM-IV, Court No. 28, Lucknow in complaint case no. 88/2013 (Dr. B.D. Gupta vs. Vandana Pathak and others), contained as Annexure No. 2;
(iii) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 30.7.2014 passed by Sessions Judge, Lucknow in revision no. 0000690/2014 contained as Annexure No. 3;
(iv) issue a writ, order or direction in the nature of mandamus directing the opposite parties not to give effect and proceed 30.07.2014, contained as Annexure No. 1, 2 and 3 respectively;
(v) issue a writ, order or direction in the nature of certiorari quashing the complaint and its further proceedings including non-bailable warrant against the Petitioners?
Facts of the case are that the petitioners, who were the owner of the property in question, i.e., House No. ES-1B-239/A, E.W.S., Sitapur Road Scheme, Lucknow, sold the same to respondent no. 2 on 3rd August, 2009 by way of executing the sale deed in his favour. In para 3 of the said sale deed, it has been mentioned that nothing is due on the property in question and if anything is found due, then the seller(petitioners) shall be responsible for paying the same. Respondent no. 2 filed Complaint Case No. 88 of 2013 (Dr. B.D. Gupta vs. Vandana Pathak and others), with the allegation that officials of the Power Corporation (who were made parties in the complaint as respondent nos. 3, 4 and 5), in collusion with the petitioners, had given him a forged electricity bill and when respondent no. 2 made complaint about the same to the petitioners, he was abused. On the said complaint case, vide order dated 14.02.2014, the court below summoned the petitioners under Sections 406, 504 and 506 I.P.C. Against the said order, respondent no. 2 filed Criminal Revision No. 690 of 2014, which was allowed vide order dated 13th July, 2014 with the direction to the trial court to pass fresh orders. In pursuance of the said revisional order, the court below vide impugned order dated 15th May, 2015, summoned the petitioners along with other co-accused, under Sections 504, 506, 406, 420, 467 and 468 read with Section 120B I.P.C. Aggrieved by the order dated 15.05.2015, petitioners filed Criminal Revision No. 123 of 2016, which was dismissed vide impugned judgment and order dated 21st May, 2018. Hence, the petition.
Submission of the learned counsel for the petitioners is that and on the basis of concocted facts, respondent no. 2 has initiated the impugned proceedings, on which the impugned orders have wrongly and illegally been passed by the court below, without considering the material brought on record by the petitioners. Learned counsel for the petitioners has further submitted that it has nowhere been mentioned specifically that as to how the offence of cheating is made out, or as to how much amount was cheated by the petitioners. Learned counsel for the petitioners has submitted that, as a matter of fact, last electricity bill amounting to Rs.6941/- was paid by the petitioners on 30.07.2009, i.e., before the execution of the sale deed. It has, thus, been submitted that no offence, as alleged, is made out against the petitioners Learned A.G.A. as well as learned counsel appearing for respondent no. 2, while opposing the arguments advanced by the learned counsel for the petitioners, have submitted that there is no illegality in the orders of the court below and the petitioners may appear before the court below and apprise their submissions at the appropriate stage.
I have considered the arguments advanced by the learned counsel for the parties and also perused the record.
It is undisputed that House No. ES 1B 239/A, EWS, Sitapur Road Scheme, Lucknow was sold by the petitioners to respondent no. 2 vide registered sale deed dated 03.08.2019. In para 3 of the sale deed, it has categorically been mentioned that if any liability, upto the date of execution of the sale deed, is found on the property in question, then the seller (petitioners) shall be responsible to pay the same. In paragraph 5 of the petition, it has specifically been pleaded that petitioners have deposited the last electricity bill on 30.07.2009 and no electricity bill was due on the date of execution of the sale deed, i.e., on 03.08.2019. Para 5 of the petition reads as under:
?That on the date of aforesaid sale deed, there were no electricity dues on the house. The last electricity bill on the said house was Rs.6941/- which was paid on 30.7.2009 by the petitioners i.e. prior to date of registry in favour of complainant.?
Further, if at all, any electricity bill was due, as alleged by respondent no. 2 in the complaint, on the date of execution of the sale deed, i.e., 03.08.2009, petitioners are liable for payment of the same and by any stretch of imagination, no criminal complaint is maintainable, as no alleged offence under Sections 504, 506, 406, 420, 467 and 468 read with Section 120B I.P.C. is made out.
In view of above facts and circumstances, impugned proceeding are not liable to be sustained and are hereby quashed, so far as it relates to the petitioners.
The writ petition is, accordingly, allowed.
Order Date :- 13.11.2019 VKS