Allahabad High Court
Sanjay Kumar Yadav And Another vs State Of U.P. And Another on 27 January, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- APPLICATION U/S 482 No. - 17309 of 2021 Applicant :- Sanjay Kumar Yadav And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shiva Priya Prasad Counsel for Opposite Party :- G.A.,Deo Prakash Singh Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants, learned AGA for the State and Sri Deo Prakash Singh learned counsel for the opposite party No.2.
Present application has been filed to quash the proceedings and cognizance/summoning order dated 04.8.2021, charge sheet dated 21.5.2018 of Criminal Case No. 2457 of 2021 arising out of Case Crime No. 420, 504, 506 IPC, Police Station Line Bazar, District Jaunpur, pending in the Court of Chief Judicial Magistrate, Jaunpur.
Submission of learned counsel for the applicant is, undisputedly, on 18.12.2015 a registered agreement to sell was entered into between the applicants on one side and Alok Kumar Singh-Opposite party No. 2 on the other. Thereby 10 Biswa of land belonging to the applicant was agreed to be sold to the opposite party No.2 at the rate Rs. 8 Lakhs per Biswa. Against that, a sum of Rs. 15 Lakhs was received by the applicants by way of advance. Relying on the terms of the said agreement to sell, it has been vehemently urged, the agreement was time bound being valid for six months, during which period valid sale deed had to arise upon due payment of the balance consideration. Since the opposite party No. 2 did not have the money available with him, no sale deed could be executed till 17.6.2016 when the term of six months expired.
At the same time, owing to lack of money available to the opposite party No. 2, against specific permission granted by the opposite party No. 2, two other sale deeds dated 31.5.2016 and 15.6.2016 came to be executed by the applicants in favour of one Sandeep and Ms. Sunita Shukla with respect to parcel of land carved from ten Biswa land originally agreed to be sold to the opposite party No. 2. Thus, two Biswa land was sold to said Sandeep and Ms. Sunita Shukla.
As to the remaining land, it has been submitted, two other sale deed came to be executed by the applicants on 20.10.2016 and 21.10.2016 well after lapse of the term of the agreement to sell dated 18.12.2015 executed between the parties in dispute, in these proceedings.
Though, the opposite party No.2 did issue a notice to the applicant on 13.5.2016 requiring the applicants to present themselves for the purpose of registration of sale deed pursuant to the registered agreement to sell dated 18.12.2015, the said notice was unfounded on facts and deliberately dispatched/issued later. It had been replied to at the relevant time by the applicants on 18.6.2016 clearly stating therein that the two sale deeds dated 31.5.2016 and 15.6.2016 had been executed with the permission of opposite party No. 2 and the said opposite party No. 2 had signed those documents as marginal witness.
Yet, no suit or criminal proceedings arose at the relevant time. Almost at the fag end of limitation, Original Suit No. 60 of 2019 had been instituted by the opposite party No. 2 against the present applicants seeking enforcement of the agreement to sell dated 18.12.2015. Reliance has been placed on the contents of the paragraph 4 and 5 of the affidavit in support of the application together with the reply submitted thereto in paragraph-5 and 6 of the counter affidavit. Then, reference has been made to paragraph-15 of the counter affidavit filed on behalf of opposite party No.2. That reads as below:-
"15. That the contents of the paragraph no. 15 and 16 of the Criminal Misc Application are false and incorrect and hence denied. It is submitted here that the deponent/opposite party no. 2 has been instituted the Civil Suit No. 60 of 2019 (Alok Kumar Singh versus Sanjay Yadav) Civil Judge (Senior Division) Jaunpur for the implementation of the agreement to sale dated 18.12.2015 and the criminal proceeding has been lodged for executing the sale-deed of the said property of the agreement to sale in favour of Umesh Pratap Singh and Ram Achal Mishra."
Thus, it has been submitted, there was no element of cheating in the present case. Wholly false allegations have been made only to unduly pressurise the present applicants with respect to valuable property.
On the other hand, learned counsel for the opposite party No. 2 would contend, valuable amount had been paid by the opposite party No. 2 to the applicants being Rs. 15 Lakhs by way of advance. That was never refunded to the opposite party No. 2. At the same time, the applicants have proceeded to dispose of land in excess (than had been specifically agreed to), vide further sale deeds dated 20.10.2016 and 21.10.2016. Thus, element of cheating are complete. In that regard, strong reliance has been placed on the fact that the present applicants did not present themselves for execution of the necessary sale deed, on 15.6.2016 in terms of the notice earlier issued by the opposite party No. 2, on 13.6.2016. Last, reference has been made to the statement of the opposite party No. 2 recorded during investigation and the recital contained in the First Information Report to submit, ingredients of offence alleged are complete, therefore, no interference is warranted at this stage. He has also relied on a decision of a coordinate bench of this Court in Application U/S 482 No. 32337 of 2013, Smt. Kunti and Another Vs. State of U.P. and Another, decided on 18.10.2019.
Learned AGA has also advanced submissions to similar effect.
Having heard learned counsel for parties and having perused the record, in the first place, it cannot be denied that the terms of the registered agreement to sell executed between the parties on 18.12.2015 were specific as to the time period during which the sale deed was to be executed, being six months. That expired on 17.6.2016. Then, it is also not disputed, rather it is admitted to opposite party No. 2 that he twice granted permission to the applicants to execute sale deeds dated 31.5.2016 and 15.6.2016. Besides the permission granted, the opposite party No. 2 also agreed to be the marginal witness to those deeds. At the same time he never sought extension of time.
Once, it is admitted to the opposite party No. 2 that he was present on 15.6.2016 at the time of execution of the second sale deed executed in favour of Ms. Sunita Shukla by the applicant No. 2 and that he had signed that document as marginal witness, it is an inherently improbable allegation made that the applicant no.2 was not present in the Registrar Office on 15.6.2016. In fact the opposite is undisputedly true.
Whatever transactions may have taken place between the parties and however they may have conducted themselves in the course of such transaction, is not an issue to be examined in these proceedings.
What then survives is whether is any element of cheating arises from the subsequent sale deeds dated 20.10.2016 and 21.10.2016. It being undisputed to the opposite party No. 2 that those sale deeds were executed well after the expiry of the term of six month from the date of execution of agreement to sell dated 18.12.2015 under which the opposite party No. 2 claims rights, plainly, without making any observations as to the civil rights of the parties, since those sale deeds were executed outside the term of the agreement to sell, the element of cheating or deception or inducement may never arise.
It being undisputed that the parties could not successfully execute the sale deed within six months from 18.12.2015, it cannot be said that there was deception practiced at the initial stage of the execution of the agreement to sell. It is the conduct of the parties on the date of the execution and during its validity that was to be examined. During the term of the agreement to sell, both sale deeds executed by the applicants were with the consent of opposite party No. 2 to which he also affixed his signatures as marginal witness. No time extension was sought at the relevant time and no proceeding was instituted, then.
The decision being relied upon by the learned counsel for the opposite party No. 2 is of no help inasmuch as in that case there was no time bound agreement to execute the sale deed and the vendee had not signed the subsequent sale deeds giving rise to the prosecution allegation, as a marginal witness. In fact he claimed complete ignorance. As to the true principle, as has been referred to in the decision relied upon by the learned counsel for the opposite party No. 2, the emphasis remains on fraud or dishonest intent of allegation of fabrication of document at the initial stage i.e.at the stage of execution of the agreement to sell.
In the present case, element of cheating is found to be completely lacking, for the reasons noted above. The element of cheating being referred to on the strength of the further allegations that the applicants did not produce themselves before the Registrar Office for the purpose of execution of sale deed on 15.6.2016, is found to be inherently and completely improbable and wholly unreliable in the context of the undisputed fact that all parties were present before the Registrar on 15.6.2016 for the purpose of execution of another sale deed in favour of Ms. Sunita Shukla for registration of sale deed of a part of the same land. Also, it may be taken note that no action was taken for long period of three years since then and the civil suit itself was filed in the year 2019. As stated in paragraph 15 of the counter affidavit, present prosecution appears to have been now lodged to pressure the applicant to execute the sale deed.
Leaving it open to the parties to contest their rights in the pending civil proceedings, present criminal prosecution has no legs to stand.
Accordingly, the proceedings and cognizance/summoning order dated 04.8.2021, charge sheet dated 21.5.2018 of Criminal Case No. 2457 of 2021 arising out of Case Crime No. 420, 504, 506 IPC, Police Station Line Bazar, District Jaunpur, pending in the Court of Chief Judicial Magistrate, Jaunpur are quashed so far it relates to applicants.
Application stands allowed.
Order Date :- 27.1.2023 Faraz