Uttarakhand High Court
Sanket Sahni vs State Of Uttarakhand And Another on 23 May, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 707 of 2022
Sanket Sahni ..........Petitioner
Vs.
State of Uttarakhand and another ........ Respondents
Present : Mr. B.S. Bhandari, Advocate for the petitioner.
Mr. Atul Kumar Shah, Deputy Advocate General with Ms. Mamta
Bisht, Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code") has been preferred for quashing the cognizance/summoning order dated 30.05.2018, passed in Criminal Case No.405 of 2018, State vs. Soniya Sahni and another, under Section 420 IPC, pending in the court of 1st Additional Civil Judge (Sr. Div.)/Judicial Magistrate, Haridwar (for short, "the case") and entire proceedings of the case.
2. Heard learned counsel for the parties and perused the record.
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3. The case is based on an FIR lodged on 09.09.2017, by the respondent no.2, Chokhelal (for short, "the informant"), under Section 420 IPC. According to it, he purchased the property from Smt. Soniya Sahani for a consideration of `15,00,400/-. The amount, according to the FIR, was paid by the informant and his son jointly to the co-accused, Smt. Soniyal Sahani and the petitioner, who happens to be the husband of Smt. Soniya Sahani. At the time of sale, it was told it to the informant by Smt. Soniyal Sahani that the property is not under mortgage, it is free from any charge. Subsequently, it was revealed that the property was mortgaged with the Punjab and Sind Bank, Branch Haridwar and the co-accused, Smt. Soniya Sahani had taken a loan on it. When the informant questioned the petitioner and his wife Smt. Soniya Sahani, according to the FIR, they admitted their mistake. An agreement dated 08.10.2016 was thereafter, executed by the co-accused, Smt. Soniya Sahani, in which, Smt. Soniya Sahani took the responsibility to clear the entire dues. Based on this FIR, after investigation, charge-sheet has been submitted against the petitioner and Smt. Soniya Sahani, on which, cognizance has been taken on 30.05.2018. It is impugned herein. 3
4. Learned counsel for the petitioner would submit that the petitioner has no role in it; he is not involved at all; he did not execute any document; he did not execute the sale deed; he did not execute any agreement after execution of the sale deed; the petitioner did not induce the informant or any other person to deliver any property under any false pretext.
5. It is argued that the sale deed and the agreement were executed by the co-accused. The allegations against the petitioner are oral only. Therefore, no offence under Section 420 IPC has been made out against the petitioner.
6. In support of his contention, the counsel for the petitioner has placed reliance on the principle of law as laid down in the case of Rekha Jain vs. State of Karnataka and another, 2022 SCC OnLine SC 585.
7. In the case of Rekha Jain (supra), the allegations were against her husband. That he cheated, the informant in that case and procured 2 Kg 27 Grams Gold jewellery. During investigation, it was revealed that Rekha Jain was absconding along with the gold jewellery, which her husband had taken from the informant of the 4 case. Under those facts and circumstances, the Hon'ble Supreme Court observed, "However, considering the allegations in FIR/complaint, it can be seen that the entire and all the allegations are against the accused Kamalesh Mulchand Jain. In the complaint/FIR, there are no allegations whatsoever to the effect that the accused-Rekha Jain induced the complainant to part with the gold jewellery. Therefore, in the absence of any allegation of inducement by the accused Rekha Jain, she cannot be prosecuted for the offence under Section 420 of IPC. There must be a dishonest inducement by the accused."
8. It is a petition under Section 482 of the Code. Deeper scrutiny of the matter at this stage is not expected of. A mini trial cannot be undertaken. The version of the prosecution as it is, unless it has patent and other compelling reasons to doubt, has to be accepted at this stage.
9. In case, prima facie case is made out, generally interference is not warranted unless there are exceptional circumstances to do so.
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10. Section 420 IPC provides for punishment in the cases of cheating. It reads as hereunder:-
"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."
11. In the instant case, the allegations are against the petitioner also. According to the FIR, the money was given by the informant and his son to the co- accused, Smt. Soniya Sahani and her husband Sanket Sahani, who is the petitioner before this Court. The sale consideration is `15,00,400/-.
12. The sale deed is also on record. It is true that the sale deed has been executed by Smt. Soniya Sahani in favour of the informant. It is also recorded in it that the property is free from all charges. With regard to the payment of consideration according to the sale deed, a cheque of `6,00,000/- was given and `9,00,400/- were 6 paid in cash. As stated, according to the FIR, the money was received by the petitioner and his wife Smt. Soniya Sahani. The FIR further records that when it came to the notice of the informant that the property had already been mortgaged, he questioned the co-accused, Smt. Soniya Sahani and the petitioner, both of them admitted their mistake. Thereafter, according to the FIR, co-accused further executed an agreement. In her statement given under Section 161 of the Code also the informant has reiterated the version of the FIR.
13. In the instant case, as stated, there are allegations against the petitioner in the FIR, that the petitioner also received money. The money was taken as the consideration for sale of a property, of which, the sale deed was executed by the co-accused, Smt. Soniya Sahani. The sale deed records that the property is free from any charge but, it had already been mortgaged. Whether it is a direct inducement or indirect inducement, it is a question for trial. This Court, at this stage, may not discard the statement of the informant at the threshold of the prosecution. The petitioner may have it as a defence during trial. He may have liberty or opportunity to cross- 7 examine the witnesses that may be examined on behalf of the prosecution.
14. In her statement given to the Investigating Officer, the informant has categorically stated that the petitioner and his wife both, acted under a conspiracy and cheated the petitioner and for that purpose, they executed a forged agreement and sale deed. This statement would require scrutiny during trial.
15. At this stage, prima facie case is made out against the petitioner. Therefore, there is no reason to make any interference. Therefore, the petition deserves to be dismissed at the stage of admission itself.
16. The petition is dismissed in limine.
(Ravindra Maithani, J.) 23.05.2022 Sanjay