Allahabad High Court
Smt Bhawna Jain vs State Of U.P. And Another on 24 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- APPLICATION U/S 482 No. - 38152 of 2022 Applicant :- Smt Bhawna Jain Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Jagdish Prasad Mishra,Satyendra Narayan Singh Counsel for Opposite Party :- G.A.,Mridul Chandra Tiwari,Vatsala Upadhyay Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicant, learned counsel for opposite party no.2 and perused the record.
By means of this Application under Section 482 Cr.P.C., the applicant has invoked the inherent jurisdiction of this Court to quash the charge sheet no.420 of 2021 dated 25.11.2021, cognizance/summoning order dated 09.02.2022 and further proceedings of Case No.1074/9 of 2022 (State versus Smt. Bhawna Jain), arising out of Case Crime no. 506 of 2021, under Sections 406, 420, 504, 506 I.P.C., Police Station Nai Mandi, District Muzaffarnagar.
It is argued by the learned counsel for the applicant that initially the husband of applicant late Atul Kumar Jain and opposite party no.2 Anurag Jain had purchased a plot jointly on 01.01.2014 and on that plot six flats were constructed with the consent of both the parties. Three flats came into the share of Anurag Jain and rest three flats came into the share of Atul Kumar Jain. Anurag Jain sold out his three flats while Atul Kumar Jain, the husband of the applicant took loan of Rs. 25,00,000/- in 2015 on his 3 flats and the applicant was the guarantor in that loan. After the death of Atul Kumar Jain, the present FIR has been lodged by opposite party no.2 with six years delay. On 11.02.2015, the parties had partitioned the said plot and as per partition, they were in possession over their own portion of plot. The applicant, the wife of deceased Atul Kumar Jain is a cancer patient. She being the legal heir of Atul Kumar Jain is paying instalments of the loan. Opposite party no.2 had entered into a compromise with her. He took Rs. 1,00,000/- as per compromise, but later on dishonoured that compromise. In 2018, complaint No. 2233 of 2018 was filed by opposite party no.2 Anurag Jain against Allahabad Bank, on 04.09.2021 this complaint was dismissed under Section 203 of Cr.P.C. The applicant has not taken any loan. Offence under Sections 406 & 420 I.P.C. cannot be said to be made out against the applicant. She is paying loan in instalments. The case is of civil nature and the criminal proceedings cannot be initiated in the matter. Hence, the prayer is made accordingly.
Learned counsel for the opposite party no.2 submitted that the plot was purchased jointly and the partition shown by the applicant is forged. Out of the six flats constructed over the plot jointly 3 flats were sold out with the consent of both the plot purchasers Atul Kumar Jain and opposite party no.2 Anurag Jain and rest three flats were mortgaged by the husband of the applicant without the consent of opposite party no.2. The loan documents appended with the paper book do not show the signatures of opposite party no.2 that he had given a consent for taking loan or keeping the documents of the flats in mortgage with the bank. It is further submitted that the applicant is the legal heir of deceased Atul Kumar Jain. Out of Rs. 25,00,000/- loan amount taken in the year 2015 only Rs.2,50,000/- has been paid and regarding joint flats original documents of all the three flats are mortgaged with the bank, so opposite party no.2 is unable to sale the flats of his share. As the loan was taken on the flats without his consent and without his knowledge and the documents of the flats were also mortgaged with the bank without his knowledge, so the offences under Sections 420 and 406 I.P.C. are certainly made out against the applicant, who is the legal heir of deceased Atul Kumar Jain. The parties had entered into a compromise, so he withdrew his complaint No.2233 of 2018 and the same was dismissed on 04.09.2021, under Section 203 Cr.P.C. Hence, the prayer of quashing the summoning order, charge-sheet and further proceedings of Case No.1074/9 of 2022 above, is opposed.
So far as the arguments of the learned counsel for the applicant that it is a civil case, which is being given the shape of criminal dispute and it is not maintainable is concerned as per judgement in Commissioner of Police & Ors. Vs. Devendra Ananad & Ors, Criminal Appeal No.834 of 2017, the Apex Court as per facts of that case found that respondent no.1 in that appeal had entered into an agreement to sell a house with respondent nos.2 and 3 for a consideration of Rs.54,00,000/-. Whole amount was taken at the time of agreement. The Apex Court found that as the property was mortgaged with Andhra Bank by respondent nos. 2 and 3, and the original complainant himself paid the mortgage money and got the mortgage redeem and later on, he got executed sale deed in his name. Thereafter, he had filed an application under Section 156(3) Cr.P.C. in the court of magistrate that application was rejected vide order dated 27.03.2015. This order was also not assailed by the complainant/ respondent no.1. After that a private complainant was also filed by the respondent no.1 which was pending before the magistrate and during the pendency of that complaint, he filed a petition before this Court, which was nothing but an abuse of the process of law. The Apex court reached at a conclusion that the criminal proceedings were initiated by the original complainant to settle the civil dispute, and, thus, the Apex Court found that on those facts the police officers were justified in not registering the FIR on the request of the complainant respondent no.1 and it was only after so much proceedings, that the Apex Court reached at a conclusion, that initiation of the criminal proceedings by the original complainant respondent no.1 was nothing but an abuse of process of law.
In the case in hand, the position is different here admittedly a joint plot was purchased by the husband of the applicant and the opposite party no. 2. Though by placing a partition deed, it is argued that the plot was partitioned between the parties and both were in possession on their respective portions, so the husband of the applicant had no obligation to inform or taking permission from the opposite party no.2 before taking a loan on the flats or mortgaging the papers of the flats with the bank.
The opposite party no.2 has drawn the attention of the Court towards the compromise deed entered between the parties that the parties had entered into a settlement deed. In pursuant of this settlement deed, a cheque of Rs. 1,00,000/- was given to opposite party no.2 admittedly. Opposite party no.2 got the money but dishonoured the settlement it is also the version of applicant counsel.
This argument of the learned counsel for opposite party no.2 and the document of settlement, and payment of the cheque of Rs.1,00,000/- to opposite party no.2 all nullify the arguments of the learned counsel for the applicant that after purchasing the plot both the purchasers divided this plot into two parts and in this regard a deed was executed, which is appended at page 44 of the paper book. Indirectly the counsel for the applicant has denied the partition deed appended at page 44 of the paper book and admitted the compromise deed appended at page 97 of the supplementary affidavit. As per settlement deed, after selling three flats with the consent of both the purchasers of the plot, rest three flats also remained the joint property of both the purchasers, certainly without the consent of co-owner the husband of the applicant cannot be said to have any right to take loan over the flats and mortgage the deed regarding those three flats on the land with the bank.
Though, it is argued by the learned counsel for the applicant that the applicant has no liability towards opposite party no.2 as she never took loan and did not mortgage the document of the flats, but admittedly applicant is the wife of the owner of three flats of which opposite party no.2 is also alleged to be the co-owner and as the documents of these flats have been mortgaged with the bank, certainly it would be troublesome for the opposite party no.2 and according to the opposite party no.2 it is cheating with him that without his information the documents of the property of his co-ownership are kept mortgaged with the bank. The applicant is the legal heir of Atul Kumar Jain. She is the guarantor of loan of Rs. 25,00,000/- which was taken by Atul Kumar Jain. As per deed dated 29.09.2020, the applicant has entered into an agreement with opposite party no.2 regarding partition of rest 3 flats and admittedly out of Rs. 25,00,000/- of loan after seven years till date only Rs. 2,50,000/- are said to have been paid by the applicant and because of non payment of loan opposite party no.2 is said to be unable to dispose of the flats jointly constructed by both the purchasers of the plot Atul Kumar Jain and Anurag Jain.
Thus, the facts of the present case are totally different from the facts of the judgement in Commissioner of Police and Ors. (supra), wherein the whole matter was in the knowledge of the complainant/ respondent no.1. But here the facts are said to be concealed from the opposite party no.2. The loan has been taken and the documents have been mortgaged with the bank regarding the joint property without his consent, and the loan amount is also not being paid in time. The applicant being guarantor of the loan had full knowledge that the documents of the joint flats were mortgaged without any knowledge of opposite party no.2.
Thus, on the basis of FIR a cognizable offence appears to have been made out against the applicant.
After going through the facts of the case, there is no sufficient ground to quash the charge-sheet, the summoning order and the further proceedings of the aforesaid case.
The application under Section 482 Cr.P.C. is, accordingly, rejected.
Order Date :- 24.1.2023 Radhika