Uttarakhand High Court
C482/1865/2021 on 26 April, 2023
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
26.04.2023 C482 No. 1865 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Prem Kaushal, Advocate for the applicant.
Mr. Pankaj Joshi, learned Brief Holder for the State of Uttarakhand.
The complainant-respondent no. 2 on 21.12.2019, has registered an FIR No. 242 of 2019, against the present applicant, for her involvement in commission of offence under Sections 420, 504 and 506 of IPC, on the ground that the so called land, over which the present applicant has claimed her right, by virtue of the sale deed dated 22.06.1984, and as against which they also stood recorded in the Khatauni pertaining to 1428 to 1443 fasli year. They submitted that they are bonafide owners, which they admit to have sold the same to the opposite party no. 2, but, since, the said sale deed was observed to be bad in the eyes of law for the reason being, that when the village was brought under the record operation, the alleged Khasra number, which was agreed to be sold had fallen in the Bandobasti Rasta and hence, it was contended by the complainant, that the present applicant had duped him of his valuables and has drawn proceedings against him under Section 420 of IPC.
The matter was investigated and a charge-sheet has been submitted and consequently, the summoning order has been issued against the present applicant.
The learned counsel for the applicant has submitted, that there happens to be a proceedings by way of a Mutation Case No. 30/796 of 2015-16, "Shri Chintamani Tiwari Vs. Bhuwan Chandra and others", and, hence, it has taken the shape of a civil dispute, which has been given attempted to be a criminal colour by registration of the FIR.
In fact, the proceedings under Sections 34 and 35 of the Land Revenue Act are summary proceedings, which are confined to the mutation entries, to be made in the revenue records, for the purposes of its fiscal benefits as to who would be liable to pay the land revenue, and recording of the name as a consequence of an order passed in the proceedings under Sections 34 and 35 of the Land Revenue Act, do not itself confer a title or right in favour of a person, as to in whose favour the proceedings under Sections 34 and 35 of the Land Revenue Act are decided.
The counsel for the applicant argued that since, at the stage when the village was brought under land record operation under Section 58 of the Land Revenue Act, they could not gather the knowledge, that the land which was agreed to be sold, has fallen in the Bandobasti proceedings and as such they contend that, no offence under Section 420 of IPC could be made out against the present applicant, as they never had any intention to dupe the complainant-respondent from conveying the property which was agreed to be sold.
When the C-482 Application was entertained by this Court, notice was issued to the respondent no. 2, by an order dated 17.12.2021, the Court has considered the argument extended by the learned counsel for the applicant, that the applicant's husband has sold the property, but the mutation could not be affected on the ground that the village was brought under the Bandobasti operation.
The village since being brought under the Bandobasti operation will absolutely have a different affect under the Land Revenue Act, and the option extended by the learned counsel for the applicant therein, that he is willing to give another land to the complainant, would be absolutely a civil dispute, which is to be adjudicated by them, at an appropriate civil forum available to them by way of a civil proceedings.
The proceedings under Section 420 of IPC, which has been drawn by the complainant- respondent, she contends that it would not be tenable, because she never had any intention to dupe the respondent, by not selling the land which she had proposed to sell or otherwise alleged to be recorded in the name in pursuance to the sale deed dated 22.06.1984.
On the steps being taken, there is an office report, that respondent no. 2, has refused to accept the notice, hence, this Court has passed an order on 15.10.2022, holding thereof that since, respondent no. 2 has refused to accept the notice, the notice would be deemed to have been served upon him, hence, the C-482 Application is being heard in the absence of respondent no. 2, as he has not put in appearance despite of the service of notice.
The set of allegations levelled in the FIR by the complainant was that the property which was agreed to be sold, could not be conveyed, because of the fact that the village was brought under the record operation, and due to which he submitted, that they have been duped by the present applicant and hence, the complainant has contended, that the applicant has committed an offence under Sections 420, 504 and 506 of IPC.
In an event, if the applicant was unable to sell the land, which was otherwise agreed to be sold, it would be absolutely a dispute which will be of a civil nature and no criminal proceedings ought to have been drawn under Section 420 of IPC and particularly, the inability to sell the property was because of the record operation under Section 58 of the Land Revenue Act.
Apart from it, when this Court has noticed that the respondent no.2 has declined to accept notice and has not put in appearance, in fact, it seems that the respondent no. 2 was not interested to contest the proceedings on merits.
In that eventuality, it cannot be said that the applicant had an intention to dupe the complainant-respondent no. 2, by not selling the property, which was otherwise agreed to be sold because of the inability already dealt with above.
Hence, no offence under Section 420 of IPC could be said to have been made out against the present applicant, because as per the provisions contained under Section 420 of IPC, there has had to be a clever intent of the accused person to deprive the complainant of his valuable rights, as created in his favour and there has to be an inducement, which has been dishonestly made by the accused person to deceive a person to deliver any property.
As such, this Court is of the view, that no offence under Section 420 of IPC as against the present applicant is made out.
In that eventuality without affecting the rights of the parties to the C-482 Application to resort to a regular civil proceedings for establishment of their civil rights before the Competent Civil Courts.
The C-482 Application would hereby stand allowed, and as a consequence thereto, the entire proceedings of Criminal Case No. 221/2020, "State Vs. Smt. Lalita Devi", which is pending consideration before the Court of 2nd Judicial Magistrate, Haldwani, District Nainital, would hereby stand quashed.
(Sharad Kumar Sharma, J.) 26.04.2023 PN/-