Allahabad High Court
Muzammil vs The State Of U.P And Anr. on 25 April, 2017
Author: Mahendra Dayal
Bench: Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED
Case :- U/S 482/378/407 No. - 1712 of 2015
Applicant :- Muzammil
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- B.C Singh
Counsel for Opposite Party :- Govt. Advocate,Shiv P Shukla,Vijay Kumar Tripathi
ALONG WITH
Case :- U/S 482/378/407 No. - 5506 of 2016
Applicant :- Shakeel Khan & Ors.
Opposite Party :- State Of U.P. & Anr.
Counsel for Applicant :- Bhup Chandra Singh
Counsel for Opposite Party :- Govt. Advocate
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Hon'ble Mahendra Dayal,J.
Both the aforesaid applications have been filed for quashing of the same charge-sheet, therefore, both the cases are being taken up together for disposal.
I have heard learned counsel for the parties and have perused the record.
The applicants Muzammil and Shakeel Khan along with Shakeela Bano and Naushad have filed separate applications under Section 482 Cr.P.C., for quashing of the charge-sheet arising out of Case Crime No.513/2013, under Sections 419, 420, 467, 468, 506, 120-B IPC, relating to Police Station Chandra, District Sultanpur.
The brief facts giving rise to the case are that the land bearing Gata No.4156, measuring 2 bighas, situated at Mauja Tato Muraini, Tehsil Lambhua, District Sultanpur belongs to the opposite party No.2 and his brother, namely, Ishtiyaq Khan and Israil. It is said that they purchased the land in the year 1981 by means of a registered sale-deed. In the year 1991, Rafiq and Buddhu, who are also resident of the same village, were allotted patta of 1 bigha each in this land. After lapse of more than ten years, the allottees, namely Rafiq and Buddhu became bhumidhar with transferable rights. It is further said that on 28.07.2005, Rafiq executed a sale-deed in respect of 7 biswas of his 1 bigha land to Sabhir. It is further alleged that one of the applicants, namely, Shakeel Khan approached the opposite party No.2 and asked him for some land for construction of the house, which the opposite party No.2 refused. It is further said that the applicant Shakeel Khan in connivance with Rafiq fraudulently got prepared a deed of possession with the help of area Lekhpal. Shakeel also got the land mutated in favour of his wife on 18.09.2012. The real brother of the opposite party No.2 lodged an FIR by way of filing an application under Section 156(3) Cr.P.C., against Rafiq, Shakeela Bano and Shakeel, which was registered as Case Crime No.216/2013, under Section 420 IPC. After registration of the FIR by the brother of the opposite party No.2, the opposite party No.2 also lodged an FIR concealing the report lodged by his brother. So far as the role of the applicant, namely, Muzammil is concerned, he signed the deed of possession as witness. He is neither beneficiary nor has the ownership or the possession of the land. It also transpires from the pleadings that one of the applicants, namely, Shakeela Bano filed a case for permanent injunction and on 21.07.2014, the interim order was passed. The subject matter of the said case is the same land in respect of which, two FIRs have been lodged, one by the opposite party No.2 and another by his brother.
It has been submitted by the learned counsel for the applicants that the dispute between the parties is purely civil in nature and the criminal case is nothing, but abuse of the process of Court. It is the duty of the Court to check the abuse of the process of law. It has also been submitted by the learned counsel that even on the basis of the averments made in the FIR, none of the offences are made out against any of the applicants. The rights of the parties are yet to be adjudicated by the competent civil court, where the suit is pending. The question, therefore, arises for consideration as to whether the material on record prima-facie constitute any offence against the applicants. The submission on behalf of the applicants is that even if the allegations made in the FIR are accepted to be true, the same do not disclose the ingredients of any of the offences of forgery or cheating. The learned counsel for the applicants has relied upon a decision of the Hon'ble Apex Court reported in (2009) 8 Supreme Court Cases Page 751 - Mohammed Ibrahim and others vs. State of Bihar and another, in which, the Hon'ble Apex Court while dealing with the similar nature of case, cautioned the Courts with regard to growing tendency of the complainants to file complaint on the criminal side in the matter which are essentially and purely civil in nature. It is done either to apply pressure on the accused or out of enmity towards the accused. The Hon'ble Apex Court has further advised the criminal courts to ensure that proceeding before it are not used for settling scores or pressurize the parties to settle civil disputes. However, if the ingredients of criminal offences are attracted, they will have to be tried separately.
Relying upon the aforesaid decision, the submission of the learned counsel for the applicants is that the sale-deed and the deed of possession allegedly executed, do not fall within the category of false document. It is yet to be decided by the civil court as to whether the person, who prepared the deed of possession, was competent to execute such deed. The execution of such document is not execution of a false document as defined under Section 464 of the Code. Thus, there is no forgery and the offence under Sections 464, 467, 471 IPC are not attracted.
So far as the offence under Section 420 IPC is concerned, the submission of the learned counsel for the applicants is that in order to constitute an offence under Section 420 IPC, there should not be only cheating, but as a consequence of such cheating the accused should have dishonestly induced the person deceived to deliver any property to any person. When a sale-deed is executed conveying the property ownership, it is not open for the purchaser to allege that the seller has cheated him by making false representation of ownership and fraudulently induced him to part with the sale consideration.
As discussed earlier in the present case, there is no such complaint by the opposite party No.2. It is also not a case, in which the applicants tried to deceive the opposite party No.2 or his brother either by making a false or misleading statement or by any other action or omission. In this way, the offence under Section 420 IPC is not attracted. According to the learned counsel, it is a fit case, in which, the power under Section 482 Cr.P.C., should be invoked and the proceedings of criminal case be quashed.
Learned counsel for the opposite party No.2 has on the other hand submitted that in a latest decision, reported in 2017 (2) JT Page 98 - State of Rajasthan vs. Fatehkaran Mehdu, the Hon'ble Apex Court has reiterated that the power to quash the charge-sheet or the proceedings of criminal case should be exercised in the rarest of rare cases. The Courts should interfere only if the allegations are absurd or improbable, but where the offence is even broadly satisfied, the Court should be inclined to permit continuation of prosecution. It has also been held that the power to quash the criminal proceedings should be exercised very carefully and only in those cases, where such exercise is justified. It has also been submitted that even if the civil suit is pending between the parties, if the contents of the FIR, prima-facie, disclose the commission of offence, there will no ground for quashing of the charge-sheet.
Upon hearing learned counsel for the parties and upon perusal of the record, I find that the dispute between the parties is with regard to title and the authority to execute sale-deed and the deed of possession. It is not disputed that the civil suit is pending, in which, the adjudication is yet to be made by the court. As discussed above, the contents of the FIR do not prima-facie disclose the commission of offence as the basic ingredient of cheating and forgery is missing. In these circumstances, I am of the opinion that it is a fit case in which the jurisdiction under Section 482 Cr.P.C., should be invoked in order to prevent the abuse of the process of court and to secure the ends of justice.
For the aforesaid reasons, both the applications are allowed and the charge-sheet arising out of Case Crime No.513 of 2013, under Sections 419, 420, 467, 468, 506, 120-B IPC submitted by the police of Police Station Chandra, District Sultanpur as well as cognizance order dated 06.04.2015 passed by the Additional Chief Judicial Magistrate, Sultanpur are quashed.
Order Date :- 25 April, 2017 Rakesh/-