Allahabad High Court
Pradeep Kumar vs State Of U.P. And Others on 6 May, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved On 13.04.2022 Judgment Delivered On 06.05.2022 Court No. - 91 Case :- APPLICATION U/S 482 No. - 4863 of 2007 Applicant :- Pradeep Kumar Opposite Party :- State of U.P. and Others Counsel for Applicant :- Rajiv Gupta,Harish Chandra Counsel for Opposite Party :- Govt. Advocate Connected With Case :- APPLICATION U/S 482 No. - 16839 of 2006 Applicant :- Pradeep Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajiv Gupta,Harish Chandra Counsel for Opposite Party :- Govt. Advocate Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard learned counsel for the applicant, learned counsel for the opposite party no.2 and Sri Vinod Kant Srivastava learned Additional Advocate General for the State and perused the material on record.
2. This criminal misc. application U/s 482 Cr.P.C. is filed to quash the charge-sheet dated 11.07.2007 and cognizance order dated 31.01.2007 and also the further proceedings of case no.188 of 2007 (wrongly mentioned as 118 of 2007) State vs. Pradeep Kumar in case crime no.313 of 2006 under Section 419, 420, 467, 468, 506 IPC P.S. Link Road, District Ghaziabad.
3. The submissions of learned counsel for the applicant are that the dispute is regarding the flat/ house no.62 HIG Duplex, Chandra Nagar Tehsil-Dadri, District Ghaziabad. It was allotted by GDA to opposite party no.2 and her husband on 29.06.1983 under self-financing scheme by depositing Rs.19,510/- only. The remaining amount was to be deposited in installments. Regarding the property in question, an agreement to sale was executed by opposite party no.2 and her husband- Sri K.S. Kumar on 22.06.1990 in favour of the applicant. Sri K.S. Kumar also executed a will in favour of the applicant on the same date and possession of the flat was also given under a receipt which was executed after payment of the whole agreed amount. The applicant deposited Rs. 2,98,335/- on 24.06.2003 in pursuance of demand letter of GDA as per the terms and conditions of the agreement. The other relevant documents were also handed over to opposite party no.2, so that the sale deed be executed by GDA directly in favour of the applicant as per the scheme available at that point of time. Applicant started to live in the flat and also paid water tax and house tax. Due to price hike of the property, the opposite party no.2 and her husband became dis-honest. They tried to take forceful possession of the flat on 07.01.2004. Applicant instituted a Civil Suit for specific performance of agreement in which the opposite party no.2 appeared and filed her written statement. Under the evil design, the opposite party no.2 filed a complaint before the SSP on 23/27.04.2004. The C.O.- III made an enquiry and submitted a detailed report that allegations are false. When the opposite party no.2 could not get the desired result, she lodged an FIR on 08.05.2005 registered as crime no.86 of 2005, under Section 448, 323, 504, 506 IPC. Alleging therein that complainant is the true owner of the flat and Pradeep Kumar is trying to take it illegal possession. After detailed investigation, it was found that property in question has been sold to the Pradeep Kumar and final report was submitted. The opposite party no.2 filed his objections against it and on 14.11.2005, the learned Magistrate took cognizance and issued summons. The opposite party no.2 again tried to take illegal possession of the flat with the help of police and made a complaint to S.S.P. Ghaziabad. The S.P. City enquired into the matter and submitted his report that Civil Suit is pending and allegations are incorrect. The opposite party no.2 again lodged the impugned FIR on 03.10.2006 registered as crime no.313 of 2006 under Sections 419, 420, 467, 468 and 506 IPC alleging that Pradeep Kumar has committed cheating and fraud. The aforesaid FIR was challenged by the applicant in a writ petition no.14107 of 2006 and this Court was pleased to stay the arrest of the applicant. In the meantime, police submitted the charge-sheet on 11.01.2007 and the learned Magistrate has taken cognizance without applying judicial mind. The impugned FIR and charge-sheet does not disclose any offence, the police rightly submitted final report in the earlier matter. Hence the learned Magistrate could not have taken cognizance on subsequent FIR and the charge-sheet. Applicant is being harassed unnecessarily by lodging criminal cases. This is an abuse of the process of the court.
4. Learned counsel for the opposite party no.2 and learned AGA for the State submitted that there are allegations of cheating and fraud against the applicant. On the basis of credible evidence, charge sheet has been submitted on which cognizance has been taken. There is no ground to quash the charge-sheet or cognizance order.
5. The FIR has been lodged under Section 420, 467, 468, 506 IPC but the allegations of the FIR are not specific. It is not clear what kind of forgery and cheating has been committed by the applicant. There are general and vague allegations in the FIR regarding cheating and forgery.
6. From the material available on the record, it transpires that there is a dispute between the parties regarding flat/ house allotted to opposite party no.2 by GDA and regarding which agreement has taken place between the parties. In pursuance of this agreement the applicant complied the demand notice of GDA and has deposited the amount there. He is also in possession of the aforesaid house. So the dispute between the parties is of Civil in nature. The applicant has also filed a Civil Suit for specific performance of contract and the matter can finally be decided by the Civil Court.
In case of 'State of Haryana and others Vs. Ch. Bhajan Lal and others', in Civil Appeal No.5412 of 1990, decided on 21.11.1990, the Hon'ble Apex Court in paragraph no.108 has laid down following norms for exercising powers under section 482 Cr.P.C.":-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(i). Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii). Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii). Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv). Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v). Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi). Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the oncerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii). Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. Applying the aforesaid principle of law on the facts and circumstances of the case, this Court is of considered opinion that charge-sheet and continuation of proceedings is an abuse of the process of court, which is liable to be quashed.
8. Accordingly the application U/s 482 Cr.P.C. is allowed and the proceeding is hereby quashed.
Order Date:- 06.05.2022 C.Mani