Allahabad High Court
Neetu Mittal And Another vs State Of U.P. And 3 Others on 29 April, 2020
Bench: Sunita Agarwal, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD In Chamber Case :- CRIMINAL MISC. WRIT PETITION No. - 4029 of 2020 Petitioner :- Neetu Mittal And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shishir Tandon,Sri G. S. Chaturvedi, Sr. Adocate Counsel for Respondent :- G.A.,Anshul Kumar Singhal,Gaurav Kakkar,Vinod Kumar Agarwal Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Ajit Singh,J.
1. Heard Sri Gopal Swaroop Chaturvedi learned Senior Advocate assisted by Sri Shishir Tandon learned Advocate for the petitioners and Sri Gaurav Kakkar learned Advocate for the complainant/respondent no.4.
2. By means of this writ petition, the petitioners have sought for quashing of the first information report dated 10.2.2020, registered as Case Crime No. 0056 of 2020, under Sections 419, 420, 467, 468, 471 and 120-B IPC at the Police Station Link Road, District Ghaziabad. Further prayer is to direct the respondents not to arrest the petitioners in pursuance of the first information report lodged by respondent no. 4.
3. The petitioners herein are purchasers of a property situated at C-51, Ramprastha, Surya Nagar, District Ghaziabad through a registered sale deed dated 2.1.2012. The vendor of the disputed property is Mr. Vikas Garg. The disputed property was purchased by Vikas Garg jointly with his brother Vinay Garg and sister Deepika Garg and it is in possession of Vinay Garg. The said property was mortgaged to the company namely Citi Financial Consumer Finance India Ltd. against a loan of Rs. 1 Crore 65 Lakhs and odd jointly taken by the above three purchasers. This loan was assigned to Kotak Mahindra Bank and in an arbitration proceeding for realization of loan, arbitration award was passed fixing liability of the loanees namely Vikas Garg, Vinay Garg and Deepika Garg. The loan money found due by the arbitrator is to be paid to the Kotak Mahindra Bank. It appears that bank took the matter to the Debt Recovery Tribunal in a proceeding initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (also known as the "SARFAESI Act"). In the meantime, the disputed property was sold to the petitioners herein by Vikas Garg, one of the co-owners vide sale deed dated 2.1.2012. The purchasers petitioners are sister-in-law and brother-in-law of Vikas Garg. The petitioners herein again took loan from the Citi Bank by creating a mortgage on the disputed property. While the proceedings under SARFAESI Act were going on, the Kotak Mahindra Bank had lodged a criminal complaint against Vikas Garg, Vinay Garg, the respondent no. 4 herein his wife and Deepika Garg on the allegation that they had deceived the bank by creating a third party interest over the mortgaged property. While the investigation is going on in the said criminal complaint, the respondent no. 4 namely Vinay Garg lodged a first information report dated 10.2.2020 purporting to be under Sections 419, 420, 467, 468, 471 and 120-B IPC. The allegations in the first information report are that Vikas Garg with a malafide intention had sold the entire disputed property in possession of the complainant to his immediate relatives/in laws. Both the purchasers of the disputed property are closely related to the vendor Vikas Garg whose idea is to deprive the complainant of the valuable property and this act of the vendor has also elements of Cheating. The purchasers (petitioners herein) being closely related to Vikas Garg cannot be said to be bonafide transferees.
4. Seeking quashing of the first information report, it is vehemently argued by learned Senior Counsel for the petitioners that the first information is only a tool to harass the petitioners. The petitioners have no concern with the loan taken by the complainant Vinay Garg and Vikas Garg (brothers) from the Kotak Mahindra Bank and moreover, the criminal complaint has already been lodged by the bank against them. Two separate criminal proceedings for the same offence cannot be conducted. Moreover, no offence is made out from the averments in the first information report. If the complainant is aggrieved by execution of the sale deed by one of the co-owners, appropriate remedy for him is to approach the competent civil court. Criminal proceedings cannot be initiated as a substitute to the civil litigation. It is vehemently argued that the material on record does not even prima facie constitute any offence against the petitioners.
5. Reliance is placed upon the decision of Md. Ibrahim and others vs. State of Bihar1 to urge that the allegations made in the FIR, even if accepted to be true in their entirety, do not disclose the existence of any ingredient of either the offence of forgery or cheating and there was no other material to show any such offence. It is then vehemently argued that the allegations by the complainant even if accepted to be true, would only give rise to a civil dispute and do not constitute any offence punishable under the Indian Penal Code or any other criminal law.
It is urged that the instant case is fully and squarely covered by the decision of the Apex Court in Md. Ibrahim1, inasmuch as, in that case also the criminal complaint was lodged against the purchasers, witnesses of the sale deed and the vendor who himself claimed to be owner of the land in dispute.
6. It is vehemently argued that execution of sale deed by a person who claims himself to be owner of the property though under a wrong title or without title would not make the document itself a false document within the meaning of Section 464 of the Indian Penal Code. If the document which is executed, is not a false document, there is no forgery, neither Section 467 nor Section 471 of the Code are attracted. It is further urged that the sale deed executed by one of the co-owners cannot be said to be on a false representation of ownership. There is no element of forgery more so since purchaser is not a complainant. It is not open for the complainant to say that the accused had tried to deceive him either by making a false or misleading representation or by any other action or omission or dishonest inducement to deliver the property as it was neither a case of impersonation nor of false representation. The vendor and the purchasers cannot be said to have cheated the complainant or prepared a false document by false representation. A third party to the deed is not competent to make a complaint.
7. Further placing the decision of the Apex Court in Shambhu Prasad Singh vs. Mst. Phool Kumari and others2, it is argued that a co-sharer is owner of each and every part of the land as between co-sharers, the possession of one of the co-sharer is in law deemed to be the possession of all co-sharers.
8. Placing the decision of the Apex Court in Sriram Pasricha vs. Jagannath and others3, it is argued that a co-owner of the property is an absolute owner and the sale deed executed by him cannot be said to be made with an intention to deceive the complainant. There is no false representation. No elements of cheating or misrepresentation can be found in the complaint. In the crux, the allegations in the first information report do not even prima facie suggest any offence being made out.
9. Learned A.G.A. for the State respondents, however, stated that the allegations of cheating and misrepresentation done by the petitioners in connivance with the vendor has to be investigated by the competent police authority. Any interference, at this stage, may hamper the speedy process of investigation.
10. Considering the above, we would feel it apposite look to the provisions of the Indian Penal Code, wherein cheating and representation have been defined as offence.
11. "Cheating" is defined as a separate offence in Section 415 contained in Chapter XVII of the Indian Penal Code. Section 415 defines cheating to mean that whoever, by deceiving any person, fraudulently or dishonestly induces that person to deliver any property to any person, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation, property, is said to 'cheat'. "Explanation" to Section 415 provides that a dishonest concealment of facts is a deception within the meaning of this section. Section 420 in the same chapter provides punishment for cheating. It states whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any other person, or to make, alter or destroy the whole or any part of 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.
A careful reading of both the provisions makes it clear that if a person with dishonest intention induces another person to deliver property to any other person which he would not have otherwise delivered, he commits an offence of cheating. Deception may be dishonest concealment of correct facts.
'Forgery' and 'the offences relating to documents' have been kept in Chapter XVIII of the Code. Section 463 defines "Forgery" which means whoever makes any false document or part of a document, with intention to cause damage or injury, to the public or to any person, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 468 defines "Forgery for purpose of cheating". It states that whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine. Section 471 gives another example of forgery and says that whoever fraudulently or dishonestly uses as genuine any document, which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Thus, forgery is an offence which constitute preparation of false documents which may cause any person to part with his property. The dishonest and fraudulent intention has to be established in a given case.
12. It is noteworthy that the present FIR has also been lodged under Section 120-B IPC, an offence contained in Chapter VA of the Indian Penal Code.
Section 120B provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, where no express provision is made in this Code for the punishment of such a conspiracy, shall be punished in the same manner as if he had abetted such offence. Conspiracy to commit an offence is itself an offence and a person can be separately charged with respect to such a conspiracy. Where the offence is committed by several person in pursuance of a conspiracy, it is usual to charge them with those offences as well as conspiracy to commit those offence. This section applies to those who are members of the conspiracy during its continuance.
13. In the instant case, Vikas Garg, one of the accused had sold the joint property mortgaged to the bank. Three persons namely Vinay Garg (the complainant), Deepika Garg and Vikas Garg, the accused had purchased the property and created mortgage in favour of the bank. It is admitted fact that the complainant Vinay Garg is in possession of the disputed property. The sale deed was executed by Vikas Garg describing himself to be the owner of the entire property. The sale deed in favour of the petitioners Smt. Neetu Mittal and Udit Kumar Mittal record that the vacant possession of the property purchased by them had been handed over. Vikas Garg described himself as 'Vikas Gopi Chand Garg' and not as 'Vikas Garg' in the sale deed. There is no dispute about the fact that the property which was purchased by the petitioners herein is mortgaged to the Kotak Mahindra Bank. The petitioners Smt. Neetu Mittal and Udit Kumar Mittal are real sister-in-law and brother-in-law of Vikas Garg.
14. The first information report categorically narrates that the sale deed was executed by Vikas Garg in conspiracy with the petitioners namely Smt. Neetu Mittal and Udit Kumar Mittal with an idea to deprive the complainant and force him to part his possession in the property of which the complainant is a lawful owner in possession.
15. It would further be noteworthy that the criminal case was lodged by Kotak Mahindra Bank on 26.10.2018 under Sections 406, 420, 467, 468, 471 and 120B IPC, on account of the sale deed executed by Vikas Garg wherein the complainant Vinay Garg has also been arrayed as an accused. The main allegation in the first information report lodged by the Bank is that the accused persons had sold mortgaged property to the purchasers namely Udit Kumar Mittal and Smt. Neetu Mittal with a view to frustrate the recovery of loan. The charges of conspiracy, cheating and forgery have been levelled against Vikas Garg as also the complainant herein, whereas the complainant is neither a party nor had any concern to the sale deed dated 2.1.2012 executed by Vikas Garg.
16. The allegations in the instant FIR are that Vikas Garg, in a conspiracy with the purchasers Smt. Neetu Mittal and Udit Kumar Mittal had sold the mortgaged property which is in possession of the complainant, in order to deprive him and this act of the accused person has resulted in lodging of the first information report by the bank, whereunder the complainant and his wife both were arrested.
17. Noticing the above, we are not convinced with the arguments of learned Senior Advocate for the petitioners that elements of cheating and forgery are not made out from the averments in the first information report. The question as to whether the execution of sale deed by Vikas Garg in favour of the petitioners Smt. Neetu Mittal and Udit Kumar Mittal was a bonafide act or was an act of cheating and forgery in conspiracy with the petitioners, who are his close relatives, is subject matter of investigation. It is not a case where it can be said that the allegations in the FIR prima facie do not make out any criminal offence. There is no justification for quashing of the first information report.
18. The decision in Md. Ibrahim1 relied by the learned Senior Advocate for the petitioners is distinguishable as observation on forgery and cheating therein have been made in the peculiar facts of the case. In that case the complainant had no clear title to the suit property, whereas the vendor had inherited the suit property form his parent. The Supreme Court has noted that the dispute therein was purely civil in nature and had deprecated the tendency of complainant attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature with a view to apply pressure on the accused or out of enmity towards the accused, or to subject the accused to harassment.
No such situation can be contemplated in the facts of the present case.
19. As far as the right of one of the co-owners to execute the sale deed is concerned, it is evident that a co-owner being owner of each and every inch of land has a right to enjoy the property but while dealing with the property i.e. for disposing it off, he has to take consent/approval of other co-owners. A joint property cannot be sold by one of the co-sharers as his own. The decision in Shambhu Prasad Singh2 and Sriram Pasricha3 placed before us are in this line and are of no benefit to the petitioners.
20. From the above discussion, having carefully read the allegations in the first information report and perused the material on record, we do not find it a fit case for interference under Article 226 of the Constitution of India.
21. The writ petition is found devoid of merits and hence dismissed.
Order Date :-29.4.2020
Brijesh (Ajit Singh,J.) (Sunita Agarwal,J.)