Allahabad High Court
Ameenullah Khan And Others vs State Of U.P.And Another on 7 April, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Judgement Reserved on 24.03.2022 Judgement Delivered on 07.04.2022 Court No. - 91 Case :- APPLICATION U/S 482 No. - 7362 of 2009 Applicant :- Ameenullah Khan And Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Dharmendra Singhal,Kalim Uddin,Syed Mohammed Jafer Husain,Syed Wajid Ali Counsel for Opposite Party :- Govt. Advocate,Ghazala Bano Quadri,Sharad.Kumar.Srivastava Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard Sri Syed Mohammed Jafer Husain, learned counsel for the applicants, Sri Arvind Kumar, learned AGA for the State, Ms. Ghazala Bano Quadri, learned counsel for the opposite party no.2 and perused the record.
2. This criminal misc. application under section 482 Cr.P.C. has been filed to quash the summoning order dated 05.03.2009 passed by learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.14, Fatehpur, in Case No.104 of 2009(Ahsanullah Vs. Ameenullah and others) under sections 417/115 IPC, Police Station Kotwali, District Fatehpur, as well as entire proceeding of Case No.104 of 2009.
3. The opposite party no.2 filed an application under section 156(3)Cr.P.C. on 22.02.2007 alleging therein that Ameenullah, the younger brother of the complainant is greedy and criminal person. He is a member of a gang indulged in preparation of forged papers and fabricating evidence and illegally grabbing the property. Complainant has purchased a plot No.551, through registered sale deed from Awas Vikas Parishad and is owner in possession since then. The Ameenullah just to grab the property has executed a forged sale deed of the aforesaid plot in favour of his wife. Sardar Khan and Imamuddin Khan are the marginal witnesses of the sale deed. In this sale deed it has been falsely mentioned that complainant has gifted the aforesaid plot to Ameenullah on 28.11.2000, while the real facts is that complainant never gifted his house to Ameenullah. It is also mentioned in the sale deed that vendor Ameenullah is selling the property, because he is in need of money, while the sale deed is in favour of his wife, which shows his ill intention. He has intentionally committed the forgery for unlawful gain causing loss to the complainant. When the complainant tried to sell the aforesaid plot, then he came to know about the forged sale deed. On 16.02.2007 at 7.00 P.M. the complainant went to the house of Ameenullah and asked about his illegal act, then he said that, if he pay Rs.50,000/- to each of them, then they will not cause any hindrance in sale of the plot. When the complainant refused, then Sardar Khan asked the Ameenullah to kill the complainant. They tried to caught hold the complainant in his house. The Naseem Khan, the relative of complainant was with him and he immediately rushed to the police station, but the police said that after inquiry report will be registered. When no action was taken the complainant moved an application to the Superintendent of Police by registered post on 20.02.2007, but no action was taken. On the aforesaid application under the orders of learned Magistrate an FIR, Crime No.12 of 2007, under sections 419, 420, 467, 468, 472, 506, IPC, was registered at Kotwali, Fatehpur. After investigation final report was submitted. The complainant filed a protest petition against it, which was treated as a complaint. The complainant produced evidence under sections 200 and 202 Cr.P.C. The learned Magistrate by the impugned order dated 05.03.2009 has summoned the Ameenullah Khan, Mohammad Khan Firdaus and Imamuddin(applicant nos.1, 2 & 4), for offence under section 417 IPC and the accused Sardar Khan (applicant no.3) for offence under section 417/115 IPC.
4. The learned counsel for the applicants contended that the learned Magistrate without application of judicial mind and without going in the pros and cons of the case, illegally allowed the protest petition. The opposite party no.2 on 28.11.2000 has orally declared Hiba of disputed plot and also on the same day written a memorandum in presence of several persons. The applicant no.1 executed sale deed in favour of his wife. A civil case Original Suit No.48 of 2007 (Ameenullah Khan Vs. Ahasanullaha Khan) was filed in civil court, which is still pending. The learned Magistrate abused the process of law and without considering that civil case is already pending between the parties has summoned the applicants. No offence has been committed by the applicants. Dispute is of title over the plot, which is civil in nature. The offence under section 417 IPC is punishable with imprisonment for one year, as such the cognizance is time barred. Learned counsel for the applicants also submitted that no offence under section 417 IPC is made out against the applicant nos.1, 2 & 4 and further no offence under section 417/115 IPC is made out against the applicant no.3.
5. Learned AGA for the State and learned counsel for the opposite party no.2 contended that the applicants have committed cheating & forgery, they have fabricated the documents and have executed a forged sale deed without title, causing illegal loss to complainant. The learned Magistrate on the basis of evidence produced before him has come to conclusion that a prima-facie case is made out against the applicants, has passed the impugned summoning order, which does not suffers from any illegality.
6. In the FIR there are clear allegations that complainant Ahsan Ullaha has purchased the plot from Awash Vikas Parishad through registered sale deed and he is owner in possession of the aforesaid plot. His brother Ameenullah the applicant no.1, just to grab his property on the basis of a false Hiba, executed a forged sale deed in favour of his wife, showing that he is in need of money, which itself shows his ill intention. The Sardar Khan, Imamuddin are the marginal witnesses of the sale deed and Mohd. Khan Firdaus, is in collusion of the co-accused and they are operating a gang, who are indulged in grabbing the property. In support of protest petition complainant has produced his evidence, he has examined himself and two other witnesses, who have corroborated the allegations of the FIR. So from the material on record a prima-facie case of cheating, forgery and fabricating false documents is made out. It is settled principle of law that at this stage only prima-facie case is to be seen, in view of the law laid down by the Supreme Court in the case of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. There may be a civil suit for cancellation of the sale deed, but apart from the civil liability, the act of the applicants also attracts penal provision. It is also settled principal of law that if a transaction is of such a nature that a criminal liability apart from the civil liability exists, then both the proceedings can run concurrently and accused-applicants cannot be exonerated from criminal liability, only because, some civil litigation is pending. There is nothing on record to show that criminal prosecution is an abuse of the process of law.
7. From the perusal of the impugned order it appears that learned Magistrate has failed to apply correct penal provision on the facts of the case, while passing summoning order. The learned Magistrate by the impugned order dated 05.03.2009 has summoned the Ameenullah Khan, Mohammad Khan Firdaus and Imamuddin(applicant nos.1, 2 & 4), for offence under section 417 IPC and the accused Sardar Khan (applicant no.3) for offence under section 417/115 IPC, while from the material on record a prima-facie case of cheating, forgery and fabrication of forged documents are made out. Due to the aforesaid reasons, the impugned order is not in accordance with law and liable to be set-aside with a direction to the learned Magistrate to pass fresh order in the light of the observations made above.
8. The aforesaid criminal misc. application under section 482 Cr.P.C. stands disposed of in following terms:-
"The impugned summoning order dated 05.03.2009 is set-aside. The learned Magistrate is directed to pass a fresh order, appreciating all the allegations and evidences and summon the accused in proper penal provisions, applicable as per allegations and evidences. The learned Magistrate shall pass the aforesaid order within two weeks from the date of production of a certified copy of this order before him."
Order Date :- 7.4.2022 VKG