Allahabad High Court
Dr Pankhudi Srivastava And Another vs State Of U.P. And Another on 23 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:115812 Court No. - 72 Case :- APPLICATION U/S 482 No. - 29061 of 2022 Applicant :- Dr Pankhudi Srivastava And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anil Kumar Tiwari,Gopal Das Srivastava Counsel for Opposite Party :- G.A.,Sanjay Kumar AND Case :- APPLICATION U/S 482 No. - 25325 of 2022 Applicant :- Ramji Maurya Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sanjay Kumar Counsel for Opposite Party :- G.A.,Anil Kumar Tiwari,Gopal Das Srivastava Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicants, learned counsel for the opp. parties and perused the record.
The above applications have been moved against a common order dated 30.6.2022 passed in criminal complaint case no. 871 of 2011, Ramji Maurya Vs. Ram Palat and others, whereby the applicants Dr. Pankhudi Srivastava, Dr. Neelesh Srivastava and Ram Palat have been summoned to face trial under section 465, 427, 120-B and 506 I.P.C.
By moving the application u/s 482 Cr.P.C. No. 29061 of 2022, the applicants of this application Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava have prayed to quash the entire proceedings of criminal complaint case no. 871 of 2011, Ramji Maurya Vs. Ram Palat and others, under sections 465, 427, 120-B and 506 I.P.C., police station Line Bazar District Jaunpur as well as the summoning order dated 30.6.2022.
The application u/s 482 Cr.P.C. No. 25325 of 2022, applicant Ramji Maurya has implicated Ram Palat, Neelesh Srivastava and Pankhudi Srivastava as opp. parties along with the State of U.P. through Additional Chief Secretary (Home) and has prayed to modify the summoning order dated 30.6.2022 and prayer is made to summon the opp.parties Ram Palat, Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava to face trial under sections 419, 420, 467, 468, 471 and 506 I.P.C. also.
As per the facts of the case, an application u/s 156(3) Cr.P.C. was moved by Ramji Maurya against Ram Palat, Dr. Neelesh Srivastava and Dr. Pankhudi Srivastava on 18.7.2010 which was registered as a complaint. In this application the prayer was made that Ramji Maurya was the tenure holder of a land Araji No. 881 rakba 41.75 decimal and Ram Palat was the owner of rakba 31/4 decimal in the same araji no. 881. Ram Palat and Dr. Neelesh Srivastava demolished the boundary wall made by Ramji Maurya in the land and started their own construction on the said land, which was not the land of Ram Palat. In this regard, Ramji Maurya and other co tenure holders filed an O.S. No. 238 of 2010, Suresh Vs. Neelesh wherein stay was granted but in violation of the stay order, Dr. Neelesh Srivastava and Ram Palat continued their construction. They could hardly be stopped by the interference of S.P. concerned, but some constructions had already been done by them. Dr. Neelesh Srivastava got executed an agreement to sell in his favour knowing the fact that Ram Palat was not the owner of whole property which he was transferring to Dr. Neelesh Srivastava. Later on a sale deed was executed by Ram Palat in favour of Dr. Pankhudi Srivastava, the wife of Dr. Neelesh Srivastava. For demolition of wall co-tenure holder Sushila Devi filed a suit against Ram Palat. Ram Palat had sold 13 ft excess of land in favour of Dr. Pankhudi Srivastava. Ramji Maurya is a poor person and is alone in his family. He is unable to contest a complaint, so prayer was made to lodge the FIR on the basis of the application under section 156(3) Cr.P.C.
The application of Ramji Maurya was treated as a complaint on 18.7.2010. After statements under sections 200 and 202 Cr.P.C., this complaint was dismissed vide order dated 28.5.2013 under section 203 Cr.P.C. Against this order a revision was filed by Ramji Maurya which was accepted vide order dated 16.9.2016 and the matter was relegated back to the trial court to pass a fresh order. On 9.11.2021, the trial court again passed the order and summoned Ram Palat, Dr. Neelesh Srivastava and Dr. Pankhudi Srivastava to face trial u/s 465, 427, 120-B and 506 I.P.C. This order was challenged by the summoned persons before the High Court by way of an Application u/s 482 Cr.P.C. No. 28561 of 2021, vide order dated 9.3.2022, the order dated 9.11.2021 was set aside with the finding that it was a non speaking order, therefore, a fresh speaking and reasoned order was directed to be passed. After this direction by the High Court, the impugned order dated 30.6.2022 was passed and Ram Palat, Dr. Neelesh Srivastava and Dr. Pankhudi Srivastava were summoned again to face trial under sections 465, 427, 120-B and 506 I.P.C.
This order has been challenged by the both parties by filing two separate applications u/s 482 Cr.P.C. each as mentioned above.
It is argued by the learned counsel appearing for applicants Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava that Ram Palat has died. He was the vendor who executed sale deed in favour of Dr. Pankhudi Srivastava on 1.6.2010. The sale deed was not challenged by Ramji Maurya. After sale deed mutation was done vide order dated 10.6.2011 in favour of Dr. Pankhudi Srivastava. Against this order of mutation, Ramji Maurya filed an appeal which was dismissed in non prosecution on 15.5.2022. Its restoration application is said to be pending before Sub Divisional Magistrate concerned. It is submitted by the learned counsel for the applicants that civil suits are pending regarding the matter in dispute. Regarding joint property Ramji Maurya, Ram Palat, Jang Bahadur and Sushila Devi entered into a compromise on 26.2.2010 and they received the portions as mentioned in the map appended at page 66 of the paper book. It is submitted by the learned counsel for the applicants that Dr. Pankhudi Srivastava is a bonafide purchaser of the land. Dr. Neelesh Srivastava has been implicated in the case just being the husband of Dr. Pankhudi Srivastava. It is argued that if the land excess to the ownership of Ram Palat was sold by him to Dr. Pankhudi Srivastava, the same would be decided by the civil court only. Mutation order in favour of Dr. Pankhudi Srivastava was challenged by Ramji Maurya but the same was rejected in non prosecution but the restoration application is still pending. It is further submitted that O.S. No. 238 of 2010, Suresh Vs. Neelesh was also dismissed on 3.4.2013 in absence of the parties. Thus, it is claimed that the matter is totally of the civil nature, the complaint regarding the same is not maintainable. Learned counsel appearing for Dr. Neelesh Srivastava and Dr. Pankhudi Srivastava submits that Ramji Maurya can address the court at the time of framing the charge, hence, the prayer is made accordingly.
Learned counsel for Ramji Maurya by filing a counter affidavit to the above application u/s 482 Cr.P.C. No. 25325 of 2022 and filing application u/s 482 Cr.P.C. No. 25325 of 2022 submitted that Ram Palat had 17.5 ft land contiguous to the road side, an agreement to sale was executed by Ram Palat in favour of Dr. Neelesh Srivastava though both of them had knowledge that Ram Palat was not the owner of 17.5 ft of land contiguous to road side. The revisional court in revision no. 255 of 2013, Ramji Maurya Vs. State of U.P. vide order dated 16.9.2016 directed the trial court that offence under section 419, 420, 467, 468, 471, 120-B and 506 I.P.C. is made out against the accused persons but trial court vide order dated 9.11.2021 summoned the accused persons to face trial under sections 465, 427, 120B and 506 I.P.C. only and when that order was set aside by this court vide order dated 9.3.2022, the applicants have been summoned again to face trial under section 465, 427, 120-B and 506 I.P.C. only vide order dated 30.6.2022. While as per revisional court order dated 16.9.2016 the accused persons were to be summoned to face trial under section 419, 420, 467, 468, 471, 120-B and 506 I.P.C. It is further submitted that against the dismissal order of the civil suit and against the dismissal order of mutation, the restoration applications of Ramji Maurya are still pending, before the courts concerned. The clear boundaries of the ownership of the land of the parties could be seen in the sale deeds executed in favour of Ram Palat and Ramji Maurya both. Ram Palat was not entitled to sell the excess property of his share of which he was not the owner. It is also submitted that the compromise deed dated 26.2.2010 is a forged document. He had no knowledge of this compromise. The sale deed regarding the land of which Ram Palat was not the owner is void ab initio. Dr. Pankhudi Srivastava is not the bonafide and genuine purchaser. She got the sale deed executed having full knowledge of the fact that transferer was not the owner of the land measuring 24.55 ft., hence, the prayer is made accordingly.
The sections in which Dr. Neelesh Srivastava and Dr. Pankhudi Srivastava have been summoned to face trial are 465, 427, 120-B, 506 I.P.C. It is submitted by the learned counsel appearing for Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava that for the offence under section 465 I.P.C. the ingredients of forgery must be there. It is neither Dr. Pankhudi Srivastava nor Dr. Neelesh Srivastava who made false documents with intent to cause damage or injury to Ramji Maurya. By placing a judgment 2018 (7) SCC 581, Sheila Sebastian Vs. R. Jawaharaj and another, it is claimed that charge of forgery cannot be imposed on a person who is not the maker of false document in question. It is argued that as the applicants are not the persons who are the makers of document in question, so they cannot be held liable to face trial under section 465 I.P.C. The allegation of causing any damage by demolishing the construction or giving any threat to Ramji is also denied by Dr. Neelesh Srivastava and Dr. Pankhudi Srivastava.
Learned counsel appearing for Ramji Maurya by placing a judgment 2017 (7) SCC 7, T. Ravi and another Vs. B.Chinna Narasimha and others argued that on the basis of this judgment the vendor, co sharer can make a sale to the extent of his own share only and has claimed that if any sale deed is executed in excess, there is no need to file a suit for cancellation of such sale deed and on the basis of this judgment, it is claimed that in the present case also Ram Palat has sold excess area of the land of which he was not the owner. Such sale deed being void ab initio needed not to be cancelled. If we go through this judgment, the judgement is regarding rights as per Muslim Personal Law but in the present case, the parties are Hindu and Hindu law would apply to them. Ramji Maurya cannot claim the benefit of this judgment.
Learned counsel appearing for Ramji Maurya placed before the court a judgment in Hari Om Sharma Vs. State of U.P. and others, 2021 (7) ADJ 610 (DB) also and argued that when prima facie offence is made out, the FIR/ cognizance order cannot be quashed.
From the complaint of Ramji Maurya, it is clear that the dispute is of the ownership of the property regarding which admittedly civil suits are pending, wherein stay orders are also said to have been passed by the civil courts. Appeal against mutation is also said to have been pending though one civil suit and appeal are said to have been dismissed in default but restoration applications in both are still pending. As the ownership of the property is disputed and the matter is subjudice in the competent courts, until those cases are decided, forgery on the part of any of the accused persons cannot be said to be proved. So far as the order dated 16.9.2016 of the revisional court directing the trial court to pass a summoning order under sections 419, 420, 467, 468, 471, 120-B and 506 I.P.C. is concerned, the revisional court cannot direct the trial court to summon the accused in specific sections. It can only issue directions to pass a reasoned and speaking order on the basis of finding returned in the judgment. After this order dated 16.9.2016 when the trial court summoned Ram Palat, Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava to face trial under sections 465, 427 and 120-B I.P.C., this order was challenged by Ramji Maurya before this court and the order was set aside being a non speaking order and further trial court passed the summoning order summoning Ram Palat, Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava under sections 465, 427, 120-B and 506 I.P.C.
If we go through the complaint, there is nothing on record to show at this stage that any forgery was committed by Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava. Dr. Pankhudi Srivastava is said to be the bonafide purchaser and the land exceeding to the ownership of Ram Palat is said to have been sold by Ram Palat only. So at the most only Ram Palat could be sued for the same, but before that it is to be proved that Ram Palat was not the owner of the whole land which he sold to Dr. Pankhudi Srivastava. When the matter of the ownership is subjudice, the offence under sections 419, 420, 467, 468, 471, 120-B and 506 I.P.C. cannot be said to be made out against Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava or any other person till date. The offence under section 427 I.P.C. would only be found, when it is proved that construction was made over the property of which Dr. Pankhudi Srivastava/ Ram Palat were not the owner, hence, in the opinion of the court, the dispute is purely of civil nature. The arguments advanced by learned counsel for Ramji Maurya have no force. This court does not find any ground to modify the order dated 30.6.2022 and as the allegation of the offence of forgery is premature, so the entire proceedings of criminal complaint case no. 871 of 2011, Ramji Maurya Vs. Ram Palat and others, under sections 465, 427, 120-B and 506 I.P.C., police station Line Bazar District Jaunpur as well as the summoning order dated 30.6.2022 are hereby quashed to the extent of Dr. Pankhudi Srivastava and Dr. Neelesh Srivastava only.
However, after the decision of the civil court, if the case is decided against Ram Palat / his legal heirs and in favour of Ramji Maurya, he would be free to file a fresh criminal case against the culprits.
The application u/s 482 Cr.P.C. No. 29061 of 2022, Dr Pankhudi Srivastava and Another Vs. State of U.P. and another is allowed and the application u/s 482 Cr.P.C. No. 25325 of 2022, Ramji Maurya Vs. State of U.P. and 3 others is hereby dismissed.
Order Date :- 23.5.2023 Gss