Allahabad High Court
Jitendra Kumar Goyal & Another vs State Of U.P. & Another on 1 July, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 12 Case :- CRIMINAL REVISION No. - 1053 of 2010 Revisionist :- Jitendra Kumar Goyal & Another Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Rahul Agarwal,Rajiv Lochan Shukla Counsel for Opposite Party :- Govt. Advocate,Abhishek Kumar,Gaurav Sharma,Ranjay Kumar Hon'ble Aditya Nath Mittal,J.
1. Heard learned counsel for the revisionists, learned counsel appearing for opposite party no.2 and learned A.G.A.
2. This criminal revision has been filed against order dated 16.1.2010 passed by learned Chief Judicial Magistrate, Mathura in Case No.4976 of 2008 (State Vs. Jitendra Kumar Goyal & Hemant Kumar Goyal), arising out of Case Crime No.232 of 2008, under Sections 420, 467, 468, 471 I.P.C., P.S. Brindavan, District Mathura, whereby the application for discharge has been rejected.
3. Learned counsel for the revisionists has submitted that the revisionists are the bonafide purchasers of the property in dispute which they had purchased through registered sale deed in the year 1997. The name of the complainant in respect of alleged land in dispute was entered in the year 2008 on the basis of an order of the year 1999. It has also been submitted that there is no explanation for delay in F.I.R. in 2008 regarding an offence allegedly committed in the year 1997. The complainant has not challenged the previous registered sale deed and they are still in existence.
4. Learned counsel appearing for the opposite party no.2 has submitted that the name of the opposite party no.2 has been entered into the revenue records upon an order of Deputy Director of Consolidation which is the highest authority. The litigation was pending since long and it does not make any difference that when the name of the complainant was entered on the land in dispute. The revisionists have committed forgery and have prepared a forged document, therefore, the learned Chief Judicial Magistrate, Mathura has not committed any illegality in passing the impugned order.
5. The opposite party no.2 had lodged an F.I.R. on 14.3.2008 regarding the incident of 10.4.1997 alleging that the opposite party no.2 along with other brothers is owner in possession of Gata No.320-Ka Panchaiti Gausala Nagar, Brindavan, Mathura and his name has also been entered into the revenue records. It was also alleged that Bhagwan Das had wrongly shown himself as owner of the land and with intention to cause wrongful loss to him, had sold a plot of the land to Jitendra Kumar Goyal and Hemant Kumar Goyal which is forged and fabricated document. Jitendra Kumar Goyal and Hemant Kumar Goyal, knowingly that Bhagwan Das is not the owner of the land, but with intention to cause wrongful loss, have got executed a sale deed in their favour. Upon this application, a case at Crime No.232 of 2008, under Sections 420, 467, 468, 471 I.P.C. was registered and after investigation, the charge-sheet has been filed against present revisionists. It is admitted case of both the parties that the seller of the land namely Sri Bhagwan Das has already died in the year 1999 i.e. much before lodging the F.I.R. and submission of charge-sheet.
6. The revisionists had submitted an application for discharge on the ground that the said land belonged to registered Panchaiti Gausala and the then Secretary Mohan Lal had authorized Basudeo Lohia to execute the sale deed. Basudeo Lohia had executed the sale deed on 16.4.1962 in favour of Sarala Devi regarding plot nos.231, 232, 233, 234 and 235. Subsequently, Sarala Devi by a registered sale deed dated 26.7.1982 sold this property to Dwarika Prasad. Dwarika Prasad subsequently sold this land by registered sale deed in favour of Mohan Aanand Teerth. Mohan Aanand Teerth had sold this land by registered sale deed dated 5.9.1983 in favour of Bhagwan Das and Bhagwan Das had sold this land for a consideration of Rs.4,00,000/- to the revisionists. After the sale, the revisionists got constructed the boundary wall and remained in possession. It was also alleged in the application that the said sale deed has not been declared void by any of the competent court and prior to sale deed of the revisionists, four other registered sale deeds were executed. It was also alleged that the complainant had 1600 square meter area in his name while the total area of Khasra No.320-Ka is huge. It was also alleged that the said Gausala had fallen within the abadi, therefore, the land had became infructuous out of which 529 plots were carved out, out of which five plots have been purchased by the revisionists in the year 1997.
7. Learned Chief Judicial Magistrate, Mathura after hearing both the parties, came to the conclusion that it is a matter of evidence that who is the owner of the land in dispute. Learned court below also came to the conclusion that the evidence of the parties is to be recorded under Section 137/154 of Indian Evidence Act and the opportunities of cross examination has to be given. Learned Chief Judicial Magistrate also came to the conclusion that all the matters can be decided by the trial only and in view of the evidence collected by the Investigating Officer, the application for discharge is liable to be rejected. Accordingly, the application for discharge has been rejected.
8. Section 239 Cr.P.C. provides that if, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record its reasons for so doing.
9. At the time of framing of charge, the trial court is required to consider only the police report referred to under Section 173 and the documents sent with it. Documents referred to in the Section include statements of witnesses recorded under Section 161 Cr.P.C. and the charge-sheet. The words appearing in the Section "opportunity of being heard" do not mean examination of any witnesses as they merely give a right of audience to the prosecution and the accused to argue their case in favour of framing charge or discharge.
10. In Ram Chandra vs. Union of India AIR 1986 Supreme Court 1173, it has been held that the word " consider" means due application of mind.
11. Obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be groundless. But no detailed evaluation of the materials or meticulous consideration of the possible defence need be undertaken at this stage. The real test for determining whether the charge should be considered groundless is that where the materials are such that even that unrebutted make out no case whatsoever.
12. Where there is prima facie material to frame charge against the accused, charge cannot be said to be groundless and accused cannot be discharged under Section 239. This is not the stage for weigh the pros and cons of all the materials and not for sifting the materials presented by the prosecution. The exercise at this stage should be confined to considering the police report and the documents to decide whether the allegations against the accused are " groundless" or whether "there is ground for presuming that the accused has committed the offence." At this stage the scanning and scrutinizing the evidence and materials produced by the prosecution is not permissible as held by Hon'ble the Apex Court in State of U.P. vs. Uday Narain AIR 1999 Supreme Court 3845.
13. Section 239 Cr.P.C. provides as under:-
"239. When accused shall be discharged. --If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
14. The accused persons have been charge-sheeted for the offences punishable under Sections 420, 467, 468, 471 I.P.C.
15. For constituting an offence under Section 420 I.P.C., the ingredients of cheating are required to be fulfilled. The cheating has been defined in Section 415 I.P.C. as under:-
"415. Cheating.-- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
16. Further for constituting an offence under Sections 467, 468 & 471 I.P.C., the ingredients of forgery must be satisfied. The offence of forgery has been defined in Section 463 I.P.C. which is as under:-
"463. Forgery.-- Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, 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."
17. Admittedly, the name of the complainant was recorded in the year 1999 and the sale deed in favour of revisionists was executed in the year 1997. It is also admitted fact that since 1962, four more registered sale deeds have been executed regarding the same land in dispute. It is also admitted position that the said five registered sale deeds have not been challenged before any court of law and they still hold good. It is also admitted position that the complainant/opposite party no.2 has also not challenged the registered sale deed executed in favour of revisionists in the year 1997. Section 239 Cr.P.C. provides that If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record its reasons for so doing. Accordingly for discharge, the Magistrate has come to a conclusion that the charges are groundless.
18. Learned counsel for the opposite party no.2 has relied upon Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Chaudhary and others, 2009 (64) ACC 454 (SC), in which Hon'ble the Apex Court has held as under:-
"Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka Vs. L. Muniswamy, (1977 (2) SCC 699) it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (Underlined for emphasis). The Court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into."
19. Accordingly, the Magistrate was required to see that the material on record was sufficient to connect the accused with the trial. But in the instant case, the complainant had no right, title or possession over the land in dispute prior to 1999 while the sale deed has been executed in the year 1997. It is also relevant to mention that it was the 5th registered sale deed since 1962 and none of the said sale deeds have been challenged before competent court of law. Apparently, the complainant had no right, title or interest over the land in dispute prior to 1999, howsoever, that the legal proceedings were pending since long. It is also not alleged as to whether present revisionists were party to the said litigation. It is also not disputed that the land belonged to Panchaiti Gausala and the then Secretary of the Gausala had authorized one Basudeo to execute the sale deed in the year 1962 because the land in dispute had fallen within abadi and it was infructuous land. Since 1962 to 1997 five sale deeds have been executed. It is also relevant to mention that the total area of Gata No.320-Ka is a huge one and the complainant asserts his rights over 1600 square meter area which is also not identifiable because no boundaries have been mentioned. It is also not clear that whether the said 1600 square meter area falls within the boundary of the land purchased by the revisionists or not. It is also relevant to mention that the said sale deed was executed in the year 1997 and the name of the complainant was recorded in the year 1999 but the F.I.R. has been lodged in the year 2008 without any explanation as to why the complainant had not asserted his rights right from 1999 when his name was mutated in the revenue records. There is no explanation as to why the complainant remained silent for almost 10 years to assert his rights.
20. As the name of the complainant admittedly recorded in the year 1999 regarding which the proceedings are still pending in this Court and a stay has been granted, therefore, there was no restriction upon the seller i.e. Bhagwan Das to execute any sale deed with regard to the property in dispute in the year 1997. Moreover no intention of the purchasers is apparent from the records that they intended to cause any wrongful loss to the complainant because in the year 1997 there was no existence of the complainant as the owner of the land.
21. Learned counsel for the opposite party no.2 has further relied upon Lalu Prasad @ Lalu Prasad Yadav Vs. State of Bihar through C.B.I. (A.H.D.), Patna, 2006 (Suppl.) ACC 69 (SC), in which Hon'ble the Apex Court has held as under:-
"In Kanti Bhadra Shah and Another Vs. State of West Bengal (2000 (1) SCC 722) again the question was examined. It was held that the moment the order of discharge is passed it is imperative to record the reasons. But for framing of charge the Court is required to form an opinion that there is ground for presuming that the accused has committed the offence. In case of discharge of the accused the use of the expression "reasons" has been inserted in Sections 227, 239 and 245 of the Code. At the stage of framing of a charge the expression used is "opinion". The reason is obvious. If the reasons are recorded in case of framing of charge, there is likelihood of prejudicing the case of the accused put on trial. It was inter alia held as follows:
"It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused.
Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per the first sub-section of Section 245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per sub- section (2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both sub-sections he is obliged to record his reasons for doing so. In this context, it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge."
22. In Inder Mohan Goswami and another Vs. State of Uttaranchal and others 2008 (60) ACC 1 in which Hon'ble the Apex Court has held as under:-
"The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a Civil Court of competent jurisdiction. The dispute in question is purely of civil nature and respondent No. 3 has already instituted a civil suit in the court of Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the Court."
23. In Hira Lal and others Vs. State of U.P. and others 2009 (66) ACC 28 in which Hon. the Apex Court has held:-
"The question as to whether the transactions are genuine or not would fall for consideration before the Civil Court as indisputably the respondent No. 3 has filed a civil suit in the Court of Civil Judge, Gautam Budh Nagar wherein allegedly an interim injunction has been granted. What was the share of the respective co-sharers is a question which is purely a civil dispute; a criminal court cannot determine the same."
24. In Harshendra Kumar D. Vs. Rebatilata Kolley and others (2011) 3 SCC 351 in which Hon'ble the Supreme Court has held that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstances, can be looked into by the High Court In exercise of its jurisdiction under section 482 or for that matter in exercise of revisional jurisdiction under section 397 of the Code.
25. Hon'ble Apex Court has further held that it is clearly settled that while exercising inherent jurisdiction u/s 482 or revisional jurisdiction under section 397 of the Code in a criminal case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations.
26. In Indian Oil Corporation Vs. NEPC India Ltd. and others (2006) 6 SCC 736 in which Hon'ble Apex Court considering the judgment of Hridaya Ranjan Prasad Verma has observed as follows:-
In Hridaya Ranjan Prasad Verma, this Court held :
"On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
27. In Mohd. Ibrahim and others Vs. State of Bihar and another (2009) 8 SCC 751 the Hon. Apex Court has held that as under:-
"This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See: G. Sagar Suri v. State of U.P. [2000 (2) SCC 636] and Indian Oil Corporation Vs. NEPC India Ltd. [2006 (6) SCC 736]. Let us examine the matter keeping the said principles in mind.
Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code.
When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla Vs. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus;
"The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999 (2) SCC 617.
28. In Indian Oil Corporation Vs. NEPC India Ltd. (2006) 6 SCC 736, Hon'ble Apex Court has held as under:-
"Any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution, should be deprecated and discouraged."
29. As mentioned above, for constituting the offence under Section 420 I.P.C., the cheating has to be proved. In the present case, the complainant was not recorded as tenure holder of the land in dispute at the time of execution of the sale deed in the year 1997, therefore, there was absolutely no question to cheat the complainant. At the most, it could have been said that Bhagwan Das had committed cheating by executing a sale deed without any rights. It has been alleged in the F.I.R. that the accused persons knowingly that Bhagwan Das was not the owner of the land had got the sale deed in their favour. The rights and title of the parties regarding immovable property are also derived by documents. Admittedly, Bhagwan Das had purchased this land from Mohan Aanand Teerth in the year 1983 and he remained owner in possession of the land in dispute since 1983 to the date of execution of sale deed dated 17.4.1997. The rights, title and possession of Paramhansh Bhagwan Das was not challenged during this period. A bonafide purchaser of the immovable property is required to see the title of the seller. When Paramhansh Bhagwan Das was having sale deed in his favour since 1983 without any interruption, then nothing else was required to be seen by the subsequent purchasers i.e. the revisionists who had also purchased the said piece of land for a consideration by a registered sale deed. It has also not been mentioned in the F.I.R. that why Bhagwan Das was not the owner of the land in dispute. Merely saying that Bhagwan Das was not owner of the land in dispute is not sufficient. The best course for the complainant was to file a civil suit either for declaration or for cancellation of the sale deed in favour of Bhagwan Das but the said remedies have not been adopted. It appears that the complainant feared that in civil court he shall not be able to prove his title or to disprove the title of Bhagwan Das, therefore, he has adopted this short cut of lodging the F.I.R. It also appears that the Investigating Officer has also not taken pains in collecting the evidence that why Bhagwan Das was not the owner of the land in dispute since 1983. I fail to understand as to why no explanation has been given in the F.I.R. that since 1999 till 2008 why the complainant had not asserted his rights before the competent civil court. It appears that the Investigating Officer has submitted the charge-sheet either under some pressure or for extraneous consideration. The ingredients of cheating and forgery are not at all made out by the evidence on record.
30. For the facts and circumstances mentioned above, I am of the opinion that the charges against the revisionists are groundless and the findings of Chief Judicial Magistrate, Mathura that this question can be decided only after recording the evidence under Section 137, 154 and 146 of Indian Evidence Act are perverse. It is a dispute of purely civil nature which has been given the criminal colour just to pressurise the revisionists.
31. In the result, the revision is allowed. The impugned order dated 16.1.2010 is set-aside. The revisionists are discharged for the offences of Section 420, 467, 468 & 471 I.P.C. relating to Case Crime No.232 of 2008, P.S. Brindavan, District Mathura.
Order Date :- 1.7.2013 Kpy