Heard Shri Manoj Mishra and Shri Sheo Ram Singh, learned counsels for the applicants and in opposition, Shri S.T. Ali, learned counsel for opposite party no. 2 and Shri Attrey Dutt Mishra, learned A.G.A. for the State of Uttar Pradesh and perused the record.
1. These two applications under Section 482 of the Code of Criminal Procedure, 19731 have been moved on behalf of the applicants with a prayer to quash the entire proceedings of Criminal Case No. 33 of 2014, under Sections 419, 420, 506 and 120-B of the Indian Penal Code, 18602, Police Station - Jaitpura, District - Varanasi, pending before Additional Chief Judicial-IV, Varanasi.
2. Submission made from the side of the applicants of Application u/s 482 No. 11826 of 2015 is that the dispute relates to House No. J-14/118, Mohalla Qazi Sadullahpura, Police Station - Jaitpura, District - Varanasi, which was purchased by one Hakim Abid Hussain, by means of sale deed dated 23.01.1947 executed by one Sri Ram, son of Bhagelu and Batuk Prasad, son of Akvam Rajbhar, both residents of Mohalla Noton Bazar, Chetpur Road City, Calcutta and got possession over the same. The pedigree of Hakim Abid Hussain has been given in Para 3 of the affidavit filed in support of the application, which makes it clear that he had five sons and two daughters and after his death, all the above sons and daughters became legal heirs and representatives of the 1/7th share of the disputed house as well as its owner. It is further submitted that one of the legal heirs of Hakim Abid Hussain, namely, Hakim Gafoor Ahmad, having only 1/7th share in the said property, with ulterior motive and without notice to other legal heirs, transferred the entire disputed property by means of registered sale deed dated 07.01.1969 in favour of his wife Sukaina Bibi, which was ab initio void document which was never acted upon and it is settled law that void document which has not been acted upon, would not require to be got cancelled from any competent court. Thereafter, behind the back of the legal heirs of Late Hakim Abid Hussain, Sukaina Bibi, wife of Hakim Gafoor Ahmad, gifted the disputed house by oral hibanama to Aslama Tabassum i.e. opposite party no. 2, wife of Mukhtar Hussain, who happened to be daughter of real sister of Sukaina Bibi. Thus, Sukaina Bibi herself does not have any valid title over the said property and could not have executed the hibanama of the same in favour of opposite party no. 2 and therefore, despite that hibanama, the legal heirs of Late Hakim Abid Hussain continued to remain owners and in possession of the disputed house jointly of their 1/7th respective shares. Further, it is submitted that after the death of Hakim Junaid Hussain, son of Late Hakim Abid Hussain, his legal heirs became owners and in possession of his 1/7th share. Similarly, after the death of Haider Ali, son of Late Hakim Abid Hussain, his legal heirs also became 1/7th share owner of the said property. It is further submitted that the disputed property lies in the territorial limits of Nagar Nigam, Varanasi, though the entries made therein would not be treated to be proof of title over the said property. Gafoor Ahmad, son of Late Hakim Abid Hussain, by manipulation and playing fraud on another legal heir of Late Hakim Abid Hussain, got his name mutated over the said property in the Nagar Nigam records and later on, opposite party no. 2, the donee, on the basis of hibanama, got her name recorded in Nagar Nigam. The opposite party no. 2 has lodged a false F.I.R. against eleven accused, including the applicants, alleging that the transferor has transferred the disputed property in favour of the applicants, who are bona fide purchasers. After the death of their father, the transferors executed a registered sale deed in favour of the applicants after acknowledging the sale consideration and put the applicants in physical possession of the same. The Investigating Officer has, in a routine manner, recorded the statements of the witnesses and exonerating two persons, submitted charge-sheet against the vendors and the vendees of the property on 29.07.2014, whereon the trial court has taken cognisance on 06.04.2015 in a mechanical manner. The applicants had no knowledge about the internal dispute between the transferors and the claimants of the disputed property/opposite party no. 2, hence, they have not committed any offence under Sections 419, 420, 506 and 120B of I.P.C. The opposite party no. 2 is aggrieved by the execution of the sale deed dated 06.03.2014 in favour of the applicants, therefore, she had option to get herself declared exclusive owner of the disputed property from the appropriate forum. The dispute is purely of civil nature. There is no allegation against the applicants of cheating, forgery or dishonest intention. The disputed sale deed is not subjudice in the impugned proceedings and till the same is got declared null and void by the civil court, no prosecution would stand. Therefore, it is prayed that the criminal proceedings against the applicants should be quashed, the same being maliciously instituted against them.
3. It is submitted in the affidavit filed in Application u/s 482 No. 24100 of 2015 that the applicants belong to one family, while opposite party no. 2 is claiming her right as daughter of sister of the aunt of applicant no. 1. The dispute relates to the property of the grandfather of applicant no. 1, Late Hakim Abid Hussain, who had purchased the House No. J-14/118 by registered sale deed, as mentioned above and after the death of Hakim Abid Hussain, the applicants, being legal heirs, are owners and in possession of the said property and the applicant nos. 2, 3, 4 and 5 have filed an injunction suit before Civil Judge (Junior Division), Varanasi against opposite party no. 2, copy of which is annexed as Annexure No. 3 to the affidavit filed in support of the application, in which the court passed injunction order on 01.08.1995 against opposite party no. 2, copy of which is annexed as Annexure No. 4. The applicants of Application u/s 482 No. 24100 of 2015, had executed sale deed in favour of Iqbal Ahmad and Aainul Haq, applicants of Application u/s 482 No. 11826 of 2015 on 06.03.2014 of their respective shares, copy of which is annexed as Annexure No. 5 to the affidavit filed in support of the application. The co-owners of the house in question, namely, Malka Khatoon, Khatiza Bibi and Nanhi Bibi filed partition suit before the civil judge, against opposite party no. 2 on 04.07.2014 in respect of the property in dispute in the court of Principal Judge (Junior Division), Varanasi, copy of which is annexed as Annexure No. 6. The uncle of the applicants, Gafoor Ahmad and his wife Sukaina Bibi died issueless, therefore, the property in question vested in the remaining successors of Late Hakim Abid Hussain and therefore, opposite party no. 2, not being legal heir of Hakim Abid Hussain, could not inherit his property. Hakim Gafoor Ahmad and Sukaina Bibi had never executed oral hibanama in favour of opposite party no. 2, hence, opposite party no. 2 could not have become its owner and she is claiming the disputed property of the applicants illegally. The first information report has been lodged by her maliciously. No offence under the above-mentioned sections is made out. Cognisance has been taken by the learned Magistrate illegally, hence, the proceedings against the applicants need to be quashed, the same being malicious prosecution.
4. From the side of opposite party no. 2, denying the defence version of the applicants of Application u/s 482 No. 11826 of 2015, it is submitted in the counter affidavit that the disputed house i.e. House No. J-14/118 as mentioned above, was purchased by one Hakim Gafoor Ahmad in the name of his father Hakim Abid Hussain from his own money to avoid the law of Haq Shifa, who is grandfather of co-accused, namely, Asgar Ali, on 23.01.1947 through registered sale deed from one Shri Batuk Prasad. After having come to know of this fact, Hakim Abid Hussain returned the said house in question to his son Hakim Gafoor and wrote on stamp paper in July, 1947. Thereafter, Hakim Abid Hussain expired in the year 1952, whereafter, all the legal heirs of Hakim Abid Hussain had no objection as well as had given consent to an affidavit submitted before the Municipal Board, Varanasi for mutation of the said property in the name of Hakim Gafoor Ahmad in register of the Municipal Board and thereafter, the Board issued a notice under Section 147 of the Municipal Board Act to the legal heirs of Hakim Abid Hussain. All the legal heirs had given their consent with signature and thumb impression and thereafter, the name of Hakim Gafoor Ahmad was mutated in Municipal Board and he became the sole owner of the said house in question. Hakim Gafoor Ahmad transferred the said house to his wife Sakina Khatoon, who is step-mother of opposite party no. 2 as well as real nephew, by way of registered sale deed dated 07.01.1969. Another legal heir of Hakim Abid Hussain, namely, Hakim Zahid Hussain, father of co-accused, namely, Asgar Ali, Saeedurzafar, Ali Azhar, had signed as one of the witnesses on the said registered deed, whereafter, the name of Sakina Khatoon was also mutated over the said property in the register of Municipal Board and she became owner and in possession of the said house. Copy of the registered sale deed is annexed as Annexure C.A.-1 in the counter affidavit. Hakim Gafoor Ahmad and his wife Sakina Khatoon had died issueless and both of them had adopted opposite party no. 2 as their daughter. There was another House No. J-14/109 of Hakim Abid Hussain situated at Qazisadallahpur, which was partitioned between the legal heirs except Hakim Gafoor Ahmad in the year 1971 and was also admitted by all the legal heirs that the entire house i.e. J-14/118 belonged to Hakim Gafoor Ahmad. Thereafter, the entire house in question i.e., J-14/118 was transferred to the adopted daughter opposite party no. 2 by her mother Sakina Khatoon, being owner through hibanama (oral gift) on 08.01.1989 in the presence of the witness and also came in possession of the said property which was mutated in her name in Nagar Nigam, Varanasi bearing Sanchika No. 257/89M and was issued assessment card as Yellow Card dated 11.06.1990. The relevant annexure is Annexure No. C.A.-2 in the counter affidavit. After completion of mutation proceedings in favour of opposite party no. 2, all the other accused except the applicants (purchasers) tried to illegally dispossess her from the said property and an application for mutation was moved on behalf of all of them before Nagar Nigam, Varanasi for getting their names mutated in the Nagar Nigam records. They got their names mutated in collusion with Nagar Nigam fraudulently vide its order dated 16.01.1995, wherein mutation proceedings of Sanchika No. J-318/94, House No. J-14/118 was decided ex-parte without any notice being issued to opposite party no. 2 under Section 213 of Municipal Act. When opposite party no. 2 came to know about this ex-parte order, she filed an objection on 29.03.1995 against the said ex-parte order dated 16.01.1995. Both the parties adduced evidence and after hearing at length, order dated 16.01.1995 was set aside and name of only opposite party no. 2 continued over the disputed house. Thereafter, in the year 1995, the accused, namely, Saeedurzafar, Ali Azhar, Shamim Haider and Naseem Haider filed an original suit against opposite party no. 2 before Civil Court, Varanasi, being O.S. No. 943 of 1995, regarding aforesaid house and another suit for partition was filed by them, being O.S. No. 418 of 1995 before the City Munsif, Varanasi, wherein W.S. has been filed from the side of opposite party no. 2. Both the suits were dismissed in default on 12.10.2004 and 27.02.2001 and to the knowledge of opposite party no. 2, they were not restored. Since thereafter, the accused-applicants are threatening opposite party no. 2 to dispossess her from the said property and sell the same and ultimately, it was illegally sold out by them in favour of the applicants in the leading application.
5. In Application u/s 482 No. 24100 of 2015, counter affidavit with similar facts, as has been mentioned above, has been filed. The crux of argument advanced by learned counsel for the applicants in the connected application is that it is admitted to opposite party no. 2 that two civil suits are pending - one of partition and the other of injunction between the parties and opposite party no. 2 and till it is decided as to whether opposite party no. 2 is the actual owner of the property in dispute, offence as mentioned in the F.I.R. cannot be held to be made out that the sale deed executed in favour of the accused-applicants in the leading application has been made unauthorisedly and illegally. The applicants in the connected application are claiming themselves to be the owners and in possession and claiming that their grandfather Hakim Abid Hussain, is said to have purchased the said property in his exclusive name and after his demise, the accused-applicants became its owners and in possession, while opposite party no. 2 is claiming her title through one son of Hakim Abid Hussain namely, Hakim Gafoor Ahmad, who was married to Sukaina Bibi. Both of them died issueless and had adopted opposite party no. 2 as their daughter and it is stated that Hakim Gafoor Ahmad had purchased the disputed house in his name exclusively by his own money and subsequently, the said house was sold by him in favour of his wife Sukaina Bibi and after the demise of Sukaina Bibi, because of the oral hibanama executed by Sukaina Bibi in favour opposite party no. 2, the said property devolved on opposite party no. 2. The name of opposite party no. 2 is found recorded in the municipal records, which is admitted to the accused-applicants, although it is being disputed that simply recording of name in the municipal record would not establish ownership/title of opposite party no. 2 over the said property, while opposite party no. 2's version is that it has been conclusively decided that earlier, by mischief, the applicants in the connected application had got their names mutated over the said property, ensuring that no notice was issued to opposite party no. 2 about the hearing of proceedings, but when she came to know about it, she filed objection and got the said order of mutation in favour of the applicants in the connected application set aside/deleted and the name of opposite party no. 2 is still continuing as sole owner of the said property. It is also pointed out by learned counsel for opposite party no. 2 that two civil suits between the parties - one of injunction and the other of partition, which is filed from the side of the accused-applicants in the connected application and both these civil suits were dismissed in default and are yet not restored. Therefore, it appears that as on date, it does not appear that opposite party no. 2 has failed to prima facie show that she happened to be the owner of the disputed property and therefore, the sale of any portion of the said property by the applicants of Application u/s 482 No. 24100 of 2015 in favour of applicants of Application u/s 482 No. 11826 of 2015 would prima facie appear to be beyond the authority and legal right and the involvement of accused-applicants of Application u/s 482 No. 11826 of 2015, who were purchasers of the said property, could also not be ruled out because whether they were bona fide purchasers of the said property or whether they had purchased the said property even after knowing that there was some dispute, they proceeded to purchase the same, has to be determined on the basis of evidence and not in proceedings under Section 482 of the Code.
6. In this case, in the F.I.R., it has been mentioned that opposite party no. 2 is registered owner and in possession of the disputed property i.e. House No. J-14/118. On 06.03.2014, she came to know from people of the area that the accused-applicants of Application u/s 482 No. 24100 of 2015 had sold a part of the said property in favour of the accused-applicants of Application u/s 482 No. 11826 of 2015 by registered sale deed, although the fact is that she was the owner of the entire property by way of oral gift (hibanama) executed by Sakina Khatoon, wife of Hakim Gafoor Ahmad and that the Up-Samiti, Nagar Nigam, Varanasi, has already passed order in this regard on 30.11.1995 in her favour. Since thereafter, her name was continuously running recorded in the said record as owner of the said property. In this sale, witnesses Mohd. Farooq and Zafar Hussain were also involved in conspiracy and that the accused-applicants of Application u/s 482 No. 24100 of 2015, having taken the purchasers into confidence and involving them in the conspiracy, had sold the said property representing themselves to be its owners, although actual owner was opposite party no. 2 of the said property. The purchasers of the said property had come to the house of opposite party no. 2 and told her that she should vacate the house within seven days, otherwise anything may happen and thus, it was mentioned in the said F.I.R. that the accused-applicants of Application u/s 482 No. 24100 of 2015 had executed the sale deed in favour of applicants of Application u/s 482 No. 11826 of 2015 illegally and life threat was issued to opposite party no. 2 from the side of the applicants. Hence, first information report was registered at the police station concerned under Sections 419, 420, 506 and 120B of I.P.C. against the applicants, wherein after investigation, the police has submitted charge-sheet, after having recorded the statement of six witnesses. The statement of the witnesses recorded by the I.O. cannot be scrutinised in proceedings under Section 482 of the Code as the same would require trial.
7. Learned counsel for the applicants has placed reliance upon the judgment of Hon'ble Apex Court in Mohd. Ibrahim and Others v. State of Bihar and Another3. The facts of it were that a complaint was filed against the appellants 1 to 3 (accused 1 to 3) and 2 others before the Chief Judicial Magistrate, Madhubani, alleging that he was owner of Gata No. 715, Khasra No. 1971 and 1972 admeasuring 1 Bigha, 5 Katha and 18 Dhurs. The first accused who had no connection with the said land and also had no title thereto, had executed two registered sale deeds dated 02.06.2003 in favour of the second accused in respect of portion of the said land measuring 8 khatas and 13 Dhurs and that the third, fourth and fifth accused being the witness, scribe and stamp vendor, respectively in regard to sale deed, had conspired with accused 1 and 2, to forge said documents and that when he confronted, accused 1 and 2 about the said forgery, they abused him, hit him with fists and told him that he can do what he wanted, but they will get possession of the land on the basis of the said documents. It was held in Para 14 of the said judgment by Hon'ble Apex Court as under :-
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 sale-deeds. Therefore, it cannot be said that the first accused by the act of executing sale-deeds in favour of 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.
8. In Para 15 of the said judgment, it was further held that :-
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 v. Delhi Administration, AIR 1963 SC 1572, this Court explained the meaning of 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 U.P. v. Ranjit Singh, 1999(1) JIC 595 (SC) : 1999 (2) SCC 617.
9. For offences under Section 420 of I.P.C. to be made out, the following ingredients are required :
(i) There must be deception i.e. the accused must have deceived someone;
(ii) That by the said deception. The accused must induce a person,
(a) to deliver any property; or
(b) to make, alter or destroy the whole or part of the valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property.
(iii) That the accused did so dishonestly.
10. I find that in the present case, there is no deception made by the applicants of Application u/s 482 No. 24100 of 2015 to the opposite party no. 2 nor any inducement has been made on the part of the opposite party no. 2 to deliver any property. Therefore, the ingredients of offence under Sections 419 and 420 of I.P.C. do not appear to be attracted as regards accused-applicants of Application u/s 482 No. 24100 of 2015. It would be pertinent to mention here that the purchasers i.e. accused-applicants of Application u/s 482 No. 11826 of 2015 could have stated that the accused-applicants of Application u/s 482 No. 24100 of 2015 had sold the said land to them by deceit or had induced them to purchase the said land for a consideration, which land did not belong to them, but there is no such allegation made from the side of accused-applicants of Application u/s 482 No.11826 of 2015 of deceit and they are simply bona fide purchasers. Even the purchasers do not appear to have been deceived or induced by opposite party no. 2 to satisfy the necessary ingredients as mentioned above. Therefore, even in regard to accused-applicants of Application u/s 482 No. 11826 of 2015, offence under Sections 419 and 420 of I.P.C. do not appear to have been made out. As regards conspiracy, there appears to be no evidence on record to attract the ingredients of conspiracy also nor any evidence to prima facie establish that there was any conspiracy held by the accused-applicants in order to cheat opposite party no. 2. It is apparent from the respective averments of either side that both are claiming title to the land in dispute and the matter is pending before civil court. Civil case is stated to have been filed by the accused side, which though stated to have been dismissed in default, but the same can be still got restored and the matter can still be got decided from the appropriate forum i.e. civil court, where title to the property can be decided of the opposite party no. 2 as well as of the accused-applicants. The matter appears to be purely of civil nature and the ingredients of Section 419 and 420 of I.P.C. do not appear to be satisfied in the present case, particularly in light of law cited by learned counsel for the applicants.
11. In view of above, prayer to quash the entire proceedings of Criminal Case No. 33 of 2014, under Sections 419, 420, 506 and 120-B of I.P.C., Police Station - Jaitpura, District - Varanasi, pending before Additional Chief Judicial-IV, Varanasi is hereby accepted and accordingly, the said proceedings stand quashed.
12. In the result, the instant applications stand allowed.
Order Date :- December 20, 2019 I. Batabyal [Dinesh Kumar Singh-I, J.] ***********