Court No. - 40
Case :- APPLICATION U/S 482 No. - 43287 of 2018
Applicant :- Brij Lal And 2 Others
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Piyush Kant Vishwakarma Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned AGA for the State.
This application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 18.6.2018 and its consequential order as well as proceedings of complaint case no. 241 of 2017 (Sushil Kumar Vs. Brij Lal and others), under Sections 419, 420 IPC, Police Station Machhalishahar pending in the Court of Civil Judge (Senior Division) II /ACJM Jaunpur.
It is submitted by learned counsel for the applicants that the opposite party no.2 has filed a complaint dated 11.5.2017 before the Civil Judge (Senior Division) II /ACJM Jaunpur against the applicants making allegations that the applicants posing themselves to be the owner of land situated in Pargana Mugra Tehsil Machhalishahar, Jaunpur Arazi no. 48/0-535 Hectare executed Muwahidanama in favour of the complainant of 0.328 hectare land after taking Rs. 9,50,000/- from the complainant before the Registrar Machhalishahar. Later on, the applicants did not execute the registered sale deed in favour of the complainant despite repeated request. On taking certified copy of the Khatauni, the complainant on 24.4.2017 came to know that the applicants have committed fraud and extracted Rs. 9,50,000/- from the complainant by executing Muwahidanama dated 29.7.2013 on the basis of forged and fabricated Khatauni.
The learned Magistrate after recording the statement of complainant under Section 200 Cr.P.C. and witnesses, namely, Bajrang Lal and Anil Kumar Singh under section 202 Cr.P.C. summoned the applicant under Sections 419, 420 IPC vide order dated 18.6.2018 to face the trial.
It is submitted by learned counsel for the applicants that summoning order dated 18.6.2018 has been passed illegally without application of mind in arbitrary manner. It is submitted that arazi no. 48 situated at village Pakadi, Pargana Mungra, Tehsil- Machhalishahar, District Jaunpur recorded in the name of Badal and Kanhai. Badal died issueless and Kanhai, who was grand father of the applicant had four sons, namely Sita Ram, Sri Ram, Siya Ram and Surya Lal. After the death of Kanhai, the name of his aforesaid sons were recorded in the revenue record. It is submitted that Sri Ram and Siya Ram never came in their village as they are settled in Bombay. Sita Ram who was residing in village had been in possession of the land but died about 26 years back leaving behind his three sons, namely, Brij Lal, Mohal Lal and Bajrangi Lal, who are appliccant nos. 1, 2 and 3 in this application.
It is also submitted that the applicant have filed a suit no. 237 of 2012 before the Sub-Divisional Officer, Machhalishahar under Section 229B of U.P.Z.A. and L.R. Act to record their name as co-tenure alongwith contesting defendants of the suit. It is stated that the opposite party no.2, PW-1 and PW-2 have given false statement before the court. The applicants have not taken amount of Rs. 9,50,000/- from the opposite party no.2. The applicants have not shown forged Khatauni to the opposite party no.2 and as such no offence under Section 419, 420 IPC is made out against the applicants.
Learned AGA has opposed the prayer as made by the applicants and submitted that from the contents of complaint, statement of complainant and witnesses prima facie offence against the applicants are fully made out, therefore, application under Section 482 Cr.P.C. filed by the applicants is liable to be dismissed. There is no illegality or irregularity in the summoning order dated 18.6.2018 passed by Additional Civil Judge (Senior Division) II/ ACJM Jaunpur.
From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.
The prayer for quashing the impugned summoning order dated 18.6.2018 and aforesaid proceedings is refused.
However, on the request made by the applicants, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 30.11.2018 AK Pandey