Court No. - 72
Case :- APPLICATION U/S 482 No. - 19427 of 2017 Applicant :- Chandra Pal And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Amit Daga,Niklank Kumar Jain Counsel for Opposite Party :- G.A.,Ghanshyam Das Mishra,Ravindra Kumar Dwivedi
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Amit Daga and Sri Niklank Kumar Jain, learned counsel for the applicants, Sri Ravindra Kumar Dwivedi, learned counsel for opposite party no. 2 and learned A.G.A. on behalf of State.
2. Present 482 application has been filed with a prayer to quash the order dated 05.01.2017, passed by he learned Sessions Judge, Etah, summoning order dated 08.02.2016 and entire proceedings of Criminal Complaint Case No.2215 of 2015 (Ram Swaroop Vs. Chandra Pal and others) under Sections 420, 467, 468 IPC, P.S. Kotwali Nagar, District Etah pending in the court of Chief Judicial Magistrate, Etah.
3. Short submission advanced by the learned counsel for the applicants is that applicant no. 1, opposite party no. 2 and Dorilal were real brothers being all sons of Navley @ Naval Singh. The father of applicant no. 1 and opposite party no. 2 was the owner of agricultural plots No.412, 490 and 499. After the death of Navley @ Naval Singh, his estate devolved on his three sons in equal parts. Thereafter, Dorilal also died and his share in the property devolved on his four sons. The three sons of the said Dorilal held half share that devolved on the said Dorilal (in view of the partition suit between the parties). They sold that share to the applicant no. 1. Thus, the share of applicant no. 1 in the properties (inherited from his father Navley @ Naval Singh), swelled to 1/2 being 1/3+1/6. To this extent, there is no dispute whatsoever between the parties.
4. It is thereafter, that the applicants applied for permission from the District Magistrate, Etah to sell their property. The permission was also granted by the District Magistrate vide order dated 28.5.2003 and 8.2.2014. Acting on the first permission, the applicant no. 1 executed a sale deed in favour of applicants no. 2 and 3 on 15.10.2014, wherein applicants no. 4 and 5 stood as marginal witnesses.
5. It is the case of the applicants that owing to some bona fide mistake, the area and the plot numbers mentioned in the sale deed came to be recorded with some error initially, in view of the fact that such numbers had been mentioned in the permission order but subsequent to the same being issued, certain changes were made in the revenue records with respect to the numbering of the individual plots.
6. In any case, the applicant no. 1 having realized that mistake, executed a rectification deed on 29.12.2014. Relying on that deed and his own conduct, it has been submitted that there was never any intention on part of the applicant no. 1 to cheat the opposite party no. 2 of his fair share in their common inheritance. On the ground possession of the parties was maintained strictly in accordance with their legal shares. Only an error was made while executing the sale which was duly rectified before it was even noticed by the opposite party no. 2. Therefore, it has been submitted that there was no criminal intent on part of the applicants at any point of time. However, in view of misunderstandings and misapprehension, the opposite party no. 2 lodged a criminal complaint which has given rise to the criminal prosecution. The complaint itself was lodged on 7.10.2015 i.e. after execution of the rectification deed. In so far as the applicants no. 2 and 3 is concerned, they are stated to be bona fide purchaser who had no concern with the dispute between the applicant no. 1 and opposite party no. 2 and in any case, they had no criminal intent as they have never claimed any part of the property of opposite party no. 2. In so far as applicants no. 4 and 5 are concerned, they are claimed to be only marginal witnesses who had no connection with the substance of the transaction and were only witnesses of the execution of the deed. Learned counsel for the applicants has placed reliance in the case of Mohd. Ibrahim & Others Vs. State of Bihar & Another 2010 (1) JIC 133 (SC).
7. Learned counsel for the opposite party no. 2 though does not dispute the facts and events as noted above. However, he submits that there was criminal intent on the part of the applicants in having executed the sale deed. Merely because they have rectified the same later would not absolve them of the criminal consequences.
8. Having heard learned counsel for the parties and having perused the record, in the present case, it is not in dispute that the original sale deed which forms the subject matter of dispute, was executed on 15.10.2014 and that it was rectified on 29.12.2014 i.e. almost 10 months before the complain itself came to be lodged. There is no other proceedings initiated by the opposite party no. 2. Thus, in conclusion that is to be drawn is that the applicants had rectified the mistake on their own, before the same came to the notice of the opposite party no. 2. Also, it is undisputed that the possession of the land has not been disturbed to the disadvantage of the opposite party no. 2 and he has not been deprived of any part of his fair share in the property. In this undisputed position of fact, the ingredients of offence alleged are found to be clearly lacking. The prosecution appears to have emerged only on account of misunderstanding and misgivings or at the most on account of some civil differences.
9. Accordingly, the application is allowed and the entire proceedings of Criminal Complaint Case No.2215 of 2015 (Ram Swaroop Vs. Chandra Pal and others) under Sections 420, 467, 468 IPC, P.S. Kotwali Nagar, District Etah pending in the court of Chief Judicial Magistrate, Etah is quashed against the applicants.
Order Date :- 30.5.2019 Meenu