Court No. - 15
Case :- APPLICATION U/S 482 No. - 25787 of 2016 Applicant :- Deo Narain Shukla And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bipin Kumar Tripathi Counsel for Opposite Party :- G.A.,Brajesh Kumar Dwivedi
Hon'ble Umesh Chandra Srivastava,J.
A supplementary affidavit along with written arguments has been filed by Shri B.K. Tripathi, learned counsel for the applicants and the same is taken on record.
Heard Shri B.K. Tripathi, learned counsel for applicant nos. 2 to 4, learned AGA for State, Shri B.K. Tiwari, learned counsel for opposite party no. 2 and perused the record.
This application has been filed under section 482 Cr.P.C. with prayer for quashing the proceedings of Criminal Case no. 448 of 2016 (State vs. Yogendra Kumar Shukla and others), arising out of case crime no. 543 of 2009, under sections 419, 420, 467, 468, 471 I.P.C., P.S. Kaptanganj, District Azamgarh, pending in the court of Judicial Magistrate, Azamgarh.
Facts giving rise to application in brief are that on 24.02.2007, Shri Daya Ram Pandey, executed Power of Attorney in respect of property in question in favour of applicant no. 3 Yogendra Kumar Shukla. Acting under authority of aforesaid above mentioned Power of Attorney, applicant no. 3 sold property in question to Smt. Sumitra, Smt. Shivpati and Smt. Deepmala, applicant no. 2 who is the wife of applicant no. 3. Father of opposite party no. 2 and others filed a suit being O.S. No. 268 of 2007 for cancellation of above mentioned power of attorney and sale deed in which written statement was filed and parties were contesting the suit. Mean while, on 16.09.2009, opposite party no. 2 made an application under section 156(3) Cr.P.C. for lodging an F.I.R. against 10 persons, including applicants in respect of same dispute. On the basis of this application an F.I.R. was registered against applicants and six others being case crime no. 543 of 2009 under section 419, 420, 467, 468, 471 I.P.C. In the said F.I.R., the Investigating Officer, after completing investigation, filed a final report in the court of concerned Magistrate, against which a protest petition was filed. The Magistrate after considering the protest petition directed further investigation into the matter. Pending further investigation, opposite party no. 2 filed a complaint also against applicants and others which was latter dismissed under section 203 Cr.P.C. for want of prosecution.
In the mean time, opposite party no. 2 moved an application in the court of civil judge for withdrawal of original suit. The said application was moved on 01.05.2013, and was allowed on 31.05.2013. During further investigation, Investigating Officer recorded statements of applicant no. 1 Dev Narayan Shukla (since deceased) and on account of that he concluded that photographs pasted over power of attorney do not belong to applicant no. 1. Despite the same, Investigating Officer submitted a charge-sheet in the court of Magistrate on 10.08.2015 against applicants and other including Dev Narayan Shukla (Since deceased) upon which Magistrate took cognizance against applicants and 6 others.
Learned counsel for applicant nos. 2 to 4 submitted that applicant no. 1 Dev Narayan Shukla, who was the grand father of applicant no. 3, Yogendra Kumar Shukla, died during pendency of instant application. He further submitted that applicants are being maliciously prosecuted in respect of civil dispute, the genuinity of power of attorney can be decided in civil suit only, a criminal court cannot decide this question in criminal proceedings. He further submitted that opposite party no. 2 is not interested in getting controversy decided by the civil court who is only competent to decide the same, otherwise she would never withdraw the suit, she is interested in harassing applicants by prosecuting them on criminal side. He further submitted that when Investigating Officer, on account of statements of applicant No. 1 had concluded that photographs pasted over power of attorney were not of him, he should not have filed charge sheet into the matter. He further submitted that documentary evidence filed along with instant application clearly suggest that Dayaram Pandey was alive when power of attorney was executed, he was not dead as said. He further submitted that proceedings of the case are abuse of the process of Court as applicants are being prosecuted in respect of a civil dispute which cannot be decided by a criminal court.
Learned AGA and learned counsel appearing for opposite party no. 2, on the other hand, submit that dispute between parties is of both civil and criminal nature, therefore, applicants can be prosecuted on criminal side also for the acts committed. They further submit that executing power of attorney by impersonation is an offence and applicants can be prosecuted for the same. They further submit that opposite party no. 2 did not make any application for withdrawal of suit, the said application was made by applicants themselves to frustrate the criminal prosecution launched against them and after coming to know about the same an application for recall of the order has been made which is pending disposal. They further submit that evidence collected during investigation by the Investigating Officer clearly suggest implication of applicants and others in the offence as it is apparent from it that Dayaram Pandey was not alive when the power of attorney is said to be executed, he had gone missing 50 years ago as was never heard and seen thereafter by any one as is apparent from the statements of applicant no. 1 itself. They further submit that Magistrate has committed no illegality in taking cognizance against applicants and there seems to be no abuse of process of Court also.
Having heard the respective submissions of learned counsel of both sides and considering the facts and circumstances of the case and also the material available on record, I find that a prima facie case against applicants is made out. Therefore, Magistrate has committed no illegality in taking cognizance against applicants for the acts committed, applicants are liable to be prosecuted on both civil and criminal side. A criminal court is competent to decide the issue involved in the case. I further find that it is not a case where it could be said that process of court is being misused. Therefore, no case of quashing of proceedings is made out.
In the result, application is devoid of force and is dismissed as such.
However, having due regard to the facts and circumstances of the case, it is directed that if applicants appear before the court below within six weeks from today and apply for bail, the court below shall decide the same expeditiously in accordance with law laid down by the Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and others, reported in (2009) 4 SCC 437 and Full Bench decision of this Court in the case of Smt. Amarawati and another v. State of U.P. reported in 2005 CRI. L.J. 755.
Order Date :- 24.4.2018 Bhanu