Reserved on 07.3.2018
Delivered on 30.5.2018 Case :- APPLICATION U/S 482 No. - 28703 of 2014
Applicant :- Ram Shanker Gupta And 6 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anil Kumar Aditya Counsel for Opposite Party :- Govt.
Advocate,P.N.Tripathi,T.N.Tiwari
Hon'ble Om Prakash-VII,J.
This application under Section 482 CrPC has been filed with the prayer to quash the proceedings of case no. 2043 of 2012 under Sections 417, 419, 420, 468 and 120-B IPC, P.S. Cant., District Varanasi, pending before the Additional Chief Judicial Magistrate, Court No. 5, Varanasi arising out of summoning order dated 29.1.2014 and to stay the effect and operation of the said order as also the further proceedings of the aforesaid case.
Heard Shri Anil Kumar Aditya, learned counsel for the applicants, S/Shri P.N. Tripathi and T.N. Tiwari, learned counsel for the opposite party no.2 and the learned AGA appearing for the State and perused the record.
It was submitted by the learned counsel for the applicants that the alleged offences are not attracted against the applicants in this matter. In fact the applicant nos. 1 to 6 were the real owner of the disputed property and in that capacity they had executed the sale-deed in question in favour of the applicant no.7. Opposite party no.2 has no locus to initiate the present prosecution against the applicants. Since Ram Narayan Lal, who was issue-less, had left the house in his childhood and his whereabouts was not known, his name was not mutated in the revenue record after the death of his father Mahadeo Prasad. Thus, on the day of the execution of the sale-deed in question, disputed property was not in the name of the father of the opposite party no.2. It was next contended that it is a purely civil nature dispute and issue involved in the matter regarding share of the opposite party no.2 in the disputed property can only be decided by the Civil Court and for the said purpose, a Civil Suit instituted on behalf of the opposite party no.2 is also pending. It was further submitted that the name of the opposite party no.2 was mutated in the revenue record over the disputed property without any notice to the applicants and after passing of the mutation order in favour of the applicant no.7. Since Ram Narayan Lal had left the house in childhood and his whereabouts was not known till the execution of the sale-deed in question, facts mentioned in the sale-deed are correct. It was further submitted that the summoning order is illegal and without application of judicial mind warranting interference by this Court. In support of his submissions, learned counsel for the applicants placed reliance on the decisions of the Apex Court in Inder Mohan Goswami and another vs. State of Uttaranchal and others, 2008(60) ACC 1, Mohammad Ibrahim and others vs. State of Bihar and another, (2009) 8 SCC 751, Devendra and others vs. State of Uttar Pradesh and another, (2009) 7 SCC 495, Rishipal Singh vs. State of Uttar Pradesh and another, (2014) 7 SCC 215 and decisions of this Court in Prithvi Pal Singh and another vs. State of U.P. and others, 2013 (82) ACC 822 and Phoolchand Gupta and another vs. State of U.P. and another, 2016 (93) ACC 679.
On the other hand, referring to the documents / papers annexed with the counter affidavit i.e. CA- 5 to 11, learned counsel for the opposite party no.2 as well as the learned AGA submitted that the facts mentioned in the affidavit filed in support of the application are incorrect. Narayan Prasad Gupta was known as Ram Narayan Lal also, as would be clear from the documents / papers annexed with the counter affidavit. Madan Lal Gupta had filed a title suit no. 53 of 1965 before the Civil Judge, Varanasi wherein he has clearly arrayed Narayan Prasad Gupta @ Ram Narayan Lal, aged about 32 years, son of Mahadeo Prasad. It was also submitted that though Narayan Prasad Gupta died in the year 2011 yet the sale-deed in question was executed disclosing the fact that Narayan Prasad Gupta was not alive. Thus, all the ingredients to attract the alleged offences against the applicants are available in the present matter. A prima-facie case is made out against the applicants. Opposite party no.2 is also a share-holder of the disputed property. At this juncture, learned counsel for the opposite party no.2 referred to the pedigree shown in the affidavit filed in support of the application. In support of his submissions, learned counsel for the opposite party no.2 has placed reliance on the decision of this Court in Rajni Jaiswal vs. State of U.P. And another, 2015 (90) ACC 755. It was lastly submitted that the impugned summoning order does not suffer from any infirmity or illegality warranting interference by this Court.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws cited in the matter carefully.
Before dealing with the submissions made by the learned counsel for the parties, it is necessary to quote the relevant paragraphs relied upon by the learned counsel for the parties in the cited case laws, which are as under:
In Inder Mohan Goswami case (supra), the Hon'ble Supreme Court held as under (paragraphs 22 and 23 of the said judgment):
“22. 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. Scope and ambit of courts powers under section 482 Cr.P.C.
23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.”
In Mohammad Ibrahim case (supra), the Hon'ble Supreme Court held as under (paragraphs 20 to 24 of the said judgment):
“20. 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.
21. 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.
22. 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.
A clarification
23. 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.
24. 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 Prithvi Pal Singh case (supra), a learned Single Judge of this Court held as under (paragraphs 23 and 24 of the said decision:
“23. In view of the above, the present dispute is purely of civil nature and opposite party no.2 has already instituted a civil suit for cancellation of the sale deed, therefore, initiation of criminal proceedings by the opposite party against the revisionists is clearly an abuse of process of the Court.
24. It is yet to be decided that whether the revisionists have sold their share or have exceeded their share without any sufficient ground. The share of the parties can be decided by the court of competent jurisdiction and the sale deed at this stage cannot be said to be a false document or a document executed with the intention to commit forgery. Respective parties shall have the full opportunity to prove their share before the civil court and at this stage, it cannot be said that what amount of share the respective parties have in the property in disputed.”
In Phoolchand Gupta case (supra), a learned Single Judge of this Court held as under (paragraphs 12 and 13 of the said decision):
“12. Coming back to the facts of the case, it is apparent that the dispute belongs to the title over the property. Co-accused Ms. Sushila Devi sold this property to the applicants. Ms. Sushila Devi did not impersonate or altered or tempered any document or played any deception on the complaint. There was a dispute regarding title over the property. That dispute cannot be adjudicated by the criminal court. It has to be decided by civil court. There is no allegation on record that execution of sale deed by Ms. Sushila Devi in favour of applicants involved forgery of documents or making a false document. The sale deed was indeed executed by Ms. Sushila Devi claiming to be Sushila Devi. It is apparently clear that even if a person executes a document transferring property, disclosing such property as his own, even if there is a dispute regarding ownership of the property, it cannot be termed as forgery. Neither Ms. Sushila Devi nor applicants impersonated anybody. If Ms. Sushila Devi was selling property to the purchaser of her choice, there was no question of forgery. Even if any property is sold by a person claiming ownership which is not his/her without impersonating or claiming or falsely claiming that he or she has been authorized by someone else, the execution of such documents cannot be termed false document within the meaning of Section 464 I.P.C. If false documents are not prepared obviously provisions under Section 467, 468, 471 and 474 I.P.C. are not attracted.
13. Sections 419, 420 IPC to constitute an offence under sections 419, 420 IPC, the allegations must disclose ingredients of cheating as defined under Section 415 IPC. Section 415 talks of fraudulent or dishonest inducement to the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces a person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived. Meaning thereby that there must be not only be cheating but accused should also have been dishonestly induced the person deceived to deliver any property to any person or to make alter or or destroy wholly or in part a valuable security or anything signed or sealed which is capable of being converted into a valuable property. Valuable security is defined under section-30 IPC.”
Now it will be appropriate to refer settled legal position regarding power of the Magistrate / Court at the stage of taking cognizance and summoning the accused.
It is settled legal position that at the stage of taking cognizance and summoning the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused person or not. The Court dealing with the matter is not required to analyze the material at this stage to find-out as to whether the matter will lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence as is done after recording the evidence in trial.
In this matter, as is evident from the record, applicant nos. 1 to 6 claim their right over the disputed property on the basis of inheritance and the applicant no.7 is purchaser of the said property, which was sold by applicant nos. 1 to 6. Opposite party no.2 claims his right over the disputed property as the son of Ram Narain Lal @ Narain Prasad Gupta. Affidavits annexed with the application reveal that Mahadeo Prasad died in the year 1951 leaving behind his five sons, namely, Madan Gopal, Mohan Lal Gupta, Gajanand, Ram Narain Lal and Shyam Sundar. Applicants' case is also that since Ram Narain Lal @ Narain Prasad Gupta was disappeared in the year 1951 and never returned, his entire share was inherited by their brothers, mentioned here-in-above, and in that capacity they had executed the sale-deed in respect of the disputed property in favour of the applicant no.7. Opposite party no.2 claims himself son of Ram Narain Lal @ Narain Prasad Gupta and as per the counter affidavit, Ram Narain Lal @ Narain Prasad Gupta was alive since 2011. Sale-deed in question was executed in the year 2010. Complaint was filed with the assertion that since Ram Narain Lal @ Narain Prasad Gupta was alive, the facts disclosed by the applicants in the sale-deed transferring the share of the opposite party no.2 in favour of the applicant no.7 is the result of offence of cheating. If the claim of both the parties are minutely scrutinized in consonance with the facts and evidence available on record, it emerges that Madan Gopal Gupta, elder brother of Ram Narain Lal @ Narain Prasad Gupta had filed a civil suit being civil suit no. 53 of 1965 in which Ram Narain Lal was also arrayed as defendant no.2. If such was the position, then the plea taken by the opposite party no.2 that Ram Narain Lal @ Narain Prasad Gupta was alive since 2011 cannot be disbelieved at this stage and the sale-deed executed in favour of the applicant no.7 disclosing wrong facts clearly attract the offences levelled against the applicants.
As far as the submission raised by the learned counsel for the applicants that dispute is purely civil nature is concerned, though the relief of ownership and possession may be decided by the Civil Court yet on the strength of the facts mentioned in the complaint and evidence adduced in support thereof, at this stage, it cannot be said that the offences levelled against the applicants are not attracted. The Court / Magistrate dealing with the matter at this stage has to see only a prima case and from the material available on record, at this stage, it cannot be said that a prima-facie case is not made out against the applicants to proceed with trial.
It is also pertinent to mention here that if commission of an offence is disclosed and a prima-facie case is made out, criminal prosecution is not barred. Both civil and criminal proceedings can go-on simultaneously. The impugned summoning order cannot be termed to be illegal on the ground that the purchaser in the sale-deed i.e. applicant no.7 did not challenge the right / authority of the applicant nos. 1 to 6 on the ground of cheating. Further, the facts of the present case stand on different footing with the facts of the case laws relied upon by the learned counsel for the applicants as specific plea has been taken by the opposite party no.2 that he is the son of Ram Narain Lal @ Narain Prasad Gupta, who was alive till 2011. Share of Ram Narain Lal @ Narain Prasad Gupta in the disputed property is also not disputed by the applicants. Thus, the applicant cannot get any help with the case laws relied upon by them. There is no illegality, infirmity, impropriety or perversity in the said order. A prima-facie case is available to proceed with trial. Hence, the prayer made in the application is refused.
In view of the above discussions, in my opinion, there is no force in the submissions made by the learned counsel for the applicants. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed. Interim order, if any, stands vacated.
Order Date :- 30.5.2018
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