RESERVED
Court No. - 63
Case :- APPLICATION U/S 482 No. - 33353 of 2009 Applicant :- Sandeep Kumar & Others Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Vikash Srivastava Counsel for Opposite Party :- Govt. Advocate
Hon'ble Amar Singh Chauhan,J.
Heard learned counsel for the parties and perused the record.
The applicants, Sandeep Kumar and seven others, through this application moved under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the charge sheet dated 06.11.2009 in Case No. 18322 of 2009, arising out of Case Crime No. 333 of 2008 under Sections 420, 467, 468, 471 I.P.C., Police Station Indirapuram, District Ghaziabad and further prayed to stay the further proceedings in the aforesaid case crime.
Brief facts which give rise to the adjudication of the application are that an FIR was lodged with the allegation that applicants along with other office bearers and associates of Jeevan Beema Rastriya Sahkari Awas Samiti Ltd., fraudulently increased the price of the flats already allotted to the opposite party no. 2 and without giving him opportunity created third party right in respect of the same. The opposite party no. 2 had applied for allotment of house as a member of the Society and he was allotted the house. Subsequently, Costing Committee known as Dahiya Committee was set up for looking into the construction of houses and their size etc. On the recommendation of the said Committee flat area was increased and, therefore, corresponding price of the flat was re-determined and the member was required to pay the enhanced price. Notice was issued to the opposite party no. 2 to make payment on the enhanced rate who declined to do so and the dispute was raised before the Registrar, Cooperative Society under Section 70 of the Cooperative Society Act. It is further submitted that opposite party no. 2 filed the civil suit. The opposite party no. 2 has also filed Arbitration Case No. 106 of 2007-08 which was decided in favour of the Society and vide cheque no. 686263 dated 10.5.2005 the amount of Rs. 2.42 lacs was refunded in favour of the opposite party no. 2. It is also submitted that present matter is purely civil in nature but the opposite party no. 2 is misleading and the applicants are being harassed for no fault committed on their part, since the opposite party no. 2 already received the payment of Rs. 2.42 lacs from the Society through cheque no.686263 on 10.5.2005 and further sum of Rs. 5.89 lacs vide cheque no. 693353 on 28.6.2005. It is also submitted that the Principal Secretary, U.P. Government vide letter dated 07.4.2015 issued the direction in the similar matter which is as follows:
एच सखया - एस आई बी (कोआप) /०६/२०१० िदनांक १६.३.२०१२ िजसके अतगरत अिभयोजन के सवीकृ ित की अपेका की गई थी के कम म “It transpires from paper book that FIR was lodged by the allottee of flats whose flats were cancelled by the Housing Society. Mr. V.K Chaudhary was Joint/Deputy Housing Commissioner, against whom the civil police has not filed the charge sheet as nothing found against him. Later on matter was transferred to S.I. who seeks prosecution sanction. In any case, the cancellation or non-cancellation of flats is the administrative exercise and there is no allegation that the cancellation of flats was due to some ulterior motive. It is also significant notice that on similar matters even the High Court has intervened by observing that the cancellation of flats is a dispute of civil nature and does not fall under the ambit of Criminal law. In this background, the prosecution will be nothing to abuse of powers resulting in harassment to the alleged accused persons.” के कम मे सदभरगत पकरण मे िवचारोपरांत शी वी के चौधरी ततकालीन सयक / उप आवास आयक आवास एवम िवकास पिरषद् के िवरद उपयरक उिलिखत मकदमे मे अिभयोिजत िकये जाने का औिचतय नही पाया गया है /”
Learned A.G.A. submits that no useful purpose would be served in keeping this application pending before this Court and the same may be disposed of at this stage as the payment of Rs.
2.42 lacs and further sum of Rs. 5.89 lacs have been received by the opposite party no. 2 from the Society. It is further contended that cancellation or non-cancellation is the administrative exercise and there is no allegation that cancellation of flat was due to some ulterior motive. The cancellation of flat is dispute of civil nature as it does not fall in the ambit of the criminal law.
Learned counsel for the opposite party no. 2 contends that during the course of investigation the Investigating Officer had recorded statement of witnesses from which it is abundantly clear that offence under sections 420, 467, 468 and 471 IPC are clearly made out against the applicant and Investigating Agency has rightfully filed charge sheet against the accused person/applicant. The applicant has not come up before this Court with clean hands, as such present criminal misc. application filed under section 482 Cr.P.C. deserves to be dismissed with heavy cost. That at this stage documents other than which form part of charge sheet filed to affidavit filed in support of the criminal misc.
application filed under section 482 Cr.P.C. cannot be relied upon as same falls in category of defence evidence, which cannot be seen at this stage and this court has dealt with this aspect of the material in case of State of Bihar vs. P. P. Sharma and others reported in 1992 Supplementary Vol- 1 SCC Page 222. Thus, it is crystal clear that documents other than of the case diary cannot be seen by this Court in exercise of jurisdiction under section 482 Cr.P.C. The contents of paragraph no. 27 of the affidavit filed in support of the criminal misc. application are specifically and emphatically denied and in reply it is submitted that both the civil and criminal proceedings can be assailed by the answering respondent and there is no embargo in using the same simultaneiously.
In the case in the hand, the dispute is related to the possession over the flat which is purely a dispute of civil nature but the same has been dragged in a criminal court. The dispute had arisen when the escalated price of the flat has been asked from the allottee in accordance with the recommendation of the Dahiya Committee and that too after the area of the flat was increased. Thereafter, notice was issued to the allottee to make payment of the enhanced amount, but the opposite party no. 2 declined to make payment of escalated price. The efficacious remedy was sought under Section 70 of the Cooperative Societies Act before the Arbitrator and resultantly award was passed. In pursuance of the said decree, payment of Rs. 7.05 lacs and further sum of Rs. 4.71 lacs have been received by the opposite party no. 2 from the Society. There is no evidence of wrongful loss to the opposite party no. 2 and wrongful gain to the applicants. Therefore, no offence is made out against the applicants.
The Hon'ble Apex Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another [(2009) 8 SCC 751] has held that “this court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.”
The Hon'ble Apex Court in the case of Vimla (Dr.) vs. Delhi Administration [AIR 1963 SC 1572] has explained the meaning of the expression "defraud" thus:
"14..... 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."
It is clear that by alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.
Any criminal proceeding instituted on such allegation shall be an abuse of process of law as the alleged act does not come within the purview of the defraud.
In view of the above discussion and submission, the application has substance and is liable to be allowed.
The application is allowed and the charge sheet dated 06.11.2009 in Case No. 18322 of 2009, arising out of Case Crime No. 333 of 2008 under Sections 420, 467, 468, 471 I.P.C., Police Station Indirapuram, District Ghaziabad is hereby quashed.
Order Date :- 25.4.2018 Puspendra