Court No. - 72
Case :- APPLICATION U/S 482 No. - 1991 of 2019 Applicant :- Smt. Shanti Devi And 7 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Amit Saxena Counsel for Opposite Party :- G.A.,K. S. Chahar,Rajesh Kumar Srivastava Hon'ble Ajit Kumar,J.
Heard Shri Amit Saxena, learned counsel for the applicant, Shri Virendra Kumar Srivastava and Shri Rajesh Kumar Srivastava appearing on behalf of informant-opposite party no.2 and perused the record.
The applicants who have been charge sheeted vide report of the police dated 27.1.2018 submitted under Section 173 of the Code of Criminal Procedure before the court concerned recommending for their summoning and punishment and the cognizance taken by the learned Additional Chief Judicial Magistrate - III summoning the accused fixing 25.9.2018, have been questioned and also the entire criminal prosecution raising the plea that the controversy is purely civil in nature as relates to the some conveyance of property of which vendor and his wife along with two of her sisters were admittedly recorded tenure holders. The argument, therefore, is that veracity of the instrument of conveyance and its subject matter and identification of such property involves evidence to establish the allegations and consequently declaration of voidness of a document is a matter of adjudication by a court of law established for the said purpose and unless and until the instrument is held to be void either for want of authority to execute sale or for want of identification of the property, there could not be any presumption of forgery or fraud and, therefore, according to him the criminal prosecution is totally unwarranted in the facts and circumstances of the case. The further plea is that in the absence of any material to establish that vendor is an absolute owner of the property in terms of title, the basic ingredients of cheating and forgery are clearly wanting in the peculiar facts and circumstances of the case. The report of the revenue authority is referred to in defence of the argument so advanced.
Per contra, the argument advanced on behalf of the counsel for opposite party and the learned Additional Government Advocate is that question of execution of sale of a property of which admittedly a sale had earlier been executed in terms of area of the property, does not require any civil adjudication and is clearly established during investigation that vendor had exceeded his authority in executing the instrument of sale of which he had lost the title on the date of sale and that is why the plot was got wrongly identified in the instrument showing the land of plot no.703 instead of plot no.709 and which by itself speaks volume about fraud.
Learned counsel for opposite parties have also relied upon the statement of the vendor recorded under Section 161 Cr.P.C. in which he admitted that he knew that there was no land left in plot no.709 and had no authority to execute sale in respect of the area of 460 sq. mt. and that he had executed sale only on assurance of the present applicants, who were accused of giving assurance that they would take care in case any problem arises in future. Thus the argument advanced is that the complicity of the applicants cannot be ruled out in the present case of fraud and forgery at this stage.
Appreciating the above arguments advanced by the counsel of the rival parties in the backdrop of the facts and circumstances of the present case, this Court cannot loose sight of crucial aspect emerging from the investigation in the present case that the main accused having himself admitted to have no title to property with which he dealt with by means of instrument of sale, the rights and interest of the present applicants certainly got prejudiced as there land, as claimed, has come to be identified in the sale, as belonging to the vendor. The question of element of criminality and the basic ingredients consisting the offence of fraud and cheating can be better examined and considered by the trial court as and when such a situation arises and it has the opportunity to examine the case diary and the material submitted by the police and this Court, therefore, declines to interfere with the charge sheet at the moment.
At this stage learned counsel for the applicants advanced the plea that they should be afforded an opportunity with some protection to move an application for discharge under the Code of Criminal Procedure, 1973 through counsel.
Learned counsel for opposite parties have no objection in case applicants are given an opportunity to apply for discharge and the same is directed to be considered by the court below in accordance with law and the protection till such decision is afforded.
In view of the above, this 482 application is disposed of with a direction that discharge application shall be moved by the applicants within four weeks from today and in the event any such discharge application is moved, the same shall be considered and decided on merits by the court below in accordance with law within a further period of four weeks without granting any adjournment in the matter.
Order Date :- 26.2.2019
Anand Sri./-