Heard learned counsel for the parties and perused the record.
The present petition under Section 482 Cr.P.C. is directed against the proceedings and charge sheet filed in Case No.442/9 of 2012 arising out of Case Crime No.112 of 2012, under Sections 420, 120-B of IPC, Police Station Hapur-Kotwali District Hapur.
Learned counsel for the petitioners Sri Anoop Trivedi while assailing the charge sheet and proceedings initiated against the petitioners before the Court below has raised a substantial issue as to the jurisdiction of criminal Court to proceed against the petitioners in a matter that in its entirety is of civil nature and cannot be a subject matter of criminal prosecution particularly when a registered deed executed by the petitioners has neither been assailed by opposite parties in any manner nor the same has been declared as illegal or void or is otherwise void ab initio. The submission made by the learned counsel for the petitioners has force.
In paragraph 8 of the petition pedigree of the family is referred to. It is submitted that Seth Tarachand Modi under a registered gift deed bequeathed the property in question in favour of Nagarmal Modi and Jainarain Modi (his nephews) on 28.2.1950. Thereafter Nagarmal Modi and Jainarain Modi under a registered perpetual lease deed registered on 12.11.1950 created leasehold partnership rights in their favour along with 2 other persons namely Trilok Chand and Surya Bhan. The covenants of the lease deed, leave no manner of doubt as to the fact that the lease deed is perpetual. The rights which stood created in favour of lease holders in respect of the property in question are also unambiguous which include the right of transfer of individual rights. The leasehold rights and rights in respect of 'Malba' are transferable reserving the preferential rights in favour of the first party namely Nagarmal Modi and Jainarain Modi. There is also a stipulation in the aforesaid lease deed to the effect that in the event of any violation of the terms of the lease deed, the first party shall be entitled to the damages. The aforesaid lease deed has operated between the parties who have been carrying on business and the beneficial interests have now devolved upon their legal successors. Petitioner Nos.1 and 2 having 1/4th share of leasehold rights being sons of late Surajmal who was one of the co-sharer amongst the second party to the lease deed. The petitioners having regard to the stipulations of original lease deed executed in the year 1950 gave a notice to the co-sharers of the first party expressing the intention of sale of their share on 4.8.2010 whereafter, looking to the unwillingness on their part to purchase, they entered into a sale transaction of their share under a registered deed executed on 28.7.2011 in favour of third parties. For the exercise of this right stipulation no.4 of the original lease deed would be relevant and the same is reproduced below :-
^^ge fd ukxj ey o tSukjk;.k eksnh iq= lsB lkfyxjke eksnh tkfr oS'; vxzoky fuoklh o tehnkj dLck gkiq+M+ ftyk esjB izFke i{k o f=yksd pUn iq= ykyk jke pUn o lwjt ey iq= yk- f'kopju nkl o ukxjey o tSukjk;.k eksnh iq= lsB lkfyxjke tkfr oS'; vxzoky fuoklh dLck gkiqM+ cgSfl;r ekydkutSuk Vkdht gkiqM+ f}rh; i{k tks fd ,d Hkkx Hkwfe uki esa ctkfuc iwjc 119 QqV o ifPNe [email protected] QqV mRrj 182 [email protected] QqV nf{k.k 138 QqV cdnj [email protected] {ks=Qy pkSng fcLos pkSng foLoklh iDdh Hkwfe fuEufyf[kr pkSgnh uECkjku [kljk [email protected]@2 o [email protected]&14 feutqeyk tkfuc mRrj Hkkx [ksoV ua0 147 fLFkr egky eqnnk;y ge jsyos jksM dLck gkiqM+ ftyk esjB lpy lEifRr izFke i{k gS ftlds izFke i{k LFkkbZ Lokeh o ml ij lh/kdkjh o mldks ifjorZu djus vkSj fdjk;s ij mBkus ds vf/kdkjh gS vr,oa tc ge izFke us mDr Hkwfe dks fuEufyf[kr izfrcU/kksa ls f}rh; dks fdjk;s ij nh gSA 1& ;g fd bl fdjk;s ukesa dh vof/k igyh tkSykbZ lu 1946 bZ0 ls noke;kuh ges'kxh ih 2& ;g fd fdjk;k mDr Hkwfe dk ,d lkS frjklh :i;s ekfld vFkkZr 2196 nks gtkj ,d lkS fN;kuos :i;s lkykuk mHk; i{k esa ijLij djkj ik;k gS vr% f}rh; i{k o mRrjkf/kdkjh o LFkkukIiu ih 3& ;gfd f}rh; i{k us mDr Hkwfe esa viuh ykxr ls tSuk Vkdht o mlds lEcfU/kr nwdkukfn fuekZ.k dj yh gS vkSj og le; ij mudh ejEer djkus dk muds ctk; ubZ rkehj djus vkSj rkehj dh gqbZ oLrq dks vius fdlh Hkh dku esa ykus lkekU; fdlh dks muesa fdjk;s ij clkus ;k mDr Hkwfe esa gkrk o xksnke o edkukfn cukus ;k dksbZ dkj[kkuk fdlh izdkj bUMLVzht vkfn cukus o dk;e djus ds vf/kdkjh jgsaxs izFke i{k dks fojks/k u gksxk fdUrq f}rh; i{k fdlh izdkj dk iwtk xzg cukus ;k dk;e djus ds vf/kdkjh u gksaxsA 4& ;g fd fdlh f}rh; i{k mDr Hkwfe ds vius fdjk;snkjh vf/kdkj ;k mlds eyos dks vU; fdlh ds vf/kdkj esa esjh cU/kd o gLrkUrj.k djus ds vf/kdkjh jgsxh fdUrq vius fdjk;snkjh vf/kdkj o mlds eyos dks gLrkUrj.k djus dh voLFkk esa f}rh; i{k izFke i{k dks e; eqvkotk bUrdky mlds nssxs izFke i{k ds budkj ;k rlkgqy djus ij uksfVl dh vof/k lekIr gksus ds i'pkr f}rh; i{k vU; fdlh dks vius fdjk;snkjh vf/kdkj o eyok mDr Hkwfe gLrkUrj.k dj ldsxsa rkRi;Z ;g fd eyok o fdjk;snkjh vf/kdkj dz; djus ds fy, izFke i{k lf/kdkj loksZifj o ekU; jgsxkA 5& ;g fd Hkfo"; esa tks c`{k mDr Hkwfe esa mRiUu gksaxs mudh ydM+h o Qy o Qwy] xzksys o lwjcs gj izdkj ds f}rh; i{k Lokeh jgsaxsA 6& ;g fd mDr fu/kkZfjr fdjk;s dks c 7& ;g fd ;fn f}rh; i{k yxkrkj rhu o"kZ dk fdjk;k vnk u djsa rks izFke i{k dks vf/kdkj jgsxk fd og mDr Hkwfe ls fcyk vnk;xh eqvkotk eyok fdlh izdkj f}rh; i{k dks e; mlds eyos ds csn[ky djk ns vkSj fdjk;k viuk f}rh; i{k ls gLo tkCrk izkIr dj ys ,slh voLFkk esa izFke i{k eycs mDr Hkwfe ds Lokeh jgsas vkSj f}rh; i{k izFke i{k esa eycs dk eqvkotk ikus ds vf/kdkjh u gksaxsA 8& ;g fd f}rh; i{k dks vf/kdkj jgsxk fd og tc pkgs mDr Hkwfe ls eyck viuk gVkdj vkSj Hkwfe dks lery djds vius fdjk;snkjh vf/kdkj ls izFke i{k ds gd esa nLr cjnkj gks tkus vkSj ;fn f}rh; i{k o izFke esa ijLij eycs dk eqvkotk r; gks tkos rks eycs dks izFke i{k ds vf/kdkj esa fodz; dj nsaA 9& ;g fd ;fn dksbZ O;fDRk mijksDr izfrcU/kksa ds vuqlkj ;k muds foijhr f}rh; i{k ds fdjk;knkjh vf/kdkj ;k eycs mDr Hkwfe dks dz; dj ysxk rks og Hkh mijksDr leLr izfrcU/kksa dk ikyu djsxk vkSj mijksDr izfrcU/kksa ds foijhr dz; djus ij izFke i{k dk gtkZ o [kpkZ nsus dk vkHkkjh jgsxkA 10& ;g fd mijsDr izfrcU/kksa dks ge mHk; i{k us Hkyh izdkj le> fy;k gS vkSj og gedks Lohdkj gS mijksDr leLr izfrcU/kksa dk mHk; i{k ikyu djsaxs vkSj mHk; i{k esa nksuks i{k o muds mRrjkf/kdkjh o LFkkukiUu o fdjk;snkjku o eqUrfdy myge lEefyr le>s tkosxsa ;fn f}rh; i{k fdlh ;k dbZ izfrcU/kksa dk mYya?ku djsaxs rks izFke i{k dks vf/kdkj jgsxk og mDr Hkwfe o mlds eycs ls fcyk lnk;xh eqvkotk eyck f}rh; i{k dks csn[ky djk nsa ,slh voLFkk eyck izFke i{k dh lEifRr gksxk vkSj f}rh; i{k ml dk eqvkotk ikus ds vf/kdkjh u gksxs vr% ;g fdjk;sukek nokeh viuh LosPNk o izlUurk o LoLFk efLr"d dh n'kk esa fy[kk fn;k fd izek.k jgs vkSj le; ij dke vkos bfr pkSgn~nh mDr Hkwfe tks fdjk;s ij jgsxhA iwjc jsyos jksM if'pe Hkwfe d`f"k o ckx lEifRr ls lsB rkjk pUn eksnh mRrj ckx pkS0 ';ke lqUnj ukjk;.k flag nf{k.k lM+d iDdh uksckMk lsB rkjk pUn eksnh dks tkrh gS vkSj lEifRr lsB egksn; dh gSA ¼uksV½ bl i= ds ijr nks dh lrj 10 esa 'kCn djus ds vf/kdkjh [kjkc fy[sk gSa tks Bhd gS vkSj lrj o 13 ds chp esa ¼dks½ fy[kk Fkk tks dkVk x;k gSA g0v0 g0v0 g0v0 fnukWd%& fnukWd chl vxLr lu~ 1950 bZ0 ys[kd Lokeh txUukFk i=dkj gkiqM+A^^ From the stipulations of original lease deed, it is clear that the parties to the lease deed have transferable rights exercisable in the manner as envisaged in the lease deed itself. Suffice to say that non-observance of any of the pre-requisites stipulated in the lease deed would not be an offence so long as the right to transfer subsists. A first information report has been lodged against the petitioners under Sections 420 read with Section 120-B of IPC merely on the ground of having transferred their leasehold rights which rightly vested in them. Once the rights of transfer of the property in question to the extent of share vested in the petitioners being stipulated are available to them, lodging of an FIR for alienation of the said rights will certainly be an abuse of the process of law. The first information report did not come to be registered in a normal course but an application under Section 156(3) of Cr.P.C. was filed before the Court below and it appears that the competent Court having directed for the registration of an FIR against the petitioners has given rise to Case Crime No.112 of 2012, under Sections 420, 120-B of IPC. After registration of the criminal case against the petitioners, a charge sheet was also submitted before the Court below. From the perusal of charge sheet it is evident that the sole material relied upon in the charge sheet is merely the statements of Sri Ravi Kumar Modi, Sri Radhey Shyam Modi and Jugul Kishore Modi who are the interested party. Not a single evidence relied upon in the charge sheet tends to satisfy the tests of criminal trial. It is also not the case that the registered deed executed by the petitioners is challenged by the opposite parties. In these circumstances it is difficult to hold that the impugned proceedings are maintainable in the eye of law. Allowing the criminal proceedings to proceed on the basis of a material which in no manner meets the ingredients of Section 420 of IPC amounts to a clear abuse of the process of law. For ready reference Section 420 of IPC is reproduced below:-
"Cheating and dishonestly inducing delivery of property.
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The execution of transfer deed is not disputed between the parties to the alleged deed. The availability of a civil remedy to the aggrieved person, if any, is also not disputed. Learned counsel for the opposite parties has argued that the petitioners/applicants have alternative remedy of filing discharge application before the Court below, therefore, the petition under Section 482 Cr.P.C. may not be maintainable. In support of his contention he has cited certain Judgements of the Hon'ble Apex Court reported in (2005) 13 SCC 540, (2013) 2 SCC 801, (2009) 6 SCC 364 and (2006) 7 SCC 188.
Having regard to the case law cited before the Court, I am of the considered opinion that the evidence relied upon in the charge sheet is incapable of setting up a case for criminal trial looking to the rights of parties envisaged in the lease deed which is the foundation of rights vested in the petitioners, vis a vis the concerned opposite party. There is also no scope for a simultaneous proceeding being permitted to go on in absence of any challenge being made by the opposite party no.2 to the transfer deed. The case would have been different if the opposite parties had challenged the transfer deed by means of a civil suit but that option has not been exercised by the opposite parties, hence, the criminal prosecution against the petitioners is all the more baseless.
Learned counsel for the petitioners has referred to the Apex Court Judgment reported in (2009) 8 SCC 751. The Hon'ble Apex Court while dealing with the scope of Section 420 IPC, in para 19 has observed as under :-
"To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."
In the instant case, the proceedings have been initiated at the instance of co-sharers but the purchaser has not made any complaint. The rights of co-sharers are certainly in the nature of civil dispute which unless settled cannot give rise to a criminal action. Therefore, the criminal proceedings as well as the charge sheet in Case No.442/9 of 2012 arising out of Case Crime No.112 of 2012, under Sections 420, 120-B of IPC are beyond the scope of law and liable to be quashed.
In the result, the proceedings of Case No.442/9 of 2012 arising out of Case Crime No.112 of 2012, under Sections 420, 120-B of IPC, Police Station Hapur-Kotwali District Hapur as well as the charge sheet assailed in the instant petition are hereby quashed.
The petition under Section 482 Cr.P.C. is allowed.
Order Date :- 24.7.2014 Hasnain