Court No. - 20
Case :- APPLICATION U/S 482 No. - 842 of 2009 Applicant :- Sheesh Ram And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- K.K. Dwivedi Counsel for Opposite Party :- Govt. Advocate,Sunil Vashisth Connected with:
Case :- APPLICATION U/S 482 No. - 20137 of 2008 Applicant :- Sheesh Ram & Others Opposite Party :- State Of U.P. & Another Counsel for Applicant :- K.K. Dwivedi Counsel for Opposite Party :- Govt. Advocate
Hon'ble Amar Singh Chauhan,J.
Heard Sri K.K. Dwivedi, learned counsel for the applicant, Sri Sunil Vashisth for the opposite party no. 2, learned AGA and persued the record.
The applicant, Sheesh Ram and four 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 complaint and entire criminal proceedings in Complaint Case No. 821 of 2008 (Ram Kumar Tyagi Vs. Sheesh Ram and others) under Section 500 IPC, P.S. Kavi Nagar, District Ghaziabad and stay the further proceedings in the aforesaid complaint. So far as the second application is concerned which was also filed by the applicant, Sheesh Ram and others, in order to invoke the inherent jurisdiction with a prayer to quash the charge sheet and entire criminal proceedings in Case No. 9833 of 2008 (State Vs. Raghuvansh and others) arising out of Case Crime No. 891 of 2007 under Sections 420, 467, 468, 471 and 506 IPC, P.S. Singhani Gate, District Ghaziabad and stay the further proceedings in the aforesaid case.
Since the above two applications having same controversy and pending between the same parties shall be decided by a common order with the consent of the parties.
The facts which are requisite to be stated for adjudication of this case are that one Chandra Bhan and Kale sons of Pat Ram were two real brothers out of them Chandra Bhan has two daughters viz. Sagia and Premwati and Kale has three sons viz. Om Prakash, Sheesh Ram and Raghuvansh. After the death of the Chandra Bhan the land in question bearing Khasra No. 140 area five Biswa was transferred in the name of Om Prakash, Sheesh Ram and Raghuvansh. On 27.5.2005 the applicants, Raghuvansh, Sheesh Ram and Om Prakash have sold the property by way of registered sale deed to one Dharmendra Arora. Thereafter the complainant filed a Suit No. 1135 of 2007 under Section 33/39 of L.R. Act before Sub Divisional Magistrate, Ghaziabad in which applicants filed objection through counsel on 27.10.2007 making derogatory remark like the complainant is a Bhumaphia and in order to built pressure malafidely and jealously filed a complaint against the applicants. The complainant also lodged a report with the allegation that the applicants illegally mange to get some entry in the revenue record and on the basis thereof illegally sold the land. The investigating officer after concluding the investigation submitted the charge sheet being Crime No. 891 of 2007 under Sections 420, 467, 468, 471 and 506 IPC, P.S. Singhaani Gate, District Ghaziabad and cognizance was taken against the applicants and in the complaint case summoning order was issued under Section 500 IPC to face the trial.
Feeling aggrieved, the aforementioned two applications were moved by the applicants before this Court.
It is submitted by the learned counsel for the applicants that the objection was moved through counsel before the Sub Divisional Magistrate under Section 33/39 of L.R. Act in good faith in the protection of the interest of the applicants and, therefore, it is not maintainable in view of 9th exception to the Section 499 IPC. It is further submitted that Sagia and Premwati are the step mother of the applicants and they have no grievance against the applicants and ultimately the name of the step mother Sagia and Premawati were mutated over the land in question and they have also sold the land to other person. The dispute is mainly of civil nature and cannot be dragged into a criminal court.
Per contra, learned AGA concedes that the property in question has been again transferred to the Sagia and Premawati and after getting mutated their names, they have sold the land to other person and ingredient of wrongful loss is lacking. Learned counsel for the complainant has contended that complainant and his witness correctly deposed before the trial court and after having satisfied legally summoned the accused persons. The applicants had no right to sale the land as it relates to Smt. Sagia and Smt. Premawati. The objections filed by the applicants clearly indicate the derogatory remark against the complainant.
The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection."
In this case, the property in question has been again transferred in the name of real owner Smt. Sagia and Smt. Premawati who have also sold the land on 2.11.2015 to other person. There is no evidence of wrongful loss to the real owner and wrongful gain to the applicants. In these circumstances, pendency of the criminal proceedings would amount to abuse of the process of the law and as such the same may be quashed in the interest of justice. Any objection filed through the counsel is protected by 9th exception to the Section 499 IPC.
The Hon'ble Apex Court in the case of Ram Biraji Devi and another Vs. Umesh Kumar Singh and others [2006 (55) ACC 560) has held that only there was a dispute in respect of sale and purchase of the land between the parties even if all the allegations made in the complaint are taken as true, no offence is made out. The dispute is only of civil nature and the case was fit one for exercise of the jurisdiction under Section 482 Cr.P.C.
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."
In view of what has been discussed above, the applications have substance and are liable to be allowed.
Accordingly, the applications are allowed and entire criminal proceedings in Complaint Case No. 821 of 2008 (Ram Kumar Tyagi Vs. Sheesh Ram and others) under Section 500 IPC, P.S. Kavi Nagar, District Ghaziabad as well as charge sheet and entire criminal proceedings in connected application in Case No. 9833 of 2008 (State Vs. Raghuvansh and others) arising out of Case Crime No. 891 of 2007 under Sections 420, 467, 468, 471 and 506 IPC, P.S. Singhani Gate, District Ghaziabad are hereby quashed.
Order Date :- 27.3.2018 AKK