Court No. - 53
Case :- APPLICATION U/S 482 No. - 19071 of 2018 Applicant :- Smt. Sunita Tripathi And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sukendu Pal Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
1. Supplementary affidavit filed today on behalf of the applicant is taken on record.
2. Heard Sri Sukendu Pal Singh, learned counsel for the applicants and Sri Akhilesh Mishra, learned A.G.A. along with Sri Vivek Dubey appearing for the State.
3. This is an application under Section 482 Cr.P.C. seeking to quash the entire proceedings including summoning orders dated 07.10.2017 and 22.03.2018 passed by the Additional Chief Judicial Magistrate, Court no.2, Mathura in Criminal Case no.3231/IX of 2017, State Vs. Smt. Sunita Tripathi and others (arising out of Case Crime no.203 of 2016), under Sections 323, 324, 504, 506, 420, 423, 406 IPC, Police Station Farah, District Mathura, pending in the court of Additional Chief Judicial Magistrate, Court no.2, Mathura.
4. The submission of the learned counsel for the applicants is that on 29.11.2011 and 06.03.2014, opposite party no.2, Bhagwan Singh availed loan from the Syndicate Bank and in order to secure that loan mortgaged his land inter alia comprising Khasra no.582 situated in Village Visu, Tehsil and District Mathura. This encumbrance was duly recorded in the Khatauni on 04.08.2014. Opposite party no.2, Bhagwan Singh in his right as Bhumidhar of half share in Khasra no.582 admeasuring an area 0.7835 hectares representing himself to be the owner in possession of the said half share in Khasra no.582 and further that the same was not encumbered in any manner proceeded to execute a registered agreement to sell dated 04.08.2014 in favour of applicant no.2, Janardan Tripathi son of Mahesh Dutt Tripathi covenanting to sell the land aforesaid for a total sale consideration of Rs.15 lakhs, of which Rs.10 lakh were paid by cheque, and, some in cash, at the time of execution of registered agreement to sell aforesaid. It was further agreed that the balance sale consideration of Rs.5 lakh would be paid at the time of execution of the sale deed, regarding which it was agreed between parties that the sale deed will be executed on 20.05.2015.
5. Opposite party no.2, Bhagwan Singh on 20.08.2014, 26.09.2014 & 22.12.2014 executed as many as seven sale deeds in favour of different third parties conveying land that he had covenanted to sell to the applicants vide registered agreement to sell dated 04.08.2014 on receipt of 2/3rd of the sale consideration. It was falsely stated in all those sale deeds that there was no prior agreement to sell.
6. Faced with the aforesaid circumstances, where the second opposite party in the first instance had dishonestly withheld the fact that the property that he had covenanted to sell through the registered agreement to applicant no.2 was mortgaged with a Bank, and, subsequently, confronted by a sale of the said property, again dishonestly suppressing the fact of prior agreement in favour of the applicant no.2 to different third parties, in small portions through seven sale deeds, found himself utterly cheated with all criminal intent. Accordingly, the applicant no.1, Smt. Sunita Tripathi wife of the applicant no.2 filed an application under Section 156(3) Cr.P.C. on 27.06.2015 seeking a direction to the police to register and investigate a case, once the same was not registered by the police. At the same time, a legal notice was sent by Smt. Sunita Tripathi, applicant no.1 to opposite party no.2, Bhagwan Singh calling upon him to get the encumbrance lifted and execute a sale deed in terms of his covenant.
7. Learned counsel for the applicants has pointed out to various documents that bear out with his contentions above recorded.
Learned counsel submits that the FIR giving rise to the impugned proceedings was lodged regarding an occurrence dated 19.05.2016, wherein there is an allegation of assault by opposite party no.2, upon Bhagwan Singh in the manner that applicant no.1 along with her son-in-law Shekhar Pandey, applicant no.3 and another son-in- law Pushpendra Singh (incorrectly mentioned as Pushpendra Chaudhary) at the date, time and place of occurrence alighted from a white car, where applicant no.1, Sunita Tripathi exhorted the applicants nos.3 & 4 that opposite party no.2 would not execute a sale deed without being beaten and when the second opposite party asked them not to abuse him, the applicant no.4 is alleged to have struck opposite party no.2 on the head with the butt of a pistol and all of them assaulted him by employing hockey sticks. It is further alleged that all the accused said that he would be done to death and a pistol was put to his neck with Smt. Sunita Tripathi, applicant no.1, signaling others to do him to death. It is alleged further that the commotion invited the presence of natives of the village, one Bheemsen and his son Mahesh and that upon seeing the said natives of the village, the applicants escaped. It is alleged that opposite party no.2 got himself medically examined and has placed the medico-legal examination report on record.
8. The police after carrying out a casual, unfair, biased, one sided and lackadaisical investigation have submitted a charge sheet that is impugned in the present application.
9. Learned counsel for the applicants submits that the present prosecution is patently malafide and a device to coerce the applicants into giving up their claim to the land that opposite party no.2 had covenanted to sell through a registered agreement and further received 2/3rd of the agreed sale consideration in the sum of Rs.10 lakh. It is submitted that the land is encumbered and has now been sold to third parties. Opposite party no.2 does not wish to refund the proceeds of cheating to the applicants or to keep his promise to transfer land to the applicant no.2 that he has already transferred to third parties. The impugned proceedings are nothing but an abuse of process of law directed to coerce the applicants into giving up their claim to money or to enforce the promise for transfer of land. Learned counsel for the applicants has led much emphasis on the fact that the doctored nature of the injuries that are the basis of the impugned prosecution is evident from a perusal of the injury report, a copy of which is annexed as Annexure 5 to the affidavit at page no.48 of the paper-book, which shows that injury no.1 in respect of which an X-ray was advised has been caused by a sharp edged object, whereas according to the FIR version the only weapons used were the butt of a pistol and hockey sticks. It is further pointed out that the advised X-ray was never undertaken, in order to conceal the doctored nature of the medico-legal report.
10. The learned A.G.A. has opposed the motion to admit this application to hearing and has laid emphasis on the injury report annexed as Annexure 5 to the affidavit. He has pointed out that the medico-legal report of injury shows as many as eight injuries that include an incised wound 2cm x 0.5cm x bone deep on left side of head, 9 cm above the left from ear regarding which X-ray was advised, four contusions and an abrasion and two sites of complaint of pain.
11. In the submission of the learned A.G.A. whatever be the background of the dispute and howsoever the applicants might have been cheated by the second opposite party, the fact remains that the injury report shows that opposite party no.2 was assaulted brutally, wherein he sustained as many as eight injuries. The nature of injuries do not go with a case of self-infliction. It is further submitted that the discrepancy between the description and manner of assault including weapons and one of the injuries, that is to say, the incised wounds are intricate questions of facts and evidence that cannot be examined in the present proceedings under Section 482 Cr.P.C.
12. This Court has given a thoughtful consideration to the rival contentions. No doubt it is true that in the background of the civil transaction between parties, where the applicants have been prima facie cheated and are proceeding against opposite party no.2 on the civil and criminal side in order to secure their money or property, the impugned proceedings could be a device to browbeat the applicants into giving up their claims by abuse of process of court. At the same time it is equally true that enraged over the act of being cheated, the applicants could have assaulted the second opposite party in the manner alleged. The presence of injuries, their nature, number and extent do not prima facie make it to be an ex facie case of self- inflicted injuries. It is a matter where the allegations have to be tested at the trial and not by holding a parallel trial in these proceedings under Section 482 Cr.P.C. No case for quashing the charge sheet is, therefore, made out.
13. However, it is provided that if the applicants appear and surrender before the court below within 45 days from today and apply for bail, then the bail application of the applicants be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Supreme Court reported in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).
14. For a period of 45 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
15. With the aforesaid directions, this application is finally disposed of.
Order Date :- 31.5.2018 Anoop/ Deepak