Allahabad High Court
Anoop Gulati vs State Of U.P. And 4 Others on 7 January, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:2656 Reserved on 9.12.2024 Delivered on 07.01.2025 Court No. - 79 Case :- MATTERS UNDER ARTICLE 227 No. - 4398 of 2018 Petitioner :- Anoop Gulati Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arun K. Singh Deshwal,Jitendra Kumar Shishodia Counsel for Respondent :- G.A.,Vivek Prakash Mishra Hon'ble Saurabh Srivastava,J.
1. Heard Sri Jitendra Kumar Shishodia, learned counsel for petitioner and Sri Vivek Prakash Mishra, learned counsel for respondent nos. 2 to 4 and learned AGA for the State.
2. Present petition has been preferred with the prayer to issue appropriate order or direction, setting aside the order dated 01.06.2018 passed by learned Additional District and Session Judge, Court no. 14, Ghaziabad in Criminal Revision no. 246/2016 as well as order dated 13.10.2016 passed by learned Chief Judicial Magistrate, Ghaziabad in Misc. Case no. 1217 of 2016, Police Station- Kavi Nagar, District- Ghaziabad.
3. It is the case of petitioner that petitioner and respondent no. 3 were good friends and on persuasion of respondent no. 3, petitioner purchased a semi-constructed house over plot no. R-1/33 measuring 500 sq. yards situated at Rajnagar, Ghaziabad by registered sale deed dated 31.03.1997 from Smt. Renu Sanwal and her minor daughter Vasundhara Sanwal through their power of attorney holder Dev Nath Bangera (servant of respondent no. 3). Petitioner paid the consideration of Rs. 8 lacs in the form of three bank drafts from the account of his wife Sunita Gulathi as consideration of aforesaid sale deed. After execution of above registered sale deed, possession of property in dispute was also handed over to the petitioner. One copy of the above sale deed was also sent by the Sub-Registrar, Ghaziabad to Ghaziabad Development Authority, Ghaziabad (hereinafter referred to as “GDA”) for mutation.
4. It is next submitted that respondent no. 3 procured a forged power of attorney in his favour from petitioner on the same date i.e. on 31.03.1997. On dated 24.08.1998, petitioner received a notice from A.D.M, Ghaziabad for stamp deficiency of Rs.65,000/- and petitioner deposited the aforesaid amount to make stamp duty good. Petitioner was involved in the business of travel agency, therefore most of the occasion, he used to remain out of country for business tour, so he assigned the work of looking after the property in dispute as well as mutation proceeding to respondent no. 3 being close friend of petitioner.
5. In the year, 2007, petitioner came to know from the GDA that respondent no. 2 (wife of respondent no. 3) filed an application for mutation of her name in the aforesaid property on the basis of sale deed dated 19.11.2003 allegedly executed by respondent no. 3 by using forged power of attorney dated 31.03.1997 alleged to be executed by the petitioner in favour of respondent no. 3. After knowledge of above facts, petitioner immediately filed his objection dated 21.05.2007 before the GDA against the mutation application of respondent no. 2 and also for recording his name as owner of property in dispute. Petitioner somehow, also obtained the copy of the forged sale deed dated 19.11.2003 and forged power of attorney dated 31.03.1997. It is relevant to mention here that on the one hand respondent no. 3 claimed to be the power of attorney holder of the petitioner and on that basis he transferred the property in dispute to his wife (respondent no. 2) but no money was ever paid to the petitioner.
6. Thereafter, petitioner after knowing the aforesaid forgery, lodged a FIR dated 07.12.2007 as Case Crime no. 990/2007 under sections 420, 467, 468, 471, 504, 506 IPC, Police Station Kavi Nagar, District Ghaziabad against respondents. Respondent no. 3 is very rich and influential person therefore under his influence, police authorities filed final report in the aforesaid case on dated 22.12.2007. Petitioner filed a protest petition and the learned Chief Judicial Magistrate, Ghaziabad treated the aforesaid protest petition as complaint case but subsequently the same was dismissed vide order dated 25.06.2009 on the ground that the allegations are civil in nature. Petitioner challenged the aforesaid order dated 25.06.2009 before this Court in Criminal Revision no. 2738 of 2009 but the same was dismissed vide order dated 28.09.2012 holding that the case is civil in nature. Against the aforesaid order dated 28.09.2012, petitioner filed a Special Leave to Appeal (Crl.) no. 2292/2013 before the Hon’ble Apex Court and the same was dismissed vide order dated 01.04.2013. Thereafter the review petition of the petitioner was also dismissed vide order dated 09.07.2013 by the Hon’ble Apex Court.
7. In October, 2015, petitioner came to know certain new facts from GDA on inspection of file of mutation, which was not within the knowledge of petitioner earlier. These facts were related to transfer of property in dispute by respondent no. 3 to respondent no. 5 (father-in-law of respondent no. 3) through agreement to sale dated 31.03.1997 for a consideration of Rs.8 lacs and thereafter transferring the same property by respondent no. 5 to respondent no. 2 through transaction dated 19.11.2003 for a consideration of Rs.22,20,000/- which also includes cheque no. 965202 dated 21.10.2003 as well as cheque no. 965704 dated 17.11.2003 of Vijaya Bank, Ghaziabad. It is pertinent to mention that respondent no. 5 wrote a receipt to respondent no. 2 on dated19.11.2023 and acknowledged the amount of Rs.22,20,000/- received from respondent no. 2 in the form of three cheques including cheque no. 965704 dated 17.11.2003 of amount Rs.2,20,000/- which is also alleged to be given to respondent no. 3 as mentioned in the sale deed dated 19.11.2003. The respondents in paragraph nos. 31, 32 and 41 of the counter affidavit admitted the execution of aforesaid two documents i.e. agreement to sale dated 31.03.1997 and receipt dated 19.11.2003 and further admitted that the aforesaid cheque mentioned in receipt were encashed from the Bank of respondent no. 2 but in place of bank statement of respondent no. 2 they annexed the bank statement of wife of petitioner at page no. 108 of counter affidavit. Therefore, it is apparently clear how the respondent nos. 2 to 5 hatched the conspiracy and made the forged documents and grabbed the aforesaid house of the petitioner.
8. On the basis of aforesaid new facts, on dated 18.03.2016, petitioner filed an application under Section 156(3) Cr.P.C. against the respondent nos. 2 to 5 along with the list of the documents including the registered sale deed dated 31.03.1997. The learned C.J.M, Ghaziabad vide order dated 13.10.2016 rejected the aforesaid application under Section 156(3) Cr.P.C. preferred by petitioner without appreciating the new facts. Petitioner challenged the order dated 13.10.2016, in criminal revision before the learned court concerned and took all the grounds in the memo of revision but vide order dated 01.06.2018 passed by learned Additional District and Sessions Judge, Court no. 14, Ghaziabad the said revision was rejected which has been challenged through the instant petition.
9. Learned counsel for petitioner challenged the impugned orders on the ground that petitioner filed a civil suit no. 149 of 2022 on dated 24.02.2010 for the cancellation of forged power of attorney dated 31.03.1997 and the forged sale deed dated 19.11.2003 which is pending to be adjudicated and private respondents are not appearing in the said case. This Court may appreciate on the ground that if the facts of the case are both constituting the offence as well as civil in nature, then FIR is not barred. Both the learned courts below failed to consider that from the record, it is very much established that the respondent nos. 2 to 5 were involved in a fake and forged transition and on the basis of same cheques without encashing the same, grabbed the property of petitioner.
10. Learned counsel further argued that Hon’ble Apex Court in the following judgments held that upon the discovery of new facts, the second FIR can be registered :-
i. Om Prakash Singh Vs. State of Bihar and others reported in AIR 2018 SC 3242
ii. Nirmal Singh Kahalon with J.P.Singla & others vs. State of Punjab and others reported in 2008 0 Supreme(SC) 1571
iii. Babubhai & others vs. State of Gujarat & others reported in 2010 0 Supreme(SC) 782.
11. Per contra, Sri Vivek Prakash Mishra, learned counsel for respondent nos. 2 to 4 submitted that without disclosing all the facts regarding end of litigation regarding FIR dated 22.12.2007 as Case Crime no. 990 of 2007 till end of last remedy as review petition before the Hon’ble Apex Court, petitioner filed a fresh application dated 18.03.2016 under Section 156(3) Cr.P.C. upon the same facts before learned CJM, Ghaziabad which was rejected vide order impugned order dated 13.10.2016 mentioning the fact that petitioner’s grievances has already been concluded in Criminal Revision no. 2738 of 2009 by co-ordinate Bench of this Court vide order dated 28.09.2012.
12. It is next submitted that respondent no. 2 namely Prema J. Benan filed a Writ C no. 59293 of 2012 before this Court with the grievance to direct Ghaziabad Development Authority to mutate the name of Prema J. Benan as the criminal proceedings has been finally dropped against her and after hearing the parties, co-ordinate Bench of this Court vide judgment and order dated 13.12.2012 directed the Ghaziabad Development Autority to consider the claim of Prema J Benan after affording full opportunity to the petitioner, pursuant to which Ghaziabad Development Authority after giving notices, decided the issue of mutation in favour of Prema J Benan vide order dated 15.02.2013. Against the order dated 15.02.2013, petitioner preferred a review petition before the Ghaziabad Development Authority which was also rejected vide order dated 06.01.2016.
13. Learned counsel for respondent nos. 2 to 4 further submitted that in case of T.T.Antony vs. State of Kerala & others reported in 2001 (6) SCC 181 rendered by Hon’ble Apex Court, second FIR on same fact has been barred.
14. In the case of Ramjas Foundation and another vs. Union of India and others reported in JT 2010 (12) SC 134, Hon’ble Apex Court laid down the principle that a person who does not come to the court with clean hand is not entitled to be heard on merit of his grievances and in case of Nripendra Kumar Dhusia vs. Union of India reported in 2020 (5) AWC 4439, Hon’ble Apex Court held that the petitioner has not approached this Court with clean hand hence he is not entitled for any relief as claimed by him in the present petition.
15. Co-ordinate Bench of this Court in Writ C no. 39921 of 2023 (M/S Lavish Educational Services Private Ltd. vs. State of U.P. and another) vide judgment and order dated 18.12.2023 held in paragraph nos. 16, 22, 23 & 27 as under:-
“16. In Amar Singh Vs. Union of India (2011)7 SCC 69, Supreme Court held that Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with “unclean hands” and are not entitled to be heard on the merits of their case.
22. It has been held in the judgments referred to above that one of the two cherished basic values by Indian society for centuries is “satya” (truth) and the same has been put under the carpet. Truth constituted an integral part of the justice-delivery system in the pre- Independence era, however, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, the values have gone down and now a litigants can go to any extent to mislead the court. They have no respect for the truth. The principle has been evolved to meet the challenge posed by this new breed of litigants. Now it is well settled that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Suppression of material facts from the court of law, is actually playing fraud with the court. The maxim supressio veri, expression faisi, i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted.
23. Having heard learned counsel for parties and having perused the record of proceedings, as discussed in the initial paragraphs of the present order, this Court is of the considered view that the petitioner is guilty of committing abuse of the process of law and it obtained an interim order by suppressing of facts and in view of the authorities referred to herein above, the writ petition deserves dismissal with cost.
27. The writ petition is dismissed with cost of Rs.50,000/- (Rupees fifty thousand only).”
16. Lastly, learned counsel for respondent nos. 2 to 4 submitted that the instant petition is not sustainable in the eye of law and is liable to be dismissed.
17. After hearing the rival submissions extended by learned counsels for the parties as well as by bare perusal of the written arguments submitted by both the learned counsels appearing on behalf of petitioner as well as private respondent, the entire incident narrated in the application preferred at the behest of the petitioner under Section 156(3) Cr.P.C. is only with with regard to certain transaction which took place between the private respondents but the fact remained the same that once the initial and original cause of action which calls prejudice to the petitioner has already been settled up to the level of Hon’ble Apex Court and the Special Leave to Appeal (Crl.) no. 2292 of 2013 has already been dismissed vide order dated 01.04.2013 the fresh cause as disclosed by the petitioner, regarding transaction dated 19.11.2023 for consideration of Rs.22,20,000/- which includes cheque no. 965202 dated 21.10.2003 as well as cheque no. 956704 dated 17.11.2003 is nowhere concerned with the petitioner, even if the transaction is fraudulent as contended by learned counsel for the petitioner, the aggrieved party is not the petitioner.
18. In view of the aforementioned facts and circumstances, there is hardly any infirmity in the order dated 13.10.2016 passed by learned Chief Judicial Magistrate, Ghaziabad and order dated 01.06.2018 passed by learned Additional District and Sessions Judge, Court no. 14, Ghaziabad. The petition lacks merit, hence dismissed accordingly.
Order Date :- 7.1.2025
Shaswat
(Saurabh Srivastava,J.)
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