Allahabad High Court
Atif Raza Alias Sarjeel Raza And 3 Others vs State Of U.P. And Another on 28 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:188340 Court No. - 5 Reserved A.F.R. Case :- APPLICATION U/S 482 No. - 9354 of 2023 Applicant :- Atif Raza Alias Sarjeel Raza And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Srivastava,Alok Ranjan Mishra, Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. This application under Section 482 of The Code of Criminal Procedure, 1973 (for short, ‘the Code’) has been instituted by Atif Raza alias Sarjeel Raza, Anwar Shahzad, Ravindra Narayan Singh and Zakir Hussain, impugning the summoning order dated 03.02.2023 passed by the Chief Judicial Magistrate, Ghazipur as well as entire proceedings of Criminal Case No.4842 of 2023, State v. Atif Raza and others (arising out of Case Crime No.272 of 2021), under Sections 419, 420, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 (for short, ‘the Penal Code’) and Section 3/4 of the Prevention of Damage to Public Property Act, 1984 (for short, ‘the Act of 1984’), Police Station Nandganj, District Ghazipur.
2. The proceedings leading to the present application under Section 482 of the Code commenced on the basis of a First Information Report (for short, ‘FIR’) lodged by Shiv Pratap, Incharge General Manager, Uttar Pradesh Warehousing Corporation, Varanasi on 02.10.2021 at 12:20 hours against the applicants and a non-applicant co-accused, Afshan Ansari, that was registered as Case Crime No.272 of 2021, under Sections 419, 420, 467, 468, 471, 120-B of the Penal Code and Section 3/4 of the Act of 1984 at Police Station Nandganj, District Ghazipur. The FIR appears to be one lodged on the basis of official instructions received by the first informant from the Collector of Ghazipur vide letter dated 03.08.2021 and a Special Secretary to the State Government in the Department of Home vide memo dated 12.08.2021. There are further instructions to the same effect from the Head Office of the U.P. Warehousing Corporation dated 09.02.2021 issued to the first informant. The subject matter of these communications may not be very relevant to the offences reported and later charged against the applicants.
3. The first information has been laid against the partners of a certain firm, M/s. Vikas Constructions, who own a godown. These partners are the four applicants and one non-applicant co-accused. It appears that under the Private Entrepreneurs Guarantee Scheme, 2008 (for short, ‘the PEG’), introduced by the Government of India, the Food Corporation of India (for short, ‘the FCI’), like in other districts, floated tenders for the construction of a godown in the District of Ghazipur with a storage capacity of 76,000 MT. In consequence of the tendering process, the firm, M/s. Vikas Constructions, owned by the wife and brothers-in-law of Mukhtar Ansari, an MLA, got the contract to construct a godown/ warehouse for the FCI. Looking to the criminal background of parties, as it appears from the allegations in the FIR, an inquiry by the Special Task Force (for short, ‘the STF’) was got conducted. This pre-crime registration inquiry by the STF led to discovery of facts that in consequence of the influence and fear of Mukhtar Ansari and his gang, other firms did not put in their tenders, leading to the tender being awarded to the firm, M/s. Vikas Constructions. M/s. Vikas Constructions and its partners, violating the terms and conditions of the tender, got forged documents prepared in order to secure the contract to build a godown that would be leased out to the FCI for the purpose of their storage requirement. For the purpose of securing land to build a godown in accordance with the terms of the contract, the vendees, that is to say, the partners of M/s. Vikas Constructions and the vendors, despite knowledge of the fact that the vendors were bhumidhar with non-transferable rights, entered into a criminal conspiracy and got prepared false and forged documents in order to execute a sale deed in favour of the vendees, M/s. Vikas Constructions.
4. Amongst other things, it is pointed out in the FIR that partners of the firm got their names fraudulently recorded over land that was ‘pond’ and where a number of tenure holders were jointly recorded. It is further said in the FIR that without demarcation of the land, purchased contrary to the law, the accused-applicants, partners of M/s. Vikas Constructions, representing the last mentioned land to be theirs, showed it to the U.P. Warehousing Corporation as one available with them to construct a godown in accordance with the terms of the tender, and, later on, the contract. A road was constructed from the godown to the main land passing over plot numbers that were all recorded as ‘pond’. This construction of the road too was absolutely illegal. In consequence of the materials that emerged from the report of the STF, the Government resolved to get an FIR registered against all persons involved in this crime and to recover from them moneys illegally earned of the enterprise. The FIR goes on to say that the material collected by the STF shows that M/s. Vikas Constructions, to wit, the partnership firm of which the applicants are partners, violating the terms of the tender, showed in a fraudulent manner land available with them for the purpose of a godown; also, the accused got a road constructed from the site of the godown to the main road, passing over land that was recorded ‘pond’. This was all brought about by relying on forged and fabricated documents by the applicants.
5. It is also reported in the FIR that for the construction of the godown, the applicants availed a subsidy from the Government to the tune of Rs.2,32,40,000/-. The godown was constructed on land secured by the applicants illegally, as aforesaid. The applicants received rents to the tune of Rs.5,79,36,671/- from the U.P. Warehousing Corporation between the months of February, 2016 and June, 2020. This rent was received for storage of foodgrains in the constructed godown. It was on this information that the FIR giving rise to the present proceedings was registered.
6. After registration of the crime, the Investigating Officer (for short, ‘the IO’) recorded statements of the first informant under Section 161 of the Code, twice: once on 24.11.2021 and, a second time, on 20.02.2022. A copy of the report of the Revenue Officer and the STF Inquiry Report was also made part of the investigation. The statement of Prabhash Kumar, the then S.D.M., Sadar, Ghazipur was recorded by the IO on 21.03.2022. He verified his signatures on the inquiry report that he had submitted in the matter and also spoke about the inquiry report put in by him. The IO also recorded the statement of one Mukesh Kumar Singh, the then Tehsildar, Sadar, Ghazipur and Raju Yadav, a Revenue Inspector on 21.03.2022, who said that an inquiry was conducted in the present case by the then S.D.M., Sadar, Ghazipur, Prabhash Kumar. They acknowledged their signatures on the inquiry report. The IO went on to record the statement of Shiv Kumari Devi, the then Pradhan of Village Fateullahpur on 21.03.2022, who said in her statement that after removing encroachment over the property in question on 04.07.2020, the land comprising the pond had been handed over to her by the then S.D.M., Sadar, Ghazipur, the Circle Officer, Bhurkura, Tehsil Sadar and a Revenue Team from District Ghazipur. The IO went on to record the statement of Vinod Kumar Singh, the then Deputy S.P., STF Field Unit, Varanasi on 05.04.2022, who spoke about the contents of the STF’s Inquiry Report and acknowledged his signatures thereon.
7. Further on during investigation, the IO also collected a copy of the inquiry report submitted by the Revenue Officers of Tehsil Sadar, District Ghazipur dated 09.07.2020, that was referable to the inquiry conducted in pursuance of the letter of the S.D.M., Ghazipur dated 20.06.2020. The IO recorded the statement of Ashok Kumar, a Lekhpal on 12.09.2022. The IO also collected copies of the seven sale deeds executed by private persons in favour of M/s. Vikas Constructions or their partners. After a perusal of these sale deeds, a detail of these was entered in Parcha CD No.9 dated 10.01.2022 by the IO. On 12.09.2022, Section 120-B of the Penal Code was added by the IO to the offences charged against the accused. With a mention of this fact in Parcha No. CD-54 dated 12.09.2022, the IO also recorded statement of Puneet Parihar, the then Inspector, STF Field Unit, Varanasi on 08.10.2022, who had carried out inquiry in the matter. He supported the contents of the STF Inquiry Report before the IO. The IO also drew up a site-plan, where the godown was raised and offered to the Warehousing Corporation. Apart from these witnesses, four other witnesses were examined, who are police personnel. Upon completion of investigation, the IO submitted a charge-sheet on 16.10.2022 against the applicants. The investigation against the non-applicant Afshan Ansari is said to be still pending.
8. The Chief Judicial Magistrate, Ghazipur, before whom the charge-sheet was laid, took cognizance of the offences punishable under Sections 419, 420, 467, 468, 471, 120-B of the Penal Code and Section 3/4 of the Act of 1984 vide order dated 23.02.2023 and issued process against the accused, including the applicant, Anwar Shahzad, who was already in jail, as it appears, in connection with some other crime, summoning him from jail through a warrant under Section 309 of the Code.
9. Aggrieved by the order dated 23.02.2023, taking cognizance and summoning the applicants to stand their trial, besides the police report filed in the matter, the applicants have instituted the instant application under Section 482 of the Code.
10. Parties have exchanged affidavits in abundant numbers, bringing on record a wealth of material, which forms part of the case diary. A copy of the case diary has also been produced.
11. A counter affidavit dated 01.04.2023 has been filed on behalf of the State, followed by three supplementary counter affidavits, to which the applicants have filed a rejoinder and two supplementary rejoinders. The counter affidavits filed on behalf of the State, three of which have been filed by the IO and one by the Naib Tehsildar, Tehsil Sadar, District Ghazipur refer to various materials in the case diary and the statement of witnesses, by which the prosecution seek to establish their case against the applicants. There are also statements recorded under Section 161 of the Code in aid of the prosecution case. Allusion to the relevant materials, as much as necessary for decision of this application to quash proceedings, shall be made during the course of this judgment.
12. Heard Mr. Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Mr. Alok Ranjan Mishra, learned counsel for the applicants and Mr. P.C. Srivastava, learned Additional Advocate General assisted by Mr. Vikas Sahai, learned Additional Government Advocate, Mr. Arvind Kumar Srivastava, learned Additional Government Advocate and Mr. Sudhanshu Srivastava, learned Additional Chief Standing Counsel on behalf of the State.
13. It is pointed out by Mr. G.S. Chaturvedi, learned Senior Advocate appearing for the applicants that the applicants are businessmen and partners in a firm, called M/s. Vikas Constructions, Rajdepur Dehati (Rauza), Ghazipur, which is engaged in the business of civil work, supply of materials and labour in the Government and non-Government Departments on contract within the district of Ghazipur and other adjoining districts. They are also engaged in the business of establishing and running warehouses for storage of foodgrains under the PEG. Initially, M/s. Vikas Constructions had three partners, to wit, Masood Alam, Ravindra Narayan Singh and Wais Khan. Subsequently, an agreement for partnership was executed on 01.08.2012 between five partners, to wit, Afshan Ansari, Atif Raza, Anwar Shahzad, Ravindra Narayan Singh and Zakir Hussain, who are now partners of M/s. Vikas Constructions. Nineteen bigha of land, situate in Khasra No.341, out of the total area of 110 bigha, comprising the said Khasra (situate in Village Fateullahpur, Pargana, Tehsil and District Ghazipur) was purchased by M/s. Vikas Constructions from different tenure holders through registered sale deeds executed on various dates, duly signed by witnesses. The details of these sale deeds, numbering a total of seven, are mentioned in paragraph No.23 of the affidavit filed in support of the application u/s 482 of the Code, to which Mr. Chaturvedi has drawn the Court’s attention.
14. It is emphasized by the learned Senior Advocate that the name of the vendors, who executed sale deeds in favour of M/s. Vikas Constructions, were duly recorded in the revenue records since long back without any objection by anyone. The applicants’ vendors hold transferable rights over the land in question, to wit, 19 bigha, comprised in Khasra No.341, utilized by M/s. Vikas Constructions for erecting their warehouse. After purchasing the land in question, M/s. Vikas Constructions applied for mutation of their name. Upon a mutation report submitted on the said application, the name of M/s. Vikas Constructions was mutated in the revenue records vide orders dated 30.11.2012 and 03.12.2012 passed by the Naib Tehsildar, Sadar, Ghazipur. Mr. Chaturvedi has pointed out the aforesaid mutation in the relevant khatauni, annexed as Annexure No.22 to the affidavit. The learned Senior Advocate has emphasized that Khasra No.341 is a big parcel of land, out of which only 19 bigha was purchased by M/s. Vikas Constructions through the registered sale deeds executed in their favour by the various quondam tenure holders. The applicants’ names have been recorded in the revenue records under orders of the competent Revenue Authority.
15. It is also pointed out for the applicants that orders for demarcation of 19 bigha of land purchased by M/s. Vikas Constructions were made on 11.01.2013. These were passed on an application dated 11.01.2013. It is also emphasized that after demarcation of the land, a declaration under Section 143 of the U.P. Z.A. & L.R. Act was applied by the applicants to the S.D.M., Sadar, Ghazipur and the necessary declaration was granted on 09.05.2013. It is also the applicants’ case that neither any private party nor the Government nor a Government entity ever raised objection to the purchase of land by M/s. Vikas Constructions, either at the time when mutation was granted or declaration under Section 143 of the U.P. Z.A. & L.R. Act made or demarcation proceedings taken and the land demarcated. A tender was floated by a Special Secretary to the Government of U.P. vide letter dated 22.09.2010 for the purpose of implementation of the PEG. It is said that the letter aforesaid directed that construction of warehouse/ warehouses, as prescribed vide letter dated 28.07.2008 of the Government of India issued under the PEG be ensured. The tender as aforesaid was invited by the U.P. State Warehousing Corporation (for short, ‘the Warehousing Corporation) through a system of offline bidding for the purpose of the PEG. This was done as e-tendering system was not available with the Warehousing Corporation back then. The tenders that were floated by the Warehousing Corporation for the construction of warehouses in various districts of the State, published notice of tenders in daily newspapers with all India circulation, to wit, the Hindustan, the Hindustan Times & Mints (Metro City) on 27.09.2011. Corrigenda regarding the tenders were published on 01.11.2011 and 08.11.2011.
16. After publication of the notice of tender for construction of a warehouse in District Ghazipur, M/s. Vikas Constructions applied for it. After scrutiny, their tender was found eligible and, therefore, accepted. A letter for the construction of a warehouse to be leased for a time period of 10 years under the PEG was issued, in favour M/s. Vikas Constructions, on 13.06.2012 by the Warehousing Corporation. The applicants say that after M/s. Vikas Constructions were granted the tender, they applied for a loan to the Union Bank of India, Degree College Branch, Gora Bazar, Ghazipur and raised a loan for a sum of Rs.8.76 crores. The loan was sanctioned subject to terms and conditions. A letter dated 07.04.2014 was issued by the Chief Manager, Union Bank of India for compliance of the terms of sanction and its conditions. M/s. Vikas Constructions entered into a lease and service agreement with the Warehousing Corporation for a period of 7 years, 2 months and 7 days of working together. After construction of the warehouse by M/s. Vikas Constructions, no objection was raised by any person or authority. The warehouse was utilized for the purpose that it was built and the applicants went about their business without any dispute.
17. It is the applicants’ case that on 04.07.2020, when none of the partners of M/s. Vikas Constructions were present at the warehouse, a complement of police personnel, accompanied by certain senior officers, came to the warehouse. They had with them a J.C.B. Machine and demolished some part of the warehouse and a gate constructed for safety of the premises. They said that it was an illegal construction and an order for demolition thereof had been passed. When the applicants approached the Police and the revenue officials, it was revealed after inquiry that without information to them, some order had been passed behind their back. The applicants then applied for a copy of the khatauni of the land, on which the warehouse stands. It then transpired that the Chief Revenue Officer/ Deputy Director of Consolidation, Ghazipur had passed an order dated 01.07.2020 under Section 48(1) of the U.P. Consolidation of Holdings Act, 1953 in Case No.67, State v. Gaon Sabha, Tehsil Sadar, District Ghazipur regarding Gata No.341-L, admeasuring 15-0-0 and directed that out of the 15 bigha of land, comprising Gata No.341-L, the names of the heirs of Ramdev, from whom M/s. Vikas Constructions have purchased and the names of the vendees from Ramdev and his heirs be expunged from the revenue record. The land aforesaid was directed to be registered as pond (Taal).
18. It is pleaded that the order in the exercise of jurisdiction to decide a reference was made by the Deputy Director of Consolidation behind the applicants’ back and without granting any opportunity. The applicants’ oral or documentary evidence was a fortiori not considered. Acting on the basis of the said order passed by the Deputy Director of Consolidation, the Police and the others, who went to the premises of the warehouse on 04.07.2020, demolished the boundary wall, the gate and the office, without information of the order dated 01.07.2020 being given to the applicants. It is emphasized that the applicants have not committed any kind of fraud or cheating, but bona fide purchased the land, on which the warehouse stands. Much emphasis has been laid by Mr. Chaturvedi on the fact that the order dated 01.07.2020 was challenged by M/s. Vikas Constructions before this Court vide Writ-B No.1022 of 2020, where this Court, after hearing parties, granted stay of the operation of the order dated 01.07.2020 passed by the Deputy Director of Consolidation on 03.09.2020. The said interim stay order is operative until further orders and the writ petition is pending.
19. It is urged that the FIR giving rise to the impugned proceedings is founded on baseless and vague allegations. It is pleaded that neither proceedings against M/s. Vikas Constructions have any criminal angle to them nor is there any evidence there to connect the applicants to the offence alleged by the prosecution. It is also pleaded with particulars that when notice of tender was first published for construction of a warehouse at Ghazipur, it required a total capacity of 76,000 MT. At that time, apart from M/s. Vikas Constructions, M/s. Saurabh Singh Glance Care Private Limited and M/s. Aagaz Project Private Engineering Limited had also tendered for the project. It is pointed out that the tender of M/s. Saurabh Singh Glance Care Private Limited was rejected on the basis of an inspection report of a Joint Committee of the Warehousing Corporation and the FCI dated 07.02.2011, that found the link road to connect their warehouse from the main road very narrow, which could not accommodate the simultaneous passage of two trucks. It is the applicants’ case that the tender of M/s. Vikas Constructions was approved because they fulfilled all requisite criteria.
20. The FIR giving rise to the present case has been lodged contrary to facts on record. It is also said that there is no evidence on record to prove the fact that the applicants have prepared any false or forged documents to secure the contract for construction and lease of the warehouse. It is also emphasized that M/s. Vikas Constructions’ tender was accepted after all formalities were gone through. The Warehousing Corporation entered into a lease and service agreement with M/s. Vikas Constructions on 17.06.2016. It is emphasized that if the land in dispute is public utility land entrusted to the Gaon Sabha, it is open to them to proceed under Section 67 of the U.P. Revenue Code, 2006, but no criminal liability arises against the applicants. It is urged that from the allegations in the FIR and the material collected during investigation by the IO, at the most, a case of essentially civil nature is made out, for which the remedy lies under the civil law, but the State Authorities have chosen to launch the impugned prosecution mala fide as an abuse of process of Court. It is also the applicants’ case that the ingredients for the offence under Section 420 of the Penal Code are not made out, as the applicants never deceived any person or fraudulently or dishonestly induced someone so deceived to deliver any property to any person or to consent that any person shall retain any property. It is also said that the applicants have not intentionally induced any person, whom they deceived to do or omit to do anything, which he would not do or omit, if not so deceived. Therefore, no case under Section 420 of the Penal Code is made out. Likewise, the applicants have not themselves made any false document or caused one to be made. Thus, no offence under Sections 467, 468, 471 of the Penal Code is disclosed.
21. In the counter affidavits that have been filed, it is pointed out by Mr. P.C. Srivastava, learned Additional Advocate General assisted by Mr. Vikas Sahai, Mr. Arvind Kumar Srivastava, learned Additional Government Advocates and Mr. Sudhanshu Srivastava, learned Additional Chief Standing Counsel on behalf of the State, that the applicants are an organized criminal syndicate, who have, in the first place, deceitfully held themselves out to be partners in the firm, known as M/s. Vikas Constructions, which they are not. M/s. Vikas Constructions is a registered firm with the Registrar, Firms, Societies and Chits. There are only three partners registered in the records of the Assistant Registrar, Firms, Societies and Chits, to wit, Masood Alam, Ravindra Narayan Singh and Wais Khan. The applicants, Atif Raza, Anwar Shahzad, Zakir Hussain and co-accused Afshan Ansari are not at all recorded as partners of the firm, M/s. Vikas Constructions. The partnership firm, M/s. Vikas Constructions was registered on 26.09.2007 with the three partners indicated. Atif Raza, Anwar Shahzad and Zakir Hussain entered the firm as partners on 16.09.2010, on the basis of a partnership agreement filed by them before the Warehousing Corporation. This is an agreement with three added partners, with the two existing partners, Masood Alam and Ravindra Narayan Singh, purporting to reconstitute the firm. This agreement, though filed before the Warehousing Corporation, has not been filed before the Assistant Registrar, reconstituting the firm. Likewise, there is another partnership agreement dated 01.08.2012, where Afshan Ansari, Atif Raza, Anwar Shahzad, Ravindra Narayan Singh and Zakir Hussain have entered into an agreement as partners of the firm, M/s. Vikas Constructions, reconstituting it. Here, out of the original partners of the firm, Masood Alam and Wais Khan have been removed and the firm reconstituted. This partnership agreement too has not been filed before the Assistant Registrar, showing the reconstitution of the firm in the said Authority’s records. In the records of the Authority, the three original partners, to wit, Masood Alam, Wais Khan and Ravindra Narayan Singh alone continue as partners of the firm, M/s. Vikas Constructions. It is emphasized, therefore, that by a fraudulent deed of partnership, the applicants, comprising a crime syndicate, by practicing deception, made the Warehousing Corporation enter into an agreement with them, pleading themselves to be a registered firm for the purpose of building a warehouse and leasing it to the Corporation aforesaid, which the Corporation would utilize to store goods received from the FCI. It is then made out in the various affidavits that the applicants deceived the Warehousing Corporation to enter into the agreement last mentioned with them, where, in terms of the agreement with the Corporation, they erected a warehouse over land purchased from vendors, who did not have title. Much of the land was public utility land recorded as pond (Taal) and some of it was bhumidhari with non-transferable rights, where the vendors had no right to convey any title to M/s. Vikas Constructions. Thus, the thrust of the prosecution set out in punctilious detail in the counter affidavits is that a warehouse was raised by the applicants and let out to the Warehousing Corporation in terms of an agreement over land that did not lawfully belong to the applicants, but largely vested in the Gaon Sabha or that could not be validly transferred to the applicants by the vendors, who purported to do so. In the process of doing this, it is pointed out that some false revenue records with unauthorized and bogus entries were also utilized. According to the prosecution, offences punishable under Sections 419, 420, 467, 468, 471, 120-B of Penal Code and Section 3/4 of the Act of 1984 is clearly made out.
22. We have carefully considered the submissions advanced by the learned Counsel on both sides and perused the case diary produced during the hearing. The material that has been annexed to the affidavit is part of the case diary.
23. In substance, the submissions of Mr. G.S. Chaturvedi, learned Senior Advocate appearing for the applicants are that the subject matter of the criminal prosecution here is a dispute of an essentially civil nature, for which remedies may be had under the civil or revenue laws, but no criminal liability is ex facie made out. Mr. Chaturvedi has emphasized during the course of his submissions that there is no ingredient of the offence of cheating made out, even if all allegations in the FIR and the police report were accepted as true. He has submitted that none of the tenure holders, whose land the applicants have purchased for M/s. Vikas Constructions, have ever said that they have been deceived in any manner. It is for this reason that none of the vendors of the seven sale deeds, who have transferred their land through registered conveyances in favour of the applicants, have been cited as witnesses in the charge-sheet. It is next submitted that no case of making any false document is made out, because it is nobody’s case that the sale deeds were not executed by the vendors. The question if the vendors had a right to transfer or possess a transferable estate in the land transferred, even if answered against the vendors, would not make the sale deeds fictitious or forged. The offences under Sections 467, 468, 471 of the Penal Code would, therefore, not be attracted at all. It is also urged that there is no criminal intent involved in the matter and the applicants never had the animus to deceive any person. There is no evidence about any fraudulent or dishonest inducement of anyone to deliver any property to any person or consent that any property shall be retained or intentionally induce a person, so deceived to do or omit to do anything, which he would not have done, but for some kind of deception practiced by the applicants.
24. The foremost question to be answered is if there is any act of cheating involved in the acts attributed to the applicants that constitute the corpus delicti in this case. The ingredients of cheating are spelt out in Section 415 of the Penal Code, which reads:
“415. Cheating.–Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
Explanation.–A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery, A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.”
25. Section 420 of the Penal Code, which speaks about cheating and dishonestly inducing delivery of property, reads:
“420. 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.”
26. Here, the FIR has not at all been lodged by the vendors, who executed the seven sale deeds in the applicants’ favour, conveying all that parcel of land, upon which, later on, the applicants raised a warehouse, inducing the Warehousing Corporation to enter into a contract with them for taking it on lease for the purpose of storage. The FIR in this case was lodged, may be after extensive inquiries were undertaken by the STF at the instance or directions of the Government by Shiv Pratap, the Incharge General Manager, U.P. Warehousing Corporation, Varanasi. The informant’s case, in essence, is that the applicants, who were partners of the firm, caused forged entries to be made about their vendors’ rights on land, that is a recorded pond, and also where there are a number of tenure holders jointly in possession, without demarcation or separate possession of the land and representing it to be theirs’, got a godown constructed. The approach road to the godown, leading to the public road, is also constructed on land, that is a recorded pond, illegally. It is then said in the FIR that the applicants, who are partners of M/s. Vikas Constructions, in violation of the terms of the tender, got the godown constructed, fraudulently representing the land on which it was raised to be theirs’, but in fact a pond. The applicants not only secured the contract for lease of the warehouse, but also availed the benefit of a subsidy of Rs.2,32,40,000/- from the Government to raise that construction. It is also said in the FIR that the godown they constructed, the applicants employed to earn rent worth Rs.5,79,36,671/-, charging it from the Warehousing Corporation for their storage requirements.
27. Now, shorn of unnecessary detail, during investigation and not at variance with the applicants’ case, seven sale deeds in all were found to have been executed by vendors, purporting to convey title in favour of the applicants or their partnership firm, M/s. Vikas Constructions. The entire parcel of land acquired through the seven sale deeds was utilized by the applicants to raise a warehouse, which they offered to the Warehousing Corporation.
28. The first sale deed bears document No.3514. It was executed on 29.09.2012, conveying a total area of 2-7-12 of land, part of Khasra No. 341, Village Fateullahpur, Pargana and District Ghazipur. It was executed by Sechu, Bechu, Ramashraya, Ramshish, Jai Chand, Smt. Bhagirathi, Smt. Samudri, Indradev, Matru, Baldev, Mahesh, Smt. Manohari Devi, Kamla, Parsadi, Naanhu and Chhotu. This sale deed was executed for a total sale consideration of Rs.11,75,000/-.
29. The second sale deed bears document No.3558 dated 01.10.2012/ 03.10.2012. It conveys a total area of 3-10-19 of land, part of Khasra No.341 of the same village. This sale deed was executed by Sechu, Bechu, Ramashraya, Ramshish, Jai Chand, Smt. Bhagirathi, Ram Vilas, Smt. Manju Devi and Piyush through his guardian Smt. Manju Devi, Jagdish and Smt. Radhika Devi. This sale deed was executed for the worth of Rs.17,75,000/-.
30. The third sale deed, which bears document No.3589 dated 03.10.2012/ 04.10.2012, transferred an area of 1-5-0 of land, situate in Khasra No.341 of the same village as the two earlier ones. This sale deed was executed by Smt. Lachiya Devi, Ramjanam, Kumar, Shankar and Rajendra. It was executed for total sale consideration of Rs.6,25,000/-.
31. The fourth sale deed bears document No.3590 dated 03.10.2012/ 04.10.2012. It conveys a total area of 1-16-11 of land, part of Khasra No.341, located in the last mentioned village. It was executed by Moti, Narayan, Balchand and Brahmdev. This deed was executed for a total sale consideration of Rs.9,13,750/-.
32. The fifth sale deed bears document No.3593 dated 04.10.2012/ 05.10.2012. It conveys an area of 1-13-10 of land and situate in the same village as the earlier conveyances. It was executed by Smt. Maheshiya, Rajnath, Smt. Ramjamuni Devi and Gopi through his guardian Smt. Ramjamuni Devi. This deed was executed for a consideration of Rs.9,50,000/-.
33. The sixth deed bears document No.3632 dated 06.10.2012/ 08.10.2012. It transfers an area of 3-0-0 of land, situate in part of Khasra No.341 of the same village. It was executed by Satiram, Patiram and Smt. Sampatiya for a total sale consideration of Rs.15,00,000/-.
34. The last and the seventh sale deed bears document No.3755 dated 10.10.2012. It transfers a total area of 5-6-8 of land, part of Khasra No.341, located in the same village. This deed was executed by Darbari for a total sale consideration of Rs.26,60,000/-.
35. A perusal of a copy of the sale deeds aforesaid, that have been annexed as Annexure Nos. SCA-1 to SCA-7 to the supplementary affidavit dated 05.03.2024, shows that in each of these sale deeds, the vendors have asserted themselves to be bhumidhar with transferable rights. The vendee is M/s. Vikas Constructions through its partner, Anwar Shahzad. It is these sale deeds, on the foot of which the applicants represented to the Warehousing Corporation that they are purchasers of bhumidhari rights in the land from recorded tenure-holders, who were bhumidhar with transferable rights and had raised a warehouse thereon, which was fit for utilization by the Corporation aforesaid for the purpose of warehousing foodgrains etc. entrusted to them by the FCI.
36. When the title of the applicants was investigated, a revenue report dated 22.07.2020, submitted by a team of revenue officials headed by the Sub-Divisional Officer, Sadar, Ghazipur, was probed and made part of CD-14 in the case diary. The report shows that the godown is constructed on a part of Khasra No.341-Sa. The revenue team noticed about the sale deed, bearing document No.3514 dated 29.09.2012, that it had been executed by Sechu, Bechu and the other vendors mentioned hereinbefore in favour of M/s. Vikas Constructions through its partner, Anwar Shahzad. A mutation case was instituted in the Court of the Naib Tehsildar, bearing No.74, which was granted on 03.12.2012. The mutation order was recorded in the six yearly khatauni for the fasli year 1420-1425, relating to khata Nos.90, 244 and 578. In the khatauni for the fasli year 1426-1431, relating to khata Nos.372, 613 and 581, the name of M/s. Vikas Constructions is recorded as bhumidhar with transferable rights along with co-sharers. The report shows that CH Form-45 was perused, which revealed that the bhumidhar of khata No.124, relating to Khasra No.341-Da, admeasuring 2-0-0 was mentioned, whereas khata No.446, Khasra No.341, admeasuring 5-3-19 was recorded as a sirdari. Later on, in the khatauni for the fasli year 1420-1425 relating to khata Nos.90 and 244, the vendors, Sechu, Bechu and others came to be recorded as bhumidhar with transferable rights. This sale deed does not appear to be in dispute.
37. A further perusal of CD-14 shows that the revenue report dated 22.07.2020 revealed that the sale deed, bearing document No.3589 dated 03.10.2012/ 04.10.2012, executed by Smt. Lachiya Devi, Ramjanam, Kumar, Shankar and Rajendra related to land that was recorded in the name of the trasnferers as bhumidhar with non-transferable rights. A further probe by the revenue team, whose report has been taken note of, found that a perusal of the Krishi Avantan Patravali discloses that on 18.09.1991, the vendor’s father Ram Lal and another Shiv Murat were allotted a part of Khasra No.341, admeasuring 0-15-0 and another part of the same Khasra number, admeasuring 0-10-0 by way of agricultural patta. CH Form-45, that was drawn up for the village after close of consolidation, would show that khata No.881, part of Khasra No.341-Ya, admeasuring 5-4-0 was recorded as land in Class 5(3), that is to say, in the khata of other cultivable land, but Khasra No.341 for the balance of its area, i.e. except 341-Ya, 341-Ma and 341-Bha was entered in the khata of Taal. Thus, there was no area left in Khasra No.341 beyond 7-9-0, except Taal. Therefore, allotment of agricultural land on 18.09.1991 in part of Khasra No.341 could not be done as no area was available for allotment of agricultural patta. Therefore, a separate report was made for cancellation of the agricultural patta. In whichever way the land came to be recorded in the name of the vendors, who executed document No.3589, they were recorded on the date, they executed the sale deeds as bhumidhar with non-transferable rights. There is no case of enlargement of their rights either under the statute, because there was no land on which the initial patta could have been granted, available in the Khasra/ Plot number in question.
38. The other sale deed, bearing document No.3632 was executed on 06.10.2012/ 08.10.2012 by Satiram, Patiram and Smt. Sampatiya. A perusal of CD-14 relating to the sale deed shows that the revenue report enclosed by the IO reveals that the land sold through the sale deed under reference comprised a total of land admeasuring 3-0-0 in Khasra No.341. A mutation case was filed by the applicants before the Naib Tehsildar (City), Ghazipur, which was registered as Case No.81. It was decided on 30.11.2012. The mutation order was passed in favour of the applicants, that was recorded in the khatauni for the fasli year 1420-1425 in khata Nos.766, 298 and 757. It is then noticed that in the khatauni for the period 1426-1431 fasli, the name of M/s. Vikas Constructions is exclusively recorded. Out of the vendors, Satiram and Patiram had transferred 1 bigha each. Upon a careful perusal of the Krishi Avantan Patravali by the revenue team, of which the IO took note, it was revealed that the land came to the vendors in consequence of an approval of allotment of patta granted on 25.07.1985. The name of the vendors was recorded in the khatauni for the fasli year 1420-1425 in khata Nos.298 and 766 as bhumidhar with transferable rights. A closer perusal of the approval order dated 25.07.1985 recorded in the Krishi Avantan Patravali showed that on the date of allotment of the patta, there was no land available in Khasra No.341 for allotment of an agricultural patta. A report was, therefore, separately made for cancellation of the patta. So far as 1 bigha of land that was transferred by Smt. Sampatiya is concerned, it was revealed that her name was entered in the khatauni of 1390-1395 fasli relating to khata No.829, i.e. non-existent/ forged and put in a list as bhumidhar with non-transferable rights. Later on, the Pargana Adhikari, Ghazipur vide his order dated 29.08.1989 passed in Case No.70, under Section 39, ordered the name of Smt. Sampatiya wife of Ramraj to be expunged from Khasra No.341 to the extent of 1-0-0 and directed it to be recorded in the khata of pond. This order is duly recorded in Register No.9 for 1397 fasli at page No. 474, Sr. No. 19. The revenue report that was examined by the IO further revealed that later on, in the khatauni for the year 1408-1413 fasli in khata No.768, the name of Sampatiya wife of Ramraj came to be recorded again without the order of a competent Authority as bhumidhar with transferable rights. A report in this regard was made on 22.07.2020 and the opinion of the D.G.C. sought. After an examination of the matter, the Sub-Division Officer by his order dated 22.07.2020 ordered expunction of the name of Sampatiya wife of Ramraj and her vendee, M/s. Vikas Constructions through its partner, Anwar Shahzad and directed the land to be entered in the khata of pond.
39. The last of the three sale deeds, which are subject matter of the prosecution here, bears document No.3755. It is dated 10.10.2012. This was executed by Darbari son of Ramdev. It appears from a perusal of CD-14 that the revenue report that was examined by the IO revealed that the land transferred through the said sale deed was a total area of 5-6-8 and the mutation order had been passed on 30.11.2012 on the basis of the sale deed last mentioned. In the khatauni for the fasli year 1426-1431 in khata No.1318, the name of the applicants’ firm, M/s. Vikas Constructions was entered as bhumidhar with transferable rights and a co-sharer. The Deputy Director of Consolidation, Ghazipur on 01.07.2020 passed an order that in view of the order dated 01.07.2020 passed in Case No.67 by the Consolidation Officer, Sadar, Ghazipur and the orders passed by the Deputy Director of Consolidation under Section 48(1) of the U.P. Consolidation of Holdings Act from the land comprising khata No.755, Khasra No.341-La, admeasuring 15-0-0, the name of Ramdev son of Kheeran, and, thereafter, that of his successors and transferees be expunged, and, in CH Form-45, khata No.882 be restored to its original position and recorded as a pond. A spot inspection was carried out and it was found that in Khasra No.341-Sa, a part of the land purchased by the applicants, admeasuring 5-6-8, encroachment had been done by constructing a boundary wall of the godown for commercial use and a tin-shed had been put up, that was being used as a courtyard. On 04.07.2020, the Sub-Divisional Officer, Sadar, Ghazipur along with the Circle Officer, Bhurkura and the Tehsildar, Sadar accompanied by a revenue team had removed the said encroachment and delivered possession of land that was a pond to the Chairman of the Land Management Committee/ the Pradhan of the Village, Smt. Shiv Kumari Devi. It is true that the order passed by the Deputy Director of Consolidation has been challenged before this Court and an interim stay order has been passed in a writ petition, to which we have made allusion earlier. The other orders too passed by the Sub-Divisional Officer have been impugned by the applicants, but the question is that can it be said that what the first informant, representing the Warehousing Corporation, has reported is essentially a civil dispute. We do not think so.
40. There are statements of great relevance recorded in CD-71. The Investigating Officer has recorded the statement of Masood Alam, one of the three original partners of M/s. Vikas Constructions. Masood Alam has said in his statement that the firm started in the year 2007 with three partners, to wit, Ravindra Narayan Singh, Wais Khan and himself. They would undertake small jobs. He was running the firm very well and there was no issue between the partners. In the year 2010, Atif Raza, Anwar Shahzad sons of Jamshed, Afshan Ansari wife of Mukhtar Ansari, daughter Jamshed Raza and Zakir Husain came over to his place and asked him to include them in his firm. Masood Alam sought some time to think over the matter, to which the aforesaid persons said that he better include them, else he and his family would be eliminated. It is said that in those days, there was great fear and terror unleashed by these persons. Masood Alam, therefore, could not refuse their proposal. It is said by him in his statement that these five persons reconstituted the firm on a notarized agreement forcibly and excluded Masood Alam and his partner Wais Khan from the firm. It is then said in Masood Alam’s statement that at that time he had felt greatly hurt, but was happy now that he was not part of that firm. It is also said that these persons got false documents prepared and purchased land, on which they constructed a godown, utilizing crores worth of subsidy. It is also said that the firm had in its accounts lacs of rupees, which the applicants forcibly took away. They had unleashed terror in the Tehsil and would get documents prepared to order. It is also said in Masood Alam’s statement that the applicants caused many documents in the Tehsil to be reduced to a condition that nothing would be discernible from them. It is then said in the statement that the applicants have constructed a road on pond land.
41. Wais Khan, the other ousted partner of the firm, when examined by the IO, made a statement to the same effect that was recorded under Section 161 of the Code.
42. There is an assertion in paragraph No.7 of the counter affidavit filed on behalf of the State that the IO received records from the Union Bank of India, that had extended apparently a loan to the firm, M/s. Vikas Constructions, which show that without reconstitution of the firm in the records of the Registrar, Firms, Chits and Societies, the applicants represented the firm to have been reconstituted by removing its partners, Wais Khan and Masood Alam, on the basis of a notarized deed. The assertion is that in the records of the Assistant Registrar, Firms, Chits and Societies, the firm remained as it was, with the partners being Masood Alam, Ravindra Narayan Singh and Wais Khan. There is on record parcha CDs-4, 5, 6, 7, 8 and 9, through which reports from the Union Bank of India were sought regarding the firm’s accounts and constitution, including service of a notice upon the Bank under Section 91 of the Code to enforce disclosure of the relevant information. In CD-11, there is a report from the Union Bank of India, Degree College Branch, Gora Bazar, Ghazipur, disclosing relevant information and documents relating to the firm, annexed to the counter affidavit as Annexure No. CA-1. Also annexed to Annexure No. CA-1 last mentioned is a copy of the notice under Section 91 of the Code issued by the S.H.O., P.S. Nandganj, District Ghazipur, addressed to the Assistant Registrar, Firms, Chits and Societies, Hukulganj, District Varanasi. The said notice requires information to be furnished regarding the year of registration of the firm, M/s. Vikas Constructions, the names of its partners with their parentage and complete address duly certified. The notice further seeks information about the present partners, including their parentage and complete address etc. The notice under Section 91 of the Code also seeks information as to change of partners of the firm, or so to speak, its reconstitution over time. In response, annexed to the counter affidavit is a memo dated 07.09.2022 from the Assistant Registrar to the Police, which answers the notice under Section 91 of the Code, that must be quoted for every word of it. It reads as follows:
“प्रेषक,
सहायक रजिस्ट्रार,
फर्म्स सोसाइटीज एवं चिट्स,
वाराणसी मण्डल, वाराणसी।
सेवा में,
श्री महेन्द्र सिंह
प्रभारी निरीक्षक
थाना नन्दगंज, जनपद गाजीपुर।
पत्रांक- 2091/ वी-11833 (फर्म )/2022-23/ वाराणसी : दिनांक 07/9/2022
विषय–फर्म विकास कन्स्ट्रक्शन रजदेपुर देहाती (रौजा) गाजीपुर में निम्न बिन्दुओं पर सूचना उपलब्ध कराये जाने विषयक।
महोदय,
फर्म के सम्बन्ध में आपके द्वारा दिनांकरहित पत्र के क्रम में निम्न वांछित सूचनाएं उपलब्ध कराये जाने की अपेक्षा की गयी है।
1. फर्म विकास कन्स्ट्रक्शन रजदेपुर देहाती (रौजा) गाजीपुर का साझीदारी फर्म का पंजीकरण दिनांक 26-09-2007 को पत्रावली संख्या-वी-11833 पर किया गया है। उक्त फर्म में दिनांक 26-09-2007 के पंजीकरण के अनुसार क्रमशः तीन पार्टनर हैं-
(I) मसूद आलम पुत्र स्वo एनामुलहक निवासी मो० सैयदवारा, गाजीपुर।
(II) रविन्द्र नारायण सिंह पुत्र श्री चन्द्रदेव नारायण सिंह निवासी ग्राम डोमनपुरा (बालापुर) तहसील मुहम्मदाबाद, जिला गाजीपुर।
(III) वैस खॉ पुत्र अबुल कैश खॉ निवासी खैरुल्लाहपुर, तहसील व जिला गाजीपुर।
2- बिन्दु ( 2 ) के सम्बन्ध में अवगत कराना है कि वर्तमान समय में कार्यालय अभिलेखों के अनुसार पार्टनरों के नाम बिन्दु संख्या-01 में उल्लिखित है।
3- उक्त फर्म के सम्बन्ध में अवगत कराना है कि फर्म पंजीकरण के समय से अब तक किसी भी पार्टनर के बदलने की कार्यवाही कार्यालय में उपलब्ध अभिलेखों के अनुसार नही पाई गयी। फर्म में पार्टनर बदलने की प्रक्रिया हेतु फार्म नं0-7 पर आवेदन करना होता है। साथ ही किसी दैनिक समाचार पत्र एवं सरकारी गजट में प्रकाशित कराना होगा। तत्पश्चात समाचार पत्र की कटिंग के साथ निर्धारित फार्म पर आवेदन किया जायेगा। उक्त कार्यवाही भारतीय साझीदारी अधिनियम 1932 के प्रावधानों के अन्तर्गत किया जाता है।
संलग्नक- 1- फार्म नं0 1 की प्रमाणित प्रति।
2- मूल प्रमाण की प्रमाणित प्रति।
3- नोटरी शपथ पत्र की प्रमाणित प्रति ।
भवदीय
ह0 अपठित
(मंगलेश सिंह पालीवाल)
सहायक रजिस्टार, वाराणसी”
43. The notice under Section 91 of the Code from the S.H.O., P.S. Nandganj, District Ghazipur to the Assistant Registrar and its reply by the Assistant Registrar together with the documents available in his office annexed, are all duly mentioned in CD-50 dated 07.09.2022. The relative documents are enclosed with CD-50, comprising five leaves.
44. There is also on record a statement showing the particulars required to be filed by a firm for registration under Section 58 of the Indian Partnership Act, 1932. The statement is a certified copy issued by the Assistant Registrar, Firms, Chits and Societies. It mentions the date of execution of the agreement as 14.09.2007 and the partners as Masood Alam, Ravindra Narayan Singh and Wais Khan. It is, thus, evident that so far as land comprising a substantial part, upon which the applicants raised construction of a warehouse and offered it for lease to the Warehousing Corporation was not owned by the applicants’ vendors, and a fortiori, by the applicants. It was either land that was public utility land in the class of a pond, or one where the vendors had no transferable rights. Rather, the land had been recorded in the names of the applicants’ vendors on the basis of a patta relating to a khata, where there was nothing available to be granted to the applicants’ vendors. These facts, where land was purchased by the applicants apparently without rights in their vendors, substantially involving public utility land, are true of the sale deeds, bearing document No.3589 dated 03.10.2012/ 04.10.2012, document No.3632 dated 06.10.2012/ 08.10.2012 and document No.3755 dated 10.10.2012.
45. The particulars of the patently flawed and bogus title acquired by the applicants have been adverted to earlier. It must, nevertheless, be said by way of illustration that Sampatiya’s rights had already been expunged under an order of the S.D.M., Ghazipur dated 29.08.1989 passed in Case No.70 under Section 39 of the U.P. Land Revenue Code from Khasra No.341 to the extent of 1-0-0, which was ordered to be recorded in the khata of a pond. But, later on, surreptitiously, her name re-appeared during the fasli years 1408-1413 without the order of a competent Authority. This flaw relates to the sale deed, bearing document No.3632. Likewise is the case relating to the sale deed executed by Darbari in the applicants’ favour, bearing document No.3755. The said land was found to be pond in a reference under Section 48(1) by the Deputy Director of Consolidation, who directed its restoration to the Gaon Sabha Khata. In the meantime, this land had been purchased by the applicants and constructions raised over pond land.
46. It has been much emphasized by the learned Senior Advocate appearing for the applicants that land, subject matter of sale deed bearing document No.3755, ordered by the Deputy Director of Consolidation to be recorded as a pond, has been stayed by this Court, which makes it essentially a civil dispute. As already noticed, the learned Senior Advocate has much emphasized that whatever flaw be there in the applicants’ title, it is essentially a civil dispute. We cannot agree. There is much material to show that there was all this suspicion attending the title of the applicants’ vendors in the case of three of the seven sale deeds through which the applicants purchased land, upon which they raised constructions of a warehouse and offered it to the Warehousing Corporation. It is not even the applicants’ case that these flaws, which are apparent in the revenue records, were ever brought to the notice of the Warehousing Corporation, when the lease agreement was entered into, or for that matter, at the time the applicants’ tender was accepted for building a warehouse and leasing it. To the contrary, there is material to show that the revenue records relating to title of the applicants’ vendors were surrounded by suspicion with the name of one of the vendors, Sampatiya, re-surfacing in the revenue record after it had been expunged by an order of the competent Revenue Authority way back in the year 1989 without a subsequent order directing its restoration.
47. There is material on record to show that revenue records were obliterated, apparently in connivance with revenue officials in order to shroud suspicious or patently illegal entries of rights in the names of the applicants’ vendors in the case of three out of the seven sale deeds. The crux of the matter is that if these facts had been brought to the notice of the Warehousing Corporation, would they have entered into the contract that led to acquisition of land by the applicants, the construction of a warehouse for the Warehousing Corporation and its ultimate lease for substantial consideration by the applicants in favour of the Warehousing Corporation. In the opinion of the Court, the answer would be in the negative. It was on account of the deceptive misrepresentation about the patently flawed title to land – at least to a substantial part of it – that led the Warehousing Corporation into accepting the bargain.
48. Likewise is the case with the induction of the applicants into the firm, M/s. Vikas Constructions, with which the Warehousing Corporation entered into the lease agreement after accepting their tender for offering their warehouse. The applicants are apparently not partners of the firm. There is abundant material on record to show that the applicants have made a show of reconstitution of the firm, which is a registered partnership, through a notarized partnership agreement, without any change to the registered partners of the firm, M/s. Vikas Constructions, being made in the records of the Assistant Registrar. Mr. Chaturvedi has submitted that the status of the firm as reconstituted without the new partners being registered or the two old ones going out, is again purely a civil dispute. Regrettably again, we cannot agree.
49. The issue, as to what would be the effect of reconstitution of a firm duly registered by a subsequent unregistered partnership deed, may give rise to a civil dispute, but it is not essentially so. What gives a clear criminal complexion to the matter is again the same question that has been noticed in the context of the applicants’ title. If the Warehousing Corporation were made aware by the applicants that the registered partners of the firm, M/s. Vikas Constructions were different from the applicants, who came forward on the basis of a partnership deed dated 16.09.2010, would they have accepted the applicants’ tender and accepted a lease of the warehouse from them. We think they would never have. The registered partnership deed, as disclosed by the Assistant Registrar, is one dated 26.09.2007 and as the Assistant Registrar has reported through his memo dated 07.09.2022 that the firm has never been reconstituted. The applicants clearly misrepresented the constitution of the firm, M/s. Vikas Constructions to the Warehousing Corporation, making them enter into the transaction that ultimately led to execution of the lease between the applicants and the Warehousing Corporation.
50. The question here is not if title to the land, or at least a part of it claimed by the applicants, is good or the constitution of the firm claimed by the applicants is valid in law. The question here is if there was a dishonest concealment of facts by the applicants, with the fraudulent or dishonest intention, to cause the Corporation to accept their tender and enter into the warehousing agreement with them, causing the Corporation damage in property. To the understanding of this Court, there was a clear concealment of facts as to defects in the applicants’ title, at least as regards a good part of the land, on which the warehouse is built, and further, about the constitution of the firm, M/s. Vikas Constructions.
51. A public corporation, like the Warehousing Corporation, could never be expected to enter into a warehousing agreement with a registered firm, the constitution of which is completely different from that in the records of the Assistant Registrar, Firms, Chits and Societies. There is no material to suggest that the Warehousing Corporation were, at any time, aware of the fact that the applicants were not the registered partners of the firm, M/s. Vikas Constructions or at least the fact that M/s. Vikas Constructions had partners different than those presented to them through the unregistered partnership deed dated 16.09.2010 – different from ones in the records of the Assistant Registrar, Firms, Chits and Societies. There is material in the form of statements of two out of the three registered partners of the firm, to wit, Masood Alam and Wais Khan, saying that the applicants reconstituted the firm on the basis of a notarized agreement, forcibly excluding Masood Alam and Wais Khan. The Assistant Registrar, Firms, Chits and Societies has clearly certified the fact that the applicants are not the registered partners of the firm in his records. The firm continues to be registered in the names of the three original partners, which does not include the applicants. There is no material to suggest that these vital facts were ever brought to the notice of the Warehousing Corporation at the time when they accepted the applicants’ tender and, subsequently, entered into the warehousing agreement. This was certainly an act of deception on the applicants’ part within the meaning of the explanation appended to Section 415 of the Penal Code.
52. Likewise, is the case with the suppression of facts as to defects in the applicants’ title as regards part of the land on which they have raised the warehouse. The land regarding which the applicants’ title is under a deep cloud, is the one that the applicants have acquired through sale deeds, bearing document No.3589 dated 03.10.2012/ 04.10.2012, document No.3632 dated 06.10.2012/ 08.10.2012 and document No.3755 dated 10.10.2012. If the applicants had brought to the Warehousing Corporation’s notice the fact that it was at least seriously in issue, if a part of the land was public utility land, belonging to the khata of Taal and some of it non-transferable bhumidhari, a public entity, like the Warehousing Corporation, would not have entered into the agreement they did with the applicants. The submission advanced by Mr. Chaturvedi that whether partnership is registered or not and if the land indeed is Taal, or if a part of it is non-transferable, are all civil disputes, is certainly not tenable.
53. If there was material to show that indeed, all these facts were disclosed to the Warehousing Corporation and they accepted the tender with open eyes and entered into the warehousing agreement, Mr. Chaturvedi’s submission would be trite. It would then essentially be a civil dispute between the Warehousing Corporation and the applicants on one hand and the State on the other. But, the facts do not even slightly show that the Warehousing Corporation were made aware of all these flaws in the applicants’ title as to part of the land leased or about the reconstitution of the firm by the applicants, different from the registered partnership. May be it is open to the applicants to show that indeed, they disclosed all these facts to the Warehousing Corporation, but that is a question which cannot be gone into by this Court in the exercise of our jurisdiction under Section 482 of the Code. After all if the applicants were to take that plea, it would be a disputed defence of theirs’, and not something on the basis of which proceedings can be quashed.
54. About the element of damage or harm to the Corporation caused by the deception that the applicants practiced, all that need be said is that they have parted with substantial consideration in the form of lease rent etc. paid to the applicants, acting on their deception, apparently made fraudulently and dishonestly to induce the Corporation to enter into the agreement.
55. On the question if an offence under Section 420 of the Penal Code is made out, Mr. Chaturvedi has pressed in aid of his submissions the holding in Deepak Gaba and others v. State of U.P. and another, (2023) 3 SCC 423 to submit that the offence of cheating is not at all disclosed. He has drawn the Court’s attention to the remarks of their Lordships of the Supreme Court in paragraph Nos.18, 19 and 20 of the report, which read:
“18. In order to apply Section 420IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415IPC have to be satisfied. To constitute an offence of cheating under Section 415IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201].
19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or 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.
20. In the present case, the ingredients to constitute an offence under Section 420 read with Section 415IPC are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415IPC. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent 2 complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415IPC are not satisfied, the offence under Section 420IPC is not made out.”
56. The facts, in the context of which the aforesaid principles were laid down in Deepak Gaba (supra), can best be recapitulated in the words of their Lordships, which appear thus in the report:
“This appeal by Jotun India Pvt. Ltd. (JIPL), Deepak Gaba, Regional Sales Manager — North (Decorative), and Sanjay Ramachandran Nair, Sales and Marketing Director (Decorative), takes exception to the order dated 30-3-2022 [Deepak Gaba v. State of U.P., 2022 SCC OnLine All 922] , whereby the High Court of Judicature at Allahabad has dismissed their petition under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code”), challenging the summoning order dated 19-7-2018 passed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh, the operative portion of which, reads as under:
“On the basis of evidence available on record and on the basis of statement of complainant, the charge is appearing prima facie regarding showing forged demand of Rs 6,37,252.16 against the complainant by the opponents Manager Jotun India Pvt. Ltd., Delhi, Chief Manager Jotun India Pvt. Ltd., Andheri East, Mumbai.
Hence, the opponents Manager Jotun India Pvt. Ltd. through Chief Manager Jotun India Pvt. Ltd., Andheri East, Mumbai is liable to (be) summoned for trial in Section 406IPC for trial prima facie.”
(emphasis supplied)
2. Interestingly, in the cause-title of the private complaint filed by Shubhankar P. Tomar, the proprietor of Adhunik Colour Solutions, Respondent 2 complainant, states that the complaint was directed against:
(a) Manager, JIPL, having its office at Saket District Centre, New Delhi;
(b) Chief Manager, JIPL, having its office at Andheri East, Mumbai;
(c) Jotun S/S Hystadveien, Sanddefjord, Norway (for short “Jotun S/S”); and
(d) Orkala ASA Nedre Skoyen vei, Oslo, Norway (for short “Orkala ASA”).
3. The Manager and the Chief Manager, JIPL have not been named and identified in the complaint. Neither does the summoning order name the Manager or the Chief Manager, JIPL, who have been summoned to stand trial under Section 406 of the Penal Code, 1860 (for short “IPC“).
4. It is an accepted and admitted position that JIPL is a company incorporated under the laws of India and is a part of multinational group mainly dealing in decorative paints and performance coatings (marine, protective and powder coatings). JIPL and Shubhankar P. Tomar, the proprietor of Respondent 2 complainant, Ghaziabad, Uttar Pradesh, had entered into dealership agreements [ The dates of execution of these agreements are disputed. As per the appellants, the agreements are dated 11-4-2012 and 27-10-2013. As per Respondent 2 complainant, the agreements were executed on 20-3-2012 and 30-1-2013. The complaint filed by Respondent 2 complainant refers to a third agreement dated 16-5-2014. In the counter-affidavit filed by Respondent 2 complainant before this Court, execution of the agreement dated 20-3-2012 is accepted. It is stated that despite repeated protests, a copy of the agreement dated 20-3-2012 was not furnished to Respondent 2 complainant. However, no such assertion is made with regard to the agreement dated 30-1-2013 and 16-5-2014. In fact, an extract of the agreement dated 16-5-2014 is enclosed as Annexure R 2/5 to the counter-affidavit. The appellants have relied on the clauses of the agreement dated 11-4-2012 enclosed as Annexure P-1, as per which the dealer had agreed to deliver the products to JIPL’s direct clients, when requested and if within a reasonable distance from the location of the dealer. Another clause permitted JIPL to enter into a direct contractual relationship with specific customers, if in the opinion of JIPL they could be served better by JIPL. In such situations the dealer had option to act as an intermediary. The agreement has several clauses relating to prices, invoice and payment. For the purpose of this decision, we are not required to examine and decide these controversies and disputes.] , for supply and purchase of decorative paints in the State of Uttar Pradesh and Delhi region respectively.
5. On 27-9-2016, JIPL filed two separate criminal complaints under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act“) against Shubhankar P. Tomar, on account of dishonour of Cheque No. 463151 drawn on Canara Bank, Patparganj Branch, Delhi for Rs 4,99,610, and Cheque No. 003252 drawn on HDFC Bank, Chander Nagar, Ghaziabad, Uttar Pradesh for Rs 1,93,776, both dated 8-8-2016. As per the complaints, the cheques were drawn by Respondent 2 complainant for discharge of the outstanding amount payable by him to JIPL. The cheques on presentation were dishonoured due to “insufficient funds” vide memo issued by the respective banks on 12-8-2016. Thereupon, legal notice of demand was issued on behalf of JIPL by speed post and courier on 20-8-2016, which as per the tracking report of the postal authorities, was served on the Ghaziabad address on 24-8-2016, albeit the notice issued at the Delhi address was returned by the postal authorities with the remark “item delivery attempt/unclaimed” dated 23-8-2016.
6. The facts stated noted above, though admitted, do not find any mention in the private complaint filed by Respondent 2 complainant on 23-12-2017, which is the subject-matter of the present appeal and in which the summoning order dated 19-7-2018 was passed by the Additional Chief Judicial Magistrate, Ghaziabad, which order, as noticed above, has been upheld by the High Court.
7. The private complaint filed by Respondent 2 complainant accepts the factum of commercial relationship between the parties, and states that the agreements dated 20-3-2012, 30-1-2013, and 16-5-2014 were executed. It is not specifically alleged that copies of agreements dated 30-1-2013 and 16-5-2014 were not furnished. Regarding the agreement dated 20-3-2012, it is alleged that the agreement was not provided and therefore, Respondent 2 complainant had not carried out any work. However, supplies were made on the Ghaziabad account. It is alleged that Respondent 2 complainant had given two blank cheques bearing No. 580251 drawn on Bank of Baroda and No. 003251 drawn on HDFC Bank as security when they had executed the agreements dated 20-3-2012 and 30-1-2013. JIPL were not issuing bills on time despite reminders, but would insist upon payment of money. One forged bill of Rs 79,752 was raised despite not ordering any goods, and this amount was shown as the balance payable to JIPL as on 30-3-2013. This bill was withdrawn and taken back, as Respondent 2 complainant had refused to make payment towards a false bill. Cheque bearing No. 463151 drawn on Canara Bank was given as security for a new dealership/direct customer agreement dated 16-5-2014. For this, written confirmation was taken from Saurav Gaur, a person authorised by JIPL. Further, JIPL would send goods to Respondent 2 complainant and issue bills in their name, without asking them. Respondent 2 complainant was also asked to collect the money from third parties. These pleas, when escalated with JIPL, were ignored. Bill of Rs 53,215 in the name of Respondent 2 complainant, was sent by JIPL to Manav Rachna International directly. Another bill of Rs 52,000 was issued in the name of Respondent 2 complainant, but they were not concerned whatsoever with the said bill. The bills issued were paid by Respondent 2 complainant by bank transfer to JIPL. Respondent 2 complainant was falsely billed to the extent of Rs 2,00,000. Dhiraj and Saurabh Gaur of JIPL had also forged a bill of Rs 4,33,633.47p. Respondent 2 complainant had protested by email on 2-12-2014 and several reminders were sent thereafter. Respondent 2 complainant had thereupon informed JIPL on 13-7-2015 and 19-8-2015 that 242 buckets of 20 litres and 4 litres were available and should be taken back and adjusted against the outstanding amount. However, no reply was received in spite of reminders. Emails were also written on 4-1-2016 and 11-1-2016. Since there was no response from JIPL, Respondent 2 complainant had written letters to Jotun S/S and Orkala ASA, the shareholders of JIPL. They had also sent a registered notice to JIPL stating that Rs 6,37,252.16p., shown as outstanding amount due and payable by Respondent 2 complainant to JIPL, was forged and incorrect.
8. At the pre-summoning evidence stage, two witnesses, namely, Shubhankar P. Tomar and his employee Sakshi Tilak Chand, were examined.
9. Shubhankar P. Tomar had deposed that JIPL had violated the terms of service and had cheated him, and a wrong outstanding amount of Rs 6,37,252.16p. had been shown as payable. He had not received a copy of the written agreement for the purchase of paints from JIPL. He had furnished one blank cheque to JIPL. JIPL would not send invoices on purchase of the goods. Thereafter, JIPL started selling goods to third parties showing that the goods were being sold to Respondent 2 complainant. Despite raising objections with the sales manager and manager, JIPL had continued to sell goods to third parties in the name of Respondent 2 complainant. Demand of Rs 6,37,252.16p. was raised against them till the year 2016, in respect of which, a notice was also issued.
10. Sakshi Tilak Chand had deposed that he was working for Respondent 2 complainant and used to interact with JIPL. There were discrepancies in the goods ordered by Respondent 2 complainant, and the goods delivered by JIPL. The customers would not accept the goods on account of colour mismatch. When the issue was raised, JIPL had asked them to keep the goods, and they would take the goods later. Despite visiting the offices of JIPL and filling up forms for return of the goods, no concrete steps were taken. The goods were never taken back. JIPL would issue statement of accounts without deducting or giving credit of the goods returned by Respondent 2 complainant.
11. The private complaint filed by Respondent 2 complainant had invoked Sections 405, 420, 471 and 120-BIPC. However, by the order dated 19-7-2018, summons were directed to be issued only under Section 406IPC, and not under Sections 420, 471 or 120-BIPC. We have quoted the operative and reasoning portion of the summoning order, that records in brief the assertions in the complaint, to hold that Respondent 2 complainant had shown that “a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of the statements made by Shubhankar P. Tomar and Sakshi Tilak Chand”. The order states that Respondent 2 complainant had filed photocopy of “one” email as per Documents 1 to 34, but the narration and the contents of the email is not adverted to and elucidated.”
57. It would, therefore, be seen that the principles in Deepak Gaba came to be laid down in the very different context of a commercial dispute between parties, where the summoning order, that was made, was limited to an offence punishable under Section 406 of the Penal Code. Nevertheless, principles were indeed laid down by their Lordships regarding the essential requirements of an offence under Section 420 of the Penal Code, besides others. So far as the principles regarding the essentials of an offence under Section 420 of the Penal Code are concerned, it is evident from the remarks that in Deepak Gaba, there was no assertion or material to suggest that the accused had engaged in dishonesty, fraud or intentional inducement to cause the complainant to deliver property. There was no case of a deception either practiced by the accused upon the complainant by a misleading representation etc. There was no case of any fraudulent or dishonest inducement to deliver property. We have shown here in much detail as to how the applicants induced through deception the Warehousing Corporation to accept their tender and enter into a warehousing agreement by suppressing facts that were very relevant to the Warehousing Corporation in making their decision to enter into the agreement involved here. But, for the withholding of vital information as to facts that shroud the applicants’ title and about the constitution of the firm registered with the Assistant Registrar, Firms, Chits and Societies, the Warehousing Corporation might not at all have accepted the applicants’ tender or entered into the warehousing agreement they did. The fact that in consequence of the applicants’ deception and consequent misrepresentation, the Warehousing Corporation suffered damage, is evident by the facts that they have paid a substantial sum of money in rent to the applicants, and further, the Government have extended substantial subsidy to the applicants to construct a warehouse, the Warehousing Corporation being, after all, a separately incorporated establishment of the Government. There is, thus, a clearly discernible element of delivery of property on account of the fraudulent inducement in this case prima facie.
58. So far as the other limb of Mr. Chaturvedi’s submissions relating to the offences punishable under Sections 467, 468, 471 of the Penal Code is concerned, the thrust is upon the fact that no false document has been prepared. For the purpose, reliance has again been placed upon Deepak Gaba, which has delineated the scope of these offences indicating what a forged and a false document mean. We need not advert to the principles laid down by their Lordships in Deepak Gaba for the law is truly well settled that in order to make a document ‘forged’ within the meaning of Section 470 of the Penal Code or ‘false’ within the meaning of Section 464, it is essential that the documents should be made or executed by a person claiming to be someone else, or authorized by someone else, or it should be one that is altered or tampered, or still more a document secured by practicing deception or from a person not in control of his senses. These expressions are more or less those used in Section 464 of the Penal Code and find eloquent mention in the report of their Lordships’ judgment in Deepak Gaba. The submission here is that neither the sale deeds are forged or fraudulent in the sense that these have not been alleged as ones not executed by the applicants’ vendors nor the partnership agreement dated 16.09.2010 signed by someone else. It is true that these documents are not forged in the sense known to law. But, the material about forgery evidently lies elsewhere in this case. That material is to be found in that part of the investigation recorded in the case diary, where the name of one of the vendors, that has been ordered to be expunged by the order of the S.D.M. way back in the year 1989, came back without the backing of an order of a competent Authority. It is true that there is no specific allegation as to who made the bogus entry, which would nevertheless be forged in the sense that no one would claim responsibility for it, in the absence of an order authorizing it. It is for this reason that Section 120-B of the Penal Code has been invoked, because the entry about restoring land that had already been directed to be recorded as a pond back to Sampatiya’s khata would involve connivance between some revenue officials and the applicants. There is also material to show that the applicants threw weight – much of it credited to their highhandedness and muscle power – in order to create revenue entries, that ultimately enabled land non-transferable or public utility in character, to be transferred to their names. It is in this sense that there would be forged and false record, on which the applicants have relied to secure a bargain with the Warehousing Corporation in their favour, dishonestly inducing them. Of course, these are matters, which the prosecution would have to establish at the trial and the applicants would be entitled to raise all their defences. Still, it cannot be said that this is a case where no forged document has been prepared or caused to be prepared in the entire transaction, that has ultimately led to the securing of a warehousing agreement in the applicants’ favour by the Warehousing Corporation.
59. There is still another point on which much emphasis was laid by the learned Senior Advocate appearing for the applicants, which, in his submission, makes the impugned proceedings fit to be quashed as an abuse of process. It was urged by Mr. Charturvedi that the dispute about the class or character of the land being a pond or a non-transferable bhumidhari is the subject matter of scrutiny before this Court in writ petitions arising out of consolidation or revenue proceedings. As such, what would ultimately be decided in the consolidation or revenue proceedings about the character of the land would bind the Criminal Court. If in the proceedings arising out of the orders of the Revenue Authorities or the Consolidation Authorities, it is held in favour of the applicants or their transferers about the character of the land, the impugned proceedings would have to be quashed. In the alternative, it is submitted that even if proceedings are not fit to be quashed at this stage, these should at least be stayed pending outcome of the proceedings before this Court as aforesaid. The aforesaid submissions proceed primarily on a principle that has baffled the forensic mind for a long time, but stands settled, to raise its head again whenever the controversy involving it arises. The question is if the validity of a document or transaction is in issue before a Court of civil jurisdiction, would the judgment of the Civil or for that matter a Revenue Court, be binding on the Criminal Court in a prosecution, where the same question is involved. It has often been argued that if the validity of a will or a conveyance, with one party dubbing it as the product of forgery is in issue before a Court of civil or revenue jurisdiction and before a Criminal Court in a prosecution, the trial before the Criminal Court ought be stayed pending judgment of the Civil or Revenue Court, if not quashed altogether. The question arose long back before a Constitution Bench of the Supreme Court in M.S. Sheriff and another v. State of Madras and another, (1954) 1 SCC 524. The position of the law in M.S. Sheriff (supra) is summarized in the report thus:
“12. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.”
60. The question was then considered by the Constitution Bench in Iqbal Singh Marwah and another v. Meenakshi Marwah and another, (2005) 4 SCC 370. In Iqbal Singh Marwah (supra), it was held by their Lordships of the Constitution Bench:
32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras [1954 SCR 1144 : AIR 1954 SC 397 : 1954 Cri LJ 1019] give a complete answer to the problem posed: (AIR p. 399, paras 15-16)
“15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.”
61. There were some discordant views, as it appears, noticed by their Lordships of the Supreme Court in Prem Raj v. Poonamma Menon and another, (2024) 6 SCC 143, where it was observed:
“14. In K.G. Premshanker v. State of Kerala [K.G. Premshanker v. State of Kerala, (2002) 8 SCC 87 : 2003 SCC (Cri) 223] , a Bench of three learned Judges observed that, following M.S. Sheriff v. State of Madras [M.S. Sheriff v. State of Madras, (1954) 1 SCC 524 : AIR 1954 SC 397] , no straitjacket formula could be laid down and conflicting decisions of civil and criminal courts would not be a relevant consideration except for the limited purpose of sentence or damages.
15. We notice that this Court in Vishnu Dutt Sharma v. Daya Sapra [Vishnu Dutt Sharma v. Daya Sapra, (2009) 13 SCC 729 : (2009) 5 SCC (Civ) 253 : (2010) 1 SCC (Cri) 1229] , had observed as under : (SCC p. 737, para 26)
“26. It is, however, significant to notice a decision of this Court in Karam Chand Ganga Prasad v. Union of India [Karam Chand Ganga Prasad v. Union of India, (1970) 3 SCC 694] , wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts but the converse is not true, was overruled therein,…”
16. This Court in Satish Chander Ahuja v. Sneha Ahuja [Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 : (2021) 1 SCC (Civ) 325 : (2021) 1 SCC (Cri) 667] considered a numerous precedents, including Premshanker [K.G. Premshanker v. State of Kerala, (2002) 8 SCC 87 : 2003 SCC (Cri) 223] and Vishnu Dutt Sharma [Vishnu Dutt Sharma v. Daya Sapra, (2009) 13 SCC 729 : (2009) 5 SCC (Civ) 253 : (2010) 1 SCC (Cri) 1229] , to opine that there is no embargo for a civil court to consider the evidence led in the criminal proceedings.
17. The issue has been laid to rest by a Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah [Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 : 2005 SCC (Cri) 1101] :
“32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence, while in a criminal case, the entire burden lies on the prosecution, and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras [M.S. Sheriff v. State of Madras, (1954) 1 SCC 524 : AIR 1954 SC 397] give a complete answer to the problem posed : (AIR p. 399, paras 15-16 : SCC pp. 529-30, paras 12-13)
’12. As between the civil and the criminal proceedings, we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
13. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.’
This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.”
(emphasis supplied)”
62. Therefore, the submission made on behalf of the applicants that investigation into the question about land that is said to be a pond or one without transferable rights being pending in the revenue and consolidation jurisdiction, the same question ought not be tried by the Criminal Court, as the opinion of the Consolidation Court or the Revenue Court or Authority would prevail, rendering the proceedings or the trial here an abuse of process, cannot be accepted.
63. No other point was pressed.
64. In the result, this application fails and is dismissed.
Order Date :- 28.11.2024
Anoop
(J.J. Munir)
Judge