Shiv Kumari And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. on 13 January, 2025

January 25, 2025

Allahabad High Court

Shiv Kumari And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. on 13 January, 2025

Bench: Saurabh Lavania





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:4013
 
Court No. - 12
 
Case :- APPLICATION U/S 482 No. - 11893 of 2024
 
Applicant :- Shiv Kumari And Another
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Vijay Kumar,Anjani Kumar Dvivedi
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Saurabh Lavania,J.

1. Heard learned counsel for the applicants and learned AGA for the State as well as perused the record.

2. The present application has been filed for the following main relief:-

“Wherefore, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to quash / Set- aside the impugned order dated 08.06.2023 as well as 09.04.2024 passed by the Learned Court below rejecting the discharge application of the petitioner in terms of the criminal case no. 1320/2015 state government versus Bhagwat Prasad, arising out of case crime no. 700/2011, u/s 420,467, 468. 471 I.P.C. P.S. Deeh, District Raebareli (contained as Annexure no. 1 and 2), in the interest of justice.”

3. By the impugned order dated 08.06.2023, the third Additional Chief Judicial Magistrate (in short “Magistrate”), Raebareli has rejected the application seeking discharge by the applicants. The relevant portion reads as under :-

“i=koyh ds voyksdu ls Li”V gksrk gS fd orZeku izdj.k esa tks lk{; foospukf/kdkjh ds }kjk ladfyr fd;k x;k gS] mlesa mUgksaus uk;c rglhynkj ds }kjk dh x;h tkap dks viuh dsl Mk;jh dk Hkkx cuk;k gSA mDr tkap ds voyksdu ls ;g fofnr gksrk gS fd ,d vkns’k U;k;ky; uk;c rglhynkj eqdnek ua0 283@1-4-2002 rqylk nsoh ds LFkku ij f’kodqekjh nsoh iRuh fo’kEHkj dk uke olh;rukek fnukafdr 31-06-1997 ntZ gksus dk vafdr gS] ftl ij gLrys[k 20-04-2002 fy[kk gqvk gSA mlh tkap esa ;g Hkh ik;k x;k] tks [krkSuh dks izHkkoh crk;k x;k gS] og [krkSuh Qlyh 1407 ls izHkkoh gS rFkk dEI;wVj dh QhfMax o”kZ 2002 ds 06 o”kZ ckn dh x;h gS] fdUrq fnukad 20-04-2002 vafdr gSA iz’uxr vkns’k tks fd dzekad 20 ij vafdr gS ij gLrfyfi vU; gLrfyfi ls fHkUu gS ml ij fdlh deZpkjh ds gLrk{kj ugha gS u gha QhfMax fd;s tkus ds laca/k esa dksbZ gLrk{kj gSA okn la[;k&283 vraxZr /kkjk&34 Hkw jktLo vf/kfu;e ds fefly can vkns’k ds LrEHk esa fnukad 24-03-2002 dks okn fujLr fd;k tkuk vafdr gS fdUrq i=koyh esa blls lacaf/kr vkns’ki= layXu ugha gSA i=koyh esa tks vkns’ki= fy[kk gS og fdlh ihBklhu vf/kdkjh }kjk gLrk{kfjr ugha gSA vkns’k fnukafdr 01-04-2002 Vkbi’kqnk gS mlls lacaf/kr vkns’ki= ij ihBklhu vf/kdkjh ds gLrk{kj ugha gSA i=koyh dks lR;kfir djus laca/kh gLrk{kj ugha gS ftlls ;g LIk”V gks jgk gS fd nk;jk izi= dks cny fn;k x;k gS ftlls fefly can ifjokn fujLr gksus ;ksX; gS lacaf/kr vkns’ki= gVkdj u;k yxk;k x;k gSA o”kZ 2007 esa dwVjfpr vkns’k 01-04-2002 rS;kj dj layXu dj fn;k x;k gS o”kZ 2007 esa izpfyr gksus okyh [krkSuh o”kZ 1414 1420 esa dwVjfpr vkns’k dk vadu fd;k x;kA vr% mDr rF;ksa ,oa ifjfLFkfr;ksa ,oa i=koyh ij miyC/k izi= ds voyksdu ls Li”V gS fd vfHk;qDrx.k ds }kjk izFke n`”V;k vijk/k dkfjr fd;k tkuk ifjyf{kr gksrk gSA ftldk fuLrkj.k xq.k&nks”k ds vk/kkj ij fd;k tkuk vko’;d gSA

vr% mDRk rF;ksa ,oa ifjfLFkfr;ksa dks n`f”Vxr j[krs gq, vfHk;qDrx.k dks bl Lrj ij mUeksfpr fd;s tkus dk vk/kkj i;kZIr ugha gSA vr% vfHk;qDrx.k dk izkFkZuki= [kkfjt fd;s tkus ;ksX; gSA”

4. By the impugned order dated 09.04.2024, the First Additional Sessions Judge, Raebareli (in short “revisional court”) dismissed the revision filed by the applicants, challenging the order dated 08.06.2023.

5. The facts considered by the revisional court for rejecting/dismissing the revision which appears from the impugned order passed by the revisional court are extracted herein under :-

“izdj.k dh i`”BHkwfe bl izdkj gS fd lq[kbZ }kjk izkFkZuki=] vUrxZr /kkjk 156 ¼3½ na0iz0la0 bu vfHkdFkuksa ds lkFk izLRkqr fd;k x;k fd izkFkhZ dh iRuh Jherh rqylk nsoh dh e`R;q ds mijkUr Hkwfe la[;k&819 jdck 0-8290 gsDVs;j fLFkr xzke Vsdkjh nkanw] ijxuk jks[k rglhy o Fkkuk lyksu] ftyk lh0,l0,e0 uxj izkFkhZ ds uke jktLo vfHkys[kksa esa ntZ gqbZ vkSj mDr Hkwfe ij cjkcj dkfct] n[khy pyk vk jgk gSA o”kZ 2008 esa izkFkhZ us mDr Hkwfe dh dEI;wVjhd`r [krkSuh fudyokbZ Fkh] rks mlesa izkFkhZ dk uke crkSj Hkwfe/kj Lokeh vafdr FkkA o”kZ 2008 ds dqN le; ckn izkFkhZ dk xkao pdcUnh esa vk x;kA pdcUnh vf/kdkfj;ksa dks jktLo vfHkys[k miyC/k djk;s tkrs le; izkFkhZ ds xkao ds fo’EHkj iq= eku cgknqj us izkFkhZ dh mijksDRk ewY;oku tehu dks gM+ius ds fy, rglhy dfeZ;ks ls lkaB&xkaB djds tky lkth o /kks[kk /kM+h djrs gq,] Ny] diV iwoZd ,oa cnfu;rh ls mDr tehu dks viuh iRuh f’ko dqekjh ds uke ntZ djok fy;kA fo’EHkjukFk o mudh iRuh f’kodqekjh us ;g tkurs gq, fd mijksDRk tehu mudh o muds ifjokj dh ugha gS] vius dks Qk;nk igqapkus o izkFkhZ dks cstk uqdlku igqapkus ds fy, rglhy dfeZ;ksa dks feyk dj izkFkhZ dh mijksDRk tehu vius uke djok;k gSA izkFkhZ dks bl ckr dh tkudkjh rc gqbZ tc izkFkhZ us fnukad 31 ekPkZ 2011 dks viuh mijksDRk tehu dh [krkSuh pdcUnh dk;kZy; ls izkIr fd;kA mlds ckn mlus rglhy o pdcUnh foHkkx esa mijksDRk ?kksVkys dh f’kdk;r dh ysfdu rglhy o pdcUnh vf/kdkjh izkFkhZ dks nkSM+krs jgs vkSj dksbZ dk;Zokgh ugha dh] rc izkfFkZuh us fnukad 08-07-2011 dks mi ftykf/kdkjh lyksu dks izkFkZuki= fn;k mlds izkFkZuki= ij turk n’kZu esa f’kdk;r la0 148 ntZ gksus ij mi ftykf/kdkjh lyksu v’kksd dqekj JhokLro us lyksu rglhynkj dks fnukad 11-07-2011 dks tkap djus dk vkns’k fn;kA rglhynkj lyksu us viuh tkap vk[;k esa ik;k fd ftl viathd`r olh;r ds vk/kkj ij Jherh f’kodqekjh iRuh fo’kEHkj dk uke vafdr fd;k x;k gS] og viathd`r olh;r lansg ds ?ksjs ls vkPNkfnr ,oa dwV jfpr izrhr gksrh gS] ftlds vk/kkj ij ikfjr vkns’k fof/k fo#) gS] ftlls Li”V gS fd f’ko dqekjh o mlds ifr fo’EHkj us dwV jfpr QthZ viathd`r olh;r dk vk/kkj cukdj rRdkyhu lyksu rglhy ds jktLo dfeZ;ksa ls lkaB&xkaB djds izkFkhZ dh ewY;oku mijksDr Hkwfe/kjh tehu dks gM+ius ds fy, csbekuh o cnfu;rh ls tkylkth djrs gq, viuh iRuh f’ko dqekjh ds uke ntZ djok fy;k gSA dfFkr okn la[;k& 283@01-4-2002 ftlds vk/kkj ij izkFkhZ dk uke jkTkLo vfHkys[kksa ls gVkdj f’ko dqekjh mijksDRk ds uke ntZ fd;k x;k gSA ;g i=koyh Hkh xk;c gS vkSj dfFkr vkns’k fnukad 01-4-2002 ftlds vk/kkj ij izkFkhZ dk uke [kkfjt djds f’kodqekjh dk uke ntZ djus dk vkns’k gksuk dgk x;k gS] ml dfFkr vkns’k ij fdlh vf/kdkjh ds gLrk{kj ugha gSA mDr rF;ksa dk mYys[k rglhynkj lyksu us viuh tkap vk[;k fnukad 09 flrEcj 2011 esa fd;k gSA mijksDr tehu ds uku tfj;s id&11 fnukad 12-12-2002 dks rRdkyhu vf/kdkjh ys[kiky }kjk ntZ dh x;h] tcfd f’kodqekjh dk uke fnukad 01-4-2002 ds dfFkr vkns’k ls ntZ gqvk] ftlls Li”V gS fd dfFkr vkns’k fnuakfdr&01-04-2002 QthZ o dwV jfpr gS rFkk fnukad 01-4-2002 ds dfFkr vkns’k ds djhc vkB ekg ckn izkFkhZ dk uke RkRdkyhu gYdk ys[kiky }kjk tfj;s id&11 u ntZ fd;k tkrkA fnukad 31-3-2011 dks izkIr [krkSuh esa 21-6-2008 dks ikfjr vkns’k igys ntZ fd;k x;k gS vkSj fnukad&20-4-2002 dk vkns’k ckn esa ntZ fd;k x;k gS] tks bafdr djrk gS fd fnukad 21-06-2008 ds vkn mijksDRk f’kodqekjh dk uke dfFkr QthZ o dwV jfpr vkns’k ls p<+k;k x;k gSA mijksDr yksxksa ds }kjk fd;k x;k d`R; xEHkhj vijk/k gS blfy, rglhy ds vf/kdkjh dksbZ dk;Zokgh djus dks rS;kj ugha gSA rglhynkj lyksu dh tkap fjiksVZ Hksts tkus ds ckn Hkh mi ftykf/kdkjh lyksu us Hkh vHkh rd dksbZ dk;Zokgh ugha dh gSA bldk dkj.k izkFkhZ lEiw.kZ ?kVuk dh lwpuk o nLrkosth lk{; U;k;ky; dks ns jgk gSA izkFkZuki= ds lkFk rglhynkj lyksu dh vk[;k fnukafdr 09 flrEcj 2011 iz’uksRrjh ftlij uk;c rglhynkj lyksu dh vk[;k o rglhynkj lyksu }kjk mDRk vk[;k dh laLrqfr dh x;h gS rFkk eqvkfQl[kkus dh fjiksVZ fnuakd 03-6-2011 ftlesa dfFkr okn la[;k&283@01-04-2002 dk nkf[ky gksuk ugha ik;k x;k gS dh Nk;k izfr laYkX; gSA izkFkhZ us ?kVuk dh lwpuk tfj;s jftLVªh iqfyl v/kh{kd N=ifr ‘kkgwth egjkt uxj dks nh ysfdu u rks dksbZ fjiksVZ ntZ gqbZ vkSj u gh dksbZ dk;Zokgh dh x;hA”

6. The orders have been challenged on the main ground to the effect that to a civil dispute, by lodging F.I.R. by preferring an application under Section 156 (3) Cr.P.C. by the informant Sukhai (since died) a criminal colour has been given.

7. On the issue involved in the instant case this court finds it appropriate to take note of some pronouncements including referred by the learned counsel for the applicant.

8. According to settled principle of law the civil proceedings and criminal proceedings can proceed simultaneously and criminal proceedings can not be quashed or interfered merely on the ground of pendency of civil proceedings/case and this principle can be deduced from the following authorities :-

8.1 In the case of M.S. Sheriff v. State of Madras and others, AIR 1954 SC 307, Apex Court in paragraphs 15 and 16 observed as under:

“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 decision 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 the 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 interest 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 S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.”

8.2 In the case of M. Krishnan v. Vijay Singh and another, AIR 2001 SC 3014, the Hon’ble Apex Court in paragraphs 5 and 11 has propounded as under:

“5.Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yard-sticks. The onus of proving the allegations beyond reasonable doubt, in criminal cases, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe:

“In my view, unless and until the civil Court decides the question whether the documents are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous.”

11. The impugned judgment being contrary to the settled position of law is thus not sustainable. The appeal is allowed and the impugned judgment of the High Court is set aside by upholding the order of the Trial Magistrate dated 3-8-1998. The Trial Magistrate shall now proceed in the matter in accordance with law.”

8.3 In the case of Mahesh Choudhary v. State of Rajasthan and Another, 2009 AIR SCW 2449, the Hon’ble Apex Court in paragraph 14 has held as under:

“It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the Complaint Petition may disclose a civil dispute, the same may by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused.”

8.4 In the case of Tapas Adhikari and another v. State of U.P. and Another, 2009 (5) ADJ 649, the Hon’ble Apex Court in paragraph 8 has held as under:

“8……..So far as the pendency of civil suit is concerned, the proceedings in civil or revenue Courts are filed for the purpose of obtaining different reliefs. The criminal proceedings may not be quashed in case such proceedings are barred by law or the fabrics of the proceedings is parallel of the civil in nature for constituting any offence. Its remedy is available in civil or revenue Courts but on the basis of allegation, prima facie, any criminal offence is made out, the same may not be quashed only on the ground that civil proceedings are pending. It is well settled proposition of law that civil and criminal proceedings may run parallel, therefore, on account of pendency of the civil suit, the proceedings of the present case cannot be quashed….”

8.5 In the case of Khurram Siddiqui v. Km. State of U.P., 2010 (9)ADJ 599, this court in paragraphs 4,8 and 9 has observed as under:

“4. Learned Chief Judicial Magistrate was of the view that the dispute is of civil nature and the question whether or not the sale deed is a forged document, can only be decided by the Civil Court. It was also held that a litigation is also pending in the Revenue Court. Learned Chief Judicial Magistrate relying on Indian Oil Corporation v. NEPC India Ltd and others, (2006)VI SCC 736, formed the opinion that criminal proceeding in regard to a civil dispute should not be permitted to proceed.

8. It is thus well settled that a civil as well as criminal proceeding in regard to same act may be launched and continued simultaneously. If certain acts constitute an offence, the criminal proceeding cannot be held up or kept in abeyance till the finalization of the civil proceeding. Therefore the views of the Courts belongs were not correct.

9. What was required from the learned Magistrate, was to see whether the facts stated in the application moved under Section 156(3) constituted commission of any cognizable offence or not. In other words, it was the duty of the Magistrate to see whether or not the facts put forth before him had disclosed that the impugned sale deed was a forged document fabricated by the respondent No.2 for grabbing the waqf property. If it was so, what offence was made out from the facts disclosed. These aspects of the matter have not been given any consideration by the learned Magistrate as well as by the learned Additional Sessions Judge while passing the impugned orders.”

8.6 In the case of Kamladevi Agarwal v. State of West Bengal and others, AIR 2001 SC 3846(1) the Hon’ble Supreme Court in paragraphs 15, 16 and 17 has held as under :

“15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of “beyond reasonable doubt”. A Constitution Bench of this Court, dealing with the similar circumstances, in M.S. Sheriff v. State of Madras, AIR 1954 SC 397 held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the Court held:

“As between the civil and 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.

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 S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.”

16. In the present case we have noticed that before issuance of the process, the Trial Magistrate had recorded the statement of the witnesses for the complainant, perused the record including the opinion of the expert and his deposition and prima facie found that the respondents were guilty for the offence for which the process was issued against them. The High Court rightly did not refer to any of those circumstances but quashed the proceedings only on the ground:

“Consideration is and should be whether any criminal proceeding instituted before a court subordinate to this court should be allowed to continue when the very foundation of the criminal case, namely, forgery of document is under scrutiny by this court in a civil proceeding instituted by same person, i.e. the complainant in the criminal case. In my considered view it would not be proper to allow the criminal proceeding to continue when the validity of the document (deed of dissolution is being tested in a civil proceeding before the court. Judicial propriety demands that the course adopted by the Hon’ble Supreme Court in this case of Manju Gupta (supra) and Sardool Singh (supra) should be followed. If such course of action is adopted by this court, that would be in consonance with the expression used in Section 482 of the Code of of Criminal Procedure- “or otherwise to secure the ends of justice.” In both the cases referred to above civil suits were pending, where the validity and genuineness of a document was challenged. It was held by the Hon’ble Supreme Court that when the question regarding validity of a document is subjudice in the civil courts, criminal prosecution, on the allegation of the document being forged, cannot be instituted.”

17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing of the proceedings.”

9. Relevant paras of the judgment(s) on which the learned counsel for the applicants has placed reliance are as under :-

9.1 In the case of Indian Oil Corpn. Vs. NEPC India Ltd. and others, (2006) 6 SCC 736 :-

“13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8)

“It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.”

14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.

Re: Point (ii)

18. This takes us to the question whether the allegations made in the complaint, when taken on their face value as true and correct, constitute offences defined under Sections 378, 403, 405, 415 and 425 IPC? Learned counsel for the appellant restricted his submissions only to Sections 405, 415 and 425, thereby fairly conceding that the averments in the complaint do not contain the averments necessary to make out the ingredients of the offence of theft (Section 378) or dishonest misappropriation of property (Section 403).

Section 378

19. Section 378 defines theft. It states:

“378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.”

The averments in the complaint clearly show that neither the aircrafts nor their engines were ever in the possession of IOC. It is admitted that they were in the possession of NEPC India at all relevant times. The question of NEPC committing theft of something in its own possession does not arise. The appellant has therefore rightly not pressed the matter with reference to Section 378.

Section 403

20. Section 403 deals with the offence of dishonest misappropriation of property. It provides that “whoever dishonestly misappropriates or converts to his own use any movable property”, shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both. The basic requirements for attracting the section are: (i) the movable property in question should belong to a person other than the accused; (ii) the accused should wrongly appropriate or convert such property to his own use; and (iii) there should be dishonest intention on the part of the accused. Here again the basic requirement is that the subject-matter of dishonest misappropriation or conversion should be someone else’s movable property. When NEPC India owns/possesses the aircraft, it obviously cannot “misappropriate or convert to its own use” such aircraft or parts thereof. Therefore Section 403 is also not attracted.

Section 405

21. We will next consider whether the allegations in the complaint make out a case of criminal breach of trust under Section 405 which is extracted below:

“405. Criminal breach of trust.–Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust’.”

22. A careful reading of the section shows that a criminal breach of trust involves the following ingredients: (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. The following are examples (which include the illustrations under Section 405) where there is “entrustment”:

(i) An “executor” of a will, with reference to the estate of the deceased bequeathed to legatees.

(ii) A “guardian” with reference to a property of a minor or person of unsound mind.

(iii) A “trustee” holding a property in trust, with reference to the beneficiary.

(iv) A “warehouse keeper” with reference to the goods stored by a depositor.

(v) A carrier with reference to goods entrusted for transport belonging to the consignor/consignee.

(vi) A servant or agent with reference to the property of the master or principal.

(vii) A pledgee with reference to the goods pledged by the owner/borrower.

(viii) A debtor, with reference to a property held in trust on behalf of the creditor in whose favour he has executed a deed of pledge-cum-trust. (Under such a deed, the owner pledges his movable property, generally vehicle/machinery to the creditor, thereby delivering possession of the movable property to the creditor and the creditor in turn delivers back the pledged movable property to the debtor, to be held in trust and operated by the debtor.)

23. In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore Cochin [(1952) 2 SCC 392 : AIR 1953 SC 478 : 1954 Cri LJ 102] this Court held: (AIR p. 484, para 21)

“[T]o constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do.

It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.”

(emphasis supplied)

24. In Jaswantrai Manilal Akhaney v. State of Bombay [1956 SCR 483 : AIR 1956 SC 575 : 1956 Cri LJ 1116] this Court reiterated that the first ingredient to be proved in respect of a criminal breach of trust is “entrustment”. It, however, clarified: (SCR p. 499)

“But when Section 405 which defines ‘criminal breach of trust’ speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event.”.

25. The question is whether there is “entrustment” in an hypothecation? Hypothecation is a mode of creating a security without delivery of title or possession. Both, ownership of the movable property and possession thereof, remain with the debtor. The creditor has an equitable charge over the property and is given a right to take possession and sell the hypothecated movables to recover his dues (note: we are not expressing any opinion on the question whether possession can be taken by the creditor, without or with recourse to a court of law). The creditor may also have the right to claim payment from the sale proceeds (if such proceeds are identifiable and available). The following definitions of the term “hypothecation” in P. Ramanatha Aiyar’s Advanced Law Lexicon [3rd Edn. (2005), Vol. 2, pp. 2179 and 2180] are relevant:

“Hypothecation.–It is the act of pledging an asset as security for borrowing, without parting with its possession or ownership. The borrower enters into an agreement with the lender to hand over the possession of the hypothecated assets whenever called upon to do so. The charge of hypothecation is then converted into that of a pledge and the lender enjoys the rights of a pledgee.

* * *

‘Hypothecation’ means a charge in or upon any movable property, existing or future, created by a borrower in favour of a secured creditor, without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallisation of such charge into fixed charge on movable property. [Borrowed from Section 2(n) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.]”

But there is no “entrustment of the property” or “entrustment of dominion over the property” by the hypothecatee (creditor) to the hypothecator (debtor) in an hypothecation. When possession has remained with the debtor/owner and when the creditor has neither ownership nor beneficial interest, obviously there cannot be any entrustment by the creditor.

26. The question directly arose for consideration in Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] It related to a complaint against the accused for offences of criminal breach of trust. It was alleged that a floating charge was created by the accused debtor on the goods by way of security under a deed of hypothecation, in favour of a bank to cover credit facility and that the said goods were disposed of by the debtor. It was contended that the disposal of the goods amounted to criminal breach of trust. Negativing the said contention, this Court after stating the principle as to when a complaint can be quashed at the threshold, held thus: (SCC pp. 607-08, para 27)

[A] serious dispute has been raised by the learned counsel … as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression ‘entrusted with property’ or ‘with any dominion over property’ has been used in a wide sense in Section 405 IPC. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. The expression ‘entrusted’ appearing in Section 405 IPC is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression ‘trust’ in Section 405 IPC is a comprehensive expression and has been used to denote various kinds of relationships like the relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee.

31. We accordingly hold that the basic and very first ingredient of criminal breach of trust, that is, entrustment, is missing and therefore, even if all the allegations in the complaint are taken at their face value as true, no case of “criminal breach of trust” as defined under Section 405 IPC can be made out against NEPC India.

Section 415

32. The essential ingredients of the offence of “cheating” are: (i) deception of a person either by making a false or misleading representation or by other action or omission, (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person 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.

33. The High Court has held that mere breach of contractual terms would not amount to cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and in the absence of an allegation that the accused had a fraudulent or dishonest intention while making a promise, there is no “cheating”. The High Court has relied on several decisions of this Court wherein this Court has held that dishonest intent at the time of making the promise/inducement is necessary, in addition to the subsequent failure to fulfil the promise. Illustrations (f) and (g) to Section 415 make this position clear:

“(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.”

34. In Rajesh Bajaj [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] this Court held: (SCC pp. 262-63, paras 9 & 11)

“9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. …

* * *

11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.”

35. In Hridaya Ranjan Prasad Verma [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] this Court held: (SCC pp. 176-77, paras 14-15)

“14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is, the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.”

36. In this case, the complaints clearly allege that the accused with fraudulent intention to cheat and defraud IOC, had induced IOC to resume supply of aircraft fuel on cash-and-carry basis, by entering into a further agreement dated 20-9-1997 and undertaking to clear the outstanding amount of Rs 18 crores approximately within the time stipulated in the hypothecation agreements. The sum and substance of the said allegation read with other averments extracted above, is that NEPC India, having committed default in paying the sum of Rs 18 crores, entered into a fresh agreement dated 20-9-1997 agreeing to clear the outstanding amount as per a fresh schedule, with the dishonest and fraudulent intention of pre-empting and avoiding any action by IOC in terms of the hypothecation deeds to take possession of the aircrafts. Though the supplies after 20-9-1997 were on cash-and-carry basis, the fraudulent intention is alleged to emanate from the promise under the said agreement to make payment, thereby preventing immediate seizure (taking possession) of the aircrafts by IOC. This allegation made in addition to the allegation relating to removal of engines, has been lost sight of by the High Court. All that is to be seen is whether the necessary allegations exist in the complaint to bring the case within Section 415. We are clearly of the view that the allegations in the complaint constitute such an offence. We are not concerned with the proof of such allegations or ultimate outcome of trial at this stage.

Section 425

37. Section 425 IPC provides:

“425. Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits ‘mischief’.”

The three ingredients of the section are: (i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person; (ii) causing destruction of some property or any change in the property or in the situation thereof; and (iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of Section 425, ownership or possession of the property is not relevant. Even if the property belongs to the accused himself, if the ingredients are made out, mischief is committed, as is evident from Illustrations (d) and (e) to Section 425. The complaints clearly allege that NEPC India had removed the engines thereby making a change in the aircrafts and that such removal has diminished the value and utility of the aircrafts and affected them injuriously, thereby causing loss and damage to IOC, which has the right to possess the entire aircraft. The allegations clearly constitute the offence of “mischief”. Here again, we are not concerned with the proof or ultimate decision.

Conclusion

38. In view of the above discussion, we find that the High Court was not justified in quashing the complaints/criminal proceedings in entirety. The allegations in the complaints are sufficient to constitute offences under Sections 415 and 425 IPC. We accordingly allow these appeals in part and set aside the order of the High Court insofar as it quashes the complaints under Sections 415 and 425. As a consequence, the Judicial Magistrate, Coimbatore and the Judicial Magistrate, Alandur before whom the matters were pending, shall proceed with the matters in accordance with law in regard to the complaints filed by IOC insofar as offences under Sections 415 and 425 IPC. Parties to bear their respective costs.”

9.2. In the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others, (2007) 12 SCC 1, the Hon’ble Apex Court has held as under :-

” 27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

28. This Court in State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404] observed that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this Court and other courts.

29. In Chandrapal Singh v. Maharaj Singh [(1982) 1 SCC 466 : 1982 SCC (Cri) 249] in a landlord and tenant matter where criminal proceedings had been initiated, this Court observed in para 1 at SCC p. 467 as under:

“A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous.”

30. The Court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The Court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court.

31. This Court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] observed in para 7 as under : (SCC p. 695)

“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

32. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] this Court in the backdrop of interpretation of various relevant provisions of CrPC under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised : (SCC pp. 378-79, para 102)

“102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

33. This Court in Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] observed thus : (SCC p. 355, para 132)

“132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.”

34. In G. Sagar Suriv. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature.

40. Firstly, we shall deal with Section 420 IPC. Cheating is defined in Section 415 IPC and is punishable under Section 420 IPC. Section 415 is set out below:

“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.”

41. Section 415 IPC thus requires –

1. Deception of any person.

2. (a) Fraudulently or dishonestly inducing that person-

(i) to deliver any property to any person; or

(ii) to consent that any person shall retain any property; or

(b) Intentionally inducing that person 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.

42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.

43. We shall now deal with the ingredients of Section 467 IPC. Section 467 IPC reads as under:

“467. Forgery of valuable security, will, etc.–Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

44. The following ingredients are essential for commission of the offence under Section 467 IPC:

1. the document in question so forged;

2. the accused who forged it;

3. the document is one of the kinds enumerated in the aforementioned section.

The basic ingredients of offence under Section 467 are altogether missing even in the allegations of the FIR against the appellants. Therefore, by no stretch of imagination, the appellants can be legally prosecuted for an offence under Section 467 IPC.”

9.3 In the case of Mohammed Ibrahim and others Vs. State of Bihar and another, (2009) 8 SCC 751, the Hon’ble Apex Court has held as under :-

“8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] and Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] ) Let us examine the matter keeping the said principles in mind.

10. Section 467 (insofar as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.

11. Section 470 defines a forged document as a false document made by forgery. The term “forgery” used in these two sections is defined in Section 463.Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.

12. Section 464 defining “making a false document” is extracted below:

“464. Making a false document.–A person is said to make a false document or false electronic record-

First.–Who dishonestly or fraudulently-

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the digital signature,

with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly.–Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

Thirdly.–Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

Explanation 1.–A man’s signature of his own name may amount to forgery.

Explanation 2.–The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.

[Note.– The words ‘digital signature’ wherever they occur were substituted by the words ‘electronic signature’ by Amendment Act 10 of 2009.]”

(emphasis supplied)

13. The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.

14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories :

1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

In short, a person is said to have made a “false document”, if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.

15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of “false documents”. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of the complainant’s land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category.

16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner’s behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of “false documents”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.

Section 420 IPC

18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of “cheating” are as follows:

(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.

19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived

(i) to deliver any property to any person, or

(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).

20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.

22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.

A clarification

23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.

24. The term “fraud” is not defined in the Code. The dictionary definition of “fraud” is “deliberate deception, treachery or cheating intended to gain advantage”. Section 17 of the Contract Act, 1872 defines “fraud” with reference to a party to a contract.

25. In Vimla (Dr.) v. Delhi Admn. [AIR 1963 SC 1572] this Court explained the meaning of the expression “defraud” thus: (AIR pp. 1576-77, para 14)

“14. … the expression ‘defraud’ involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.”

The above definition was in essence reiterated in State of U.P. v. Ranjit Singh [(1999) 2 SCC 617 : 1999 SCC (Cri) 293] .

26. The Penal Code however defines “fraudulently”, an adjective form of the word “fraud” in Section 25, as follows:

“25. ‘Fraudulently’.–A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”

27. The term “fraudulently” is mostly used with the term “dishonestly” which is defined in Section 24 as follows:

“24. ‘Dishonestly’.–Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing ‘dishonestly’.”

28. To “defraud” or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:

(i) Fraudulent removal or concealment of property (Sections 206, 421 and 424).

(ii) Fraudulent claim to property to prevent seizure (Section 207).

(iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210).

(iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243).

(v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253).

(vi) Fraudulent acts relating to stamps (Sections 255 to 261).

(vii) Fraudulent use of false instrument/weight/measure (Sections 264 to 266).

(viii) Cheating (Sections 415 to 420).

(ix) Fraudulent prevention of debt being available to creditors (Section 422).

(x) Fraudulent execution of deed of transfer containing false statement of consideration (Section 423).

(xi) Forgery making or executing a false document (Sections 463 to 471 and 474).

(xii) Fraudulent cancellation/destruction of valuable security, etc. (Section 477).

(xiii) Fraudulently going through marriage ceremony (Section 496).

It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.

31. For the reasons stated above, the appeal is allowed in part. The order of the High Court is set aside. The order dated 14-12-2005 of the learned Sub-Divisional Magistrate is quashed insofar as offences under Sections 420, 467, 471 and 504 IPC. Consequently, the charges framed under those sections are also quashed. The order dated 14-12-2005 and the charges insofar as the offence under Sections 323 and 341 IPC are left undisturbed. The appeal is allowed in part accordingly.”

9.4 In the case of Randheer Singh Vs. State of Uttar Pradesh and others, (2021) 14 SCC 626, the Hon’ble Apex Court has held as under :-

“24. A fraudulent, fabricated or forged deed could mean a deed which was not actually executed, but a deed which had fraudulently been manufactured by forging the signature of the ostensible executants. It is one thing to say that Bela Rani fraudulently executed a power of attorney authorising the sale of property knowing that she had no title to convey the property. It is another thing to say that the power of attorney itself was a forged, fraudulent, fabricated or manufactured one, meaning thereby that it had never been executed by Bela Rani. Her signature had been forged. It is impossible to fathom how the investigating authorities could even have been prima facie satisfied that the deed had been forged or fabricated or was fraudulent without even examining the apparent executant Bela Rani, who has not even been cited as a witness.

27. In Mohd. Ibrahim [Mohd. Ibrahim .State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] , this Court held as under : (SCC pp. 757-60, paras 19-24 & 27-30)

“19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived

(i) to deliver any property to any person, or

(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).

20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.

22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.

A clarification

24. The term “fraud” is not defined in the Code. The dictionary definition of “fraud” is ‘deliberate deception, treachery or cheating intended to gain advantage’. Section 17 of the Contract Act, 1872 defines “fraud” with reference to a party to a contract.

27. The term “fraudulently” is mostly used with the term “dishonestly” which is defined in Section 24 as follows:

’24.”Dishonestly”.–Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.’

(i) Fraudulent removal or concealment of property (Sections 206, 421 and 424).

(ii) Fraudulent claim to property to prevent seizure (Section 207).

(iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210).

(iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243).

(v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253).

(vi) Fraudulent acts relating to stamps (Sections 255 to 261).

(vii) Fraudulent use of false instrument/weight/measure (Sections 264 to 266).

(viii) Cheating (Sections 415 to 420).

(ix) Fraudulent prevention of debt being available to creditors (Section 422).

(x) Fraudulent execution of deed of transfer containing false statement of consideration (Section 423).

(xi) Forgery making or executing a false document (Sections 463 to 471 and 474).

(xii) Fraudulent cancellation/destruction of valuable security, etc. (Section 477).

(xiii) Fraudulently going through marriage ceremony (Section 496).

Section 504 of the Penal Code

29. The allegations in the complaint do not also make out the ingredients of an offence under Section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace. The allegation of the complainant is that when he enquired with Accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to Appellants 1 and 2, it cannot be said to amount to an “insult with intent to provoke breach of peace”. The statement attributed to the accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by the first appellant in favour of the second appellant.

Conclusion

30. The averments in the complaint if assumed to be true, do not make out any offence under Sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under Section 341 and causing hurt under Section 323IPC.”

28. In Paramjeet Batra [Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673 : (2012) 4 SCC (Cri) 76] , this Court held that : (SCC p. 676, para 12)

“12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.”

29. In Uma Shankar Gopalika [Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 : (2006) 2 SCC (Cri) 49], this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120-BIPC. The case was purely a civil dispute between the parties for which remedy lay before the civil court.

30. In Vesa Holdings (P) Ltd. [Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293 : (2015) 3 SCC (Cri) 498] , this Court held : (SCC pp. 297-98, para 13)

“13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court [Maniprasad v. State of Kerala, 2011 SCC OnLine Ker 4251] committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings.”

31. In Robert John D’Souza [Robert John D’Souza v. Stephen V. Gomes, (2015) 9 SCC 96 : (2015) 3 SCC (Cri) 724] , this Court held : (SCC pp. 100-01, paras 12-13 & 15-16)

“12. As far as the offence of cheating is concerned, the same is defined in Section 415IPC, for which the punishment is provided under Section 420IPC. Section 415 reads as under:

‘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

* * *

From the above language of the section, one of the essential ingredients for the offence of cheating is deception, but in the present case, from the contents of the complaint it nowhere reflects that the complainant was deceived or he or anyone else was induced to deliver the property by deception. What was done, was so reflected in the resolutions, and sale deeds.

13. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] a three-Judge Bench of this Court has laid down the law as to quashment of proceedings under Section 482CrPC as follows : (SCC p. 695, para 7)

‘7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.’

15. In Inder Mohan Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] , this Court in paras 25 and 46 has observed as under : (SCC pp. 10-11 & 16)

’25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [Connelly v. Director of Public Prosecutions, 1964 AC 1254 : (1964) 2 WLR 1145 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [Director of Public Prosecutions v. Humphrys, 1977 AC 1 : (1976) 2 WLR 857 (HL)] stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.’

16. In view of the above discussion and the facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court [Walter D’Mello v. Stephen V. Gomes, 2014 SCC OnLine Kar 12058] and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by Respondent 1, in respect of the offences punishable under Sections 406, 409 and 420IPC, also stands quashed.”

9.5 In the case of Ramandeep Singh and 2 others Vs. State of U.P. and another, Application U/S 482 No.22134 of 2023, a Co-ordinate Bench of this Court, vide order dated 20.11.2024, has held as under :-

“95. The Hon’ble Apex Court, in the case of Prof. R.K. Vijayasarathy and Another vs. Sudha Seetharam and Another 21 has culled out the ingredients to constitute the offence under Sections 415 IPC are as follows:-

“16. The ingredients to constitute an offence of cheating are as follows:-

16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:

16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or

16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and

16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.”

96. Thus, fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.

97. The ingredients to constitute an offence under Section 420 IPC are as follows:-

“19.1. A person must commit the offence of cheating under Section 415; and

19.2. The person cheated must be dishonestly induced to

(a) deliver property to any person; or

(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.”

98. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.

99. From the above, it is clear that for attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. In other words, for attracting the provisions of Section 420 of IPC, it must be shown that the FIR/complaint discloses:-

(i) the deception of any person;

(ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and

(iii) dishonest intention of the accused at the time of making the inducement.

100. Perusal of the FIR as well as the charge-sheet, reveals that the allegations with regard to inducement is missing and no role of inducement at all has been attributed to the applicants, who are bona fide purchaser of the property in question.

101. In the present facts of the case, the applicants are bona fide purchaser of the property in question after paying consideration to the legal heirs of original tenure holders without notice to the title of State of U.P. or B.D.A. (assuming such title to be true) are victims, hence cannot be accused of forgery in the facts of the present case.

102. The opposite party no.2 had no point of time raised any such allegations against the applicants that they have fabricated or manipulated the records or have played any fraud while purchasing the land in question from the original tenure holders nor while executing the sale deed further in favour of other persons. Even if it is presumed that in ceiling proceedings, the land in question was declared surplus land and vested in the State, thereafter transferred to B.D.A., it was the original tenure holders, who had got their names mutated in the revenue records, after which the same was purchased by the applicants. The applicants had no role to play in getting the names of legal heirs of original tenure holders mutated in revenue records. The applicants had no concerned with the fact that even if after notice to the legal heirs, any order was passed recording the name of State Authorities in the revenue records and the said order was not complied.

103. Even during investigation, witnesses have stated that the concerned Lekhpals have not given effect to the order dated 20.09.1997 passed by the competent authority, but nothing has been alleged against the applicants for any manner of manipulation and such event took place in the year 1997-2002, while the applicants’ firm, i.e. M/s S.K. Associates came into picture in the year 2003, at the time of purchasing the property in question from the legal heirs of original tenure holders. Thus, the allegation as made by the opposite party no.2 against the applicants has no legs to stand.

104. Be that as it may, the applicants have acquired title by means of sale deed executed in their favour by legal heirs of original tenure holders, whose name was already mutated in revenue records, therefore, have not committed any forgery, hence no offence under IPC sections is made out.

105. Moreover, revenue records are not documents of title; nor would any findings pursuant to revenue proceedings under Revenue Code confer any rights, title or interest upon the respondents in relation to the subjudice property. Title can only be determined by a civil court of competent jurisdiction.

106. Needless to point out that the matter regarding possession over the property in question is pending consideration before the Hon’ble Apex Court. Thus, it cannot be said that the applicants have committed any forgery or cheated the informant or person to whom they have sold the property. Even otherwise, the subsequent purchaser from M/s S.K. Associates (applicants) have not turned up to lodge any FIR regarding any such cheating being done by the applicants.

107. In the present facts of the case, this Court is satisfied to record that there was no criminality on the part of the accused as the civil dispute has to be converted into a criminal one, thus continuation of criminal proceedings against the applicants would amount to an abuse of the process of law.

108. As already discussed above that the Revenue Officials tried to create disturbance in peaceful possession of the applicants over the property in question, therefore, writ petition was filed, whereas the present FIR has been lodged after filing of the aforesaid writ petition only for the purpose of exerting pressure upon the applicants.

109. In the present case, there is unexplained delay in ascertaining any dispute regarding possession of the property in question as the sale deed has been executed in favor of the applicants in the year 2003, since then, they were in actual possession over the property in question. For the first time after filing of the writ petition, the opposite party no.2 has proceeded to lodge the present case, which itself proves that the opposite party no.2 has resorted to criminal proceedings in dispute, which is civil in nature for oblique reasons.

110. Further, it could be gainfully said that it is only the purchaser in the sale deed, who would be considered to be the person to feel cheated by the seller. Here, in the present case, the applicants are bona fide purchaser, who have subsequently sold the property to other persons, who have not turned up to make any such allegation of being cheated or fraud being played, hence, have not come forward to lodge the FIR.”

10. Upon due consideration of the pleadings and material available on record, the facts, which are relevant and borne out from the record, are as under :-

(i) Tulsa Devi was recorded tenure holder of property in issue, i.e. Gata No.819/0.8290 Hectare situated at Village-Tekari Dandu, Pargana-Rokha, Tehsil and Police Station-Salon, District-Chhatrapati Shahuji Maharaj Nagar (now Amethi).

(ii) The applicants are claiming right over the property in issue on the basis of “Will” dated 21.06.1998 allegedly executed by Tulsa Devi.

(iii) Tulsa Devi was married to the informant Sukhai.

(iv) Tulsa Devi died on 2nd March, 1999.

(v) After death of Tulsa Devi, the name of her husband, i.e. informant/Sukhai was entered on 12.12.2002 in the revenue records of the property in issue.

(vi) Since 02.03.1999, the date of death of Tulsa Devi, up to filing of alleged case under Section 34 of the U.P. Land Revenue Act, 1901 (in short “Act of 1901”), i.e. Case No.283, the applicants kept mum.

(vii) The applicants did not raise any claim over the property in issue, based upon the alleged “Will” executed by Tulsa Devi on 21.06.1998, when proceedings for entering the name of Sukhai, husband of Tulsa Devi, were carried out.

(viii) Tulsa Devi is not related to the present applicants.

(ix) As per alleged “Will” dated 21.06.1998 and the statement of learned counsel for the applicants, Shri Anjani Kumar Dwivedi, the Tulsa Devi and the informant/Sukhai husband of Tusla Devi for some time lived in the premises of the applicants.

(x) Name of the informant/Sukhai was shown/indicated in the computerized copy of the Khatauni of the year 2008 (1415 Fasli) property in issue. This fact has not been disputed/refuted either in the application seeking discharge or in the memo of the revision or in the present petition.

(xi) Notification under Section 4 of the Consolidation of Holdings Act, 1953 (in short “Act of 1953) was issued in the year 2008 in relation to the Village – Tekari Dandu, Pargana Rokha, Tehsil – Salon, District Chhatrapati Shahuji Maharaj Nagar and in this village land in issue is situated.

(xii) The informant/Sukhai, on 09.09.2011 transferred the property through a registered sale deed in favour of one Ram Siromani Singh, S/o Chandiraka Bux Singh, R/o Village- Tekari Dandu, Tehsil – Salon, District Raebareli.

(xiii) In another Khatauni of 2008 (1415-1420 Fasli) the names of the applicants were indicated. This Khatauni is on record as Annexure No.7.

(xiv) It would be apt to indicate that the Khatauni which finds favour of the informant/Sukhai has not been placed on record, though ought to have been.

(xv) Copy of the Khatauni, annexed as Annexure No.7, indicates that the name of the applicants in the Khatauni was included in compliance of the order dated 01.04.2002 passed by Naib Tehsildar in Case No.283.

(xvi) On coming to know regarding the order dated 01.04.2002, the informant moved an application dated 08.07.2011 before the S.D.M., Salon, District Raebareli. The S.D.M., Sadar, on 11.07.2011 directed the Tehsildar Salon to inquire into the matter and submit a report.

(xvii) The Tehsildar, Salon, submitted its report dated 09.09.2011. This report indicates that Case No. 283 in which the order dated 01.04.2002 was passed in fact was not filed.

(xviii) The report dated 09.09.2011, which is part of the case diary and it appears that the same would be provided in terms of Section 207 Cr.P.C., has also not been filed by the applicants., though it ought to have been filed.

(xix) The certified typed copy of the order dated 01.04.2002, annexed as Annexure No.6, bears the signature of the Presiding Officer.

(xx) According to the observations made by the Magistrate as also by the Revisional Court in order(s) dated 08.06.2022 and 09.04.2024, respectively, the original order dated 01.04.2002, favourable to the applicants, does not bear the signature of the concerned authority. This fact has not been refuted by the applicants in the pleadings nor by placing on record the proper evidence.

(xxi) The applicants are beneficiary of the order dated 01.04.2002 and claiming rights over the property in issue on the basis of the order dated 01.04.2002, which according to the applicants was passed in Case No.283 by the Naib Tehsildar.

(xxii) As per the report dated 09.09.2011 of Tehsildar, indicated in the impugned order, the Case No.283, related to the applicants in which order dated 01.04.2002 was passed, was never filed. It is for the reason that as per report dated 09.05.2011 of Tehsildar according to entry in the concerned register (Misil Band) the Case No.283, under Section 34 of the Act 1901, was dismissed on 24.03.2002.

11. Upon due consideration of the aforesaid facts and the law, as laid down by the Hon’ble Apex Court in the above mentioned cases, this Court is not inclined to interfere in the present case.

12. Present application is, accordingly, dismissed. Cost made easy.

Order Date :- 13.1.2025

ML/-

Source link

Brijbhushan Tiwari vs State Of U.P. And Another on 13 June, 2025

Ram Prasad Khairwar vs Soniya on 16 June, 2025

Akshay Kumar @ Nanhe Kumar vs The State Of Jharkhand …. …. … on 13 June, 2025

Prasanna vs The State Of Kerala on 10 June, 2025

Sanatan Pradhan vs ) State Of Odisha ….. Opposite Parties on 17 June, 2025

Brijbhushan Tiwari vs State Of U.P. And Another on 13 June, 2025

Ram Prasad Khairwar vs Soniya on 16 June, 2025

Akshay Kumar @ Nanhe Kumar vs The State Of Jharkhand …. …. … on 13 June, 2025

Prasanna vs The State Of Kerala on 10 June, 2025

Sanatan Pradhan vs ) State Of Odisha ….. Opposite Parties on 17 June, 2025

Shiv Kumari And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. on 13 January, 2025

Allahabad High Court

Shiv Kumari And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. on 13 January, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

LEAVE A REPLY Cancel reply

About us

Company

Top Stories

Now Is the Time to Think About Your Small-Business Success

Program Will Lend $10M to Detroit Minority Businesses

Kansas City Has a Massive Array of Big National Companies

Subscribe