# Adesh Kumar and others v. State of U.P. & another

- **Citation:** (2009) 1 ILRA 313
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-03-23
- **Case number:** Criminal Misc. Application No.33868 of 2008
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adesh-kumar-and-others-v-state-of-u-p-another-41371
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section-482Quashing of charge sheet-offence under
Section 420,467,468,471 IPC-on ground
civil suit on same allegation going onI.O.
During
investigation
collected
material-by which the Magistrate taken
cognizance
disclosing
prima
facie
commission
of
offence-call
for
no
interference-merely pendency of civil
suit-can not be ground for quashing the
charge sheet.

Held: Para 7

Considering the submission made by
learned counsel for the applicants, the
learned
A.G.A.,
learned
counsel
appearing on behalf of O.P.2 and from
the perusal of the record, it appears that
the material collected by the I.O. during
investigation, prima facie, discloses the
commission of the offence. The fabric of
the case is of purely criminal in nature,
therefore, on the basis of pendency of
the civil suit, the proceeding of this case
not be quashed because the filing of the
civil
suit
is
a
proper
remedy
for
cancelling the sale deed. The I.O. has not
committed any error in submitting the
charge sheet because there is sufficient
material to proceed further against the
applicants. The learned Magistrate has
also not committed any error in taking
the cognizance and summoning the
applicants to face the trial. So far as the
withdrawal of the money from the Bank
account of applicant nos. 1 and 2 is
concerned, it may be a ground of defence
which may be considered at the stage of
the trial. The application filed by the
applicants is having no substance, the
prayer for quashing the charge sheet
case crime no. 897 of 2008 under section
420,467,468 and 471 I.P.C. P.S. Jansath,
District Muzaffar Nagar and the criminal
proceedings arising out of charge sheet
pending in the court of learned A.C.J.M.
1st Muzaffarnagar vide criminal case no.
3821 of 2008 is refused.

## Text

1 All] Adesh Kumar and others V. State of U.P. and another
313
verification. It the amount is not deposited
within the said period the Magistrate is
free to pass appropriate orders, in
accordance with law for realization of
cost.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2009

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Application No.33868 of
2008

Adesh Kumar and others
...Applicants

Versus
State of U.P. & another ...Opposite Party

Counsel for the Applicant:
Sri Amit Daga

Counsel for the Opposite Party:
Sri M.K.Rajvanshi
Sri Manoj Kumar
A.G.A.

Code of Criminal Procedure-Section-482Quashing of charge sheet-offence under
Section 420,467,468,471 IPC-on ground
civil suit on same allegation going onI.O.
During
investigation
collected
material-by which the Magistrate taken
cognizance
disclosing
prima
facie
commission
of
offence-call
for
no
interference-merely pendency of civil
suit-can not be ground for quashing the
charge sheet.

Held: Para 7

Considering the submission made by
learned counsel for the applicants, the
learned
A.G.A.,
learned
counsel
appearing on behalf of O.P.2 and from
the perusal of the record, it appears that
the material collected by the I.O. during
investigation, prima facie, discloses the
commission of the offence. The fabric of
the case is of purely criminal in nature,
therefore, on the basis of pendency of
the civil suit, the proceeding of this case
not be quashed because the filing of the
civil
suit
is
a
proper
remedy
for
cancelling the sale deed. The I.O. has not
committed any error in submitting the
charge sheet because there is sufficient
material to proceed further against the
applicants. The learned Magistrate has
also not committed any error in taking
the cognizance and summoning the
applicants to face the trial. So far as the
withdrawal of the money from the Bank
account of applicant nos. 1 and 2 is
concerned, it may be a ground of defence
which may be considered at the stage of
the trial. The application filed by the
applicants is having no substance, the
prayer for quashing the charge sheet
case crime no. 897 of 2008 under section
420,467,468 and 471 I.P.C. P.S. Jansath,
District Muzaffar Nagar and the criminal
proceedings arising out of charge sheet
pending in the court of learned A.C.J.M.
1st Muzaffarnagar vide criminal case no.
3821 of 2008 is refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. This application has been filed by
the applicants Adesh Kumar, Vijay Singh,
Suneel and Shree Niwas with a prayer to
quash the charge sheet dated 14.8.2008 in
case crime no. 897 of 2008 P.S. Jansath,
District
Muzaffar
Nagar
and
the
proceedings arising out of the charge
sheet pending in the court of learned
Addition Chief Judicial Magistrate Ist,
Muzaffar Nagar in criminal case no.
3821/9 of 2008 under section 420,467,468
and 471 I.P.C.

2. The facts in brief, of this case are
that the FIR of this case has been lodged
by O.P.No. 2 Ram Pal on 14.9.2008 at
1.30 P.M. In respect of the alleged
incident dated 11.6.2008 alleging therein
that by playing a fraud after providing
314 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
liquor to the first informant, he was taken
to Tehsil Jansath on the pretext of
obtaining the money as accident claim,
where a sale deed was executed and no
consideration of alleged sale was given to
O.P. No. 2, after investigation, the I.O.
Has submitted the charge sheet against the
applicants
on
which
the
learned
Magistrate concerned has taken the
cognizance and summoned the applicants
to face the trial.

3. Heard Sri Amit Daga, learned
counsel for the applicants, learned A.G.A.
For the State of U.P. and Sri M.K.
Rajvanshi, learned counsel appearing on
behalf of O.P.No. 2.

4. It is contended by learned counsel
for the applicants that O.P.No.2 has
executed a sale deed with his free will and
consent, no fraud has been played upon
him and the proper consideration of the
land purchased by the applicants has been
given to O.P.No. 2. The amount of
consideration has been withdrawn from
the joint account of applicants Adesh
Kumar and Vijay Singh from their
Accounts
No.
04362010040450
of
Oriental Bank of Commerce. But without
doing the fair investigation, the charge
sheet has been submitted against the
applicants, on which in a mechanical
manner, the learned Magistrate has taken
the
cognizance
and
summoned
the
applicants.

5. It is further contended by learned
counsel for the applicants that O.P. No.2
has filed Original Suit No. 325 of 2008
against the applicant Adesh Kumar in
whose favour the sale deed was executed,
for cancellation of the sale deed in the
court of Civil Judge (Junior Division)
Muzaffar Nagar, same is pending. During
pendency of civil suit, the submission of
the charge sheet is illegal. The issue
involved in the present case, is purely of
civil in nature, therefore, the prosecution
of the applicants is illegal. The charge
sheet submitted against the applicants and
the further proceedings arising out of the
charge sheet, pending in the court of
learned A.C.J.M. Ist, Muzaffar Nagar in
criminal case no. 3821/9 of 2008 may be
quashed.

6. In reply to the above contentions,
it is submitted by learned A.G.A. and
learned counsel appearing on behalf of
O.P.No. 2 that in the present case by
playing a fraud the applicants have
obtained a sale deed allegedly executed
by O.P.No. 2 and no consideration of sale
has been given to the applicants. During
the investigation, the I.O. has collected
cogent material disclosing the fact that
consideration of the sale of land has not
been given to O.P.No.2. After doing the
proper investigation, the charge sheet has
been submitted disclosing the offence
punishable under sections 420,467,468
and 471 I.P.C. and there is sufficient
material to proceed further against the
applicants. Learned Magistrate has not
committed any error in taking the
cognizance
and
summoning
the
application to face the trial. There is no
illegality in the prosecution on the
applicants also. The O.P. No. 2 has
availed a civil remedy for the purpose of
cancelling the sale deed otherwise he shall
not be able to claim his loss. On the basis
of the pendency of the civil suit, the
proceedings of the present case may not
be quashed because the issue involved in
the present case is not of civil in nature, it
is an independent act done by the
applicants disclosing the offence. At this
stage, the material collected by the I.O. is
1 All] Kamlesh Pathak V. District Magistrate, Auraiya and others
315
to be considered which is disclosing the
offence. The present application is devoid
of the merit, the same may be dismissed.

7. Considering the submission made
by learned counsel for the applicants, the
learned
A.G.A.,
learned
counsel
appearing on behalf of O.P.2 and from the
perusal of the record, it appears that the
material collected by the I.O. during
investigation, prima facie, discloses the
commission of the offence. The fabric of
the case is of purely criminal in nature,
therefore, on the basis of pendency of the
civil suit, the proceeding of this case not
be quashed because the filing of the civil
suit is a proper remedy for cancelling the
sale deed. The I.O. has not committed any
error in submitting the charge sheet
because there is sufficient material to
proceed further against the applicants.
The learned Magistrate has also not
committed any error in taking the
cognizance and summoning the applicants
to face the trial. So far as the withdrawal
of the money from the Bank account of
applicant nos. 1 and 2 is concerned, it
may be a ground of defence which may be
considered at the stage of the trial. The
application filed by the applicants is
having no substance, the prayer for
quashing the charge sheet case crime no.
897 of 2008 under section 420,467,468
and 471 I.P.C. P.S. Jansath, District
Muzaffar
Nagar
and
the
criminal
proceedings arising out of charge sheet
pending in the court of learned A.C.J.M.
1st Muzaffarnagar vide criminal case no.
3821 of 2008 is refused.

8. However, considering the facts,
circumstances of the case and submission
made
by
learned
counsel
for
the
applicants that the arrest of the applicants
was stayed during investigation of the
case by a Division Bench of this Court on
1.10.2008 in Criminal Misc. Writ Petition
No. 18127 of 2008, it is directed that the
applicants shall appear before the court
concerned within 25 days from today, till
then the bailable warrant/N.B.W., if any,
issued against the applicants shall be kept
in abeyance. In case they apply for bail,
the same shall be heard and disposed of
on the same day by the courts below.

9.

With
this
direction,
this
application is disposed of finally.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2009

BEFORE
THE HON'BLE R.K. RASTOGI, J.
THE HON'BLE A.K. ROOPANWAL, J.

Criminal Misc. Parole Application No.
80925 of 2009

Kamlesh Pathak

...Petitioner

Versus
District Magistrate, Auraiya and others.

 ...Respondents

Counsel for the Petitioner:
Sri Viresh Misra
Sri Nirvikar Gupta
Sri Amit Misra

Counsel for the Respondents:
Poonam Singh
Addl. Solicitor General Of India
A.G.A.

Constitution of India Article-226-Habeas
Corpus
Petition-challenging
detention
order-during pendency of petition-Parole
application-on ground to contest the
election of M.P. And for campaign of
election held-grant of bail and parole are
quite distinct-proceeding grant of bail