# Anjana Agarwal @ Anjani Agarwal v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-16
- **Case number:** Application U/S 482 Cr.P.C. No. 7352 of 2021
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anjana-agarwal-anjani-agarwal-v-state-of-u-p-anr-46324
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 415, 420, 463, 464, 467, 468,
469, 471, 120-B - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section 169 - Bequest by a bhumidhar -
acquiescence
-
Silent
acquiescence
amounts to admission - Admission may
also be implied from the acquiescence of
the party, but acquiescence, to have the
effect of an admission, must exhibit some
act of the mind, and amount to voluntary
de-manner or conduct of the party - if
party having a right, stands by and sees
another dealing with the property in a
manner inconsistent with that right, and
makes no objection while the act is in
progress,
he
cannot
afterwards
complain.(Para -17,19)

Supplementary charge-sheet quashing of - sale
transaction - applicant is neither a seller nor
has any share in the property - only marginal
witness to the transaction of sale deed - falsely
implicated - Plea of the applicants - Will was
incapable of being acted - property devolved
upon five persons against the narration in the
Will - 5th person alienated her share in favour
her grandson - no element of criminality in
transferring joint share .

HELD:-Applicants (Anjana Agarwal) is only a
marginal witness to the sale deed and,
therefore, it cannot be said that she understood
the import and meaning of the transaction and
had constructive knowledge of cheating and
forgery being committed by the beneficiaries of
the transaction ( Om Prakash and Gaurav Mittal)
and, therefore, her case deserves to be allowed
and proceedings are hereby quashed.

Applicant (Om Prakash Mittal) is a signatory to
the family settlement, which accepted execution
of the Will. Once, execution of Will was
accepted and it is mentioned that partition will
be made in terms of the Will, subsequent
contention of applicant that he was not having
any knowledge of the execution deed , prima
facie reflects their guilty mind and dis-honest
intention, which has been rightly inferred by the
court below while taking cognizance of the
charge-sheet., no indulgence is required for
quashing the proceedings, qua Om Prakash
Mittal and Gaurav Mittal, Application fails and is
dismissed. (Para -22,23,24)

Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:-

## Text

330 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein deprivation of all or any economic
or financial resources to which the
aggrieved person is entitled under any law
or custom whether payable under an order
of a court or otherwise or which the
aggrieved person requires out of necessity
is an expression of "domestic violence".

15. The amount of maintenance
awarded by the Magistrate is an amount
which an aggrieved person requires to
meet necessities of life and for survival.
Such amount is not limited to household
necessities but also includes payment of
rental related to the shared household. It
includes maintenance as well. Therefore,
the order passed by the Magistrate
granting maintenance is an affirmative
order of protection in relation to domestic
violence as defined in Section 3 of the Act.
For such violation, the penalty is provided
in Section 31 of the Act.

16. Section 20 of the Act deals
with grant of monetary relief to meet the
expenses incurred and the losses suffered
by aggrieved person and any child of the
aggrieved person as a result of domestic
violence. Such provision enlarges the scope
of domestic violence as defined in Section 3
of the Act. In terms of Section 3 of the Act,
the "economic abuse" includes deprivation
of all or any economic or financial
resources, payment of rental related to
shared
household
and
maintenance.
Whereas Section 20 includes a loss of
earnings, medical expenses, loss caused
due to destruction, damage or removal of
any property as also the maintenance. The
grant of monetary relief under Section 20
does
not
exclude
the
amount
of
maintenance which can be awarded in
terms of Section 18 of the Act as part of
affirmative order in respect of the domestic
violence as defined in Section 3 of the Act.
Therefore, we find that non-payment of
maintenance is a breach of protection
order; therefore, Section 31 of the Act can
be invoked. Therefore, in respect of first
question, it is held that non-payment of
maintenance allowance is a breach of
protection order for which proceedings
under Section 31 of the Act can be invoked.

17. Thus, in the light of the above
discussion so also in view of a Division
Bench decision of Madhya Pradesh High
Court passed after relying on the judgments
of Supreme Court in regard to purposive
interpretation and keeping in mind the aim
and object of a special statute namely,
Protection of Women From Domestic
Violence Act, 2005, I am of the opinion
that provisions of Section 31 can be
invoked to penalize even breach of orders
passed under Section 12 of the said Act.
Therefore, Application deserves to fail and
is dismissed.
----------
(2021)10ILR A330
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

Application U/S 482 Cr.P.C. No. 7352 of 2021
With
Application U/S 482 Cr.P.C. No. 7572 of 2021

Anjana Agarwal @ Anjani Agarwal
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Swapnil Kumar, Sri Sudhanshu Kumar,
Sri Devesh Mohan

Counsel for the Opposite Parties:
10 All. Anjana Agarwal @ Anjani Agarwal Vs. State of U.P. & Anr.
331
A.G.A., Sri Swetashwa Agarwal

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 415, 420, 463, 464, 467, 468,
469, 471, 120-B - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section 169 - Bequest by a bhumidhar -
acquiescence
-
Silent
acquiescence
amounts to admission - Admission may
also be implied from the acquiescence of
the party, but acquiescence, to have the
effect of an admission, must exhibit some
act of the mind, and amount to voluntary
de-manner or conduct of the party - if
party having a right, stands by and sees
another dealing with the property in a
manner inconsistent with that right, and
makes no objection while the act is in
progress,
he
cannot
afterwards
complain.(Para -17,19)

Supplementary charge-sheet quashing of - sale
transaction - applicant is neither a seller nor
has any share in the property - only marginal
witness to the transaction of sale deed - falsely
implicated - Plea of the applicants - Will was
incapable of being acted - property devolved
upon five persons against the narration in the
Will - 5th person alienated her share in favour
her grandson - no element of criminality in
transferring joint share .

HELD:-Applicants (Anjana Agarwal) is only a
marginal witness to the sale deed and,
therefore, it cannot be said that she understood
the import and meaning of the transaction and
had constructive knowledge of cheating and
forgery being committed by the beneficiaries of
the transaction ( Om Prakash and Gaurav Mittal)
and, therefore, her case deserves to be allowed
and proceedings are hereby quashed.

Applicant (Om Prakash Mittal) is a signatory to
the family settlement, which accepted execution
of the Will. Once, execution of Will was
accepted and it is mentioned that partition will
be made in terms of the Will, subsequent
contention of applicant that he was not having
any knowledge of the execution deed , prima
facie reflects their guilty mind and dis-honest
intention, which has been rightly inferred by the
court below while taking cognizance of the
charge-sheet., no indulgence is required for
quashing the proceedings, qua Om Prakash
Mittal and Gaurav Mittal, Application fails and is
dismissed. (Para -22,23,24)

Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:-

1. Ramesh Dutt & ors. Vs St.of Pun. & ors.,
(2009) 15 SCC 429

2. Kamal Shivaji Pokarnekar Vs. St. of Mah. &
ors., (2019) 14 SCC 350

3. Priti Saraf Vs. St. of NCT of Delhi & anr. ,
Criminal Appeal No(s).296 of 2021 arising out of
S.L.P. (Criminal) No(s).6364 of 2019,

4. Duke of Leeds Vs Amherst; 1846, 78 RR. 47 :
2 Philips 117;

5. Cairncross Vs. Lorrimer; 3 LT 130

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Heard Sri Swapnil Kumar, learned
counsel for the applicants, Sri Janardan
Prakash, learned AGA for the State and Sri
Swetashwa Agarwal, learned counsel for the
opposite party no.2.

2. This Application U/S 482 Cr.P.C. has
been filed by the applicant for quashing of
supplementary
charge-sheet
dated
25.07.2020, under Sections 420, 467, 468,
471, 120-B arising out Case Crime No.556 of
2009, Police Station-Sadar Bazar, DistrictMathura and order dated 24.09.2020 passed
by the court of Judicial Magistrate, Mathura
taking cognizance of the charge-sheet and the
entire criminal proceedings of Criminal Case
No.809/12/20.

3. Sri Swapnil Kumar, learned
counsel for the applicant submits that brief
332 INDIAN LAW REPORTS ALLAHABAD SERIES
facts of the present case are that, a sale
transaction was made between Sri Om
Prakash Mittal son of late Sri Ramji Das
Mittal, Sri Gaurav Mittal son of Om
Prakash Mittal (sellers) and Paras Garg son
of Anil Kumar Gupta (purchasers) in
regard to plot no.B-11 measuring 679.35
sq. yards = 568.00 sq. meters situated at
Mauja Jaisinghpura Bangar Tehsil and
District-Mathura.

4. It is submitted that sellers
represented themselves to have 40% share
in the property of Ramji Das Mittal on the
strength of 20% share being devolved on
Om Prakash Mittal upon death of Sri Ramji
Das Mittal and 20% share being transferred
to Gaurav Mittal by his grandmother, Smt.
Pushpa Devi, thus, totaling 40% of the total
plot area and accordingly sale deed was
executed on 04.07.2013.

5. Case of the complainant is that,
Pushpa Devi died on 24.12.2016 and when
complainant reached the plot in question,
he was informed that Sri Ramji Das Mittal
had executed a Will bequeathing his
property in favour of his four sons and,
therefore, Pushpa Devi had no share in the
property as a result, the gift deed executed
by Pushpa Devi in favour of Gaurav Mittal
is null and void, therefore, cheating and
fraud was alleged to have been committed
qua the complainant.

6. Sri Swapnil Kumar, learned
counsel for the applicant submits that in
terms of the provisions contained in
Section 169 of the U.P.Z.A. & L.R. Act, no
Will could have been executed in regard to
agriculture property unless said Will is
registered. It is therefore, submitted that
since Will was null and void and could not
have been acted upon in terms of the
provisions contained in U.P.Z.A. & L.R.
Act, therefore, property had devolved in
favour of all the five legal heirs namely,
four sons and wife of late Sri Ram Ji Das
Mittal and on the basis of such legal
position, entry was made in the revenue
record, land was transferred by Smt.
Pushpa Devi in favour of her grandson
Gaurav Mittal through a gift deed. It is
submitted that there is no element of
cheating and applicants have been falsely
implicated.

7. Sri Swapnil Kumar, learned
counsel for the applicants further submits
that in Application under Section 482
No.7352 of 2021, applicant is neither a
seller, nor has any share in the property and
is only a marginal witness to the transaction
of sale deed, therefore, she has been falsely
implicated.

8. Similarly, it is submitted that once
property had devolved upon the son and
grandson of Ramji Das Mittal, then there is
no element of cheating in selling the
property in favour of the complainant. It is
further submitted that complainant is still in
possession of the property and no cause of
action has accrued in his favour.

9. Sri Swapnil Kumar, learned
counsel for the applicant has placed
reliance on the judgment of Supreme Court
in case of Ramesh Dutt and others Vs.
State of Punjab and others; (2009) 15
SCC 429, wherein in para-14 it is
mentioned that "Title in or over an
immovable property has many facets.
Possession is one of them. Unless there
exists a statutory interdict, a person in
possession may transfer his right, tile and
interest in favour of third party."

10. It is further held that only because
the appellants transferred a portion of the
10 All. Anjana Agarwal @ Anjani Agarwal Vs. State of U.P. & Anr.
333
property
without
having
complete
ownership over it by itself do not satisfy
the ingredients of Sections 467 and 468 and
469 IPC.

11. In para-19, it is held that
institution of a criminal case must be held
to be an Act of mala fide on the part of the
respondents
in
the
aforementioned
backdrop of units and, therefore, quash the
proceedings.

12. Sri Swetashwa Agarwal, learned
counsel for the opposite party no.2, in his
turn, submits that element of cheating is
evident from the fact that on the date of
'Uthavna' of Ramji Das Mittal who had
died on 28.08.2005 and 'Uthavna' had taken
place on 30.08.2005, a document namely,
'Will Execution Deed' was drawn through
which, it was decided that Om Prakash
Mittal being the eldest son of HUF, Sri
Girrajmal Ramji Das will be appointed as
'Karta'. His brothers Vinod, Govind and
Anil were accepted to be joint owners. Smt.
Pushpa Devi will continue to be member of
the HUF. It was further decided that after
giving Rs.71,000/-(seventy one thousand)
to daughter of Ramji Das Mittal, namely,
Beena or 10 'tolas' of gold, remaining
property and shares etc. be equally
distributed between the four sons of Ramji
Das Mittal, whereas, furniture of Sri Ramji
Das Mittal be given to Smt. Pushpa Devi. It
is submitted that Smt. Pushpa Devi, Om
Prakash, Anjana Garg are signatories to this
family settlement drawn in execution of the
Will, therefore, once they have acted on the
Will by entering into a family settlement
for execution of the Will, it is not open to
the applicants to blow hot and cold and
submit that Will was incapable of being
executed as it was not registered and,
therefore, Smt. Pushpa Devi became cosharer and property was divided in five
shares, out of which, Pushpa Devi gifted
her share in favour of son of Om Prakash
Mittal, which was transferred in favour of
the complainant by way of registered sale
deed. It is submitted that element of
cheating is writ large and needs to be taken
cognizance of and no interference is
required at this stage.

13. Sri Swetashu Agarwal, in his turn,
has placed reliance on judgment of
Supreme Court in case of Kamal Shivaji
Pokarnekar Vs. State of Maharashtra and
others; (2019) 14 SCC 350, wherein, it is
held that defenses that may be available, or
facts/aspects
which
when
established
during the trial, may lead to acquittal, are
not grounds for quashing the complaint at
the threshold. At that stage, the only
question relevant is whether the averments
in the complaint spell out the ingredients of
a criminal offence or not.

14. Similarly, reliance is placed on
decision of Supreme Court in case of Priti
Saraf Vs. State of NCT of Delhi and
another decided on March, 2021 in
Criminal Appeal No(s).296 of 2021 arising
out of S.L.P. (Criminal) No(s).6364 of
2019, wherein, again in para-32 it is held
that "whether the allegations in the
complaint are otherwise correct or not, has
to be decided on the basis of the evidence
to be led during the course of trial. Simply
because there is a remedy provided for
breach of contract or arbitral proceedings
initiated at the instance of the appellants,
that does not by itself clothe the court to
come to a conclusion that civil remedy is
the only remedy, and the initiation of
criminal proceedings, in any manner, will
be an abuse of the process of the court for
exercising inherent powers of the High
Court under Section 482 Cr.P.C. for
quashing such proceedings".
334 INDIAN LAW REPORTS ALLAHABAD SERIES

15. After hearing learned counsel for
the parties and going through the judgment
rendered in case of Ramesh Dutt and others
(supra), it is evident that to come out of the
rigous of the provisions contained in
Section 467, 468, 469, the transferor must
be in possession of the land and that
possession should not be symbolic but
actual. In the present case, facts of the case
are different. Plea of the applicants is that,
Will was incapable of being acted and,
therefore, property devolved upon five
persons against the narration in the Will
and 5th person namely, Pushpa Devi
alienated her share in favour of Gaurav
Mittal who is her grandson. Therefore,
there is no element of criminality in
transferring joint share of Gaurav Mittal
and Om Prakash Mittal.

16. This argument is too technical. The
aim and object of amendment in Section 169
of U.P.Z.A. & L.R. Act is to save poor
agriculturists from alienation of their property
in favour of unscrupulous elements. In the
present case, once all the brothers and wife of
late Ramji Das Mittal decided to honour of
his Will and there was no dispute as to the
authenticity of the Will, then act of Om
Prakash Mittal and Gaurav Mittal in getting
her share carved out for themselves on the
basis of some mutation proceedings which
does not prima facie confer any title
constitutes elements of cheating as defined
under Section 415 of IPC punishable under
Section 420 IPC. There is also an element of
forgery and making of a false document as
provided under Section 463, 464 IPC capable
of being punished under Section 467, 468 and
471 IPC and, therefore, law laid down in case
of Ramesh Dutt and others (supra) will be of
no aid to the present applicants.

17. In fact, the act of the applicants
Om Prakash Mittal and Gaurav Mittal
amounted
to
acquiescence.
Silent
acquiescence
amounts
to
admission
Admission may also be implied from the
acquiescence
of
the
party,
but
acquiescence, to have the effect of an
admission, must exhibit some act of the
mind, and amount to voluntary de-manner
or conduct of the party.

18. In the present case, once
applicants decided to be a signatory to the
family settlement in terms of the Will, then
principle of acquiescence i.e. doctrine
"standing by" will come into play.

19. It is settled principle of law as has
been laid down in Duke of Leeds Vs
Amherst; 1846, 78 RR. 47 : 2 Philips 117;
when
Lord
Chancellor,
Cottenham
observed that "if party having a right,
stands by and sees another dealing with the
property in a manner inconsistent with that
right, and makes no objection while the act
is in progress, he cannot afterwards
complain. That is the proper sense of the
word acquiescence".

20. Similarly, Lord Campbell in
Cairncross Vs. Lorrimer; 3 LT 130
observed that "generally speaking if a party
having an interest to prevent an act being
done as full notice of its being done, an
acquiesce in it, so as to induce a reasonable
belief that he consents to it and the position
of others is altered by their giving credit to
his sincerity, he has no more right to
challenge the act to their prejudice than he
would have had if it had been done by his
previous license"

21. Similarly, Halsbury's Law of
England
describes
the
expression
"Acquiescence" in Volume-I of 4th Edition
"The term is, however, properly used where
a person having a right, and seeing another
10 All. Rajitram Shukla & Ors. Vs. State of U.P. & Anr.
335
person about to commit or in the course of
committing an act infringing upon that
right, stands by in such a manner as really
to induce the person committing the act,
and who might otherwise have abstained
from it, to believe that he assents to its
being committed; a person so standing by
cannot afterwards be heard to complaint of
the act".

22. Thus, Om Prakash Mittal and
Gaurav Mittal after consented to abide by
the Will are estopped from taking a plea
that under provisions of Section 169,
U.P.Z.A. & L.R. Act, Will, could not have
been acted upon. This plea prima facie
reflects their guilty mind and dis-honest
intention, which has been rightly inferred
by the court below while taking cognizance
of the charge-sheet.

23. However, I would like to add that
case of Anjana Agarwal is on a different
footing
than
that
of
applicants
in
Application under Section 482 No.7572 of
2021, inasmuch as, Anjana Agarwal is only
a marginal witness to the sale deed and,
therefore, it cannot be said that she
understood the import and meaning of the
transaction and had constructive knowledge
of cheating and forgery being committed
by the beneficiaries of the transaction,
namely, Om Prakash and Gaurav Mittal
and, therefore, her case being different on
facts
deserves
to
be
allowed
and
proceedings qua her deserves to be quashed
and are hereby quashed.

24.. However, case of Om Prakash
Mittal and Gaurav Mittal are on different
footing. Om Prakash Mittal is a signatory
to the family settlement, which accepted
execution of the Will. Once, execution of
Will was accepted on the date of 'Uthavana'
of Sri Ramji Das Mittal and it is mentioned
that partition will be made in terms of the
Will of Shri Ramji Das Mittal, subsequent
contention of Om Prakash that he was not
having any knowledge of the execution
deed drawn on the advice of their chartered
accountant and auditor, prima facie, depicts
that revenue documents were prepared in a
fraudulent manner so to corner extra share
in the property of Ramji Das Mittal, then
what was admissible to Om Prakash Mittal
and, therefore, in the light of the law laid
down in case of Priti Saraf (supra) and
Kamal Shivaji Pokarnekar (supra), since
prima facie offence appears to have been
made out, no indulgence is required for
quashing the proceedings, qua Om Prakash
Mittal and Gaurav Mittal, Application fails
and is dismissed.
----------
(2021)10ILR A335
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 8723 of 2021

Rajitram Shukla & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Pradeep Kumar Mishra

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 468 - Bar to taking
cognizance after lapse of the period of
limitation - Indian Penal Code, 1860 -
Section 323, 504, 506 - The Schedule
Castes

And
The
Schedule
Tribes