# Atul Kumar Singh Tomar & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2020) 12 ILRA 231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-18
- **Case number:** Application U/S 482 No. 37166 of 2010
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atul-kumar-singh-tomar-ors-v-state-of-u-p-anr-opp-parties-45460
- **Pages:** 7

## Headnote

A. Code of Criminal Procedure, 1973Section 482 & Indian Penal Code, 1860Section-420,
467,
468,
471,
448application-
quashing
of
entire
proceeding-the purchase of the property
by the third applicant in government
auction, transferring it to the Degree
college, do not constitute the offence of
forgery-the nature of cheating or forgery
is not spelled out by the witnesses nor
there is evidence to that effect-it is only
after
mutation,
complaint
was
filed
seeking injunction against the applicantsthe nature of the plot alleged to have been
trespassed is a house-offence u/s 420,
467, 468, 471 and the trial shall proceed
for offence u/s 448. (Para 4 to 30)

The application is partly allowed. (E-6)

List of Cases cited: -

## Text

12 All. Atul Kumar Singh Tomar & Ors. Vs. State of U.P. & Anr.
231
provision for taking cognizance of such
offence under the Statute, the complainant
requesting the Magistrate to take cognizance
of the offence must satisfy the eligibility
criterion prescribed by the statute i.e. the
complainant has to satisfy the Magistrate that
he is with ability to file the complaint and in
case in hand this ability has been given in the
first paragraph of the complaint itself. The
complainant is Additional Chief Medical
Officer/ Nodal Officer, P.C.P.N.D.T., Mathura,
duly authorised to file the complaint.

13. Hence, under all above facts and
circumstances, there is no misuse or abuse
of process of law. Accordingly, this
application merits its dismissal.

14. Dismissed as such.
----------
(2020)12ILR A231
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 37166 of 2010

Atul Kumar Singh Tomar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri S.K. Rao, Sri O.P. Singh, Sri Indrajeet Singh

Counsel for the Opp. Parties:
A.G.A., Sri K.M. Tripathi, Sri Sunil Kumar
Sharma

A. Code of Criminal Procedure, 1973Section 482 & Indian Penal Code, 1860Section-420,
467,
468,
471,
448application-
quashing
of
entire
proceeding-the purchase of the property
by the third applicant in government
auction, transferring it to the Degree
college, do not constitute the offence of
forgery-the nature of cheating or forgery
is not spelled out by the witnesses nor
there is evidence to that effect-it is only
after
mutation,
complaint
was
filed
seeking injunction against the applicantsthe nature of the plot alleged to have been
trespassed is a house-offence u/s 420,
467, 468, 471 and the trial shall proceed
for offence u/s 448. (Para 4 to 30)

The application is partly allowed. (E-6)

List of Cases cited: -

1. St. of Haryana & Ors. Vs Bhajan Lal & Ors,
(1992) Supp (1) SCC 335

2. St. of Karnataka Vs L. Muniswamy & Ors,
(1977) 2 SCC 699

3. St. of Karnataka Vs M. Devenderappa & Anr.,
(2002) 3 SCC 89

4. Vineet Kumar & Ors. Vs St. of U.P. & Anr.,
(2017) 13 SCC 369

5. Ahmad Ali Quraishi & Ors. Vs St. of U.P. &
Ors., (2020) AIR SC 788

6. Anil Mahajan Vs Bhor Industries Ltd. & Ors.,
(2005) 10 SCC 228

7. Md. Ibrahim & Ors. Vs St. of Bih. & Ors.,
(2009) 8 SCC 751

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri O.P. Singh, learned Senior
Advocate, assisted by Sri Indrajeet Singh, learned
counsels for applicants, and learned A.G.A.
appearing for the State. The learned counsel for
the opposite party no. 2 has not put in appearance
in the revised call.

2. Applicants, four in number, by means
of the instant petition under Section 482 of
Code of Criminal Procedure, 1973 (for short
"Cr.P.C."), seek the following reliefs:
232 INDIAN LAW REPORTS ALLAHABAD SERIES

"It is, therefore, most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow the present
application and to quash the prosecution of
the applicants in Case Crime No. 5 of
2009, U.Sec. 420, 467, 468, 471 & 448
I.P.C. P.S. Naubasta District Kanpur Nagar
in pursuance of the Charge Sheet No. 300
of 2009 of dated 1.8.2009 which has been
numbered as Crl. Case No. 10342 of 2009 :
State Vs. Atul Kumar Singh Tomar & others
pending in the Court of 1st ACMM, Kanpur
Nagar
i.e.
(Annexure
2
to
the
accompanying affidavit).

It is further prayed that this Hon'ble
Court may be pleased to quash the entire
further proceedings of the Cri. Case No. 10342
of 2009 : State Vs. Atul Kumar Singh Tomar &
others U.Sec 420, 467, 468, 471 & 448 I.P.C. in
Case Crime No. 5 of 2009 U. Sec. 420, 467.
468, 471 & 448 I.P.C., P.S. Naubasta, District
Kanpur Nagar pending in the Court of 1st
ACMM, Kanpur Nagar.

It is further prayed that his
Hon'ble Court may be pleased to quash the
order of cognizance dated 29.9.2009
passed by 1st ACMM, Kanpur Nagar
mentioned in the Charge Sheet No. 300 of
2009 of dated 1.8.2009 in Case Crime No.
5 of 2009 U. Sec. 420, 467, 468, 471 & 448
I.P.C. P.S. Naubasta District Kanpur Nagar
and quoted in para 12 of the affidavit.

It is further prayed that this
Hon'ble Court may be pleased to stay the
entire further proceedings of the Cri. Case
No. 10342 of 2009 : State Vs. Atul Kumar
Singh Tomar & others U. Sec 420, 467,
468, 471 & 448 I.P.C. in Case Crime No. 5
of 2009 P.S. Naubasta, District Kanpur
Nagar pending in the Court of 1st ACMM,
Kanpur Nagar during the pendency of the
aforesaid case and/or be pleased to pass
such other and further order which this
Hon'ble Court may deem fit and proper
under the circumstances of the case."

3. The applicants are assailing the
charge-sheet,
cognizance
order
and
consequential trial pursuant thereof.

4. F.I.R. was lodged on 07.01.2009
alleging that complainant is owner and in
possession of Plots No. 239 and 240,
Naubasta, Kanpur Nagar, admeasuring 780
sq. meters. It is further alleged that the
office bearers of Rooprani Sukhnandan
Singh Mahavidyalaya (in short "Degree
College") on 30.06.2008 trespassed the
plots of the complainant after breaking 90
ft.x10
ft.
wall. On
13.12.2008,
the
complainant
approached
the
revenue
authorities; Naib-Tehsildar in report dated
26.12.2008 was of the opinion that the
Degree College has encroached upon the
plots
belonging
to
the
complainant.
Applicants are not named in the F.I.R.

5. The first applicant is Manager of
the Degree College, second applicant is
President of the Degree College, third
applicant is father of first applicant and
former member of Legislative Council
(M.L.C.), and, fourth applicant is Principal
of Degree College.

6. It is urged by the counsel for the
applicants that on 21.02.1991, the third
applicant purchased plots no. 280 and 282,
Naubasta, Kanpur Nagar, in a government
auction. The sale was confirmed on
14.10.1991 in favour of highest bidder by
Commissioner, Kanpur Division, Kanpur.
Pursuant
thereof,
Additional
District
Magistrate (F&R), Kanpur Nagar, executed
sale-deed of the said plots on behalf of the
State. The name of third applicant was
mutated
in
the
revenue
record
on
16.12.2002. Thereafter, third applicant
executed sale-deed dated 11.06.2003 of part
of plots no. 280 and 282 (410 and 450 sq.
meters respectively) in favour of the
12 All. Atul Kumar Singh Tomar & Ors. Vs. State of U.P. & Anr.
233
Degree College. By a subsequent sale-deed
dated 14.09.2004 the remaining part of the
said plots was transferred in favour of the
Degree College. The name of the Degree
College came to be mutated in Khatauni
vide order dated 21.07.2007. It is further
submitted that the boundary wall of 90
ft.x10
ft.
was
not
constructed
on
30.06.2008, as alleged in the F.I.R., but it
was constructed by the Degree College
eight years back on the plots separating the
the plots of the complainant, i.e., plots. no.
239 and 240, which are adjacent to plots
no. 280 and 282 of Degree College.

7. It is further submitted that the
allegations in the F.I.R. is false and malicious;
applicants have no concern with the affairs of
the Degree College and have not encroached
upon any portion of plots no. 239 and 240, as
alleged. At the most it is a case of demarcation
on the spot; the boundary wall was constructed
eight years back without the complainant
raising any objection. It is further contended
that it is not disclosed in the F.I.R. or the
statements recorded under Section 161 Cr.P.C.
as to which part of plots no. 239 and 240 has
been occupied forcefully; the dispute raised by
the complainant is purely of civil nature and
several suits inter-se parties are pending much
before lodging of F.I.R. The details of suits are
as follows:

(i) Original Suit No. 843 of 2007
(Smt. Manorama Devi Vs. Lal Singh
Tomar) in respect of plot no. 239,
Naubasta, Kanpur Nagar in the Court of
Civil Judge (Senior Division), Kanpur
Nagar, seeking permanent injunction,

(ii) Original Suit No. 844 of 2007
(Vijay Kumar Shukla Vs. Lal Singh Tomar)
in respect of Plot No. 239, Naubasta,
Kanpur Nagar in the Court of Civil Judge
(Senior Division), Kanpur Nagar, seeking
permanent injunction,

(iii) Original Suit No. 845 of
2007 (Sankatha Prasad Tiwari Vs. Lal
Singh Tomar) in respect of Plot No. 239
and 240, Naubasta, Kanpur Nagar in the
Court of Civil Judge (Senior Division),
Kanpur
Nagar,
seeking
permanent
inunction,

(iv) Original Suit No. 1674 of
2008 (Sameer Mehrotra Vs. Rooprani Sukh
Nandan Singh Mahavidyalaya) in respect
of Plots No. 239 and 240, Naubasta,
Kanpur Nagar, a declaratory suit seeking
declaration as owner and landlord,

(v) Original Suit No. 1880 of
2008 (Rooprani Sukh Nandan Singh
Mahavidyalaya Vs. Sameer Mehrotra and
others), filed by third applicant against
complainant and prosecution witnesses i.e.
Sankatha Prasad, Smt. Manorama Devi and
Vijay Kumar, seeking permanent injunction
restraining
them
from
causing
any
obstruction or creating any nuisance in the
peaceful possession and running of Degree
College pertaining to Plots No. 280 and
282, Naubasta, Kanpur Nagar.

8. The F.I.R. came to be lodged
subsequently in January' 2009 on same
allegations which is subject matter of
dispute in the pending suits inter-se parties
instituted in 2007-08.

9. The allegation in the F.I.R. is that
complainant filed an application on Thana
Divas
on
26.07.2008
alleging
encroachment and trespass on plots no. 239
and 240, upon enquiry the concerned Police
authority submitted report that civil dispute
is pending between the parties and NaibTehsildar has also submitted a report to that
effect but opined that trespass has been
made in the plots.

10. The State has not filed any
objection. The opposite party no. 2/
234 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant, has filed counter affidavit,
wherein it is admitted that Degree College
is situated on plots no. 280 and 282;
whereas complainant is owner of plots no.
239 and 240M. i.e. part of the plot. It is
further alleged that under the garb of the
alleged sale-deed encroachment/trespass
was made by the officials of the Degree
College on other plots including that of the
complainant. It is further alleged that
applicants on the strength of muscle power
and forged documents have encroached
upon the plots of complainant which is
situated on the south of plot no. 282.

11. I have considered the rival
submissions and perused the material
brought on record.

12. The Supreme Court in State of
Haryana and others Vs. Bhajan Lal and
others1, has elaborately considered the
scope and ambit of Section 482 Cr.P.C.
Paragraph 102 enumerates 7 categories of
cases, by way of illustration, where power
can be exercised under Section 482 Cr.P.C.
The relevant category for the purposes of
the
instant
application
is
extracted
hereinbelow:

"(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) xxx

(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) xxx

(5) xxx

(6) xxx

(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."

13. The inherent power given to the
High Court under Section 482 Cr.P.C. is
with
the
purpose
and
object
of
advancement of justice. In case the process
of Court is sought to be abused by a person
with some oblique motive, the Court has to
thwart the attempt at the very threshold.

14. A three-Judge Bench of this Court
in State of Karnataka Vs. L. Muniswamy
and others2, held that the High Court is
entitled to quash a proceeding if 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. (Refer: State of Karnataka
Vs. M. Devenderappa and another 3).

15. The principles enumerated in
Bhajan Lal and others (supra) was
considered and reiterated by Supreme
Court in Vineet Kumar and others Vs.
State of U.P. and another4 and Ahmad
Ali Quraishi and others Vs. State of U.P.
and others 5.

16. The substance of the allegations
constituting the ingredients of the offence is
relevant and must be asserted in the
complaint. Merely applying the expression
''fraud', ''forged' or ''forgery' is not enough
to constitute the offence.

17. In Anil Mahajan Vs. Bhor
Industries Ltd. and others6, the Supreme
Court observed as under:
12 All. Atul Kumar Singh Tomar & Ors. Vs. State of U.P. & Anr.
235

"The substance of the complaint
is to be seen. Mere use of the expression
"cheating" in the complaint is of no
consequence."

18. Applying the law on the facts of
the case in hand, the allegation in the F.I.R.
primarily is of trespass on the strength of
forged revenue records. The statement
recorded by the Investigating Officer (for
short ''I.O.') under Section 161 Cr.P.C. of
owners, they have stated that their plots
were trespassed by the Degree College.
There is no evidence of forgery or the
nature of forgery committed by the
applicants. Mere assertion of forgery is not
sufficient, substance of forgery is missing.
Admittedly, suits on allegations and counter
allegations of trespass have been filed by
the parties, either seeking injunction or
declaration. The question of ownership and
possession on the spot by the respective
parties is purely of civil nature and can be
determined either by civil court or by
revenue authorities upon demarcation on
the spot. It appears that under the garb of
civil suits, present prosecution was lodged
to create pressure upon applicants to either
free the plots from the alleged trespass/
encroachment or not to encroach the plot of
the complainant and/or of the applicants.

19. It would be appropriate to first
consider whether the complaint averments
even assuming to be true make out the
ingredients of the offences punishable
either under Section 467, Section 468 or
Section 471 of IPC. Section 467 (in so far
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 468
provides that whoever commits forgery,
intending that the document shall be used
for the purpose of cheating. 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.
Section 470 defines a forged document as a
false document made by forgery.

20. The term "forgery" used in these
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. Section 464 defines "making a
false document".

21. The condition precedent for an
offence under Sections 467, 468 and 471 is
forgery. The condition precedent for
forgery is making a false document. This
case does not relate to any false electronic
record. Therefore, the question is whether
the third applicant, in executing and
registering the two sale deeds purporting to
sell
a
property,
duly
purchased
in
government auction, can be said to have
made and executed false documents, in
collusion with the other applicants.

22. An analysis of Section 464 IPC
shows that it divides false documents into
three categories:

(i) 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
236 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(ii) 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.

(iii) 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.

23. 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 practicing deception, or from a person
not in control of his senses.

24. The sale deeds executed by third
applicant, clearly and obviously do not fall
under any of the categories of `false
documents'.
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 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 IPC. 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 IPC are attracted.
(Refer: Md. Ibrahim and others Vs. State
of Bihar and others7).

25. The next question that arises is
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. 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).

26. 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. It is not the case of the complainant
12 All. Munnanul Haq & Ors. Vs. State of U.P. & Anr.
237
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. Therefore, it cannot be said
that the third applicant by the act of executing sale
deeds in favour of the Degree College deceived
the complainant in any manner. The purchase of
the property by the third applicant in government
auction and thereafter transferring it to the Degree
College, do not constitute the ingredients of the
offence of forgery.

27. Insofar as the criminal prosecution
with regard to the offence under Sections 420,
467, 468, 471 I.P.C. is not made out on taking
the allegations and the evidence in support
thereof on face value. The respective parties
agree that they are owners and in possession of
their respective plots. The nature of cheating or
forgery is not spelled out by the witnesses nor
there is evidence to that effect. The prosecution
of the applicant for the offence under the
abovenoted sections if continued is abuse of the
process of the court, accordingly unsustainable.

28. The allegations of the offence
under Section 448 I.P.C. is based on the
statements recorded by I.O. under Section
161 Cr.P. C. and report of Naib-Tehsildar,
would prima facie make out a case against
the applicants. The plots no. 280 and 282
purchased in public auction was finally
transferred to the Degree College in 2004,
until then no suit or complaint was filed
alleging trespass. It is only after mutation
in 2007, the suits came to be filed on the
complainants
side
seeking
injunction
against the applicants. A complaint was
filed on Thana Divas alleging trespass on
plots no. 239 and 240 by the Degree
College. The nature of the plot/premises
alleged to have been trespassed/encroached
upon is a ''house' or not is a subject matter
of evidence and cannot be gone into in
proceedings under Section 482 Cr.P.C.

29. The criminal prosecution insofar it
relates to offence under Sections 420, 467,
478 and 471 I.P.C. is quashed. Accordingly
charge framed under those Sections are also
quashed. The trial shall proceed against the
applicants for offence under Section 448
I.P.C., in accordance with law.

30. The application is accordingly
allowed in part.

31. The party shall file computer
generated copy of this order downloaded from
the official website of High Court Allahabad.

32. The computer generated copy of
the order shall be self attested by the
counsel of the party concerned.

33. The concerned Court/Authority/Official
shall
verify
the
authenticity
of
such
computerized copy of the order from the official
website of High Court Allahabad and shall
make a declaration of such verification in
writing.
----------
(2020)12ILR A237
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.11.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 46964 of 2013

Munnanul Haq & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties