# Director of Consolidation, Ghazipur and others, 2009(106) RD 98 and Subhash Chandra and another v. Dy. Director of Consolidation, Jaunpur and others 2012

- **Citation:** (2013) 2 ILRA 979
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-01
- **Case number:** Criminal Revision No. 1053 of 2010
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/director-of-consolidation-ghazipur-and-others-2009-106-rd-98-and-subhash-42664
- **Pages:** 11

## Headnote

Cr.P.C. Section 397- Criminal Revisionagainst
rejection
of
discharge
application-offence under section 420,
471, 467, 468 I.P.C.-on ground-dispute
being
purely
civil
nature-civil
suit
already going on-I.O. under pressure on
extraneous consideration not conducted
proper
investigation0-allegation
of
cheating and forgery not at all attractedcharges being ground less-quashed.

Held: Para-30-
For
the
facts
and
circumstances
mentioned above, I am of the opinion
that the charges against the revisionists
are groundless and the findings of Chief
Judicial Magistrate, Mathura that this
question can be decided only after
recording the evidence under Section
137, 154 and 146 of Indian Evidence Act
are perverse. It is a dispute of purely
civil nature which has been given the
criminal colour just to pressurise the
revisionists.

Case Law discussed:
AIR 1986 SC 1173; AIR 1999 SC 3845;
2009(64)
ACC
454(SC);
ACC
69
(SC);
2008(60) ACC 1; 2009(66) ACC 28; (2011) 3
SCC; (2006) 6 SCC 736; (2009) 8 SCC 751;
(2006) 6 SCC 736.

## Text

2 All] Ram Prakash and Ors. Board of Revenue & Ors.
979
that the decree passed by the Trial Court
on20th of December, 2002, in O.S. No.3946
of 1999 was a nullity in the eye of law as the
defendant had died during the pendency of
the suit for specific performance of the
contract for sale and no exemption was
sought
at
the
instance
of
the
plaintiff/appellant to bring on record the heirs
and legal representatives of the defendant
before the judgment was pronounced."

14. This Court also in the cases of Aziz
Mohammad (Dead)through Lrs. And
another
Vs.
Deputy
Director
of
Consolidation, Allahabad and others,
2008 (104) RD, 470 and Raj Narain and
others
Vs.
Deputy
Director
of
Consolidation, Ghazipur and others,
2009(106) RD 98 and Subhash Chandra
and
another
vs.
Dy.
Director
of
Consolidation, Jaunpur and others 2012
(117) R.D. 413 has held that order passed
against the dead person is a nullity

15. Otherwise also, the purpose of
establishment of the Courts is to impart
the substantial justice to the parties and
not to scuttle the process of justice on
technicalities. The learned Member has
observed that the petitioners were not sure
about the date of the knowledge of the
order dated 19.7.2004 as at one place,
they have mentioned that they have come
to know about the order dated 19.7.2004
on 9.6.2007 and at another place they
have stated that they came to know the
same on 18.6.2007. In my opinion, this
will not substantially affect the merit of
the restoration application. So far as the
other observation of the learned Member
with regard to the knowledge of the date
fixed in the revision is concerned, it has
nowhere been recorded in the order that
the counsel who had appeared was
engaged by the petitioners and the
petitioners were party in the revision,
therefore the basis of presumption of the
knowledge
of
the
date
is
totally
misconceived.

16. The learned Member was dealing
with the restoration application and he ought
to have taken the liberal view, even if the
persons had knowledge about the dates and
committed default in arguing the case while
considering the restoration application and
deciding the same on merit. The Apex Court
in the case of Collector, Land Acquisition,
Anantnag & Anr. Vs. Mst. Katiji & Ors. (
JT 1987 (1) SC 537 = 1987 (2) SCR 387)
has held that the judiciary is respected not
on account of its power to legalise injustice
on technical grounds but because it is
capable of removing injustice and is
expected to do so.

17. In view of foregoing discussions,
orders impugned cannot be sustained in the
eye of law and the same deserves to be
quashed. The writ petition succeeds and is
allowed. The orders dated 6.8.2010 as well as
19.7.2004 are hereby quashed. The reference
is restored to its original number. Since the
reference is very old, the learned Member
Board of Revenue, Lucknow shall decide the
aforesaid reference expeditiously if possible
within six months from the date of receipt of
certified copy of the order of this Court
without
granting
any
unnecessary
adjournments to the learned counsel for the
parties.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 1053 of 2010
980 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Jitendra Kumar Goyal and Anr...Revisionists
Versus
State of U.P. and Anr. ...Opp. Parties

Counsel for the Petitioner:
Sri Rahul Agarwal, Sri Rajiv Lochan Shukla

Counsel for the Respondents:
A.G.A., Sri Abhishek Kumar
Sri Gaurav Sharma, Sri Ranjay Kumar

Cr.P.C. Section 397- Criminal Revisionagainst
rejection
of
discharge
application-offence under section 420,
471, 467, 468 I.P.C.-on ground-dispute
being
purely
civil
nature-civil
suit
already going on-I.O. under pressure on
extraneous consideration not conducted
proper
investigation0-allegation
of
cheating and forgery not at all attractedcharges being ground less-quashed.

Held: Para-30-
For
the
facts
and
circumstances
mentioned above, I am of the opinion
that the charges against the revisionists
are groundless and the findings of Chief
Judicial Magistrate, Mathura that this
question can be decided only after
recording the evidence under Section
137, 154 and 146 of Indian Evidence Act
are perverse. It is a dispute of purely
civil nature which has been given the
criminal colour just to pressurise the
revisionists.

Case Law discussed:
AIR 1986 SC 1173; AIR 1999 SC 3845;
2009(64)
ACC
454(SC);
ACC
69
(SC);
2008(60) ACC 1; 2009(66) ACC 28; (2011) 3
SCC; (2006) 6 SCC 736; (2009) 8 SCC 751;
(2006) 6 SCC 736.
(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Heard learned counsel for the
revisionists, learned counsel appearing for
opposite party no.2 and learned A.G.A.

2. This criminal revision has been
filed against order dated 16.1.2010 passed
by learned Chief Judicial Magistrate,
Mathura in Case No.4976 of 2008 (State
Vs. Jitendra Kumar Goyal & Hemant
Kumar Goyal), arising out of Case Crime
No.232 of 2008, under Sections 420, 467,
468, 471 I.P.C., P.S. Brindavan, District
Mathura, whereby the application for
discharge has been rejected.

3.
Learned
counsel
for
the
revisionists
has
submitted
that
the
revisionists are the bonafide purchasers of
the property in dispute which they had
purchased through registered sale deed in
the year 1997. The name of the
complainant in respect of alleged land in
dispute was entered in the year 2008 on
the basis of an order of the year 1999. It
has also been submitted that there is no
explanation for delay in F.I.R. in 2008
regarding an offence allegedly committed
in the year 1997. The complainant has not
challenged the previous registered sale
deed and they are still in existence.

4. Learned counsel appearing for the
opposite party no.2 has submitted that the
name of the opposite party no.2 has been
entered into the revenue records upon an
order of Deputy Director of Consolidation
which is the highest authority. The
litigation was pending since long and it
does not make any difference that when
the name of the complainant was entered
on the land in dispute. The revisionists
have
committed
forgery
and
have
prepared a forged document, therefore,
the learned Chief Judicial Magistrate,
Mathura has not committed any illegality
in passing the impugned order.

5. The opposite party no.2 had
lodged an F.I.R. on 14.3.2008 regarding
the incident of 10.4.1997 alleging that the
opposite party no.2 along with other
2 All] Jitendra Kumar Goyal and Anr. Vs. State of U.P. and Anr.
981
brothers is owner in possession of Gata
No.320-Ka Panchaiti Gausala Nagar,
Brindavan, Mathura and his name has
also been entered into the revenue
records. It was also alleged that Bhagwan
Das had wrongly shown himself as owner
of the land and with intention to cause
wrongful loss to him, had sold a plot of
the land to Jitendra Kumar Goyal and
Hemant Kumar Goyal which is forged
and fabricated document. Jitendra Kumar
Goyal
and
Hemant
Kumar
Goyal,
knowingly that Bhagwan Das is not the
owner of the land, but with intention to
cause wrongful loss, have got executed a
sale deed in their favour. Upon this
application, a case at Crime No.232 of
2008, under Sections 420, 467, 468, 471
I.P.C.
was
registered
and
after
investigation, the charge-sheet has been
filed against present revisionists. It is
admitted case of both the parties that the
seller of the land namely Sri Bhagwan
Das has already died in the year 1999 i.e.
much before lodging the F.I.R. and
submission of charge-sheet.

6. The revisionists had submitted an
application for discharge on the ground
that the said land belonged to registered
Panchaiti Gausala and the then Secretary
Mohan Lal had authorized Basudeo Lohia
to execute the sale deed. Basudeo Lohia
had executed the sale deed on 16.4.1962
in favour of Sarala Devi regarding plot
nos.231,
232,
233,
234
and
235.
Subsequently, Sarala Devi by a registered
sale deed dated 26.7.1982 sold this
property to Dwarika Prasad. Dwarika
Prasad subsequently sold this land by
registered sale deed in favour of Mohan
Aanand Teerth. Mohan Aanand Teerth
had sold this land by registered sale deed
dated 5.9.1983 in favour of Bhagwan Das
and Bhagwan Das had sold this land for a
consideration of Rs.4,00,000/- to the
revisionists. After the sale, the revisionists
got constructed the boundary wall and
remained in possession. It was also
alleged in the application that the said sale
deed has not been declared void by any of
the competent court and prior to sale deed
of the revisionists, four other registered
sale deeds were executed. It was also
alleged that the complainant had 1600
square meter area in his name while the
total area of Khasra No.320-Ka is huge. It
was also alleged that the said Gausala had
fallen within the abadi, therefore, the land
had became infructuous out of which 529
plots were carved out, out of which five
plots have been purchased by the
revisionists in the year 1997.

7. Learned Chief Judicial Magistrate,
Mathura after hearing both the parties,
came to the conclusion that it is a matter
of evidence that who is the owner of the
land in dispute. Learned court below also
came to the conclusion that the evidence
of the parties is to be recorded under
Section 137/154 of Indian Evidence Act
and
the
opportunities
of
cross
examination has to be given. Learned
Chief Judicial Magistrate also came to the
conclusion that all the matters can be
decided by the trial only and in view of
the
evidence
collected
by
the
Investigating Officer, the application for
discharge is liable to be rejected.
Accordingly, the application for discharge
has been rejected.

8. Section 239 Cr.P.C. provides that
if, upon considering the police report and
the documents sent with it under Section
173 and making such examination, if any,
of the accused as the Magistrate thinks
necessary and after giving the prosecution
and the accused an opportunity of being
heard, the Magistrate considers the charge
982 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
against the accused to be groundless, he
shall discharge the accused, and record its
reasons for so doing.

9. At the time of framing of charge, the
trial court is required to consider only the
police report referred to under Section 173
and the documents sent with it. Documents
referred to in the Section include statements
of witnesses recorded under Section 161
Cr.P.C. and the charge-sheet. The words
appearing in the Section "opportunity of
being heard" do not mean examination of
any witnesses as they merely give a right of
audience to the prosecution and the accused
to argue their case in favour of framing
charge or discharge.

10. In Ram Chandra vs. Union of
India AIR 1986 Supreme Court 1173, it
has been held that the word " consider"
means due application of mind.

11. Obligation to discharge the accused
under Section 239 arises when the Magistrate
considers the charge against the accused to
be groundless. But no detailed evaluation of
the materials or meticulous consideration of
the possible defence need be undertaken at
this stage. The real test for determining
whether the charge should be considered
groundless is that where the materials are
such that even that unrebutted make out no
case whatsoever.

12. Where there is prima facie
material to frame charge against the
accused, charge cannot be said to be
groundless
and
accused
cannot
be
discharged under Section 239. This is not
the stage for weigh the pros and cons of
all the materials and not for sifting the
materials presented by the prosecution.
The exercise at this stage should be
confined to considering the police report
and the documents to decide whether the
allegations against the accused are "
groundless" or whether "there is ground
for presuming that the accused has
committed the offence." At this stage the
scanning and scrutinizing the evidence
and materials produced by the prosecution
is not permissible as held by Hon'ble the
Apex Court in State of U.P. vs. Uday
Narain AIR 1999 Supreme Court 3845.

13. Section 239 Cr.P.C. provides as
under:-

"239.
When
accused
shall
be
discharged. --If, upon considering the
police report and the documents sent with
it under section 173 and making such
examination, if any, of the accused as the
Magistrate thinks necessary and after
giving the prosecution and the accused an
opportunity of being heard, the Magistrate
considers the charge against the accused
to be groundless, he shall discharge the
accused, and record his reasons for so
doing."

14. The accused persons have been
charge-sheeted
for
the
offences
punishable under Sections 420, 467, 468,
471 I.P.C.

15. For constituting an offence under
Section 420 I.P.C., the ingredients of
cheating are required to be fulfilled. The
cheating has been defined in Section 415
I.P.C. 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
2 All] Jitendra Kumar Goyal and Anr. Vs. State of U.P. and Anr.
983
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"."

16. Further for constituting an
offence under Sections 467, 468 & 471
I.P.C., the ingredients of forgery must be
satisfied. The offence of forgery has been
defined in Section 463 I.P.C. which is as
under:-

"463. Forgery.-- Whoever makes
any false document or part of a document
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 any
express or implied contract, or with intent
to commit fraud or that fraud may be
committed, commits forgery."

17. Admittedly, the name of the
complainant was recorded in the year
1999 and the sale deed in favour of
revisionists was executed in the year
1997. It is also admitted fact that since
1962, four more registered sale deeds
have been executed regarding the same
land in dispute. It is also admitted position
that the said five registered sale deeds
have not been challenged before any court
of law and they still hold good. It is also
admitted
position
that
the
complainant/opposite party no.2 has also
not challenged the registered sale deed
executed in favour of revisionists in the
year 1997. Section 239 Cr.P.C. provides
that If, upon considering the police report
and the documents sent with it under
section
173
and
making
such
examination, if any, of the accused as the
Magistrate thinks necessary and after
giving the prosecution and the accused an
opportunity of being heard, the Magistrate
considers the charge against the accused
to be groundless, he shall discharge the
accused, and record its reasons for so
doing. Accordingly for discharge, the
Magistrate has come to a conclusion that
the charges are groundless.

18. Learned counsel for the opposite
party no.2 has relied upon Sanghi
Brothers (Indore) Pvt. Ltd. Vs. Sanjay
Chaudhary and others, 2009 (64) ACC
454 (SC), in which Hon'ble the Apex
Court has held as under:-

"Sections 227, 239 and 245 deal with
discharge from criminal charge. In State
of Karnataka Vs. L. Muniswamy, (1977
(2) SCC 699) it was noted that at the stage
of framing the charge the court has to
apply its mind to the question whether or
not there is any ground for presuming the
commission of offence by the accused.
(Underlined for emphasis). The Court has
to see while considering the question of
framing the charge as to whether the
material
brought
on
record
could
reasonably connect the accused with the
trial. Nothing more is required to be
inquired into."

19. Accordingly, the Magistrate was
required to see that the material on record
was sufficient to connect the accused with
the trial. But in the instant case, the
complainant had no right, title or
possession over the land in dispute prior
to 1999 while the sale deed has been
executed in the year 1997. It is also
relevant to mention that it was the 5th
registered sale deed since 1962 and none
of the said sale deeds have been
challenged before competent court of law.
Apparently, the complainant had no right,
title or interest over the land in dispute
984 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
prior to 1999, howsoever, that the legal
proceedings were pending since long. It is
also not alleged as to whether present
revisionists were party to the said
litigation. It is also not disputed that the
land belonged to Panchaiti Gausala and
the then Secretary of the Gausala had
authorized one Basudeo to execute the
sale deed in the year 1962 because the
land in dispute had fallen within abadi
and it was infructuous land. Since 1962 to
1997 five sale deeds have been executed.
It is also relevant to mention that the total
area of Gata No.320-Ka is a huge one and
the complainant asserts his rights over
1600 square meter area which is also not
identifiable because no boundaries have
been mentioned. It is also not clear that
whether the said 1600 square meter area
falls within the boundary of the land
purchased by the revisionists or not. It is
also relevant to mention that the said sale
deed was executed in the year 1997 and
the name of the complainant was recorded
in the year 1999 but the F.I.R. has been
lodged in the year 2008 without any
explanation as to why the complainant
had not asserted his rights right from 1999
when his name was mutated in the
revenue records. There is no explanation
as to why the complainant remained silent
for almost 10 years to assert his rights.

20. As the name of the complainant
admittedly recorded in the year 1999
regarding which the proceedings are still
pending in this Court and a stay has been
granted, therefore, there was no restriction
upon the seller i.e. Bhagwan Das to
execute any sale deed with regard to the
property in dispute in the year 1997.
Moreover no intention of the purchasers is
apparent from the records that they
intended to cause any wrongful loss to the
complainant because in the year 1997
there was no existence of the complainant
as the owner of the land.

21. Learned counsel for the opposite
party no.2 has further relied upon Lalu
Prasad @ Lalu Prasad Yadav Vs. State
of Bihar through C.B.I. (A.H.D.),
Patna, 2006 (Suppl.) ACC 69 (SC), in
which Hon'ble the Apex Court has held as
under:-

"In Kanti Bhadra Shah and Another
Vs. State of West Bengal (2000 (1) SCC
722) again the question was examined. It
was held that the moment the order of
discharge is passed it is imperative to
record the reasons. But for framing of
charge the Court is required to form an
opinion that there is ground for presuming
that the accused has committed the
offence. In case of discharge of the
accused the use of the expression
"reasons" has been inserted in Sections
227, 239 and 245 of the Code. At the
stage of framing of a charge the
expression used is "opinion". The reason
is obvious. If the reasons are recorded in
case of framing of charge, there is
likelihood of prejudicing the case of the
accused put on trial. It was inter alia held
as follows:

"It is pertinent to note that this
section required a Magistrate to record his
reasons for discharging the accused but
there is no such requirement if he forms
the opinion that there is ground for
presuming
that
the
accused
had
committed the offence which he is
competent to try. In such a situation he is
only required to frame a charge in writing
against the accused.

Even in cases instituted otherwise
than on a police report the Magistrate is
2 All] Jitendra Kumar Goyal and Anr. Vs. State of U.P. and Anr.
985
required to write an order showing the
reasons only if he is to discharge the
accused. This is clear from Section
245. As per the first sub-section of
Section 245, if a Magistrate, after
taking all the evidence considers that
no case against the accused has been
made out which if unrebutted would
warrant
his
conviction,
he
shall
discharge the accused. As per sub-
section
(2)
the
Magistrate
is
empowered to discharge the accused at
any previous stage of the case if he
considers the charge to be groundless.
Under both sub-sections he is obliged
to record his reasons for doing so. In
this context, it is pertinent to point out
that even in a trial before a Court of
Session, the Judge is required to
record reasons only if he decides to
discharge the accused (vide Section
227 of the Code). But if he is to frame
the charge he may do so without
recording his reasons for showing why
he framed the charge."

22. In Inder Mohan Goswami
and another Vs. State of Uttaranchal
and others 2008 (60) ACC 1 in which
Hon'ble the Apex Court has held as
under:-

"The veracity of the facts alleged by
the appellants and the respondents can
only be ascertained on the basis of
evidence and documents by a Civil Court
of competent jurisdiction. The dispute in
question is purely of civil nature and
respondent No. 3 has already instituted a
civil suit in the court of Civil Judge. In the
facts and circumstances of this case,
initiating criminal proceedings by the
respondents against the appellants is
clearly an abuse of the process of the
Court."

23. In Hira Lal and others Vs.
State of U.P. and others 2009 (66)
ACC 28 in which Hon. the Apex Court
has held:-

"The question as to whether the
transactions are genuine or not would fall
for consideration before the Civil Court as
indisputably the respondent No. 3 has
filed a civil suit in the Court of Civil
Judge, Gautam Budh Nagar wherein
allegedly an interim injunction has been
granted. What was the share of the
respective co-sharers is a question which
is purely a civil dispute; a criminal court
cannot determine the same."

24. In Harshendra Kumar D. Vs.
Rebatilata Kolley and others (2011) 3
SCC 351 in which Hon'ble the Supreme
Court has held that in a criminal case
where trial is yet to take place and the
matter is at the stage of issuance of
summons
or
taking
cognizance,
materials relied upon by the accused
which are in the nature of public
documents or the materials which are
beyond suspicion or doubt, in no
circumstances, can be looked into by the
High Court In exercise of its jurisdiction
under section 482 or for that matter in
exercise of revisional jurisdiction under
section 397 of the Code.

25. Hon'ble Apex Court has further
held that it is clearly settled that while
exercising inherent jurisdiction u/s 482 or
revisional jurisdiction under section 397
of the Code in a criminal case where
complaint is sought to be quashed, it is
not proper for the High Court to consider
the defence of the accused or embark
upon an enquiry in respect of merits of the
accusations.
986 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

26. In Indian Oil Corporation Vs.
NEPC India Ltd. and others (2006) 6
SCC 736 in which Hon'ble Apex Court
considering the judgment of Hridaya
Ranjan Prasad Verma has observed as
follows:-

In Hridaya Ranjan Prasad Verma,
this Court held :

"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.

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 to 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."

27. In Mohd. Ibrahim and others
Vs. State of Bihar and another (2009) 8
SCC 751 the Hon. Apex Court has held
that as under:-

"This Court has time and again
drawn attention to the growing tendency
of 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, 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] and Indian Oil
Corporation Vs. NEPC India Ltd. [2006
(6) SCC 736]. Let us examine the matter
keeping the said principles in mind.

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
2 All] Jitendra Kumar Goyal and Anr. Vs. State of U.P. and Anr.
987
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).

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. 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. 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.

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. 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. In Dr. Vimla Vs. Delhi
Administration - AIR 1963 SC 1572, this
Court explained the meaning of the
expression `defraud' thus;

"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
988 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
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 UP vs. Ranjit Singh -
1999 (2) SCC 617.

28. In Indian Oil Corporation Vs.
NEPC India Ltd. (2006) 6 SCC 736,
Hon'ble Apex Court has held as under:-

"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."

29.
As
mentioned
above,
for
constituting the offence under Section
420 I.P.C., the cheating has to be
proved.
In
the
present
case,
the
complainant was not recorded as tenure
holder of the land in dispute at the time
of execution of the sale deed in the year
1997, therefore, there was absolutely no
question to cheat the complainant. At
the most, it could have been said that
Bhagwan Das had committed cheating
by executing a sale deed without any
rights. It has been alleged in the F.I.R.
that the accused persons knowingly that
Bhagwan Das was not the owner of the
land had got the sale deed in their
favour. The rights and title of the parties
regarding immovable property are also
derived by documents. Admittedly,
Bhagwan Das had purchased this land
from Mohan Aanand Teerth in the year
1983 and he remained owner in
possession of the land in dispute since
1983 to the date of execution of sale
deed dated 17.4.1997. The rights, title
and possession of Paramhansh Bhagwan
Das was not challenged during this
period. A bonafide purchaser of the
immovable property is required to see
the title of the seller. When Paramhansh
Bhagwan Das was having sale deed in
his favour since 1983 without any
interruption, then nothing else was
required to be seen by the subsequent
purchasers i.e. the revisionists who had
also purchased the said piece of land for
a consideration by a registered sale
deed. It has also not been mentioned in
the F.I.R. that why Bhagwan Das was
not the owner of the land in dispute.
Merely saying that Bhagwan Das was
not owner of the land in dispute is not
sufficient. The best course for the
complainant was to file a civil suit
either for declaration or for cancellation
of the sale deed in favour of Bhagwan
Das but the said remedies have not been
adopted. It appears that the complainant
feared that in civil court he shall not be
able to prove his title or to disprove the
title of Bhagwan Das, therefore, he has
adopted this short cut of lodging the
F.I.R.
It
also
appears
that
the
Investigating Officer has also not taken
pains in collecting the evidence that
why Bhagwan Das was not the owner of
the land in dispute since 1983. I fail to
understand as to why no explanation has
been given in the F.I.R. that since 1999
till 2008 why the complainant had not
asserted his rights before the competent
civil
court.
It
appears
that
the
Investigating Officer has submitted the
charge-sheet either under some pressure
or for extraneous consideration. The
ingredients of cheating and forgery are
not at all made out by the evidence on
record.
2 All] Panchu Vs. State of U.P. and Ors.
989

30. For the facts and circumstances
mentioned above, I am of the opinion
that the charges against the revisionists
are groundless and the findings of
Chief Judicial Magistrate, Mathura that
this question can be decided only after
recording the evidence under Section
137, 154 and 146 of Indian Evidence
Act are perverse. It is a dispute of
purely civil nature which has been
given the criminal colour just to
pressurise the revisionists.

31. In the result, the revision is
allowed. The impugned order dated
16.1.2010 is set-aside. The revisionists
are discharged for the offences of
Section 420, 467, 468 & 471 I.P.C.
relating to Case Crime No.232 of 2008,
P.S. Brindavan, District Mathura.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 17.07.2013

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Service Single No. 1828 of 2008

Panchu

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri D.K. Tripathi

Counsel for the Respondents:
C.S.C.

U.P.
Civil
Services
RegulationsRegulation 370- Right to get pensionpetitioner after completing 30 years
service
including
work
charge
and
regular service-retired on 31.08.2007pensionary benefits denied as has not
completed 10 years service in Regular
establishment-shorttend by 1 year 2
month
26
days-held-as
per
law
developed by Apex Court reported in
2010 AIR SCW Page 1670-Punjab State
Electricity Board case service rendered in
work charge established to be countedaccordingly direction issued to ensure
payment of pension within 3 month.

Held: Para-6
Learned counsel for the petitioner has also
relied upon a judgment given in special
appeal defective No.2624 of 2013 (State of
U.P. through Principal Secretary, Public
Works Department, Lucknow and others Vs.
Prem Chandra and others). In a bunch of
special
appeals
their
Lordships
have
dismissed the appeal of the State and
upheld the validity of the orders of learned
Single Judge wherein the benefit of work
charged services have been given to the
petitioner. In this case, their Lordships have
relied upon a judgment of Hon'ble Apex
Court reported in 2010 AIR SCW 1670
(Punjab State Electricity Board and another
Vs. Narata Singh and another). Their
Lordships have observed that provisions of
regulation 370 of the U.P. Civil Services
Regulation have to be read in line with
judgment of Hon'ble Apex Court in the
absence of challenge to the validity of the
regulation in this petition or in any other
petition earlier.

Case Law discussed:
2009(27) 1163; 2010 AIR SCW 1670.

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. Heard Sri D. K. Tripathi, learned
counsel for the petitioner as well as
learned Standing counsel.

2. The petitioner has prayed for a writ
of mandamus directing the opposite parties
to provide the pension to the petitioner with
effect from the date of his retirement i.e.
31.8.2007 with all consequential benefits
counting entire service of the petitioner and
the same be clubbed for computation of
qualifying services.