# Harish Gulla & Anr v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 2 ILRA 1165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-01
- **Case number:** Application u/s 482 No. 6922 of 2022
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-gulla-anr-v-state-of-u-p-ors-opp-parties-51317
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
406, 419, 420, 506, 467, 468, 471 - Mens
Rea
is
an
essential
ingredient
for
composition of offence and all civil wrongs
cannot be termed as an offence - Facts of
each and every case are to be examined
while reaching to the conclusion that
whether, a wrong act comes under the
purview of offence? (Para -35)

Applicants entered an MoU with opp. no. 2 - for
development of Hi-Tech Township City Project -
Dispute
arose
regarding
non-transfer
of
land/plots - FIR lodged under various IPC
sections - Applicants arrested, released on bail,
and entered into settlement agreement -
UPRERA imposed ban on transfer of M/s Ansal
API properties - Court examined settlement
agreements, MoU, and UPRERA notices.(Para -
32 ,33 )

HELD: - Dispute is commercial in nature, and
mens rea (guilty mind) is missing. Applicants are
willing to transfer the remaining properties.
Allowing further criminal proceeding would
amount to harassment of applicants and
therefore the criminal proceedings against the
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants are abuse of process of law. Criminal
proceedings quashed. (Para-34 to 39)

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

List of Cases cited:

## Text

2 All. Harish Gulla & Anr. Vs. State of U.P. & Ors.
1165

15. At this stage, learned counsel for
applicant has confined his prayer to the
effect that the non-bailable warrant which
has been issued against the applicant vide
order dated 10.01.2024 may be kept in
abeyance and he shall participate in the
proceedings. He has also submitted that
the applicant has already been enlarged
on bail and due to inadvertence and
compelling circumstances, he could not
appear before the Court concerned,
therefore, the Court has issued nonbailable warrant dated 10.01.2024.

16. Considering the aforesaid
submissions advanced by learned counsel
for the parties and without interfering the
impugned order dated 12.04.2023, I
hereby
disposed
of
this
instant
application filed under Section 482
Cr.P.C., finally, at the admission stage
giving liberty to the applicant/petitioner
to appear before the Court concerned on
the
date
fixed
i.e.
08.02.2024
to
participate in the proceedings and he
shall
further
participate
in
the
proceedings
and
shall
not
take
unnecessary adjournments.

17. If the applicant appears before
the learned trial Court on 08.02.2024 i.e.
the date fixed, the non-bailable warrant
dated
10.01.2024
shall
not
be
executed against him. In case, the
applicant does not appear before the
Court concerned on the date fixed, the
learned trial Court would be at liberty
to take steps against him strictly in
accordance with law.

18. It is needless to say that the
learned trial Court shall expedite the trial
proceedings strictly in accordance with
law by affording opportunity of hearing to
all the parties concerned.
----------
(2024) 2 ILRA 1165
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.02.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application u/s 482 No. 6922 of 2022

Harish Gulla & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicants:
Dr. Pooja Singh, Abhinav Trivedi, Lalta Prasad
Misra

Counsel for the Opp. Parties:
G.A., Pranjal Krishna

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
406, 419, 420, 506, 467, 468, 471 - Mens
Rea
is
an
essential
ingredient
for
composition of offence and all civil wrongs
cannot be termed as an offence - Facts of
each and every case are to be examined
while reaching to the conclusion that
whether, a wrong act comes under the
purview of offence? (Para -35)

Applicants entered an MoU with opp. no. 2 - for
development of Hi-Tech Township City Project -
Dispute
arose
regarding
non-transfer
of
land/plots - FIR lodged under various IPC
sections - Applicants arrested, released on bail,
and entered into settlement agreement -
UPRERA imposed ban on transfer of M/s Ansal
API properties - Court examined settlement
agreements, MoU, and UPRERA notices.(Para -
32 ,33 )

HELD: - Dispute is commercial in nature, and
mens rea (guilty mind) is missing. Applicants are
willing to transfer the remaining properties.
Allowing further criminal proceeding would
amount to harassment of applicants and
therefore the criminal proceedings against the
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants are abuse of process of law. Criminal
proceedings quashed. (Para-34 to 39)

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

List of Cases cited:

1. St. of Haryana Vs Bhajan Lal, (1992) SUPP 1
SCC 335

2. Gold Quest International Pvt. Ltd. Vs St. of
T.N., (2014) 15 SCC 235

3. Parbatbahi Ahir @ Parbhatbhai Bhimsinghbhai
Karmur & ors. Vs St. of Guj., (2017) 9 SCC 641

4. Mitesh Kumar Jha Vs St. of Karn. & ors., 2021
SCC OnLine SC 976

5.Gulam Mustafa Vs St. of Karn. & Anr., 2023
SCC OnLine SC 603

6. Gian Singh Vs St. of Punj., (2012) 10 SCC
303,

7. Inder Mohan Goswami & anr. Vs St. of
Uttarakhand, (2007)12 SCC 1 and

8. Syed Yaseer Ibrahim Vs St. of U.P., (2022)
SCC OnLine SC 271

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1). Heard Sri L.P. Mishra assisted by
Sri Abhinav Narayan Trivedi, learned
counsel for the applicants, Sri Pranjal
Krishna for the opposite party no. 2 and Sri
Aniruddh Kumar Singh, learned AGA-I for
the state.

2). By means of the instant
application, prayer has been made for
quashing the impugned charge sheet dated
05.09.2019 and 10.10.2019, in Case Crime
No. 162 of 2018, under Sections 406, 419,
420, 506, 467, 468, 471 of IPC at Police
Station- Vibhuti Khand, District Lucknow
and further the summoning order dated
06.09.2019 and 18.11.2019 has also been
assailed.

3). Factual matrix of the case is that
the UP Government has formulated HiTech Township Policy, 2003 for planned
development in the State of UP on
23.08.2003 and after promulgation of the
policy,
M/s
Ansal
Properties
and
Infrastructure Ltd., being eligible for
undertaking township, applied for and was
granted Hi-Tech Township licence on
26.11.2005 and it took shape in the name
and style of 'Sushant Golf City Lucknow'.
The Hi-Tech Township Policy, 2003 was
amended time to time and other Hi-Tech
Township Policy, 2007 was promulgated on
7th September 2007 while superseding the
Hi-Tech Township Policy, 2003 and at the
same time it was provided that the existing
licences, granted earlier vide Policy 2003,
shall remain continue. On 27 January 2010,
a Government Order was issued whereby
the Hi-Tech Township Policies, 2003 and
2007 were brought to an end, though it was
provided that Hi-Tech Township Projects
shall continue till it's conclusion and this
was informed to the Chairman of various
development authorities throughout the
State of UP vide Government Order dated
7.04.2021. Having at a glance of the
government
orders
dated
23.08.2003,
17.09.2007 and 7.04.2021, it is apparent
that the Government of UP had to facilitate
the availability of land to the developers by
way of acquisition and payment of
compensation and the government land like
pathway, land of reserve category, Gaon
Sabha land, chakroad, canal, etc. was to be
exchanged in favour of the developers and
thus, it was incumbent upon the State
Government to make procurement of land
which was a continuous process and at the
same time, it was also provided that State
shall take care so as to ensure that no
2 All. Harish Gulla & Anr. Vs. State of U.P. & Ors.
1167
harassment could be caused to the
developer and if any complaint is made
against the developer, the action may be
taken only after approval of High Power
Committee, under the chairmanship of the
chief secretary of State of UP.

4). Once the Hi-Tech Township
Project in the name of Sushant Golf City,
Lucknow was allotted to M/s Ansal
Properties and Infrastructures Ltd., as per
the eligibility criterion, the opposite party
no. 2 and his wife namely, Mrs Sunita
Agarwal expressed their desire for booking
several plots, flats and villas etc. both in
their individual names and also on behalf of
their respective companies, for which 11
MoUs were executed in between 2011 to
2012, vide the same, the plots etc. were
sought to be booked with the condition of
timely payment, as per schedule.

5). Procurement of land bank was a
continuous process, therefore, 11 MoUs
could not be performed, within time, in
favour of the complainant, his wife or any
of the company represented by them.
Further there is one hurdle of clause (u)
which says that the 'second party cannot
sell/transfer his right in the FSI, either in
full or part, to any third-party without the
prior written consent of the first party,
which the first party at its sole discretion
may allow or deny such transfer, and in
case the first party allows such transfer then
it will charge the administrative charges for
the same. The MoU was to be followed by
booking of respective flats/villas/plots etc.
and resultantly, the allotment letters were
issued and followed by execution of sale
deeds and due to all these, certain dispute
arose between M/s Ansal Properties and
Infrastrucure Ltd. and opposite party no. 2
and his wife and therefore, the opposite
party no. 2 instituted an application under
Section 156(3) of the Criminal Procedural
Code (hereinafter referred as 'Code') and
thereafter, an FIR was lodged bearing no.
162 of 2018. As per the content of First
Information Report, the complainant, i.e.,
the opposite party no. 2 met with Director
of the company, namely, M/s Ansal API
and on assurance given by them regarding
the return on the investment, he started
investing in the project of Sushant Golf
City, Lucknow but various lands and plots,
which were initially allotted to him, were
not provided and thus, it has been alleged
that cheat and fraud has been committed by
the applicants.

6.) After the aforesaid FIR, the
applicants were arrested by investigating
agencies and charge sheet was filed against
them and the Chief Judicial Magistrate
passed the summoning order, vide the
same, the applicants were summoned.

7). In the meantime, a development
took place, where the complainant and the
petitioners entered into a settlement deed
dated 28.12.2019, whereby all the dispute
relating to investments and properties
amongst each other, were settled amicably.
The applicants were granted bail vide
orders dated 07.12.2019 and 06.02.2020
and while granting the bail, the court has
also taken note of the compromise entered
into between the parties.

8). Once the matter was amicably
settled, out of the Court, on 28.12.2019, a
petition under Section 482 was filed
bearing no.1686 of 2020 (Harish Gulla and
others Vs. State of U.P. and another) for
quashing of the impugned charge-sheet as
well as the summoning orders but the same
was withdrawn by the applicants with
liberty to file afresh vide the order dated
27.04.2022.
Thereafter,
various
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
negotiations by way of communication
were done and the parties came to
understanding and recorded the same in the
addendum
dated
14.07.2022
to
the
settlement deed dated 28.12.2019 which
shows that opposite party no. 2 does not
want to prosecute anyone in Case Crime
No. 162 of 2018 and all the disputes were
resolved, whereas the compliance of the
terms and condition in addendum dated
14.07.2022, became delayed and therefore,
the opposite party no. 2 is still pressing the
prosecution against the applicants though
the case of the applicant is that they are still
ready to perform the terms and conditions
as per the addendum dated 14.07.2022, but
due to certain steps to resolve the problem,
on the part of the State Government, is in
the way of the performance of the
addendum/settlement and therefore, the
same is still waiting for its compliance, and
thus, there is no mens rea of the applicants
for committing any cheat, fraud or any kind
of fabrication in the documents as is
alleged in the First Information Report.

9). Fact remains that showing the
bonafide and the honest performance of the
addendum of settlement dated 14.07.2022,
out of eight properties, which are in dispute,
four were transferred through registered sale
deed, i.e., dated 19th July 2022, 16th July
2022, 18th July 2022 and 27th July 2023. So
far as the fifth plot is concerned, allotment
letter is issued and due to non-availability of
the opposite party no. 2, the registered sale
deed could not be executed, and so far as the
other three disputed properties are concerned,
the allotment letters and the transfer of title
are issued, which are waiting for it's
compliance vide executing registered sale
deed.

10). Now vide order dated 19.06.2023,
Uttar
Pradesh
Real
Estate
Regulatory
Authority (hereinafter referred as 'UPRERA')
issued the notice while directing the M/s
Ansal Properties not to transfer any property
unless a particular amount is deposited to
UPRERA
and
therefore,
the
further
compliance is said to be stopped as per the
order of UPRERA.

11). Counsel appearing for applicant
contended that in fact by way of a MoU
between the M/s Ansal Properties and
Infrastructure Ltd. and the opposite party no.
2 an amount of Rs. ₹42,56,97,041 was paid
till 2014, which is an admitted fact, but
thereafter the terms and condition as per the
MoUs between the parties could not be
honoured timely because of the reasons,
which are not in the approach of the
applicants and thereafter the First Information
Report was lodged by the opposite party no.
2, under misconception that the present
applicants have committed cheat and fraud
with him. He submits that once the First
Information
Report
was
lodged,
the
applicants tried to make understand the
opposite party no. 2 that since the Hi-Tech
Township area, wherein the government land,
canals,
chakroads
etc.
could
not
be
exchanged as per the policy of 2003 to 2010,
which is the part of the compliance of the
State Government and as soon as the same
would be settled, the MoU entered into
between the parties, shall be followed and
therefore, the parties entered into between the
agreement on 28.12.2019 and further an
addendum
dated
14.07.2022
to
the
settlement deed dated 28.12.2019 was also
signed by the parties wherein the eight
properties were categorized, in dispute,
which are mentioned in paragraph 30 of the
supplementary affidavit dated 18.09.2023
filed on behalf of the applicants. He added
that properties are marked as A, B, C. D, E,
F, G and H, wherein the property number
A, B, C and D is transferred to the opposite
2 All. Harish Gulla & Anr. Vs. State of U.P. & Ors.
1169
party no. 2 vide registered sale deeds dated
16 July 2022, 18 July 2022, 19 July 2022
and 27 April 2023, respectively and the
fifth property that is 'E', allotment letter is
issued, but the registered sale deed could
not be executed due to non-availability of
opposite party no. 2 and so far as property
number F to H are concerned, the allotment
number and transfer of title were issued in
favour of the opposite party no. 2, but
unfortunately, the UPRERA has issued a
notice in pursuant to it's meeting dated
19.06.2023 and therefore, the rest of the
properties are waiting for its transfer and
thus, there is no fault on the part of the
applicants.

12). Adding his argument, he submits
that this Hon'ble Court vide order dated
29.03.2023, directed the parties to appear
before the Senior Registrar of this Court on
12.04.2023 and the Senior Registrar was
directed to verify the compromise in
presence and participation of both the
parties, but due to non-appearance of
opposite party no. 2, the verification could
not be done. It shows that the opposite
party no. 2 himself is not serious about the
compliance of the compromise and he
intends to harass the applicants by way of
pressing the prosecution of Case Crime No.
162 of 2018.

13). Further submission is that in fact,
the main issue is regarding non-execution
of the sale deed as well as not handing over
the possession of certain properties to the
opposite party no. 2, but there is express
legal bar by virtue of notice issued in a
meeting dated 19.06.2023 of UPRERA, on
the properties which are mentioned in the
addendum of settlement agreement and
therefore, there are efficacious remedy to
the opposite party no. 2 to approach
UPRERA, Civil Court or any other forum
of a civil competence. He also added that
properties which are under dispute between
the parties mentioned in paragraph 30 of
the
supplementary
affidavit,
are
the
admitted fact between the parties as no
rebuttal has been filed by the opposite party
no. 2.

14). Next submission of the counsel
for the applicants is that mens rea is absent
in the instant matter as there is no intention
of the company or applicants to commit
any fraud or misrepresentation with the
opposite party no. 2 and the applicants who
were the responsible persons, employed in
the management of the company, never
committed any offence, as is alleged in the
First Information Report. He submits that
the ingredient of offences charged against
the applicants do not attract as the matter is
purely civil in nature, which is being given
the colour of criminality and it is the best
example of arm twisting by the opposite
party no. 2.

15). Adding his arguments he submits
that the applicants are innocent and law
abiding citizens and have not committed
any offence and the story which is narrated
in the First Information Report, is false and
concocted.

16). Concluding his argument, he has
submitted that in fact, the circumstances
which are not under the control of the
applicants, are the reasons of the dispute, as
there was a delay on the part of the State
Government to hand over the property in
question to the applicants and there was
certain dispute regarding the government
land including the chakroads, canals etc.
which are still to be exchanged as per the
terms and conditions given in the Hi-Tech
Township Policy promulgated time to time.
He submits that from the first day, the
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants are ready to transfer the plots,
land etc. as per the MoU to the opposite
party no. 2 and it is apparent from the
paragraph 30 of the supplementary affidavit
that applicants have transferred four
properties vide the registered sale deed in
favour of the opposite party no. 2, out of
eight disputed properties, for which the
transfer of title and settlement has also been
issued and the applicants undertake with
full
responsibility
that
as
soon
the
UPRERA will lift the ban, the rest of the
properties immediately shall be transferred
to the opposite party no. 2. Further the
transfer of the properties which was done in
favour of the opposite party no. 2, are not
disputed and therefore, looking to the
whole scenario, no offence is committed as
is alleged in the First Information Report.

17). In support of his contention,
counsel for the applicants has placed
reliance on a judgement of state of State of
Haryana Vs. Bhajan Lal reported in (1992)
SUPP 1 SCC 335 and has referred
paragraph 6 of the guidelines issued by the
Apex Court.

Paragraph 6 of the guidelines of the
judgement is reproduced hereinunder:-

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

18). Referring the aforesaid, he
submits that legal bar arose vide the notice
issued by UPRERA, for putting ban on the
transfer of the property in question and
therefore the
efficacious
remedy for
redressal of the grievance of the parties is
to approach the proper forum.

19). He again referred the case
reported in (2014) 15 SCC 235, Gold Quest
International Private Limited Vs. State of
Tamil Nadu and has referred paragraph 8 of
the aforesaid judgement.

Paragraph 8 of the judgement is
reproduced hereinunder:-

"8. In view of the principle laid down
by this Court in the aforesaid cases, we are
of the view in the disputes which are
substantially matrimonial in nature, or the
civil property disputes with criminal facets,
if the parties have entered into settlement,
and it has become clear that there are no
chances of conviction, there is no illegality
in quashing the proceedings under Section
482 Cr.P.C. read with Article 226 of the
Constitution. However, the same would not
apply where the nature of offence is very
serious like rape, murder, robbery, dacoity,
cases under Prevention of Corruption Act,
cases
under
Narcotic
Drugs
and
Psychotropic Substances Act and other
similar
kind
of
offences
in
which
punishment of life imprisonment or death
can be awarded. After considering the facts
and circumstances of the present case, we
are of the view that learned Single Judge
did not commit any error of law in
quashing the FIR after not only the
complainant and the appellant settled their
money dispute but also the other alleged
sufferers entered into an agreement with
the appellant, and as such, they too settled
their claims."

20). Referring the aforesaid, he
submits that it has been held that 'a dispute
which are substantially matrimonial in
2 All. Harish Gulla & Anr. Vs. State of U.P. & Ors.
1171
nature or civil property dispute with
criminal facet, if the parties have entered
into settlement and it has become clear that
there are no chances of conviction, there is
no illegality in quashing the proceeding
under Section 482 of CrPC.' He submits
that there is civil property dispute with
some criminal angle wherein the parties
entered into a settlement in which the first
party is ready to comply, subject to
condition of lifting the ban of transfer of
the property by UPRERA, and therefore,
the criminal proceeding is proper.

21). Placing reliance on a judgement
reported in (2017) 9 SCC 641, Parbatbahi
Ahir
@
Parbhatbhai
Bhimsinghbhai
Karmur and others Vs. State of Gujarat, he
referred paragraph 16.8 of the above said
judgement.

Paragraph 16.8 of the judgement is
quoted hereinunder:-

"16.1 Section 482 preserves the
inherent powers of the High Court to
prevent an abuse of the process of any
Court or to secure the ends of justice. The
provision does not confer new powers. It
only recognises and preserves powers
which inherein the High Court"

22). Again, referred the judgement
reported in 2021 SCC OnLine SC 976,
Mitesh Kumar Jha Vs. State of Karnataka
and others and a judgement reported in
2023 SCC OnLine SC 603, Gulam Mustafa
Vs. State of Karnataka and Another and has
paced reliance on paragraph 47 and 36
respectively,
which
are
reproduce
hereinunder:-

"47. Moreover, this Court has at
innumerable
instances
expressed
its
disapproval for imparting criminal color to
a civil dispute, made merely to take
advantage of a relatively quick relief
granted in a criminal case in contrast to a
civil dispute. Such an exercise is nothing
but an abouse of the process of law which
must be discouraged in its entirety."

"36. What is evincible from the extant
case-law is that this Court has been
consistent in interfering in such matters
where purely civil disputes, more often than
not, relating to land and/or money are
given the colour of criminality, only for the
purposes of exerting extra-judicial pressure
on the party concerned, which, we
reiterate, is nothing but abuse of the
process of the court. In the present case,
there is a huge, and quite frankly,
unexplained delay of over 60 years in
initiating dispute with regard to the
ownership of the land in question, and the
criminal case has been lodged only after
failure to obtain relief in the civil suits,
coupled with denial of relief in the interim
therein to the respondent no. 2/her family
members. It is evident that resort was now
being had to criminal proceedings which,
in the considered opinion of this Court, is
with ulterior motives, for oblique reasons
and is a clear case of vengeance."

23). Quoting the aforesaid judgement,
he submits that the case of the present
applicants are squarely covered with the
ratio of the judgement and therefore,
submission is that the criminal proceeding
against the applicants may quashed.

24). On the other hand, learned counsel
appearing for the opposite party no. 2 has
vehemently
opposed
the
contentions
aforesaid and submits that the applicants
have committed cheat, and fraud as well as
criminal intimidation and therefore, the
First Information Report was lodged as
Case Crime No. 162 of 2018 at Police
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
Station- PGI, Lucknow and they were taken
into custody. So far as the present case is
concerned, when the applicants were in
custody, they entered into a settlement
agreement on 28.12.2019 and the Hon'ble
Court enlarged the applicants on bail with
an implied condition that they will honour
their obligation under the settlement
agreement. But once the applicants were
released, they deliberately violated the
settlement agreement and thereafter the
opposite party no. 2 moved cancellation of
bail and thereafter they approached the
Apex Court, wherein the notices were
issued to the applicants. Again the
applicants approached the opposite party
no. 2 and the addendum to the settlement
agreement was entered into between the
parties on 14.07.2022, whereafter the
applicants executed three properties in
favour of the opposite party no. 2 and under
the impression that the applicants are
intended
to
honour
the
addendum
settlement, withdrew the Special Leave to
Appeal (Crl) No. 1621 of 2022 on
30.08.2022 but the applicants are not with
the clean hands and the good intentions and
therefore, as soon as the above said Special
Leave to Appeal (Crl) was withdrawn, they
started dishonoring the addendum to the
settlement thereby not transfering the other
properties. The UPRERA has imposed the
ban on transfer of the properties, for which,
the applicants are directly responsible.

25). Pointing out about the transferred
properties, he submits that the Plot no.
H/05, allotted to the opposite party no. 2 by
the above mentioned addendum, has
deliberately been allotted as Khasra no. 76,
is a disputed land and case for the same is
subjudice before the District Magistrate
Lucknow, who affixed the board on the side
of the plot, mentioning the details of the
dispute, and with the instruction that no
sale/purchase can be made with respect to the
said plot. He further submits that the plots
which are proposed to be given to the
opposite party no. 2 exists on the land of
canal, which was to be exchanged by the M/s
Ansal company, while paying certain amount
to the State government, but in case of nonpayment on the part of M/s Ansal, the said
land is also disputed and thus the land which
has
already
been
transferred
through
registered sale deed or proposed to be
transferred are the disputed lands, either in
between the M/s Ansal Company and the
state or with the private parties, which clearly
shows the intention of the applicants.

26). Referring the judgement of the
coordinate bench of this Court he pointed out
that in Writ A No. 7254 of 2022, Director
CBI was directed to constitute an SIT and
SIT will submit its progress report on or
before 24.05.2023, before the High Court and
the final report is required to be submitted on
22.08.2023.

27). Concluding his arguments, he
submits that the law is very clear that fraud or
cheat shall be looked into on the first date of
the offence alleged to be committed and in
the instant matter, fraud has been committed
by applicants and the First Information
Report was lodged, and after thorough
investigation, it was found that applicants
have committed offence. Therefore, at the
later stage when the parties entered into
agreement, though failed later on, it cannot be
said that no offence was committed by the
applicants and therefore, submission is that
there is no force in the contention of the
learned counsel for the applicants and thus
the instant application is liable to be
dismissed.

28). Per contra the learned AGA
appearing for the State has also vehemently
2 All. Harish Gulla & Anr. Vs. State of U.P. & Ors.
1173
opposed the contention of the learned
counsel for the applicants, while supporting
the version of the counsel for the opposite
party no. 2 and submitted that once the
First Information Report was lodged, it was
thoroughly
investigated
by
the
Investigating Officer and it was found that
the applicants are involved in committing
offence and therefore Trial Court after
application of mind, took cognizance of the
offence and issued summons and therefore,
there is no ambiguity or unlawfulness in the
charge-sheet filed by the Investigating
Officer or the summoning order passed by
the trial Court.

29). Having heard the counsels for the
parties and after perusal of the material
placed on record, it transpires that the State
Government
promulgated
Hi-Tech
Township Policy in the year 2003, wherein
the company M/s Ansal API succeeded to
get the Hi-Tech Township City Project,
which is named as Sushant Golf City
Lucknow. This policy was replaced by the
another policy of the year 2007 and 2010,
but as per the version of the applicants, the
property which was to be handed over to
the company, namely, M/s Ansal, could not
succeed, due to certain reasons and there is
still dispute regarding the exchange of the
lands pertaining to chak marg, canal and
some other state land etc.

30). It so happened that the opposite
party no. 2 who also represents a developer
firm entered into an MoU with the
company, namely M/s Ansal to which the
present applicants are leading as the high
administrative authority and thereafter,
certain amount was also deposited with the
company which is an admitted fact. But as
per the allegations of the complainant, the
MoU was not honoured by the applicants
and
their
company,
as
the
plots/apartments/lands which were to be
transferred, could not be performed and
therefore, wife of the opposite party no. 2
lodged the First Information Report against
the applicants and the opposite party no. 2
also moved an application under Section
156(3) of the Code wherein on the direction
of the Magistrate the First Information
Report was lodged as case crime number
162 of 2018, whereafter investigation was
done and the charge-sheet was filed under
Sections 406, 419, 420, 506, 467, 468, 471
of IPC at Police Station- Vibhuti Khand,
District Lucknow and the Magistrate took
cognizance and issued summons, which are
under challenge by way of the instant
application.

31). When this Court examined the
contentions of the learned counsel for the
parties as well as the law points, it emerges
that the dispute between the parties is with
respect to non-transfer of certain land/plots
in lieu of the amount deposited before the
company, namely M/s Ansal as well as the
non-compliance of the terms and condition
existed in the MoU between the parties.
After the First Information Report was
lodged, the applicants were arrested and
thereafter, a settlement was done in
between the parties by way of reducing the
compromise
deed,
in
writing,
on
28.12.2019, whereafter the applicants were
released on bail and the terms and
conditions are mentioned in the bail orders
regarding the amicable settlement between
the parties, thereafter, in case of nonperformance of the terms and conditions of
the agreement dated 28.12.2019, opposite
party no. 2 moved cancellation of bail and
later on, approached to the Apex Court,
wherein, notice was issued and thereafter,
the
addendum
dated
14.07.2022
to
settlement agreement was entered into
between the parties and the admitted
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute of eight properties is mentioned,
disclosure of the same given in paragraph
30 of the supplementary affidavit filed by
the counsel for the applicants, whereafter,
out of eight properties, four properties were
transferred vide registered sale deed in
favour of the opposite party no. 2 and his
company and the rest of the four properties
are also proposed to be transferred, though
in the meantime i.e, on 19.06.2023,
UPRERA in its meeting, took decision to
make a ban over the transfer of the property
of the M/s Ansal Company which is an
admitted fact and the same is in the
knowledge of the opposite party no. 2, as
mentioned in paragraph 8 of the short
counter affidavit filed on his behalf. After
the aforesaid ban was imposed, the
property which was proposed to be
transferred, for which the allotment letters
and the transfer of title was also issued,
could not be executed.

32). From perusal of the addendum
settlement agreement as well as the notice
issued by the UPRERA, indicates that the
dispute is relating to the plots/houses
between the parties, for which, time and
again, they agreed to amicably settle the
issue and the settlement agreement was
also honoured to some extent, uptil the
UPRERA imposed the ban. It has also been
admitted and undertaken by the applicants
that they are still ready to transfer the rest
of the property in favour of the opposite
party no. 2 or his company and they are
trying to get the ban lifted by the UPRERA.

33). This court has also noticed the
fact that it is not the case where the
property in question was on the first day of
MoU, was in the possession or ownership
of the company, namely M/s Ansal and
there was also certain terms and conditions
in the policy regarding handing over the
land to the M/s Ansal Company, subject to
exchange of certain lands, canals, chakmarg, etc. and after it was decided that the
M/s Ansal succeeded to have the Hi-Tech
Township in the name of Sushant Golf City
Lucknow, the dispute with respect to
exchange of public utility lands were
creeping in, throughout years and an MoU
was signed in between the M/s Ansal
Company as well as the opposite party no.
2 and its company, then certainly the same
would have been with implied condition or
circumstances,
which
would
arise
subsequently and more particularly, where
the intent of committing cheat and fraud is
under question. It is not understandable that
how a company or person can imagine that
certain dispute would arose in future, which
will create a hurdle for the subsequent
performance of an MoU. Might be that
there is some recklessness or letharginess
on the part of the M/s Ansal Company and
its authority to get decide the matter, but
ultimately that cannot be termed as an
offence,
particularly
with
respect
to
execution of the MoU between the
applicants and the opposite party no. 2.

34). Regarding contention of counsel
for the opposite party that fraud or cheat
shall be looked into on the first date of
occurance of the offence, it is correct but so
far as the case in hand is concerned, it is
very clear that on the date of MoU between
the complaint and the applicants and
company, no offence was committed
alleged on the date of occurance of the
offence as the issue of non performance of
the MoU came later, when certain issues
arose between State and the applicants
company and as result, the MoU could not
be honoured and the bonafide of the
company and applicants is apparent that
they tried to resolve the issue by entering
into further settlement and addendum
2 All. Rahul Mishra & Ors. Vs. State of U.P. & Anr.
1175
settlement and those were honoured to the
extent of the decision taken by UPRERA, thus
this Court is of considred opinion that the dispute is
commercial between the parties. So far as any other
investigation/enquiry said to be completed against
the applicants, that can not be intermingled with the
instant matter and that will be investigated and
examined, separately.

35). It's trite law that mens rea is an essential
ingredient for composition of offence and all civil
wrongs can not be termed as an offence. The facts
of each and every case are to be examined while
reaching to the conclusion that whether, a wrong
act comes under the purview of offence? So far as
the present matter is concerned, while examining
the facts of the case, it emerges that mens rea is
missing.

36). This court is also not unmindful to the
ratio of the judgement and orders rendered in
cases, namely State of Haryana Vs. Bhajan Lal
(1992) SUPP 1 SCC 335, Gian Singh Vs. State of
Punjab (2012) 10 SCC 303, Gold Quest
International Private Limited Vs. State of Tamil
Nadu (2014) 15 SCC 235, Parbatbahi Aahir @
Parbhatbhai Bhimsinghbhai Karmur and others
Vs. State of Gujrat (2017) 9 SCC 641, Mitesh
Kumar Jha Vs. State of Karnataka; (2021) SCC
OnLine SCC 976, Gulam Mustafa Vs. State of
Karnataka and another (2023) SCC OnLine SC
603, Inder Mohan Goswami and anr. Vs. State of
Uttarakhand (2007)12 SCC 1 and Syed Yaseer
Ibrahim Vs. State of Uttar Pradesh (2022) SCC
OnLine SC 271.

37). Admittedly, after the said violation of
terms of MoU, the parties have entered into
settlement and the addendum settlement and that
has been performed and honoured to some extent
and which further could not be performed for the
circumstances, which are not under control of the
applicants. Further, if the Complainant has any
grievance for non compliance of the MoU or
breach of the terms and conditions of the MoU, it
is always open to raise it before the court of civil
competence.

38). This court has also taken note of the
undertaking of the applicants that they are still
ready to perform addendum dated 14.07.2022 to
the settlement agreement and therefore this court
is of opinion that allowing the further criminal
proceeding would amount to harassment of the
applicants and therefore the criminal proceedings
against the applicants are abuse of process of law.

39).

Consequently,
the
impugned
summoning orders dated 06.09.2019 and
18.11.2019 are hereby set aside and the criminal
proceedings arising out of Case Crime No.
162/2018 u/S 406,419,420,506,467,468 and 471
of IPC, Police Station- Vibhuti Khand, district-
Lucknow, are hereby quashed.

30). The application is allowed accordingly.

41). Office is directed to communicate this
order to the trial Court concerned.
----------
(2024) 2 ILRA 1175
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 7024 of 2017

Rahul Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Dineysh Agrawal, Dileep Kumar

Counsel for the Opp. Parties:
G.A. Mahesh Kumar, Prabhat Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent