# Kamal Singh & Anr v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Application U/S 482 No. 20016 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-singh-anr-v-state-of-u-p-anr-45528
- **Pages:** 9

## Headnote

A. Criminal law - Indian Penal Code,1860-
Sections 467, 468, 471 I.P.C-The fact and
prima-facie conclusion that since the beginning
and initiation of contract for agreement to sell,
there was presence of intention to cheat or
deception has not been mentioned in impugned
order.

 Presence of intention to cheat or cause deceit
since the very beginning is a sine qua non to
make out an offence of cheating and the
Magistrate was required to mention the said fact
in the impugned order.

B. Criminal law - Code of Criminal
Procedure ,1973- Section 204 - Magistrate is
not required to pass a reasoned and elaborate
order while making a summoning order under
section 204 Cr.P.C.

It is however mandatory that the summoning
order must reflect the application of judicial mind
to the facts of the case and ought to be a
reasoned and speaking order. The Magistrate was
required to record what offences were made out
prima-facie on the basis of evidence collected in
enquiry by Magistrate as well as the litigations
between the parties in different courts

The very ingredients necessary for making
out an offence of forgery or fraud were
wholly missing from the statements recorded
by
the
Magistrate
in
the
Inquiry
contemplated under Sections 202/204 Cr.Pc.
( Para 8,18,19)

Application u/s 482 Cr.Pc allowed.

Case law Discussed:-

## Text

2 All. Kamal Singh & Anr. Vs. State of U.P. & Anr.
1507
sections 419, 420, 408 and 471 I.P.C. are
found to be made out despite their being
not mentioned in Section 195 Cr.P.C., it cannot
be held that the proceedings in the present case
would not stand barred under Section 195
Cr.P.C. as the offences under the said sections
appear to be connected and to have been
committed in course of the same offence i.e.
under Sections 177 and 188 I.P.C., therefore, I
am of the view that the proceedings in the
present case appear to be barred by provision
of Section 195 Cr.P.C. and are liable to be setaside/quashed.

22.

It
will
be
open
for
the
State/prosecution to initiate fresh proceedings
by following the procedure prescribed by law
as
mentioned
above
and
that
the
State/prosecution need not seek permission of
this Court in that regard, therefore, the
proceedings in the present case are quashed
with liberty to the State/prosecution to initiate
fresh proceedings by following procedure
prescribed under law. Whatever investigation
has been carried out so far, the same will not be
rendered invalid. For the purposes of initiating
fresh proceedings in accordance with law, the
same very material can be used.

23. With the aforementioned direction,
these Applications under Section 482 Cr.P.C.
are accordingly disposed of.
----------
(2020)02ILR A1507

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 20016 of 2019

Kamal Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Rahul Sahai, Sri Nirvikar Gupta

Counsel for the Opposite Parties:
A.G.A., Sri Brijesh Sahai, Sri Rahul Singh,
Sri Bhavya Sahai, Sri Naveen Srivastava

A. Criminal law - Indian Penal Code,1860-
Sections 467, 468, 471 I.P.C-The fact and
prima-facie conclusion that since the beginning
and initiation of contract for agreement to sell,
there was presence of intention to cheat or
deception has not been mentioned in impugned
order.

 Presence of intention to cheat or cause deceit
since the very beginning is a sine qua non to
make out an offence of cheating and the
Magistrate was required to mention the said fact
in the impugned order.

B. Criminal law - Code of Criminal
Procedure ,1973- Section 204 - Magistrate is
not required to pass a reasoned and elaborate
order while making a summoning order under
section 204 Cr.P.C.

It is however mandatory that the summoning
order must reflect the application of judicial mind
to the facts of the case and ought to be a
reasoned and speaking order. The Magistrate was
required to record what offences were made out
prima-facie on the basis of evidence collected in
enquiry by Magistrate as well as the litigations
between the parties in different courts

The very ingredients necessary for making
out an offence of forgery or fraud were
wholly missing from the statements recorded
by
the
Magistrate
in
the
Inquiry
contemplated under Sections 202/204 Cr.Pc.
( Para 8,18,19)

Application u/s 482 Cr.Pc allowed.

Case law Discussed:-

1. Anil Mahajan Vs. Bhor Ind. Ltd., (2004)
Law Suit (SC) 1204

2. Hridaya Ranjan Prasad Verma & ors Vs.
St. of Bih.& anr., AIR (2000) SC 2341
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
3. B. Suresh Yadav Vs. Sharifa Bee & anr.,
(2007) 4 RCR (Criminal) 870

4. Mahadeo Prasad Vs. St. of Bengal, AIR
(1954) SC 724

5.
Suresh
Vs.
Mahadevappa
Shivappa
Danannava, AIR (2005) SC 1047

6. B. Suresh Yadav Vs. Sharifa Bee & anr.,
(2007) 13 SCC 107

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Heard Sri Nirvikar Gupta, learned
counsel for the applicants, Sri Brijesh Sahai,
learned Senior Advocate, assisted by Sri
Bhavya Sahai, learned counsel for O.P. No.
2 and learned A.G.A. representing the State.
Perused the records.

2. This application under Section 482
Cr.P.C. has been filed by applicants Kamal
Singh and Ramesh Chandra against State of
U.P. and Brahm Kumar Agarwal with prayer
to quash entire proceedings of Complaint
Case No. 1339 of 2019, Brahm Kumar Vs.
Kamal Singh and another, arising out of
Case Crime No. 10 of 2015, under Sections
420, 467, 468, 471, 120B I.P.C., P.S.
Vrindavan, district Mathura, pending in
court of A.C.J.M., Court No. 5, Mathura,
including order dated 30.7.2018 passed by
the A.C.J.M., Mathura, whereby protest
petition has been treated as a complaint case
and summoning order dated 26.4.2019
passed in above mentioned Complaint Case.

3. Learned counsel for the applicants
argued that applicant no. 1 was recorded tenure
holder of Chak No. 115 Gata No. 477 area
0.893 hectare situate at village Jait, P.S.
Vrindavan, District Mathura. He entered into
an agreement with O.P. No. 2 for sale of his
plot in dispute for a total sale consideration of
Rs. 1,32,29,630/-. But complainant requested
for mentioning of lower amount of sum
because if entire sale consideration is
mentioned in the agreement to sell, the same
would entail a heavy stamp duty. In such
circumstances and notwithstanding with the
fact that the earnest money of Rs. 33,07,407/-
was received by applicant no. 1, agreement to
sell was executed mentioning earnest money to
be Rs. 20 lacs and total sale consideration to be
Rs. 50 lacs despite the fact that the
complainant was required to pay balance sale
consideration as against Rs. 1,32,29,630/-. But
after payment of Rs. 20 lacs the informantcomplainant failed to pay above balance
consideration resulting lapse of sum in term of
agreement entered in between in form of
forfeiture clause. The earnest money paid by
first
informant
stood
forfeited.
A
supplementary agreement was also executed in
between parties on 29.5.2013 and the time for
execution of sale deed was extended. Even
then on account of failure on the part of first
informant of being able to pay balance sale
consideration and being ready and willing to
have the sale deed executed, the applicant no. 1
was not bound by above agreement to sell
dated 29.6.2012. Applicant no. 1 executed a
sale deed for the same land in favour of
applicant no. 2, Ramesh Chandra, on 1.9.2014
for a total sale consideration of Rs.
1,15,00,000/-, which was a valid transaction
entered in between. The first informant
instituted O.S. No. 913 of 2014 for a decree of
relief of specific performance of contract/
agreement to sell dated 29.6.2012 with a
contention that the applicant no. 1, being
bhumidhar of plot in dispute, had entered
into a registered agreement to sell with
plaintiff/ first informant for a total sale
consideration of Rs. 50 lacs for which Rs.
20 lacs was paid by way of earnest money
and deed of agreement to sell was
executed on 29.6.2012 with a condition of
limitation of one year for execution of sale
2 All. Kamal Singh & Anr. Vs. State of U.P. & Anr.
1509
deed for it. Time and again payment was
being made to applicant no. 1, but he did
not show his willingness to have sale deed
executed.
Hence
a
supplementary
agreement was also executed in between
parties on 29.5.2013. But it revealed to the
plaintiff- first informant that applicant no.
1 had fraudulently executed sale deed of
land in question in favour of applicant no.
2, hence, cause of action had arisen for this
civil suit and it was filed for above relief.
An application under Order 39 Rule 1
C.P.C. for ad-interim injunction was filed
with above contention of plaint. Written
statement and objection over above
application were also filed by present
applicants and after hearing on merit the
ad-interim injunction application was
rejected by court of Civil Judge (Senior
Division), Mathura, vide order dated
21.7.2016. Against this order a First
Appeal From Order No. 2685 of 2016 was
filed before this court and it was dismissed
vide order dated 24.10.2016. Against this
order a Special Leave Petition No. 3110 of
2017 was filed before Apex Court, but the
same was rejected vide order dated
6.3.2017. In between a first information
report with same contention, as of plaint,
was filed at P.S. Vrindavan, District
Mathura, on 19.12.2014 vide Case Crime
No. NIL of 2014, which was renumbered
as Case Crime No. 10 of 2015 against
applicants. This was with false contention
of fact having no merit and was with
ulterior motive of blackmailing and
harassing the applicants, who are poor
illiterate farmers. Investigation resulted in
submission of final report on 14.3.2015.
Protest petition was filed, which was
treated as a complaint case vide order
dated
28.5.2015.
This
order
was
challenged before this court in Criminal
Misc. Application u/s 482 Cr.P.C. No.
20145 of 2015, Brahm Kumar Agarwal
Vs. State of U.P. and others, challenging
the order of the Magistrate for treating the
protest petition as a complaint case. This
order of Magistrate dated 21.7.2015 was
set aside by this court vide order dated
21.7.2015. Matter was remanded back and
it was further investigated. But as there
was no substance in the assertion, second
round of investigation also resulted in
submission of final report on 8.4.2016.
Investigating officer concluded that the
dispute between the parties was of civil
nature, regarding which civil suit is
pending
for
disposal. Again
protest
petition was filed and vide order dated
9.11.2017 again a direction for further
investigation was made. In the third round
of investigation again final report dated
30.3.2018 was filed. Hence despite final
report being submitted thrice in the matter,
the contesting respondent again filed a
protest petition, which was treated to be a
complaint case, wherein statement of
complainant was recorded u/s 200 Cr.P.C.
and of his witnesses Vivek Agarwal and
Bharat Pal were recorded u/s 202 Cr.P.C.
On the basis of recording of statements,
learned A.C.J.M., Court No. 5, Mathura,
passed summoning order dated 26.4.2019
whereby applicants have been summoned
to face trial for the offences punishable
under Sections 420, 467, 468, 471, 120B
I.P.C. Whereas from the bare perusal of the
impugned order of summoning as well as
order dated 30.7.2018 treating the protest
petition as a complaint case, it is apparent
that the same suffer from manifest error
apparent on the face of record. Sale deed
was rightly executed by applicant no. 1 in
favour of applicant no. 2. It was executed
after lapse of agreement for sale entered in
between applicant no. 1 and informant.
The informant- O.P. No. 2 was not ready
and willing to perform his part of contract
and to have sale deed executed for a
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
residual consideration. Entire fact in
dispute on the basis of which this F.I.R.
was lodged or protest petition was taken
cognizance
of
by
Magistrate
were
subjudice before Civil Court in above
previously instituted O.S. No. 913 of
2014. Initially prima-facie case was held
to be missing in dispute while deciding adinterim injunction application by learned
Civil Court and this order was confirmed
till Apex Court. Civil suit is still pending.
Unless those facts are being decided by
civil court, it can never be held that there
was any fraud or fabrication on the part of
applicant no. 1. Learned Magistrate, in
impugned order, has observed that there is
in fact a dispute between parties and as
such summoning of applicants was made.
It was in utter disregard of the laws
propounded by this court as well as Apex
Court that purely a civil nature dispute for
which Original Suit No. 913 of 2014
pending in between was there and for the
facts mentioned therein disputed by
written statement, pending for disposal by
civil court in above suit has been taken, as
a basis and reason for summoning of
accused-applicants for offences, as above.
Criminal Court may never adjudicate that
informant was ready and willing to get
sale deed executed or it was informant,
who failed to perform his obligation under
above registered agreement to sell. The
payment of earnest money being said by
informant- plaintiff has been admitted by
applicants- defendants. It has been said to
have lapsed in view of forfeiture clause
written in the admitted agreement. This
fact may also be adjudicated only and
exclusively by civil court. This too may
not be adjudicated by a criminal court.
Hence no offence was made out against
applicants. Applicant no. 2 is a bonafide
purchaser, who has purchased the land in
dispute through registered sale deed after
making valid and legal consideration for
the plot in dispute. He can never be held
for any offence of fraud, deceit or
fabrication or false and fictitious security,
to summon them. Hence this application
with above prayer.

4. Sri Brijesh Sahai, learned Senior
Advocate, assisted by Sri Bhavya Sahai,
learned counsel for O.P. No. 2, argued that
this
court
in
exercise
of
inherent
jurisdiction u/s 482 Cr.P.C. is not to
embark upon factual matrix and the
Magistrate, at the stage of passing an order
of summoning u/s 204 Cr.P.C., need not to
write reasoning in detailed and elaborate
order justifying its summoning order.
Rather existence of prima-facie case for
further proceeding and summoning is to be
seen by the Magistrate, as has been held in
catena of judgment of Apex Court as well
as of this court. In the present case,
admittedly, applicant no. 1 entered into an
agreement to sell of his bhumidhari land
for sale consideration of Rs. 50 lacs, out of
which earnest money of Rs. 20 lacs was
received. Registered agreement to sell was
with limitation of one year for execution
of sale deed. There was charge of bank
over above land. It was incumbent upon
applicant no. 1 to get the land free from
above charge and obtain procedure for
getting the same alienated, which he could
not complete, even after receipt of
subsequent part of major consideration in
maximum parts elaborated in plaint as well
as counter affidavit filed by O.P. No. 2.
Owing to failure of applicant no. 1 for
getting
above
formalities
completed,
subsequent agreement to sell with further
limitation was got executed in between.
Even after this and receipt of huge amount
of sale consideration, the deed was not
executed. A notice with false fact was
issued by applicant no. 1 to O.P. No. 2
2 All. Kamal Singh & Anr. Vs. State of U.P. & Anr.
1511
mentioning therein the sale consideration
of Rs. 1,32,29,630/-. This was replied by a
notice
with
correct
assertion
and
mentioned for getting dues cleared and
formalities fulfilled for getting sale deed
executed within the above limitation.
Subsequently, a notice was issued and on
that date O.P. No. 2 was present at the
office of Sub Registrar for getting deed
executed, but applicant no. 1 did not turn
up. Rather applicant no. 1 executed a sale
deed in favour of applicant no. 2, which
was a collusive deed, just to defeat the
earlier agreement to sell. This was a fraud
and deception with O.P. No. 2 for which
first information report was got lodged and
even after repeated directions for further
investigation, final report was submitted
under influence of accused-applicants.
Ultimately protest petition was filed over
final report, which was treated as a
complaint case, wherein the Magistrate
decided to proceed under Chapter XV of
the
Code
or
Criminal
Procedure.
Statements of complainant and of his two
witnesses were recorded by the Magistrate
under sections 200 and 202 Cr.P.C. There
was sufficient prima-facie evidence for
offences punishable under Sections 420,
467, 468, 471, 120B I.P.C. Accordingly,
the impugned summoning order was
passed against the applicant, against which
this proceeding u/s 482 Cr.P.C. has been
filed. Whereas applicant no. 1 is in
possession of huge amount of money paid
by O.P. No. 2 to applicant no. 1 and it has
yet not been returned. Thus, execution of
agreement to sell was with intention to
deceit O.P. No. 2. Hence the same was not
complied with. Neither money was paid
back nor deed was executed in favour of
O.P. No. 2. Rather land in dispute was
transferred under a collusive transaction
and deed to applicant no. 2, who is
enjoying the above land and O.P. No. 2 is
running from pillar to post. Civil suit is for
decree of specific performance of contract
and adjudication of civil right of plaintiff.
Whereas this criminal proceeding was for
punishment of applicants for forgery and
fraud committed by them under a
fraudulent intention since the beginning of
above
transaction
and
execution
of
registered agreement to sell and there are
catena of judgments of Apex Court as well
as of this court that pendency of Civil Suit
will not bar criminal proceeding. Hence
this application is to be dismissed.

5. Apex Court in Anil Mahajan Vs.
Bhor Industries Limited, 2004 Law Suit
(SC) 1204, has propounded that in a case
of fraud defined under section 415 I.P.C.
and punishable u/s 420 I.P.C., offence of
cheating requires criminal intention since
very inception of contract. Consideration
of substance of complaint should reveal
that criminal intention was from very
inception of contract. If subsequent
disobedience of contract is there, then
distinction has to be kept in mind between
mere breach of contract and offence of
cheating. Subsequent conduct is not sole
test. Mere breach of contract cannot give
rise to criminal prosecution for cheating
unless fraudulent, dishonest intention is
shown at beginning or inception of
transaction and if it is lacking then
substance of complaint will be a simple
case of civil dispute in between parties.

6. This has also been laid down by
Apex Court in Hridaya Ranjan Prasad
Verma and others Vs. State of Bihar
and another, AIR 2000 SC 2341, that
mere breach of contract or agreement to
sell
cannot
give
rise
to
criminal
prosecution
for
cheating
unless
fraudulent or dishonest intention is
shown
right
at
the
beginning
of
1512 INDIAN LAW REPORTS ALLAHABAD SERIES
transaction. Relevant paragraph no. 16 of
judgment reads as under:

"Mere breach of contract cannot
give rise to criminal prosecution for
cheating unless fraudulent or dishonest
intention is shown right at the beginning of
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 mere
failure to keep up promise subsequently
such a culpable intention right to the
beginning that is, when he made the
promise cannot be presumed."

7. In B. Suresh Yadav Vs. Sharifa
Bee
and
another,
2007(4)
RCR
(Criminal) 870, the Apex Court has held
that criminal proceedings are not short cut
of other remedies available in law to get
the agreement to sell executed. In
paragraph no. 13 of the aforesaid judgment
the Apex Court has observed as under:

"13.
For
the
purpose
of
establishing the offence of cheating, the
complainant is required to show that the
accused had fraudulent or dishonest
intention at the time of making promise or
representation."

8. Applying above principles of law
stated in the ratio and judgments to the
facts of the present case, it is not disputed
between the parties that applicant no. 1
entered in agreement to sell of his
bhumidhari land for a valid consideration
through a registered sale deed and took
earnest money of Rs. 20 lacs against it.
Limitation was of one year. Subsequently
supplementary agreement to sell by way of
a registered document was executed,
wherein
this
limitation
period
was
extended and part of remaining amount
was paid. Meaning thereby till then there
was no intention to cheat or cause deceit
nor this deed was result of above
deception. Another agreement on a Stamp
paper was executed in between parties
having signature and identification with
attestation of witnesses on the same day
wherein amount of consideration was
written to be Rs.1,32,29,630/- for the same
land and this collateral document was
written to be executed in between in civil
proceeding as well order rejecting adinterim injunction application by Presiding
Judge of Civil Court and it was held that
this collateral agreement to sell, though
not registered, was actionable between
parties as a collateral transaction because
of not being opposed by them and this
finding was not altered even up to stage of
Apex Court. Meaning thereby on the
inception of above agreement to sell,
admittedly, there was no question of any
deception or cheating. Subsequently there
arisen
a
dispute
that
complainantinformant was not willing and ready to get
sale deed executed or present applicant no.
1 failed to execute deed because of his
fraudulent intention and failure to get
terms and conditions fulfilled regarding
clearance of bank dues and demarcation of
chak in question. These things are
questions of facts to be decided on the
basis of evidence in a civil proceeding,
which
has
already
been
filed
by
complainant - O.P. No. 2 prior to
institution of this criminal proceeding.
These facts have been mentioned and
denied in pleadings. Hence determination
of those things are to be made by civil
court in above civil proceeding. Learned
Magistrate in its impugned order has
written so. Hence the fact and prima-facie
conclusion that since the beginning and
initiation of contract for agreement to sell,
2 All. Kamal Singh & Anr. Vs. State of U.P. & Anr.
1513
there was presence of intention to cheat or
deception has not been mentioned in
impugned order. Whereas Magistrate is not
required to pass a reasoned and elaborate
order while making a summoning order
under section 204 Cr.P.C. But it is
mandatory that from the perusal of order
of summoning, it must appear that
application of judicial mind is there.

9. In the present case summoning is
for offences punishable under Section 420
I.P.C. The essential ingredients of offence
of fraud enumerated u/s 415 I.P.C. is to be
apparent making offence punishable u/s
420 I.P.C. Section 415 of I.P.C. provides:

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 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".

10. This cheating is punishable u/s
417 I.P.C. with imprisonment of either
description for a term, which may extend
to one year, or with fine, or with both.

11. Section 420 I.P.C. provides
cheating and dishonestly inducing delivery
of property.--Whoever cheats and thereby
dishonestly induces the person deceived to
deliver any property to any person, or to
make, alter or destroy the whole or any
part of a valuable security, or anything
which is signed or sealed, and which is
capable of being converted into a valuable
security,
shall
be
punished
with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.

12. Apex Court in Mahadeo Prasad
Vs. State of Bengal, AIR 1954 SC 724,
has propounded that the offence of
cheating is established when the accused
thereby induced that person to deliver any
property or to do or to omit to do
something, which he could otherwise not
have done or omitted.

13. Apex court in Suresh Vs.
Mahadevappa Shivappa Danannava, AIR
2005 (SC) 1047, quashed the complaint
case, wherein, the allegations of cheating
was made by the complainant against the
petitioner on the ground that the accused
had executed an agreement to sell her
house but subsequently backed out. The
Apex Court held that it is a dispute of civil
nature and there was no allegation that the
accused had fraudulent or dishonest
intention at the time of making the
promise.

14. In B. Suresh Yadav Vs. Sharifa
Bee and another, 2007(13) SCC 107, the
Apex Court has held that the power of the
High Court for quashing of the criminal
proceeding can be exercised where a civil
suit is also pending between the parties in
respect of the same subject matter and the
criminal proceedings in such like cases
amounting to abuse of process of law.

15. In the present case the
summoning includes offences punishable
u/s 467, 468, 471 I.P.C. whereas no
accusation of forgery provided u/s 463
I.P.C. is there. There is no allegation of
making of a false document or false
electronic record or part of a document or
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
electronic record, 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, which is a
condition precedent for offence punishable
u/s 467 I.P.C., which provides whoever
forges a document, which purports to be a
valuable security or a will etc.

16. Section 468 I.P.C. provides
punishments for offence of forgery for the
purpose of cheating.

17. Section 471 I.P.C. provides
punishment for use as genuine any
document or electronic record, which he
knows or has reason to believe to be a
forged document or electronic record.

18. But no ingredients of for forgery
or offences, as above, is there in the
statements recorded u/s 200 and 202
Cr.P.C. The mere accusation is that the
applicant no. 1 entered into an agreement
to sell. He received heavy amount as
earnest money. Subsequently he did not
execute sale deed. A Civil Suit was filed
and in between before filing of civil suit,
above
property
was
transferred
to
applicant no. 2 through a registered sale
deed for a valid consideration. This
applicant no. 2 has been summoned for
above offence. Whereas he is admitting to
purchase the land under bonafide belief for
a valid consideration through a registered
sale deed of a land, which was with no
defective title of vendor. Even if civil suit
is decreed then either specific performance
of above registered agreement to sell may
be or return of earnest money with interest
may be permitted. But the facts being
mentioned were admitted by applicant no.
1 before Civil Court and even in this
proceeding. Execution of sale deed in
favour of applicant no. 2 was said to be
made after expiry of period of limitation
mentioned in the registered agreement to
sell and retention of earnest money is
being claimed under bonafide belief of
forfeiture of earnest money agreed in the
agreement to sell. Hence, apparently this
ought to be considered by the Magistrate,
while summoning applicants for offences,
as above. What offences were made out
prima-facie on the basis of evidence
collected in enquiry by Magistrate, what
were pending before civil court and were
decided up to Apex Court were needed to
be there in the order of summoning passed
by the Magistrate revealing application of
judicial mind for passing summoning
order, if any. Whereas impugned order
reveals that Magistrate has summoned in
one line that both sides are litigating over
issue of property and this may be adjudged
by evidence laid by parties. Hence, primafacie there appears ground for summoning,
which never reveals application of judicial
mind by Magistrate in passing impugned
summoning order. Hence, it is apparently
an abuse of process of law. Accordingly,
this application merits its allowance.

19. Admittedly, this registered deed
of agreement to sell was executed on
29.5.2013 wherein sale consideration was
shown to be Rs. 50 lacs. At the same time
another agreement in between parties, duly
attested by witnesses for the same land for
sale, was got executed, wherein sale
consideration was written to be Rs.
1,32,29,630/-. This subsequent agreement
has been in the pleading before Civil
Judge in civil suit filed by informantcomplainant and it was held to be
admissible
for
collateral
purpose
in
between parties because of being not
2 All. I.P.S. Yadav Vs. State of U.P. & Anr.
1515
denied in the order of the Civil Judge
(Senior Division) in disposal of interim
injunction application, which order has
been upheld up to Apex Court. In this
proceeding u/s 482 Cr.P.C. learned counsel
for applicants has vehemently argued and
has written in the application that this
agreement to sell, which was not a
registered one, was got executed in
between. But upon request this sale
consideration was shown to be Rs. 50 lacs
and this was with a view to have saving
from
objections
from
Income
Tax
Department and other formalities and this
agreement was got registered. Meaning
thereby knowing this fact that this
contention in the agreement to sell was
against fact, but it was presented as a
factual one and this was got registered
with knowledge and belief that it was a
sham document. The real consideration to
be paid and the real agreement entered in
between was an unregistered document.
According
to
which
remaining
sale
consideration was to be given i.e. the
registry officials were deceived for getting
the deed registered, which was with
incorrect mention of consideration and
getting the same registered to be believed
to be true and correct one. This offence
will amount deception apparently fulfilling
the ingredients of a cognizable offence
punishable u/s 420 I.P.C. It will be against
both the would be vendee and the would
be vendor i.e. the parties to above
agreement including applicant no. 1. This
aspect was also required to be inquired
under section 202 Cr.P.C. then after
summoning order, if any, against accused,
against whom offences were made out,
was to be passed.

20. Accordingly, application u/s 482
Cr.P.C. is allowed. Impugned summoning
order is being set aside. The file is
remanded
back
to
the
Magistrate
concerned for making adequate and proper
enquiry under sections 200 and 202
Cr.P.C. for hearing complainant and
passing order, if any, within the parameter
of law and precedents showing prima-facie
application of judicial mind.
----------
(2020)02ILR A1515

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 22966 of 2019

I.P.S. Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Pradeep Kumar, Sri Rajnish Kumar Rai,
Sri Shri Krishan Yadav

Counsel for the Opposite Parties:
A.G.A., Deepti Tiwari, Ms. Monica Vaish

A. Criminal law - Code of Criminal
Procedure,1973- Section 204- Though
Magistrate need not to pass an elaborate and
reasoned order, while passing summoning
order u/s 204 Cr.P.C. but it is also there that it
must appear that there is application of judicial
mind and upon this application a prima-facie
commission of offence for which cognizance is
to be taken and summoning is to be made, is
made out.

Although the Learned Magistrate treated the
Protest Petition as a Complaint but the order
taking
cognizance
of
the
offences
and
summoning
the
accused
must
reflect
application of judicial mind to the facts of the
case.

B. Criminal law - Code of Criminal
Procedure, 1973- Section 197- A court is