# Prithvi Pal Singh & another Revisionists v. State of U.P. and others Opp. Parties

- **Citation:** High Court of Judicature at Allahabad #42949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-29
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prithvi-pal-singh-another-revisionists-v-state-of-u-p-and-others-opp-parties-42949
- **Pages:** 6

## Headnote

Code
Of
Criminal
Procedure-Section
397/401- offence under Section 419,
420, 467, 468, 471 IPC- summoning
order-on
application
under
section
156(3) FIR lodged-after investigation
chargesheet
submitted-on
allegation
exceeding his share-sale deed executed
to harm the complaint-much prior to
move application civil suit pending-non
disclosure of this fact-direction issued-in
view of law laid down by Apex Court in
Indian oil Corporation-any effort to
settle dispute-not involve any criminal
offence-criminal prosecution should be
deprecated-held-clearly
an
abuse
of
process-impugned order set-a-side.

Held: Para-23
In view of the above, the present dispute
is purely of civil nature and opposite
party no.2 has already instituted a civil
suit for cancellation of the sale deed,
therefore,
initiation
of
criminal
proceedings
by
the
opposite
party
against the revisionists is clearly an
abuse of process of the Court.

Held: Para-25
For the aforesaid reasons, I am of the
opinion that the civil dispute between
the parties has been given a criminal
colour and the fact of pendnecy of civil
suit has also been concealed in the
application under Section 156(3) Cr.P.C.
given on 9.10.2009 while the civil suit
has already been filed on 3.7.2009 i.e.
much prior to the aforesaid application
under
Section
156(3)
Cr.P.C.
The
pendency of the civil suit has also not
been brought to the notice of the court
which has passed the summoning order.

Case Law discussed:
AIR 1960 SC 866; 1992 SCC (Cr) 426; 1992
SCC (Cr) 192; 2005 SCC (Cr) 283; (2012) 11
SCC 465; 2005 Cr.L.J. 1952; 2001 (43) ACC 50
(All) (FB); 1978(1) SCR 749; 1980 SCC (Cri.)
72 ; 2009 (67) ACC 886;2008 (60) ACC 1;
2009 (66) ACC 28; (2011) 3 SCC 351; (2006)
6 SCC 736; (2009) 8 SCC 751
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

## Text

1 All Kamla Kant and another Vs. III Additional District Judge and others
571
passed by the Prescribed Authority as
well as the appellate authority in the
earlier proceeding I find that the same
very land was subjected under the
proceedings of declaration of surplus land
and also find that the order, passed by the
Prescribed Authority is based on re
appreciation of evidence which is not
permissible under the eye of law as has
been held in the judgments quoted above.
This fact is not disputed that the earlier
proceeding was on the same subject in
which the issue had already been
determined between the parties by the
Court
of
competent
jurisdiction.
Therefore, I am of the view that the
proceeding in question was barred by
principle of res judicata. That being so the
orders
impugned
passed
in
such
proceeding are nullity.

9. Therefore, the orders impugned
dated 13.1.1978 and 5.7.1978 are hereby
quashed.

10. In the result the writ petition is
allowed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 2751 Of 2010.

Prithvi Pal Singh & another...Revisionists
Versus
State of U.P. and others ...Opp. Parties.

Counsel for the Revisionists:
Sri Indra Mani Tripathi

Counsel for the Respondents:
A.G.A., Sri R.P.Singh Parihar
Sri Santosh Kr. Singh

Code
Of
Criminal
Procedure-Section
397/401- offence under Section 419,
420, 467, 468, 471 IPC- summoning
order-on
application
under
section
156(3) FIR lodged-after investigation
chargesheet
submitted-on
allegation
exceeding his share-sale deed executed
to harm the complaint-much prior to
move application civil suit pending-non
disclosure of this fact-direction issued-in
view of law laid down by Apex Court in
Indian oil Corporation-any effort to
settle dispute-not involve any criminal
offence-criminal prosecution should be
deprecated-held-clearly
an
abuse
of
process-impugned order set-a-side.

Held: Para-23
In view of the above, the present dispute
is purely of civil nature and opposite
party no.2 has already instituted a civil
suit for cancellation of the sale deed,
therefore,
initiation
of
criminal
proceedings
by
the
opposite
party
against the revisionists is clearly an
abuse of process of the Court.

Held: Para-25
For the aforesaid reasons, I am of the
opinion that the civil dispute between
the parties has been given a criminal
colour and the fact of pendnecy of civil
suit has also been concealed in the
application under Section 156(3) Cr.P.C.
given on 9.10.2009 while the civil suit
has already been filed on 3.7.2009 i.e.
much prior to the aforesaid application
under
Section
156(3)
Cr.P.C.
The
pendency of the civil suit has also not
been brought to the notice of the court
which has passed the summoning order.

Case Law discussed:
AIR 1960 SC 866; 1992 SCC (Cr) 426; 1992
SCC (Cr) 192; 2005 SCC (Cr) 283; (2012) 11
SCC 465; 2005 Cr.L.J. 1952; 2001 (43) ACC 50
(All) (FB); 1978(1) SCR 749; 1980 SCC (Cri.)
72 ; 2009 (67) ACC 886;2008 (60) ACC 1;
2009 (66) ACC 28; (2011) 3 SCC 351; (2006)
6 SCC 736; (2009) 8 SCC 751
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(Delivered by Hon'ble Aditya Nath Mittal,
J.)

1. Heard learned counsel for the
revisionists, learned counsel appearing for
opposite party no.3, learned A.G.A. and
perused the record.

2. All these petitions relate to the
same controversy between the same
parties, hence they are taken together for
decision.

3. This criminal revision has been
filed against orders dated 4.3.2010 and
9.7.2010 passed by A.C.J.M.-II, Jaunpur
in Case No.854 of 2010 "State Vs. Ram
Singh" arising out of Crime No.1163 of
2009, whereby the revisionists have been
summoned to face the trial for the
offences punishable under Sections 419,
420, 467, 468, 471 I.P.C. and non-bailable
warrant has been issued against the
revisionists.

4. Criminal Misc. Application u/s
482 Cr.P.C. No.15075 of 2010 has been
filed with the prayer to quash the chargesheet under Sections 419, 420, 467, 468
and 471 I.P.C. in Case Crime No.1163 of
2009 and Case No.854 of 2010 pending in
the Court of A.C.J.M.-II, Jaunpur.

5. Criminal Misc. Application u/s
482 Cr.P.C. No.39256 of 2012 has been
filed with the prayer to stay the
proceedings of Case No.5427 of 2010 by
which non-bailable warrant has been
issued in Case Crime No.1163 of 2009,
under Sections 419, 420, 467, 468 and
471 I.P.C.

6.

Learned
counsel
for
the
revisionists has submitted that it is a
dispute
of
civil
nature
and
the
complainant has not disclosed his share in
the alleged application under Section
156(3) Cr.P.C. It has also been submitted
that learned A.C.J.M. has no jurisdiction
to decide the share of the parties in the
property in dispute. It has also been
submitted that in counter affidavit the
opposite party no.3 has admitted that
revisionists have 2/6 share which were
virtually comes to 1/3 share and the
revisionists have not sold the land
exceeding 1/3 share. It has also been
submitted that suit for cancellation of sale
deed as well as partition is also pending
before the Civil Judge (J.D.), Janpur in
which 1/3 share of Mahaveer, Shripal and
Ganesh Singh has been admitted.

7. Learned counsel for the opposite
parties has submitted that with intention
to cause wrongful loss to the opposite
party no.3, the revisionists have executed
sale deed of property of which they are
not absolute owners. It has further been
submitted that in the counter affidavit 2/6
has been mentioned wrongly while it
should be 1/6.

8. An application under Section
156(3) Cr.P.C. was moved by the
opposite party no.3 alleging that the
accused persons had only 1/6 share but
with intention to cause wrongful loss to
the complainant, they have executed a
sale deed on 9.6.2009, therefore, the
matter should be investigated by the
police. This application was moved on
9.10.2009 upon which a case at Crime
No.1163 of 2009, under Sections 419,
420, 467, 468, 471 I.P.C. was registered
at Police Station Machli Shahar, District
Jaunpur in which the charge-sheet has
been
filed
after
investigation.
The
revisionists
have
challenged
the
summoning order and order by which
1 All Prithvi Pal Singh and another Vs. State of U.P. and others
573
non-bailable warrant has been issued
against the revisionists.

9. At this stage only a prima facie
case is to be seen in the light of the law
laid down by the Supreme Court in cases
of R.P. Kapur versus State of Punjab,
AIR 1960 SC 866, State of Hariyana
versus Bhajan Lal, 1992 SCC (Cr) 426,
State of Bihar versus P.P. Sharma,
1992 SCC (Cr) 192, and lastly Zandu
Pharmaceutical Works Ltd. Versus
Mohd. Saraful Haqe and another (Para
10), 2005 SCC (Cr) 283 and lastly (2012)
11 SCC 465. Detailed reasoned order at
the stage of issuance of process is not
required under the provisions of Code of
Criminal Procedure.

10. In (2012) 11 SCC 465, it has
been further held that defences may be
taken into consideration only if defence(s)
raised
by
accused
are
factually
unassailable and incontrovertible and
demolish foundation of prosecution case.

11. From perusal of the F.I.R., it
appears that there is a bonafide civil
dispute between the parties. As per
complaint, the revisionists have 1/6 share
in the property in dispute while the
revisionists have executed the sale deed of
1/3 share of the property in dispute.
Admittedly a Civil Suit No.739 of 2009
"Ajab Singh Vs. Ram Singh and others" is
pending before the Civil Judge (J.D.),
Jaunpur regarding cancellation of sale
deed. The opposite party-complainant has
also not been granted any injunction order
regarding the same property in dispute
which is alleged to have been transferred
fraudulently. The complainant alleges that
Bisun Singh had transferred his 1/6 share
in his favour as well as in favour of Ram
Bahadur thereby he became the owner of
5/6 share of certain plots.

12. It has been alleged that the
alleged sale deed has been executed with
a view to provide wrongful gain to
Dharma Devi and Suman Devi. What was
the conspiracy or forgery, has not been
disclosed in the F.I.R. From perusal of the
contents of F.I.R., it appears to be a
purely civil dispute regarding the share of
respective parties which can neither be
decided by this court in exercise of its
revisional jurisdiction nor can be decided
by a criminal court, therefore, I do not
wish to enter into the dispute of alleged
share of respective parties.

13 . Learned counsel for the
revisionists has relied upon Arvind
Kumar Tiwari Vs. State of U.P., 2005
Cr.L.J. 1952, in which the question of
maintainability
of
criminal
revision
against interlocutory order has been
decided.

14 . Learned counsel for the
revisionists has further relied upon Ram
Babu Gupta Vs. State of U.P. and
others, 2001 (43) ACC 50 (All)(FB), in
which the powers of the court under
Section
156(3)
Cr.P.C.
have
been
discussed.

15.
Learned
counsel
for
the
revisionists has further relied upon
Madhu
Limaye
Vs.
State
of
Maharashtra, 1978 (1) SCR 749,
Rajinder Prasad Vs. Bashir, AIR 2001
SC 3524 and Raj Kapoor Vs. State,
1980 SCC (Cri.) 72. All these rulings
relates to the interpretation of Section 482
and 397 Cr.P.C.
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

16. In Devendra and others Vs.
State of U.P. and another 2009 (67)
ACC 886, Hon'ble the Apex Court has
considered the civil wrong and criminal
wrong and has held as under:-

"We may, however, notice that the
said
decision
has
been
considered
recently by this Court in Mahesh
Choudhary v. State of Rajasthan &
another, 2009 (4) SCC 66 wherein it was
noticed:

"Recently in R. Kalyani v. Janak C.
Mehta and Ors. JT 2008 (12) SC 279 this
Court laid down the law in the following
terms:

9. Propositions of law which emerge
from the said decisions are:

(1) The High Court ordinarily would
not exercise its inherent jurisdiction to
quash a criminal proceeding and, in
particular, a First Information Report
unless the allegations contained therein,
even if given face value and taken to be
correct in their entirety, disclosed no
cognizable offence.

(2) For the said purpose, the Court,
save and except in very exceptional
circumstances, would not look to any
document relied upon by the defence.

(3) Such a power should be exercised
very sparingly. If the allegations made in
the FIR disclose commission of an
offence, the court shall not go beyond the
same and pass an order in favour of the
accused to hold absence of any mens rea
or actus reus.

(4) If the allegation discloses a civil
dispute, the same by itself may not be a
ground
to
hold
that
the
criminal
proceedings should not be allowed to
continue.

10. It is furthermore well known that
no hard and fast rule can be laid down.
Each case has to be considered on its own
merits. The Court, while exercising its
inherent jurisdiction, although would not
interfere with a genuine complaint
keeping in view the purport and object for
which the 15 provisions of Sections 482
and 483 of the Code of Criminal
Procedure had been introduced by the
Parliament but would not hesitate to
exercise its jurisdiction in appropriate
cases. One of the paramount duties of the
Superior Courts is to see that a person
who is apparently innocent is not
subjected to persecution and humiliation
on the basis of a false and wholly
untenable complaint.

16. The charge-sheet, in our opinion,
prima facie discloses commission of
offences. A fair investigation was carried
out by the Investigating Officer. The
charge-sheet is a detailed one. If an order
of cognizance has been passed relying on
or on the basis thereof by the learned
Magistrate, in our opinion, no exception
thereto can be taken.

We, therefore, do not find any legal
infirmity in the impugned orders."

17. In Inder Mohan Goswami and
another Vs. State of Uttaranchal and
others 2008 (60) ACC 1 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
1 All Prithvi Pal Singh and another Vs. State of U.P. and others
575
clearly an abuse of the process of the
Court."

18. In Hira Lal and others Vs.
State of U.P. and others 2009 (66) ACC
28 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."

19. In Harshendra Kumar D. Vs.
Rebatilata Kolley and others (2011) 3
SCC 351, 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.

20. 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.

21. In Indian Oil Corporation Vs.
NEPC India Ltd. and others (2006) 6
SCC 736, Hon'ble the 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
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
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."

22. In Mohd. Ibrahim and others
Vs. State of Bihar and another (2009) 8
SCC 751, the Hon'ble Apex Court has
held that if what is executed is not a false
document, there is no forgery. If there is
no forgery, then neither Section 467 nor
Section 471 of the Code are attracted.

23. In view of the above, the present
dispute is purely of civil nature and
opposite party no.2 has already instituted
a civil suit for cancellation of the sale
deed, therefore, initiation of criminal
proceedings by the opposite party against
the revisionists is clearly an abuse of
process of the Court.

24. It is yet to be decided that
whether the revisionists have sold their
share or have exceeded their share
without any sufficient ground. The share
of the parties can be decided by the court
of competent jurisdiction and the sale
deed at this stage cannot be said to be a
false document or a document executed
with the intention to commit forgery.
Respective parties shall have the full
opportunity to prove their share before the
civil court and at this stage, it cannot be
said that what amount of share the
respective parties have in the property in
disputed.

25. For the aforesaid reasons, I am of
the opinion that the civil dispute between
the parties has been given a criminal
colour and the fact of pendnecy of civil
suit has also been concealed in the
application under Section 156(3) Cr.P.C.
given on 9.10.2009 while the civil suit has
already been filed on 3.7.2009 i.e. much
prior to the aforesaid application under
Section 156(3) Cr.P.C. The pendency of
the civil suit has also not been brought to
the notice of the court which has passed
the summoning order.

26. Hon'ble the Apex Court in
Indian Oil Corporation Vs. NEPC India
Ltd. and others (supra) has further held
that any effort to settle the dispute and
claim which do not involve any criminal
offence by applying pressure through
criminal
prosecution,
should
be
deprecated and discouraged.

27. In view of Devendra and others
Vs. State of U.P. and another (supra), if
somebody is aggrieved by the false
assertion made in the said sale deed, he
would be the vendees and not the cosharers.

28. For the facts and circumstances
mentioned above, the revision is allowed
and the orders dated 4.3.2010 and
9.7.2010 passed by A.C.J.M.-II, Jaunpur
in Case No.854 of 2010 "State Vs. Ram
Singh" arising out of Crime No.1163 of
2009 are hereby set-aside.

29. In view of the above, Criminal
Misc. Application U/s 482 Cr.P.C.
No.15075 of 2010 and Criminal Misc.
Application U/s 482 Cr.P.C. No.39256 of
2012 regarding the same Crime No.1163
of 2009 are also disposed of accordingly.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.