# Revisionist v. State of U.P.and others

- **Citation:** (2012) 3 ILRA 1121
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-28
- **Case number:** Criminal Revision No. 2738 of 2009
- **Bench:** Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-others-42343
- **Pages:** 12

## Headnote

A.G.A.
Sri G.S.Chaturvedi
Sri Vivek Prakash Mishra

Criminal Revision-against dismissal of
complaint passed by Magistrate under
Section 203-on ground from perusal of
complaint and the statement of witnessno offence under Section 420, 467,
468,471,504,
506
I.P.C.
Made
out,
considering civil-nature dispute pending
of Civil Suit-dismissal of complaint-heldproper.

Held: Para 29

Thus, from the perusal of the record, it
comes out that learned Magistrate has
not out rightly rejected the complaint
and has not taken cognizance of the
same holding that adequate remedy can
be granted by the civil court but he has
duly taken cognizance of the matter on
the complaint case and proceeded to
record the statements under Section 200
& 202 Cr.P.C. and thereafter considering
the material evidence on record, has
passed the order under Section 203
Cr.P.C.
Case law discussed:
AIR 1954 SC 307; 2010 (9 ADJ 599; 2009 AIR
SCW 2449; 2009 (5) ADJ 649; AIR 2001 SC
3014; AIR 2001 SC 3846 (1); AIR 1972 SC
1607; AIR 2001 SC 12960; 2011 AIR SCW
6385; AIR 2006 SC 2780

## Text

3 All] Anoop Gulati V. State of U.P. and others
1121

"29- Regulation of other Subjects: In
regard to the matters not specifically
covered by these Rules or by special orders,
person appointed to a post in the service
shall be governed by the rules, regulations
and
orders
applicable
generally
to
Government Servants serving in connection
with the affairs of the State."

13. As such it is to be observed that
provisions of 1991 Rules would not be
applicable on the petitioners.

14. Since the Court has come to
conclusion that Police Act, 1861 would be
fully applicable to the class-IV employees
working in Police Department, as such it
can be concluded that there is no infirmity
or illegality in U.P. Police Group-D
Employees Service Rules, 2009 so for as its
challenge on such ground is concerned.

15. With the aforesaid observations,
the writ petition is disposed of.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.09.2012

BEFORE
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Criminal Revision No. 2738 of 2009

Anoop Gulati

 ...Revisionist
Versus
State of U.P.and others

 ...Opposite Parties

Counsel for the Revisionist:
Sri Arun K. Singh-I

Counsel for the Opposite Parties:
A.G.A.
Sri G.S.Chaturvedi
Sri Vivek Prakash Mishra

Criminal Revision-against dismissal of
complaint passed by Magistrate under
Section 203-on ground from perusal of
complaint and the statement of witnessno offence under Section 420, 467,
468,471,504,
506
I.P.C.
Made
out,
considering civil-nature dispute pending
of Civil Suit-dismissal of complaint-heldproper.

Held: Para 29

Thus, from the perusal of the record, it
comes out that learned Magistrate has
not out rightly rejected the complaint
and has not taken cognizance of the
same holding that adequate remedy can
be granted by the civil court but he has
duly taken cognizance of the matter on
the complaint case and proceeded to
record the statements under Section 200
& 202 Cr.P.C. and thereafter considering
the material evidence on record, has
passed the order under Section 203
Cr.P.C.
Case law discussed:
AIR 1954 SC 307; 2010 (9 ADJ 599; 2009 AIR
SCW 2449; 2009 (5) ADJ 649; AIR 2001 SC
3014; AIR 2001 SC 3846 (1); AIR 1972 SC
1607; AIR 2001 SC 12960; 2011 AIR SCW
6385; AIR 2006 SC 2780

(Delivered by Hon'ble Mrs. Jayashree Tiwari, J.)

1. Heard learned counsel for the
revisionist, learned A.G.A. as well as
learned counsel for the respondents and
perused the record.

2. The present criminal revision has
been filed for quashing the order passed by
the learned Magistrate in Complaint Case
No. 5657/2008, whereby learned Magistrate
after taking cognizance of the complaint
and after recording the statements under
Sections 200 and 202 Cr.P.C. and also
perusing the material evidence on record
had dismissed the compliant under Section
203 Cr.P.C. holding that no prima facie,
case is made out.
1122 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

3. The main contention of the learned
counsel for the revisionist is that even if, a
matter is liable to be determined by the
Competent Court of civil jurisdiction, even
then the criminal proceedings against the
said present revision can also be drawn and
thus he submitted that learned Magistrate in
dismissing
the
complaint
has
acted
erroneously.

4. In this respect, counter affidavit has
been filed by the learned counsel for the
respondents and against which rejoinder
affidavit have been exchanged.

5. Learned counsel for the revisionist
referred to the decisions of Apex Court
rendered in various prominent cases which
are as follows : M.S. Sheriff v. State of
Madras and others, AIR 1954 SC 307,
wherein their Lordships in paragraphs 15
and 16 as under:

"15. As between the civil and the
criminal proceedings we are of the opinion
that the criminal matters should be given
precedence. There is some difference of
opinion in the High Courts of India on this
point. No hard and fast rule can be laid
down but we do not consider that the
possibility of conflicting decision in the civil
and
criminal
Courts
is
a
relevant
consideration. The law envisages such an
eventuality when it expressly refrains from
making the decision of the Court binding on
the other, or even relevant, except for
certain limited purposes, such as sentence
or
damages.
The
only
relevant
consideration here is the likelihood of
embarrassment.

16. Another factor which weighs with
us is that a civil suit often drags on for years
and it is undesirable that a criminal
prosecution should wait till everybody
concerned has forgotten all about the crime.
The public interest demand that criminal
justice should be swift and sure; that the
guilty should be punished while the events
are still fresh in the public mind and that the
innocent should be absolved as early as is
consistent with a fair and impartial trial.
Another reason is that it is undesirable to
let things slide till memories have grown too
dim to trust.

This, however, is not a hard and fast
rule. Special considerations obtaining in
any particular case might make some other
course more expedient and just. For
example, the civil case or the other criminal
proceeding may be so near its end as to
make it inexpedient to stay it in order to
give precedence to a prosecution ordered
under S.476. But in this case we are of the
view that the civil suits should be stayed till
the criminal proceedings have finished."

6. In yet another decision rendered in
Khurram Siddiqui v. Km. State of U.P.,
2010 (9)ADJ 599, this court in paragraphs
4,8 and 9 has laid down as under:

"4. Learned Chief Judicial Magistrate
was of the view that the dispute is of civil
nature and the question whether or not the
sale deed is a forged document, can only be
decided by the Civil Court. It was also held
that a litigation is also pending in the
Revenue Court. Learned Chief Judicial
Magistrate
relying
on
Indian
Oil
Corporation v. NEPC India Ltd and others,
(2006)VI SCC 736, formed the opinion that
criminal proceeding in regard to a civil
dispute should not be permitted to proceed.

8.It is thus well settled that a civil as
well as criminal proceeding in regard to
same act may be launched and continued
simultaneously. If certain acts constitute an
3 All] Anoop Gulati V. State of U.P. and others
1123
offence, the criminal proceeding cannot be
held up or kept in abeyance till the
finalization
of
the
civil
proceeding.
Therefore the views of the Courts belongs
were not correct.

9.What was required from the learned
Magistrate, was to see whether the facts
stated in the application moved under
Section 156(3) constituted commission of
any cognizable offence or not. In other
words, it was the duty of the Magistrate to
see whether or not the facts put forth before
him had disclosed that the impugned sale
deed was a forged document fabricated by
the respondent No.2 for grabbing the waqf
property. If it was so, what offence was
made out from the facts disclosed. These
aspects of the matter have not been given
any
consideration
by
the
learned
Magistrate as well as by the learned
Additional Sessions Judge while passing the
impugned orders."

7. In another judgement pronounced
in the case of Mahesh Choudhary v. State
of Rajasthan and Another, 2009 AIR SCW
2449, the Apex Court in paragraph 14 has
held as under:

"It is also well settled that save and
except very exceptional circumstances, the
court would not look to any document relied
upon by the accused in support of his
defence. Although allegations contained in
the Complaint Petition may disclose a civil
dispute, the same may by itself may not be a
ground
to
hold
that
the
criminal
proceedings should not be allowed to
continue. For the purpose of exercising its
jurisdiction, the superior courts are also
required to consider as to whether the
allegations made in the FIR or Complaint
Petition fulfill the ingredients of the offences
alleged against the accused.

8. In yet another pronouncement made
in the case of Tapas Adhikari and another
v. State of U.P. and Another, 2009 (5) ADJ
649, this Apex Court in paragraph 8 has
held as under:

"8........So far as the pendency of civil
suit is concerned, the proceedings in civil or
revenue Courts are filed for the purpose of
obtaining different reliefs. The criminal
proceedings may not be quashed in case
such proceedings are barred by law or the
fabrics of the proceedings is parallel of the
civil in nature for constituting any offence.
Its remedy is available in civil or revenue
Courts but on the basis of allegation, prima
facie, any criminal offence is made out, the
same may not be quashed only on the
ground that civil proceedings are pending.
It is well settled proposition of law that civil
and criminal proceedings may run parallel,
therefore, on account of pendency of the
civil suit, the proceedings of the present
case cannot be quashed...."

9. In another decision rendered in the
case of M. Krishnan v. Vijay Singh and
another, AIR 2001 SC 3014, the Apex
Court in paragraphs 5 and 11 has
propounded as under:

"5.Accepting
such
a
general
proposition would be against the provisions
of law inasmuch as in all cases of cheating
and fraud, in the whole transaction, there is
generally some element of civil nature.
However, in this case the allegations were
regarding the forging of the documents and
acquiring gains on the basis of such forged
documents. The proceedings could not be
quashed only because the respondents had
filed a civil suit with respect to the aforesaid
documents. In a criminal court the
allegations made in the complaint have to
be
established
independently,
1124 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
notwithstanding the adjudication by a civil
Court. Had the complainant failed to prove
the allegations made by him in the
complaint, the respondents were entitled to
discharge or acquittal but not otherwise. If
mere pendency of a suit is made a ground
for quashing the criminal proceedings, the
unscrupulous
litigants,
apprehending
criminal action against them, would
encouraged to frustrate the course of justice
and law by filing suits with respect to the
documents intended to be used against them
after the initiation of criminal proceedings
or in anticipation of such proceedings. Such
a course cannot be the mandate of law.
Civil proceedings, as distinguished from the
criminal action, have to be adjudicated and
concluded by adopting separate yard-sticks.
The onus of proving the allegations beyond
reasonable doubt, in criminal cases, is not
applicable in the civil proceedings which
can be decided merely on the basis of the
probabilities with respect to the acts
complained of. The High Court was not, in
any way, justified to observe:

"In my view, unless and until the civil
Court decides the question whether the
documents are genuine or forged, no
criminal action can be initiated against the
petitioners and in view of the same, the
present criminal proceedings and taking
cognizance and issue of process are clearly
erroneous."

11. The impugned judgment being
contrary to the settled position of law is thus
not sustainable. The appeal is allowed and
the impugned judgment of the High Court is
set aside by upholding the order of the Trial
Magistrate dated 3-8-1998. The Trial
Magistrate shall now proceed in the matter
in accordance with law."

10. In the case of Kamladevi Agarwal
v. State of West Bengal and others, AIR
2001 SC 3846(1) the Hon'ble Supreme
Court in paragraphs 15, 16 and 17 has held
as under:

"15. We have already noticed that the
nature and scope of civil and criminal
proceedings and the standard of proof
required in both matters is different and
distinct. Whereas in civil proceedings the
matter can be decided on the basis of
probabilities, the criminal case has to be
decided by adopting the standard of proof
of
"beyond
reasonable
doubt".
A
Constitution Bench of this Court, dealing
with the similar circumstances, in M.S.
Sheriff v. State of Madras, AIR 1954 SC 397
held that where civil and criminal cases are
pending, precedence shall be given to
criminal proceedings. Detailing the reasons
for the conclusions, the Court held:

"As between the civil and criminal
proceedings we are of the opinion that the
criminal
matters
should
be
given
precedence. There is some difference of
opinion in the High Courts of India on this
point. No hard and fast rule can be laid
down but we do not consider that the
possibility of conflicting decisions in the
civil and criminal courts is a relevant
consideration. The law envisages such an
eventuality when it expressly refrains from
making the decision of one court binding on
the other, or even relevant, except for
certain limited purposes, such as sentence
or
damages.
The
only
relevant
consideration here is the likelihood of
embarrassment.

Another factor which weighs with us is
that a civil suit often drags on for years and
it is undesirable that a criminal prosecution
should wait till everybody concerned has
3 All] Anoop Gulati V. State of U.P. and others
1125
forgotten all about the crime. The public
interests demand that criminal justice
should be swift and sure; that the guilty
should be punished while the events are still
fresh in the public mind and that the
innocent should be absolved as early as is
consistent with a fair and impartial trial.
Another reason is that it is undesirable to
let things slide till memories have grown too
dim to trust.

This, however, is not a hard and fast
rule. Special considerations obtaining in
any particular case might make some other
course more expedient and just. For
example, the civil case or the other criminal
proceeding may be so near its end as to
make it inexpedient to stay it in order to
give precedence to a prosecution ordered
under S.476. But in this case we are of the
view that the civil suits should be stayed till
the criminal proceedings have finished."

16. In the present case we have noticed
that before issuance of the process, the Trial
Magistrate had recorded the statement of
the witnesses for the complainant, perused
the record including the opinion of the
expert and his deposition and prima facie
found that the respondents were guilty for
the offence for which the process was issued
against them. The High Court rightly did
not refer to any of those circumstances but
quashed the proceedings only on the
ground:

"Consideration is and should be
whether any criminal proceeding instituted
before a court subordinate to this court
should be allowed to continue when the
very foundation of the criminal case,
namely, forgery of document is under
scrutiny by this court in a civil proceeding
instituted
by
same
person,
i.e.
the
complainant in the criminal case. In my
considered view it would not be proper to
allow the criminal proceeding to continue
when the validity of the document (deed of
dissolution is being tested in a civil
proceeding before the court. Judicial
propriety demands that the course adopted
by the Hon'ble Supreme Court in this case
of Manju Gupta (supra) and Sardool Singh
(supra) should be followed. If such course
of action is adopted by this court, that
would be in consonance with the expression
used in Section 482 of the Code of of
Criminal Procedure- "or otherwise to
secure the ends of justice." In both the cases
referred to above civil suits were pending,
where the validity and genuineness of a
document was challenged. It was held by
the Hon'ble Supreme Court that when the
question regarding validity of a document is
subjudice in the civil courts, criminal
prosecution, on the allegation of the
document
being
forged,
cannot
be
instituted."

17. In view of the preponderance of
authorities to the contrary, we are satisfied
that the High Court was not justified in
quashing the proceedings initiated by the
appellant against the respondents. We are
also not impressed by the argument that as
the civil suit was pending in the High Court,
the Magistrate was not justified to proceed
with the criminal case either in law or on
the basis of propriety. Criminal cases have
to be proceeded with in accordance with the
procedure as prescribed under the Code of
Criminal Procedure and the pendency of a
civil action in a different Court even though
higher in status and authority, cannot be
made a basis for quashing of the
proceedings."

11. While examining the scope of
Section 203 Cr.P.C. the Hon'ble Supreme
Court in the case of Debendra Nath
1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Battacharya v. The State of West Bengal
and another, AIR 1972 SC 1607 in
paragraphs 7 and 8 has held as under :

"7. It has to be remembered that an
order of dismissal of a complaint under
Section 203, Criminal Procedure Code has
to be made on judicially sound grounds. It
can only be made where the reasons given
disclose that the proceedings cannot
terminate successfully in a conviction. It is
true that the Magistrate is not debarred, at
this stage, from going into the merits of the
evidence produced by the complainant. But,
the object of such consideration of the
merits of the case, at this stage, could only
be to determine whether there are sufficient
grounds for proceedings further or not. The
mere existence of some grounds which
would be material in deciding whether the
accused should be convicted or acquitted
does not generally indicate that the case
must necessarily fail. On the other hand,
such grounds may indicate the need for
proceeding further in order to discover the
truth after a full and proper investigation.
If, however, a bare perusal of a complaint
or the evidence led in support of it show
that essential ingredients of the offence
alleged are absent or that the dispute is only
a civil nature or that there are such patent
absurdities in evidence produced that it
would be a waste of time to proceed further
the complaint could be properly dismissed
under Section 203, Criminal Procedure
Code.

8. What the Magistrate had to
determine at the stage of issue of process
was not the correctness of the probability or
improbability
of
individual
items
of
evidence on disputable grounds, but the
existence or otherwise of a prima facie case
on the assumption that what was stated
could be true unless the prosecution
allegations were so fantastic that they could
not reasonably be held to be true."

12. In S.N. Palanitkar v. State of
Bihar and another, AIR 2001 SC 12960
while examining the scope of section 203 of
Code of Criminal Procedure Code, the
Hon'ble Apex Court in paragraphs 15,16
and 17 has held as under :

"15. In case of a complaint under
Section 200, Cr.P.C. or IPC a Magistrate
can take cognizance of the offence made out
and then has to examine the complainant
and the witnesses, if any, to ascertain
whether a prima facie case is made out
against the accused to issue process so that
the issue of process is prevented on a
complaint which is either false or vexatious
or
intended
only
to
harass.
Such
examination is provided in order to find out
whether there is or not sufficient ground for
proceeding. The words 'sufficient ground'
used under Section 202 have to be
construed to mean the satisfaction that a
prima facie case is made out against the
accused and not sufficient ground for the
purpose of conviction.

16. This Court in Nirmaljit Singh
Hoon v. The State of West Bengal and
others, (1993)(3)SCC 753), in para 22,
referring to scheme of Sections 200-203 of
Cr.P.C. has explained that "The section
does not say that a regular trial of
adjudging truth or otherwise of the person
complained against should take place at
that stage, for, such a person can be called
upon to answer the accusation made
against him only when a process has been
issued and he is on trial. Section 203
consists of two parts. The first part lays
down the materials which the Magistrate
must consider, and the second part says that
if after considering those materials there is
3 All] Anoop Gulati V. State of U.P. and others
1127
in his judgment not sufficient ground for
proceeding, he may dismiss the complaint.
In Chandra Deo Singh v. Prakash
Chandra Bose (1964 (1)SCR 639) where
dismissal of a complaint by the Magistrate
at the stage of Section 2092 inquiry was set
aside, this Court laid down that the test was
whether there was sufficient ground for
proceeding and not whether there was
sufficient ground for conviction, and
observed (p.653) that where there was
prima facie evidence, even though the
person charged of an offence in the
complaint might have a defence, the matter
had to be left to be decided by the
appropriate forum at the appropriate stage
and issue a process could not be refused.
Unless, therefore, the Magistrate finds that
the evidence led before him is selfcontradictory,
or
intrinsically
untrustworthy, process cannot be refused if
that evidence makes out a prima facie
case."

17. In Smt. Nagawwa v. Veeranna
Shivalingappa Kongalgi (1976(3) SCC
736) this Court dealing with the scope of
inquiry under Section 202 has stated that it
is
extremely
limited
only
to
the
ascertainment of the truth or falsehood of
the allegations made in the complaint (a) on
the materials placed by the complainant
before the Court (b) for the limited purpose
of finding out whether a prima facie case
for issue of process has been made out; (C)
for deciding the question purely from the
point of view of the complainant without at
all adverting to any defence that the
accused may have. It is also indicated by
way of illustration in which cases an order
of the Magistrate issuing process can be
quashed on such case being "where the
allegations made in the complaint or the
statements of the witnesses recorded in
support of the same taken at their face value
make out absolutely no case against the
accused or the complaint does not disclose
the essential ingredients of an offence which
is alleged against the accused."

13. In Dr. Subramaniam Swamy v.
Dr. Manmohan Singh, 2012 AIR SCW
1249 the Hon'ble Supreme Court in
paragraph 26 has held as under:

"Before proceeding further, we would
like to add that at the time of taking
cognizance of the offence, the Court is
required to consider the averments made in
the complaint or the charge-sheet filed
under Section 173. It is not open for the
Court to analyse the evidence produced at
that stage and come to the conclusion that
no prima facie case is made out for
proceeding further in the matter. However,
before issuing the process, it is open to the
Court to record the evidence and on
consideration of the averments made in the
complaint and the evidence thus adduced,
find out whether an offence has been made
out. On finding that such an offence has
been made out the Court may direct the
issue of process to the respondent and take
further steps in the matter. If it is a chargesheet filed under Section 173 Cr.P.C., the
facts stated by the prosecution in the
charge-sheet, on the basis of the evidence
collected
during
investigation,
would
disclose the offence for which cognizance
would be taken by the Court. Thus, it is not
the province of the Court at that stage to
embark upon and shift the evidence to come
to the conclusion whether or not an offence
has been made out."

14. While dealing with the power of
attorney, the Hon'ble Supreme Court of
India in Suraj Lamp and Industries v. State
of Haryana, 2011 AIR SCW 6385, in
paragraph 13 has held as under:
1128 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"13. A power of attorney is not an
instrument of transfer in regard to any
right, title or interest in an immovable
property. The power of attorney is creation
of an agency whereby the grantor
authorizes the grantee to do the acts
specified therein, on behalf of grantor,
which when executed will be binding on the
grantor as if done by him as if done by him
(see section 1A and section 2 of the Powers
of Attorney Act, 1882). It is revocable or
terminable at any time unless it is made
irrevocable in a manner known to law. Even
an irrevocable attorney does not have the
effect of transferring title to the grantee."

15. In yet another decision rendered in
M/s Indian Oil Corporation v. M/s NEPC
India Ltd. And Others, AIR 2006 SC 2780
the Hon'ble Supreme Court in paragraph 10
has held as under:

"10. While on this issue, it is necessary
to take notice of a growing tendency in
business circles to convert purely civil
disputes into criminal cases. This is
obviously on account of a prevalent
impression that civil law remedies are time
consuming and do not adequately protect
the interests of lenders/creditors,. Such a
tendency is seen in several family disputes
also, leading to irretrievable break down of
marriages/families. There is also an
impression that if a person could somehow
be entangled in a criminal prosecution,
there is a likelihood of imminent settlement.
Any effort to settle civil disputes and claims,
which do not involve any criminal offence,
by applying pressure though criminal
prosecution should be deprecated and
discouraged. In G. Sagar Suri v. State of
U.P. [2000(2) SCC 6361, this Court
observed:

"It is to be seen if a matter, which is
essentially of civil nature, has been given a
cloak
of
criminal
offence.
Criminal
proceedings are not a short cut of other
remedies available in law. Before issuing
process a criminal court has to exercise a
great deal of caution. For the accused it is a
serious matter. This Court has laid certain
principles on the basis of which High Court
is to exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this
Section has to be exercised to prevent abuse
of the process of any court or otherwise to
secure the ends of justice".

While no one with a legitimate cause
or grievance should be prevented from
seeking remedies available in criminal law,
a complainant who initiates or persists with
a prosecution, being fully aware that the
criminal proceedings are unwarranted and
his remedy lies only in civil law, should
himself be made accountable, at the end of
such misconceived criminal proceedings, in
accordance with law. One positive step that
can be taken by the courts, to curb
unnecessary prosecutions and harassment
of innocent parties, is to exercise their
power under section 250 Cr.P.C. more
frequently, where they discern malice or
frivolousness or ulterior motives on the part
of the complainant. Be that as it may."

16. In light of the aforesaid rulings as
also in accordance with the provisions of
law as enunciated in the Act, the submission
of the learned counsel for the revisionist is
to be taken into consideration.

17. The contention of the learned
counsel for the revisionist that both civil and
criminal proceedings can be simultaneously
drawn with regard to the cause of action in
which remedy lies in the civil side also, it is
not appropriate to drop the criminal
3 All] Anoop Gulati V. State of U.P. and others
1129
proceedings merely on the ground that civil
court is the competent court to hear and
decide
the
matter
in
controversy.
Considering the matter from the angle
raised from the side of the learned counsel
for the revisionist, it is apparent that in the
instant case, learned Magistrate on filing a
complaint has proceeded according to the
procedure prescribed under Sections 200 &
202 Cr.P.C.. So far as the contention that
learned
Magistrate
has
dropped
the
proceedings merely on the ground that the
civil court is competent to grant remedy is
not sustainable as is the argument advanced
by the learned counsel for the revisionist.

18. In the instant case before us the
complaint case no. 5657 of 2008 was
proceeded by the learned Magistrate by
taking cognizance of complaint case and
proceeded to record the statement under
Section 200 Cr.P.C. and thereafter the
statement of his wife as P.W.1 was recorded
under Section 202 Cr.P.C. After recording
the statement under Section 202 Cr.P.C.,
learned Magistrate proceeded in accordance
with the provisions of the procedure
prescribed for trial on a complaint case. In
this regard, it is expedient to go through the
provisions as enunciated under Sections 203
and 204 Cr.P.C. which lays down as follows
:-

Section 203 Cr.P.C.

"Dismissal of complaint- If, after
considering the statements on oath (if any)
of the complainant and of the witnesses and
the result of the inquiry or investigation (if
any) under section 202, the Magistrate is of
opinion that there is no sufficient ground for
proceeding, he shall dismiss the complaint,
and in every such case he shall briefly
record his reasons for so doing,"

Section 204 Cr.P.C.

"204.Issue of process. (1) If in the
opinion of a Magistrate taking cognizance
of an offence there is sufficient ground for
proceeding, and the case appears to be-

(a) a summons-case, he shall issue his
summons for the attendance of the accused,
or

(b) a warrant-case, he may issue a
warrant, or, if he thinks fit, a summons, for
causing the accused to be brought or to
appear at a certain time before such
Magistrate or (if he has no jurisdiction
himself) some other Magistrate having
jurisdiction."

19. Thus, the procedure prescribed for
proceedings with regard to the complaint
case after recording the statement of the
complainant and witnesses and the result of
the inquiry or investigation (if any) under
section 202 Cr.P.C., the Magistrate is of the
opinion that there is no sufficient ground for
proceeding exits and he was dismissed the
complaint.

20. On the other hand, learned
Magistrate opines that there is sufficient
ground for proceedings, then he may
proceed to issue summon in a summon
case and warrant in a warrant case or
summon accordingly.

21. In the instant case before us, it is
not the case where the learned Magistrate
has refused to take cognizance of a
criminal case on the ground that the
matter pertains mainly to the civil
litigation. On filing a complaint, learned
Magistrate has proceeded the inquiry as
provided for trial on the complaint case
and recorded the statement under Sections
1130 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
200 and 202 Cr.P.C. and in furtherance of
the proceedings, learned Magistrate has
considered the relevant material evidence
and has passed the order under Section
203 Cr.P.C. as he opines that there is no
sufficient ground for proceedings in the
case.

22. Learned Magistrate has passed
a detailed and well reasoned order. Now
for
summoning
an
accused
in
a
complaint case, it is important to see
whether sufficient ground exists for
summoning the accused applicant and
whether a prima facie, case is made out
or not.

23. Learned Magistrate has held
that the perusal of the certified copies of
the documents on record leads to the
registered power of attorney which
bears the signature of the complainant
and which is not disputed by the comp.
Learned Magistrate has further opined
and given reasons that power of attorney
is duly registered document signed by
two witnesses before the Sub-Registrar
Ghaziabad. It bears the photographs of
the complainant as well as the opposite
party no.1. Learned Magistrate has also
opined that the offence under Sections
467, 468 and 471 I.P.C. deal with
forgery of valuable security, will etc.,
forgery for purpose of cheating, using as
genuine a forged document or electronic
record is to be there.

24. Learned Magistrate has also
opined in accordance with law that
admissions of the complainant in the
complaint as well as on oath statements
before the Court, his signature are
admitted on the registered power of
attorney. Hence, the learned Magistrate
came to the conclusion that forgery in
the signature is not present and the
offences under Sections 467, 468 and
471 I.P.C. are not made out. So far as
the the offences under Sections 504 and
506 I.P.C. are concerned, the basic
allegations making out a case there
under are not contained either in the
complaint or in the statements before
the Court. As such, the averments
regarding the offence under Sections
504 and 506 I.P.C. in the complaint
case, learned Magistrate has opined that
there is no prima facie, offence alleged
are made out.

25. So far as Sections 420 and 415
I.P.C. are concerned, learned Magistrate
has opined and given reasons that
perusal of the complaint and the
evidence lead in support of it show that
the power of attorney is a registered
document. Meaning thereby that both
the parties must have appeared before
the
office
of
the
Sub-Registrar,
Ghaziabad.
Further
the
power
of
attorney bears photographs of both the
complainant and the opposite party at
the bottom. It is impossible to believe
the story of the complainant that he was
deceived to sign the power of attorney
which was registered and contained
photographs of the complainant and
opposite party. Hence, the question of
intentionally deceiving the complaint
does not arise.

26. Learned Magistrate has given
cogent
reasons
and
came
to
the
conclusion that prima facie, offence
alleged in the complaint are not made
out from the inquiry made under Section
200 and 202 Cr.P.C. and has passed the
order under Section 203 Cr.P.C. In
addition, learned Magistrate has also
quoted a ruling of Hon'ble Supreme
3 All] Anoop Gulati V. State of U.P. and others
1131
Court (2006) 6 SCC 736 in case of
Indian Oil Corporation v. NEPC India
Ltd., wherein it has been held that :-

"Any effort to settle civil disputes
and claims which do not involve any
criminal offence, by applying pressure
through criminal prosecution, should be
deprecated and discouraged".

27. Learned Magistrate has further
observed that case is of a civil nature
and the ingredients of Sections 420,
467, 468, 41, 504 and 506 I.P.C. are not
made out and hence there does not exist
a prima facie, case and no sufficient
grounds for issuing process against the
opposite parties and dismissed the
complaint.

28. A perusal of the detailed order,
learned Court has given reasons in a
well discussed manner which clearly
shows that the powers have been duly
and legally exercised by the learned
Magistrate, while proceedings on a
criminal
complaint.
As
such,
the
contention of the learned counsel for the
revisionist reveals that criminal case can
run side by side is not denied by the
Court. The court has proceeded on the
relevant inquiry under Sections 200 and
202 Cr.P.C. and on consideration of the
entire material evidence on record and
oral statement has given his well
reasoned opinion for dismissing the
complaint and no prima facie, offence
appears to have been made out. More,
so in addition, the Court has also stated
a ruling of the Hon'ble Supreme Court
and observed that it was a matter of
civil litigation and no prima facie,
offence as alleged are made out. It was
not a case similarly where the Court has
not taken cognizance and not proceeded
mainly on the ground that the case is of
a civil nature. The Court has proceeded
on the criminal case in accordance with
the provisions prescribed and after
inquiry
and
consideration
of
the
material evidence came to the opinion
that no prima facie, offence is made out
and hence, dismissed the complaint.

`
29. Thus, from the perusal of the
record, it comes out that learned
Magistrate has not out rightly rejected
the complaint and has not taken
cognizance of the same holding that
adequate remedy can be granted by the
civil court but he has duly taken
cognizance of the matter on the
complaint case and proceeded to record
the statements under Section 200 & 202
Cr.P.C. and thereafter considering the
material evidence on record, has passed
the order under Section 203 Cr.P.C.

30. So far as the contention that
order passed by the learned Magistrate
is not proper because he has dropped the
criminal proceedings on the ground that
civil court is competent court is not
made out.

31. Apparently, the order so passed
is well reasoned and well discussed. At
this stage, I do not find any illegality or
irregularity in the order so passed which
may vitiate the proceedings. In the
circumstances, the revision, therefore,
appears to have force in itself and is
liable to be dismissed as such.

32. The criminal revision is
accordingly, dismissed.
---------
1132 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2012

BEFORE
THE HON'BLE DR. SATISH CHANDRA, J

Misc. Single No. - 3862 of 2012

M/S Pantaloon Retail (India)

 ...Applicant
Versus
The
Chief
Controlling
Revenue
Authority/Board Of Revenue & Ors

 ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar
Sri Kaushik Chaterji

Counsel for the Respondents:
C.S.C.

(A) Transfer of Porperty Act-Section 107-
Lease and Licence-difference between the
two explained-'Lease' denotes contract
having relationship of land lord-tenant
either for life or limited period-while word
"licence"-denotes a right of permission to
do an act or permission to carry some
business or the act-which without licence
would be unlawful.

Held: Para-28

A licence is also distinguished from a lease.
As per "Corpus Juris Secundum", a licence
generally provides the licencee with less
rights in real estate than a lease. If the
contract gives exclusive possession of the
premises against all the word, including
the owner it is a lease, but if it merely
confers of a privilege to occupy the
premises under the owner, it is a licence.
Accordingly, a licence in a property is the
permission or authority to engage in a
particular act or series of acts upon the
land of another without possessing an
interest therein, and is thus subject to
management and control retained by the
owner.
(B) Indian Stamp Act-Section 33/44-A-
Demand of stamp duty with 200% penalty
of deficit amount-plea that the deed being
licence for period of 9 years-stamp duty of
Rs. 100/- sufficient-authorities wrongly
treated as 'lease' held-mere use of word
'licence' in the deed can not decide the
nature of document-exclusive possession
and profit of land disclose nature of leaseauthorities rightly put demand of extrastamp duty-but following the ratio of law
of Appex Court in Shyam Oil Mill-penality
reduced @ 100% instead of 200%.

Held Para-33:

In the instant case, the petitioner has paid
stamp duty of Rs.100/- on the said
instrument (MOU), by considering it as a
deed of licence. But fact remains that mere
use of the words 'licence' or 'licencee'
would not be sufficient to hold that the the
said instrument (MOU) is a licence. Simply,
using the word licence will neither be
regraded conclusive nor determinative.
Case Law discussed:
AIR 1999 SC 2607; AIR 1965 Supreme Court
Page 1092, paragraph 8; AIR 1957 Supreme
Court Page 657 paragraph 29; AIR 1958
Supreme Court Page 341 para 5; AIR 1966
Supreme Court , page 1295 para5; AIR 1970
Supreme Court Page 253 Para 7; 2008 VOL. 2
AWC Page 1879 Paragraph 7, Allahabad, 354 III
APP.3D 171, 289 III Dec. 420, 819 N.E.2d
1220(2d Dist.2004); (1960) 1 SCR 368; (1974) 1
SCC 202; (2011) 5 SCC 270; (2006) 286 ITR 251
MP

(Delivered by Hon'ble Dr. Satish Chandra, J.)

1. By this writ petition, the petitioner
has assailed the orders dated 29.06.2011
passed by the Additional District Magistrate
(Finance & Revenue), Lucknow in Case
No.264/Stamp/ 2008 under section 33/47-A
of the Indian Stamps Act as well as the
order dated 28.05.2012 passed by Chief
Controller
Revenue
Authorities
under
section 56 (1) A of the Indian Stamps Act in
Appeal
No.64
of
2011-12.