# Smt. Mahadevi & Ors v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 1631
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** Application U/S 482 Cr.P.C. No. 4741 of 2015
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mahadevi-ors-v-state-of-u-p-anr-45279
- **Pages:** 7

## Headnote

A. Inherent Jurisdiction - Section 482 -
Cr.P.C. - at the stage of charge sheet
factual query and assessment of defence
evidence is beyond purview of scrutiny
under Section 482 Cr.P.C. - allegation
being factual in nature can be decided
only through evidence before Trial Court.

The Court observed that whether the accused
has intention to cheat opposite party no. 2
from the very beginning or not is subject
matter of evidence because if they had taken
Rs. 1 Lac under the agreement to sell without
having any intention to fulfill
the said
agreement, both the offences of criminal
breach of trust as well as cheating would be
constituted. It would appear that the accused
never had
any intention to honor the
agreement and kept the money extended to
them which would be nothing but criminal
misappropriation of the said amount. Whether
the said amount was paid to the deceased by
opposite party no. 2 or not is again a subject
matter of evidence. Hence, it cannot be said
that no prima-facie case under Section 420 and
406 IPC would be made out. (Para 16)
B. Simultaneous/parallel proceedings - if
a civil suit is maintainable for specific
performance of contract - simultaneously,
criminal proceedings can also lie, if
criminal breach or cheating has been
committed.
Application u/s 482 rejected. (E-10)
List of cases cited: -

## Text

1 All. Mahanth Kalyan Das & Ors. Vs. State of U.P. & Anr.
1631
justice are higher than the ends of mere
law though justice has got to be
administered according to laws made by
the legislature. The compelling necessity
for making these observations is that
without a proper realisation of the object
and purpose of the provision which seeks
to save the inherent powers of the High
Court to do justice, between the State and
its subjects, it would be impossible to
appreciate the width and contours of that
salient jurisdiction."

29. In view of the aforesaid, this
Court finds that the continuation of the
impugned proceedings would be an abuse
of the process of the Court. The
proceedings have been initiated with
ulterior motive to achieve for extraneous
purposes as a counter blast to the FIR
registered at Case Crime No.311 of 2008
against respondent no.2 and his brothers.

30. Thus, the petition is allowed and
the summoning order dated 6.6.2009 and
the order dated 30.9.2009 issuing bailable
warrant against the petitioners passed in
Complaint Case No.3482 of 2009, pending
in the court of Additional Chief Judicial
Magistrate IInd, Faizabad (Now Ayodhya)
and the entire proceedings of the aforesaid
complaint case are hereby quashed.
----------
(2020)1ILR 1631

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Application U/S 482 Cr.P.C. No. 4741 of 2015

Smt. Mahadevi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Rakesh Kumar Singh, Sri K.K. Roy

Counsel for the Opposite Parties:
A.G.A., Sri Hemendra Pratap Singh

A. Inherent Jurisdiction - Section 482 -
Cr.P.C. - at the stage of charge sheet
factual query and assessment of defence
evidence is beyond purview of scrutiny
under Section 482 Cr.P.C. - allegation
being factual in nature can be decided
only through evidence before Trial Court.

The Court observed that whether the accused
has intention to cheat opposite party no. 2
from the very beginning or not is subject
matter of evidence because if they had taken
Rs. 1 Lac under the agreement to sell without
having any intention to fulfill
the said
agreement, both the offences of criminal
breach of trust as well as cheating would be
constituted. It would appear that the accused
never had
any intention to honor the
agreement and kept the money extended to
them which would be nothing but criminal
misappropriation of the said amount. Whether
the said amount was paid to the deceased by
opposite party no. 2 or not is again a subject
matter of evidence. Hence, it cannot be said
that no prima-facie case under Section 420 and
406 IPC would be made out. (Para 16)
B. Simultaneous/parallel proceedings - if
a civil suit is maintainable for specific
performance of contract - simultaneously,
criminal proceedings can also lie, if
criminal breach or cheating has been
committed.
Application u/s 482 rejected. (E-10)
List of cases cited: -

1. Md. Allauddin Khan Vs. The State of Bihar &
ors Criminal Appeal No. 675 of 2019

2. V. Ravi Kumar Vs. State 2018 SCC Online SC
2811 (followed)

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)
1632 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Rakesh Kumar Singh,
learned counsel for the applicants, Sri
Hemendra Pratap Singh, learned counsel
for opposite party no. 2, Sri G.P. Singh,
learned A.G.A. and perused the record.

2. This application under Section 482
Cr.P.C has been moved with a prayer to
quash the impugned charge-sheet dated
12.11.2014 arising out of Case Crime No.
261 of 2014 under sections 420 and 406
IPC Police station Hathras Gate, District
Hathras registered as Case No.73 of 2015
(State vs. Smt. Mahadevi and others)
pending in the Court of A.C.J.M., Hathras
and to direct that no coercive action may
be
taken
against
the
applicants
in
pursuance of the charge-sheet dated
12.11.2004.

3. The main argument of the learned
counsel for the applicant is that the FIR
was lodged 11 years after the date of
occurrence and in the grounds taken by
him in affidavit filed in support of the
application it has been mentioned that the
opposite party no. 2 had filed an original
suit no. 200 of 2004 (Prem Singh and
another vs. Smt. Mahadevi and 4 others) in
which he had also moved an application
under Order 39 Rule 2(A) CPC seeking
punishment for committing contempt of
court but when he did not succeed there,
he lodged this FIR. This is nothing but
purely civil dispute between the parties.
There is no independent witness of the
occurrence and the statements of the
witnesses are stereo typed. The facts
mentioned in the FIR and the complaint
cannot be taken as gospel truth, this is
nothing but malicious prosecution and
entire proceeding needs to be quashed.

4. Learned counsel for the opposite
party no.. 2 though had appeared but has
not filed any counter affidavit and his
main argument has been that no averment
was made by the applicant that the
agreement to sell was a fraudulent
document.

5. In order to appreciate the
arguments of the respective parties, it is
essential to give here the facts of the case
in brief, which are as follows:

6. As per FIR, the opposite party no.
2 Ranveer Singh, one Indal Singh son of
Deepa resident of Khera Baramai, P.S.
Mursan had executed an agreement to sell
on 03.02.2003 of his land in favour of
opposite party no. 2 Ranveer Singh, Prem
Singh and Preetam Singh after having
received Rs.one lac and thereafter Indal
Singh died. In the said agreement to sell
the wife of Indal Singh Smt. Maha Devi
accused-applicant no. 1 was a witness but
Maha Devi and her sons namely, Har
Prasad, Mahendra, Satya Prakash, Kailashi
had executed a sale deed on 19.10.2013
playing fraud upon opposite party no. 2
and his co-sharers in favour of Nem Singh,
accused-applicant no. 6, Prem Singh
accused-applicant
no.7,
Raj
Kumar
accused-applicant no. 8 in collusion with
Omwati accused-applicant no.10, Sushma
Chaudhary and Omveer Rana fraudulently,
in
which
witnesses
were
namely
Rameshwar,
Jagdish
Prasad
Sharma,
Subodh Kumar, Pritam Singh, Ajit Singh
and Chandravir who were also involved in
this conspiracy despite the fact that there
was a status quo order passed by the court
below on 25.5.2006 in respect of the said
property.

7. After investigating the case, the
Investigating
Officer
has
submitted
charge-sheet, which is annexed Annexure1 to the affidavit. Out of the total 17
1 All. Smt. Mahadevi & Ors. Vs. State of U.P. & Anr.
1633
persons named in the FIR, only against 10
persons charge sheet has been submitted
while proceedings were dropped against
seven persons by the Investigating Officer.

8. It is revealed from the perusal of the
record that on 03.02.2003 one Indal had
entered into an agreement to sell with Prem
Singh, Preetam Singh and Ranveer Singh
(opposite party no..2) under certain conditions
which were to be fulfilled within a certain
period of time, failing which agreement to sell
was to have no force and its copy has been
annexed as Annexure-3 to the affidavit. The
said conditions incorporated in the agreement
to sell were flouted and hence the same
became non est. In the meantime, Indal Singh
i.e. father of the applicant nos. 2 to 5 and
husband of applicant no. 1 died, thereafter on
8.10.2013 the wife of Indal accused-applicant
no. 1 and her sons executed a registered sale
deed in favour of the applicant nos. 6, 7 and 8
by which certain portion of their property was
sold by Mahadevi and her sons i.e. accused
applicants nos. 1 to 5. After the conditions of
the agreement to sell were flouted and the said
property was not transferred through registered
sale deed in favour of Prem Singh and Ranveer
Singh then they filed civil suit being Civil Suit
No. 200 of 2004 (Prem Singh and another vs.
Smt. Mahadevi and 4 others) before the Civil
Judge (S.D.), copy of the plaint is annexed as
Annexure-5, with a prayer to issue a direction
to the opposite parties to execute sale deed
after having taken remaining consideration
amount and an alternative prayer was also
made that if the sale deed is not possible to be
executed then an amount of Rs.66,667/- be
directed to be paid to the opposite party no. 2.

9. The opposite parties in the suit,
accused in the present case had filed their
objection on 14.12.2004 in which it was
mentioned that the deceased Indal Singh
was not competent to sell the disputed
property as he was suffering from mental
ailment for which he was being treated
since 2011. This fact was known to the
opposite party no. 2. Therefore, the
opposite party no. 2 taking advantage of
the mental illness of the deceased Indal
Singh had got prepared a forged agreement
to sell, benefit of which cannot be taken by
opposite party no. 2. There was no
question of payment of any consideration
amount to the deceased Indal Singh. The
allegation that an amount of Rs.10.00 lace
was paid from the side of the opposite
party no. 2 to the applicants was
concocted. There was no obligation on the
part of the applicant nos. 1 to 5 to be
bound by the agreement to sell allegedly
executed by Indal as it was void document.
The notice which was served upon the
applicant nos. 1 to 5 from the side of
opposite party no. 2 post death of Indal
Singh was appropriately replied by the
applicants. It was very apparent that from
the side of the opposite party no. 2 an
attempt was being made to grab the
property of the deceased Indal Singh. The
applicant nos. 1 to 5 did not have any
knowledge of such agreement to sell. It is
further mentioned that on 25.5.2006 the
trial court passed an order of the status quo
in regard to that property which is annexed
as Annexure-7 to the affidavit. On
25.11.2013 the opposite party no.. 2
moved an application no. 144 of 2013 in
the said suit under order 39 rule 2A
seeking punishment to be awarded to the
applicant nos. 1 to 5 for committing
contempt of court for executing registered
sale deed on 21.10.2013 and 26.10.2013,
copy of which is annexed as Annexure-8
to the affidavit. When he failed to get a
relief in the said application before civil
court, this false FIR has been lodged
against the applicants after 11 years.
Matter is purely of civil nature. The
1634 INDIAN LAW REPORTS ALLAHABAD SERIES
charge-sheet
indicates
that
the
Investigating
Officer
has
recorded
statements of three witnesses namely
Ranveer Singh opposite party no. 2, Dhiraj
Singh and Nihal Singh and rest of the four
witnesses are formal witnesses and on the
basis of their statements a prima-facie case
is made out, charge-sheet has been
submitted under section 420 and 406 IPC
against the 10 accused-applicants named
above.

10. This court has to see as to
whether offences under section 406 and
420 IPC are made out or not in the light of
the averments made in the FIR because if
it is found that on the basis of averments
made in the FIR, the offences under the
abovementioned sections would not be
constituted then only charge-sheet could
be quashed.

11. Time and again it has been
highlighted by Supreme Court that at the
stage of charge sheet factual query and
assessment of defence evidence is beyond
purview of scrutiny under Section 482
Cr.P.C. The allegations being factual in
nature can be decided only subject to
evidence.
In
view
of
settled
legal
proposition, no findings can be recorded
about veracity of allegations at this
juncture in absence of evidence. Apex
Court has highlighted that jurisdiction
under
Section
482
Cr.P.C.
be
sparingly/rarely invoked with complete
circumspection and caution. Very recently
in Criminal Appeal No.675 of 2019
(Arising out of S.L.P. (Crl.) No.1151 of
2018) (Md. Allauddin Khan Vs. The
State of Bihar & Ors.) decided on 15th
April, 2019, Supreme Court observed as to
what should be examined by High Court in
an application under Section 482 Cr.P.C.
and in paras 15, 16 and 17 said as under:

"15. The High Court should have
seen that when a specific grievance of the
applicant in his complaint was that
respondent Nos. 2 and 3 have committed
the offences punishable under Sections
323, 379 read with Section 34 IPC, then
the question to be examined is as to
whether
there
are
allegations
of
commission of these two offences in the
complaint or not. In other words, in order
to see whether any prima facie case
against the accused for taking its
cognizable is made out or not, the Court
is only required to see the allegations
made in the complaint. In the absence of
any finding recorded by the High Court on
this material question, the impugned order
is legally unsustainable.

16. The second error is that the
High Court in para 6 held that there are
contradictions in the statements of the
witnesses on the point of occurrence.

17. In our view, the High Court
had no jurisdiction to appreciate the
evidence
of
the
proceedings
under
Section 482 of the Code Of Criminal
Procedure, 1973 (for short "Cr.P.C.")
because whether there are contradictions
or/and inconsistencies in the statements
of the witnesses is essentially an issue
relating to appreciation of evidence and
the same can be gone into by the Judicial
Magistrate during trial when the entire
evidence is adduced by the parties. That
stage is yet to come in this case."

(Emphasis added)

12. It is clear that from the side of the
applicant, copies of the statement of
witnesses have not been annexed but as
per averments made in the FIR it is being
scrutinized whether the offence under the
abovementioned sections is found to be
made or not.
1 All. Smt. Mahadevi & Ors. Vs. State of U.P. & Anr.
1635

13. For offence under section 406
IPC, following ingredients are required to
be satisfied.

i) Entrusting any persons with
property or with any dominion over
property;

ii) The person entrusted (a)
dishonestly misappropriating or converting
to his own use that property; or (b)
dishonestly using or disposing of that
property or wilfully suffering any other
person to so to do in violation.

(i) of any direction of law
prescribing the mode in which such trust is
to be discharged, or

(ii) of any legal contract made
touching the discharge of such trust.

14. And as for as offence under
section 420 IPC is concerned following are
the necessary ingredients.

(i) There must be deception i.e.
the accused must have deceived someone;

(ii) That by the said deception,
the accused must induce a person,

(a) to deliver any property; or

(b) to make, alter or destroy the
whole or part of the valuable security or
any thing which is signed or sealed and
which is capable of being converted into a
valuable property.

(iii) That the accused did so
dishonestly.

15. In the present case the plea taken
by the opposite party no. 2 is that applicant
nos. 1 to 5, who are wife and children of
deceased Indal Singh, who is alleged to
have executed an agreement to sell of his
property in favour of Ranveer Singh,
(opposite party no.2), Prem Singh and
Pritam
Singh
for
an
amount
of
Rs.3,97,000/- and out of the said amount
Rs.one lac was taken as advance on
03.02.2003 i.e. on the date of registered
agreement while rest of the amount was to
be paid at the time of execution of sale
deed within one year. In the said
agreement, wife of Indal i.e. accusedapplicant no. 1 (Smt. Maha Devi) was
witness. Later on Indal was served notice
to execute sale deed but to no avail.
Subsequently,
Indal
died,
a
notice
thereafter was served upon his legal heirs
i.e accused-supplicant nos. 1 to 5 to
execute sale deed but they did not execute
the same in favour of opposite party no. 2.
Then O.S. No. 200 of 2004 was filed by
opposite
party
no.
2
for
specific
performance of contract. While the said
O.S. was pending, the applicant nos. 1 to 5
executed a registered sale deed of the said
land in favour of accused-applicant nos. 6
to 8 on 19.10.2013 in which accused nos.
9 to 10 were also colluding. It is apparent
that in the said civil suit no.200 of 2004
the accused nos. 1 to 5 had set up plea that
Indal was not in a fit mental state to
execute the agreement to sell nor did he
take any consideration amount from the
side of opposite party no. 2 and that
therefore they had liberty to execute the
sale deed in favour of opposite party nos. 6
to 8 and that no cheating or criminal
breach of trust was committed by them..
On the other hand, the case of opposite
party no. 2 is that an amount of Rs.one lac
has been received by deceased Indal who
was husband of applicant no. 1 and father
of applicant nos. 2 to 5, therefore, being
legal heirs of Indal, they were duty bound
to execute the sale deed in favour of
opposite party no. 2 in pursuance of terms
and conditions of the agreement to sell
dated 07.02.2003. Since till 2013 they did
not execute the sale deed in favour of
opposite party no. 2, instead executed the
sale deed in favour of applicant nos. 6 to 8
1636 INDIAN LAW REPORTS ALLAHABAD SERIES
who,
in
collusion
with
co-accused
purchased the said land, therefore all the
accused-applicants
have
committed
offence under section 420 and 406 IPC
because applicant nos. 1 to 5 never
intended to sell the said land and had, with
ill intention to usurp the advanced sum of
Rs. One lac, taken the said amount.

16. I find that whether accused had
intention to cheat opposite party no.2 from the
very beginning or not is subject matter of
evidence because if they had taken Rs. One lac
under the agreement to sell without having any
intention to fulfill the said agreement, both the
offences of criminal breach of trust as well as
cheating would be constituted. It would appear
that the accused never had any intention to
honour the agreement and kept the money
extended to them (i.e. the deceased who was
the husband of applicant no.1 and father of
applicant nos. 2 to 5) which would be nothing
but criminal misappropriation of the said
amount. Whether the said amount was paid to
deceased by opposite party no. 2 or not is again
a subject matter of evidence. Hence, in my
opinion, at this stage, it cannot be said that no
prima-facie case under section 420 and 406
IPC would be made out.

17. In a catena of judgments of Apex
Court, it has been held that even if a civil
suit
is
maintainable
for
specific
performance of contract that would not
mean that a criminal proceedings would
not lie if a criminal breach of trust or
cheating has been committed. In civil
proceedings the remedy of getting the
contract executed would be granted but in
criminal
proceedings
the
punishment
would be awarded for having committed
offence under section 406 and 420 IPC.

18. I would like to rely on V. Ravi
Kumar vs. State 2018 SCC Online SC
2811, paragraphs nos. 29, 33, 37 are as
under.

"29. There can be no doubt that
a mere breach of contract is not in itself a
criminal offence, and gives rise to the civil
liability of damages. However, as held by
this Court in Mridaya Ranjan Prasad
Verma. v. State of Bihar8, the distinction
between mere breach of contract and
cheating, which is a criminal offence, is a
fine one. While breach of contract cannot
give rise to criminal prosecution for
cheating, fraudulent or dishonest intention
is the basis of the offence of cheating. In
this case, in the FIR, there were
allegations of fraudulent and dishonest
intention
including
allegations
of
fabrication of documents, the correctness
or otherwise whereof can be determined
only during trial when evidence is
adduced."

33.
In
Vesa
Holdings
(P)
Ltd.v.State of Kerala, this Court observed:

"12. The settled proposition of
law is that every breach of contract would
not give rise to an offence of cheating and
only in those cases breach of contract
would amount to cheating where there was
any
deception
played
at
the
very
inception."

13. It is true that a given set of
facts may make out a civil wrong as also a
criminal offence and only because a civil
remedy
may
be
available
to
the
complainant that itself cannot be a ground
to quash a criminal proceeding. The real
test is whether the allegations in the
complaint disclose the criminal offence of
cheating or not."

"37. In this case, it cannot be
said that there were no allegations
whichprima facie constitute ingredients of
offences under Sections 420, 409 and 34 of
the Indian Penal Code in complaint. There
1 All. Smt. Mahadevi & Ors. Vs. State of U.P. & Anr.
1637
were clear allegations of fraud and
cheating which prima facie constitute
offences under Section 420 of the Indian
Penal Code. The correctness of the
allegations can be adjudged only at the
trial when evidence is adduced. At this
stage, it was not for the High Court to
enter into factual arena and decide
whether the allegations were correct or
whether the same were a counter-blast to
any
proceedings
initiated
by
the
respondents."

19. In view of above, I am of the
view that it would be inappropriate to
interfere in the present matter under
inherent jurisdiction of the Constitution.
Accordingly, application deserves to be
dismissed and is dismissed.
----------
(2020)1ILR 1636

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 8355 of 2009

Mohd. Yusuf Khan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri R.B. Singh, Sri Syed Ahmad Faizan, Sri
Syed Farman Ahmad Naqvi

Counsel for the Opposite Parties:
A.G.A.

A. First Information Report
- after
registration
of
the
FIR
and
commencement
of
investigation,
a
second FIR relating to the same incident
was lodged - the test of sameness is to be
applied to ascertain whether both the
FIRs relate to the same incident in
respect of the same occurrence or are in
regard to the incidents which are two or
more parts of the same transaction - in
case the answer is in affirmative, the
second FIR is liable to be quashed.

Both the first information reports have been
lodged against the same accused i.e., applicant
by the two officers of the same department.
Though the complainant/informant of both the
aforesaid FIRs is different person, both the
complainant/informant
have
lodged
their
respective FIRs in their official capacity on
behalf of the same department and not in their
personal capacity. (Para 29)

After reading the aforesaid facts and after
applying the principle of sameness, it is
explicitly clear that the second FIR is cryptic
and does not stand the test laid down by the
Apex Court. (Para 31)

Application u/s 482 allowed. (E-10)

List of cases cited: -

1. In Kari Choudhary Vs. Most. Sita Devi & ors
AIR 2002 SC 441

2. T.T. Antony Vs. State of Kerala and ors
(2001) 6 SCC 181

3. Pandurang Chandrakant Mhatre and ors Vs.
State of Maharastra (2009) 10 SCC 773

4. Babubhau Vs. State of Gujarat and ors
(2010) 12 SCC 254 (followed)

5. Amitbhai Anil Chandra Shah Vs. Central Bureau of
Investigation & anr (2013) 6 SCC 348

6. Surender Kaushik & ors Vs. State of U.P. &
ors (2013) 5 SCC 148 (distinguished)

7. Ramesh Baburao Devaskar Vs. State of
Maharashtra (citation not given)

8. Vikram Vs. State of Maharashtra (citation not given)

(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)