# Smt. Prabha Awasthi & Others v. State Of U.P. & Another

- **Citation:** (2013) 1 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-06
- **Case number:** Criminal Revision No. 1950 of 2010
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prabha-awasthi-others-v-state-of-u-p-another-42488
- **Pages:** 7

## Headnote

180 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Code of Criminal Procedure-397-revision
against summoning order-offence under
section 467, 468, 471 I.P.C.-dispute pure
civil nature-civil court given finding that
power
of
attorney
executed
by
complainant-no
fraud
on
part
of
revisionist
fund-appeal
still
pending
before Apex Court-at the time of issue of
summon on taking cognizance-decision
of
civil
court
not
disclosed-order
quashed.

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 in the complaint sent to the
Home Minister, Government of India and
this fact has been concealed that civil
suit regarding the said plot is also
pending in a competent court. The
pendency of the civil suit has also not
been brought into the notice of the court
which has passed the summoning order.
Case Law discussed:
2009 (67) ACC 886; 2008 (60) ACC 1; 2009
(66) ACC 28; (2011) 3 SCC 351; (2006) 6 SCC
736; (2009) 8 SCC 751

## Text

1 All] Smt. Prabha Awasthi & Others Vs. State of U.P. & Another
179
deceitful conduct and not approaching the
Court
with
clean
hands,
with
an
exemplory cost of Rs. 10,000/- which
shall be realized from the deponent within
a period of one month from today. The
amount if so realized by the deponent
shall be transmitted to the concerned
District Legal Authority.

8. Office is directed to send a
certified copy of this order to the C.J.M.
Varanasi for realizing the said amount
from the deponent as directed above. If
the amount of fine is not deposited in the
aforesaid period, the deponent shall be
taken into custody and shall be sent to jail
to undergo simple imprisonment for a
period of two months from the date of his
arrest.

9. Learned counsel for the applicant
is at liberty to file second bail application
on behalf of the applicant after the
aforesaid amount of cost is deposited or
the deponent Ghasi is sent to jail and
release after serving out the sentence as
the case may be.

10. Office is further directed to tag
the record of Criminal Misc. Bail
Application No. 1744 of 2013, Dinesh
Kumar Sahni @ Dinesh Sahni vs. State of
U.P.
along
with
the
present
bail
application.

11. Before parting with the case, the
Court requests the members of the Bar to
make sure from the litigants and their
Pairokars etc. that before filing any writ
petition, application under Section 482
Cr.P.C., bail application, revision, appeal,
etc. before this Court whether any such
matters have not been earlier filed by the
respective parties before this Court so that
such an embarrassing situation may not
arise again before the learned counsel and
this Court may not be flooded with
multiplicity of litigations on behalf of one
party for same cause of action and
precious time of the Court be wasted
which has large number of cases pending
for disposal and litigants are waiting for
disposal of their cases. It has been noticed
by the Court on various occasions while
sitting in different jurisdiction that such
instances have become the order of the
day in spite of various computerized
methods adopted by the Registry of this
Court to check such instances but
sometimes it also escapes from their
notice. Thus, the co-operation from the
Bar is also required to save the institution
from such malpractices.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL,J.

Criminal Revision No. 1950 of 2010

Smt. Prabha Awasthi & Others ...Petitioner
Versus
State Of U.P. & Another ...Respondents

Counsel for the Petitioner:
Sri Surendra Tiwari
Sri Dileep Kumar
Sri Rajiv Gupta
Sri Rajrishi Gupta
Sri Ravi Kant
Sri Surendra Tripathi

Counsel for the Respondents:
Sri D.P.Singh
Sri Dr. Nisha Richariya
Sri Vishnu Gupta
A.G.A.
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Code of Criminal Procedure-397-revision
against summoning order-offence under
section 467, 468, 471 I.P.C.-dispute pure
civil nature-civil court given finding that
power
of
attorney
executed
by
complainant-no
fraud
on
part
of
revisionist
fund-appeal
still
pending
before Apex Court-at the time of issue of
summon on taking cognizance-decision
of
civil
court
not
disclosed-order
quashed.

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 in the complaint sent to the
Home Minister, Government of India and
this fact has been concealed that civil
suit regarding the said plot is also
pending in a competent court. The
pendency of the civil suit has also not
been brought into the notice of the court
which has passed the summoning order.
Case Law discussed:
2009 (67) ACC 886; 2008 (60) ACC 1; 2009
(66) ACC 28; (2011) 3 SCC 351; (2006) 6 SCC
736; (2009) 8 SCC 751

(Delivered by Hon'ble Aditya Nath Mittal,J )

1. Heard learned counsel for the
revisionists and learned A.G.A. Opposite
party No. 2 (in person) has argued her
matter.

2. This Criminal Revision has been
filed against the order dated 23.2.2010
passed by III Addl. Chief Judicial
Magistrate, Gautam Budh Nagar in case
No. 1423 of 2009 by which the
revisionists have been summoned to face
the trial for the offence punishable under
sections 467, 468 and 471 I.P.C.

3.

Learned
counsel
for
the
revisionists has submitted that the present
dispute is of civil nature and no forgery
has been committed by the revisionists
but the court below has committed
manifest error in passing the summoning
order. It has also been submitted that the
opposite party No. 2 had executed power
of attorney and an agreement to sell
regarding which a civil suit No. 584 of
2005 was filed but because the agreement
to sell was unregistered, therefore the
relief of specific performance was not
granted but the civil court vide its
judgment dated 27.3.2010 has directed to
refund the amount of Rs. 7,64,795/- along
with interest of 6%. It has also been
submitted that the said judgment of the
civil court was challenged by both the
parties before this Court and the appeal
has also been dismissed by Division
Bench but now the matter is pending
before Hon. Apex Court.

4.

Learned
counsel
for
the
revisionist further submitted that there are
clear cut finding of the civil court that
there was no forgery of the signatures.
Therefore the alleged criminal offence is
not made out.

5. Learned A.G.A. has defended the
order. Opposite party No. 2 appearing in
person has submitted that the revisionists
have committed forgery with her and have
forgedly prepared the said power of
attorney and an agreement to sell which
do not contain her signatures. Therefore
there is no illegality in the impugned
order.

6. Opposite party No. 2 had lodged
an F.I.R. challenging the genuineness of
agreement to sell dated 18.5.2005 and in
view of the conclusion in civil suit No.
584 of 2005 and considering other
evidence, the police submitted final report
on 1.3.2007 which was challenged by
1 All] Smt. Prabha Awasthi & Others Vs. State of U.P. & Another
181
protest petition. After recording statement
u/s 200 and 202 Cr.P.C., the revisionists
have been summoned to face the trial for
the offence punishable u/s 467, 468, 471
I.P.C.

7. The whole controversy is
regarding execution of agreement to sell
dated 18.5.2005. The revisionists have
alleged that said agreement to sell as well
as power of attorney was executed by
opposite party No. 2 while the opposite
party No. 2 alleges that said documents
are forged and they do not contain the
signature of opposite party No. 2.

8. A civil suit No. 584 of 2005 was
filed by revisionist No. 1 before Civil
Judge (SD) Gautam Budh Nagar in which
it was alleged that whole of the amount
regarding disputed plot was deposited by
her on the assurance of opposite party No.
2 that the said plot shall be transferred to
revisionist No. 1 but due to dishonesty the
opposite party No. 2 who was defendant
No. 1 in the civil suit denied the execution
of sale deed as well as the power of
attorney. The said civil suit was contested
by opposite party No. 2 and after
considering the evidence of both the
parties, the civil court came to the
conclusion that the agreement to sell
dated 18.5.2005 has been executed by
defendant No. 1 who is opposite party No.
2 in the present revision and it contains
the signature of defendant No. 1. The civil
court also came to the conclusion that
there was no evidence to prove that the
power of attorney was a forged document
and because it was also not registered,
therefore the plaintiff do not get any right
over the property in dispute. Learned civil
court also came to the conclusion that the
agreement to sell was not registered in
terms of section 17 of the Indian
Registration Act, therefore the plaintiff do
not get any right by the said agreement to
sell but it was found that whole of the
amount regarding the disputed plot was
deposited by the plaintiff in the office of
Noida authority, therefore the plaintiff
was entitled to get refund her money.

9. Admittedly the plaintiff in the
civil suit and the defendant No. 1 are real
sisters.

10. During the pendency of civil
suit, the opposite party No. 2 had moved
an application to the Home Minister,
Government of India alleging that she has
deposited whole of the amount regarding
the disputed plot for which she is a lease
deed holder but the accused persons have
forged a power of attorney and agreement
to sell and want to take her property. The
investigation was made in the matter and
the Investigating Officer came to the
conclusion that parties are real sisters and
in the judicial order dated 7.12.2005, it
has been found that there is similarity in
the signatures. Therefore the allegation of
forgery was not proved and the final
report was submitted.

11. It appears from the judgment of
the civil suit No. 584 of 2005 that both the
parties had adduced their evidence and the
reports of handwriting and finger print
experts were also submitted by both the
parties but the defendant Smt. Nisha
Richhariya
had
not
examined
the
handwriting and finger print expert while
the plaintiff who is revisionist No. 1 had
examined the handwriting and finger
expert Sri R.K. Jaiswal as P.W. 8.
Learned civil court after considering the
evidence on record has come to the
conclusion
that
the
statement
of
handwriting and finger print expert is
182 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
supported by the statements of P.W. 3 and
P.W. 4 and the defendant No. 1 has not
examined any handwriting and finger
print expert in her defence and there was
similarity in the signatures on the
agreement to sell, therefore it was found
that said agreement to sell was not a
forged document.

12. Learned counsel for the
revisionists has relied upon Devendra
and others Vs. State of U.P. and
another 2009 (67) ACC 886 in which
Hon. 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."
1 All] Smt. Prabha Awasthi & Others Vs. State of U.P. & Another
183

13. Learned counsel for the
revisionists has further relied upon Inder
Mohan Goswami and another Vs. State
of Uttaranchal and others 2008 (60)
ACC 1 in which Hon. 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
clearly an abuse of the process of the
Court."

14. Learned counsel for the
revisionists has further relied upon Hira
Lal and others Vs. State of U.P. and
others 2009 (66) ACC 28 in which 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."

15. Learned counsel for the
revisionists has relied upon Harshendra
Kumar D. Vs. Rebatilata Kolley and
others (2011) 3 SCC 351 in which
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.

16. 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.

17. Learned counsel for the
revisionists has further relied upon Indian
Oil Corporation Vs. NEPC India Ltd.
and others (2006) 6 SCC 736 in which
Hon'ble Apex Court considering the
judgment of Hridaya Ranjan Prasad
Verma has observed as follows:-

18. 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
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
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 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."

19. In Mohd. Ibrahim and others
Vs. State of Bihar and another (2009) 8
SCC 751 the Hon. 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.

20. In the present case , admittedly
the
application
to
Home
Minister,
Government of India was moved during
the pendency of the aforesaid civil suit
No. 584 of 2005. In the aforesaid civil suit
the parties were given full opportunity to
adduce their evidence and it was proved
by the evidence of the plaintiff who is
revisionist No. 1 that the said agreement
to sell and the power of attorney are not
forged documents. The opposite party No.
2 who was defendant No. 1 in the said
civil suit had filed the report of
handwriting and finger print expert but
the said expert was not examined in the
evidence.
Learned
civil
court
after
considering the evidence on record as
well as the handwriting and finger print
expert report came to the conclusion that
the agreement to sell contains the
signature of defendant No. 1 Smt. Nisha
Richhria who is complainant in the
present case.

21. The first appeal of both the
parties has already been dismissed by
Division Bench of this Court and now
SLP is pending before the Hon. Apex
Court.

22. In view of the above decisions of
the Hon"ble Apex Court it is clear that the
purely civil dispute has been admitted to
give the cloak of criminal offences which
cannot be permitted to settling the scores
or to pressurize the parties to settle civil
dispute. In the present case it is a pure
civil dispute in which the agreement to
sell and the power of attorney were
challenged and after considering the
evidence of both the parties, it has been
held that signatures on the power of
attorney and the agreement to sell are not
forged. It clearly indicates that prima
facie the signatures of Smt. Nisha
Richharia are not forged and thus no
forgery has been committed upon her.

23. Hon'ble Supreme Court in Indian
Oil Corporation Vs. NEPC India Ltd.
1 All] M/S Tej Shoe Factory Vs. P.O., Industrial Tribunal-IV, Agra And Anr.
185
(2006) 6 scc 736 (Supra) has further held
that any effort to settle the dispute and
claim which do not involved any criminal
offence, by applying pressure through
criminal
prosecution,
should
be
deprecated and discouraged.

24. In criminal proceedings, the
complainant had filed the report of Hand
Writing and Finger Print expert which
was also produced in civil proceedings
but which has not been proved in the civil
proceedings
while
she
had
full
opportunity to prove the said report to
prove her case as well as to rebut the
handwriting and finger print expert report
submitted and proved by the revisionists.
In this way, the opposite party No. 2 has
relied upon such a document which she
was having opportunity to prove but has
failed to prove without any plausible
reason and thus also cancealed this fact
from
the
court
which
passed
the
impugned order. While on the other hand,
the civil court has found that power of
attorney and the agreement to sell have
been executed by the complainant. The
findings of civil court have been affirmed
by Division Bench of this Court in First
appeals, filed by both the parties.

25. For the aforesaid reasons, I am
of the opinion that the civil dispute
between the parties has been given a
criminal colour and in the complaint sent
to the Home Minister, Government of
India and this fact has been concealed that
civil suit regarding the said plot is also
pending in a competent court. The
pendency of the civil suit has also not
been brought into the notice of the court
which has passed the summoning order.

26. In the circumstances the revision
is allowed and the order dated 23.2.2010
passed by III Addl. Chief Judicial
Magistrate, Gautam Budh Nagar in
complaint
case
No.
423
of
2009
summoning the revisionists for the
offence punishable under sections 467,
468 and 471 I.P.C. is set aside.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN,J

Civil Misc. Writ Petition No. 2801 of 1998

M/S Tej Shoe Factory

...Petitioner
Versus
P.O., Industrial Tribunal-Iv, Agra And
Anr

...Respondents

Counsel for the Petitioner:
Sri Ranjit Saxena
Sri Amit Kumar Mishra
Sri B.L. Verma

Counsel for the Respondents:
S.C.
Sri Jamal Khan
Sri Vinod Swaroop

Constitution of India, Article 226-Labor
Court award reinstatement with Full
Back Wages-on basis of 3 years workingwhile for the 26 years out of job-order of
reinstatement
modified
with
compensation
of
1,
50,000/-payable
within 2 month-on failure from the date
of award till actual payment 2 % interest
shall be paid.

Held: Para-10

Even though this principle of award of
consolidated damages/ compensation is
mainly resorted to in case of daily
wagers
engaged
by
government
or
governmental agencies however there is
no reason for not applying the same