# Smt. Rekha Gupta &Ors v. State of U.P.& Anr

- **Citation:** (2019) 1 ILRA 57
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-02
- **Case number:** CIVIL MISC. WRIT PETITION No. 6919 of 2015
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rekha-gupta-ors-v-state-of-u-p-anr-44525
- **Pages:** 11

## Headnote

A. Cr.P.C.- Section 482- Quashing of
entire proceedings- matter is of civil
nature- civil suit pending - initiation of
criminal proceedings is abuse of process
of court. (para 15)

B. Section 467, 468, 471, 120-B, 504,
506 Indian Penal Code- FIR lodged by
opposite party no. 2 - agreement to sell
half portion of applicant's plot- earnest
money of Rs. 50,000 received - sale
executed in favour of third persons.

Held:- Intention of the accused-applicant was
to cheat the opposite is apparent on the face
of it as even after receiving certain amount
they executed the deed in favour of third
persons. Further, they did not return or intent
to return Rs. 50,000. (para 16)

Chronological list of Cases Cited: -

## Text

1 All. Smt. Rekha Gupta & Ors. Vs. State of U.P. & Anr.
57
I.P.C. that if someone prints or engraves
any matter knowing that such matter is
defamatory of a person, he shall be
punished
with
two
years'
simple
imprisonment or with fine or with both.

21. In the present case, there is
certainly a news item printed, which is found
by the trial court to be defamatory against the
opposite party no. 2, as two witnesses have
stated that when they read the said piece of
evidence, they started viewing the opposite
party no. 2 in poor light, considering that he
was a criminal and tried to stay away from
him and the marriage of his son had also
broken on that account. Therefore, the fact as
to whether the said news item was printed in
the said newspapers knowingly that the same
would tarnish the image of the opposite party
no. 2 or not, is a matter of evidence and a
full-fledged trial is required to be held for the
same. Therefore, at the initial stage, the
proceedings against the applicant cannot be
nibbed in the bud and reliance may be placed
by me upon the judgment of Hon'ble Apex
Court in the case of Md. Abdullah Khan v.
Prakash K., wherein it was held that it must
be established that matter printed and offered
for sale is defamatory within the meaning of
expression under Section of 499 of I.P.C. If
so proved, the next step would be to examine
the question whether the accused-respondent
committed the acts which constitute the
offence of which he is charged, with the
requisite intention or knowledge, etc. to
make his act culpable. The answer to
question depends upon facts. If the
respondent is the person who either made or
published the defamatory imputation, he
would be liable for punishment under
Section 500 of I.P.C. and if he is the person
who "printed" the matter, then within the
meaning of expression under Section 501 of
I.P.C. Whether there is sufficient evidence to
establish the guilt of the respondent for the
said offence, is a matter that can be examined
only after recording the evidence at the time
of the trial. In this case, the Hon'ble Apex
Court had held that the High Court did not
choose to give any reason, whatsoever, for
quashing the complaint, except concluding
that the prosecution of accused would lead to
miscarriage of justice, which was held to be
wrong and it was considered proper that the
trial ought to have been held.

23. Adopting the above principle of
law in the present case, I am of the view
that in the present case as well, it would
be appropriate to have a full-fledged trial
so as to gather the intention of the
accused, whether it was there to defame
the opposite party no. 2 in order to lower
his image in the estimation of the public
and with that motive the news item was
printed or whether it was simply a
statement of fact. This Court cannot
prejudge this issue without the full trial.

23. In view of the aforesaid, the
prayer for quashing the entire proceedings
in the aforesaid case is refused and
resultantly,
the
instantly
application
stands rejected.
-----
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2019

BEFORE

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

CIVIL MISC. WRIT PETITION No. 6919 of 2015
(u/s -482 Cr. P.C.)

Smt. Rekha Gupta &Ors. ...Applicants
Versus
State of U.P.& Anr. ...Opposite Parties

Counsel for the Applicants:
58 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri S.S.Shah

Counsel for the Opposite Parties:
A.G.A., Sri Ram Ker Singh, Sri S.L.
Kesharwani, Sri S.L. Kesharwani, Sri Saurabh
Srivastava, Sri Laukush Kumar Shukla.

A. Cr.P.C.- Section 482- Quashing of
entire proceedings- matter is of civil
nature- civil suit pending - initiation of
criminal proceedings is abuse of process
of court. (para 15)

B. Section 467, 468, 471, 120-B, 504,
506 Indian Penal Code- FIR lodged by
opposite party no. 2 - agreement to sell
half portion of applicant's plot- earnest
money of Rs. 50,000 received - sale
executed in favour of third persons.

Held:- Intention of the accused-applicant was
to cheat the opposite is apparent on the face
of it as even after receiving certain amount
they executed the deed in favour of third
persons. Further, they did not return or intent
to return Rs. 50,000. (para 16)

Chronological list of Cases Cited: -
1. 2012 LawSuit (SC) 840 Paramjeet Batra Vs.
State of Uttarakhand

2. AIR 1979 Supreme Court 850 Trilok Singh
and others Vs. Staya Deo Tripathi

3.
2002
LawSuit
(SC)
112
Kunstocom
Electronics Pvt. Ltd. Vs. GILT Pack Ltd.

4. 2013 LawSuit (SC) 69 Rajiv Thapar and
others Vs Mandan Lal Kapoor

5. (2010) 6 SCC 562 S.G. Gupta Vs. Ashutosh
Gupta

6. (2007) 5 SCC 228 N. Devidrappa Vs. State
of Karnataka (E-10)

(Delivered by Hon'ble Dinesh Kumar Singh- I, J.)

1. Heard Sri S.S. Shah, learned
counsel for the applicants, Sri Laukush
Kumar Shukla 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 entire proceedings of
Criminal Case No.1582 of 2014 arising
out of case crime no. 722 of 2013 under
sections 420, 467, 468, 471, 120-B, 504,
506 IPC Police Station Civil Lines,
District Meerut pending in the Court of
Additional Chief Judicial Magistrate,
Meerut and also a prayer is made to stay
the proceedings in this case till the
disposal of this application.

3. To understand the dispute
involved in the present case, it would be
appropriate to recount here the facts of the
matter, which are as follows:-

4. The opposite party no. 2 has
lodged an FIR in the present case on
16.11.2013 stating therein that he had got
an agreement to sell executed of half
portion of plot No. A-82 situated in
Takshila Colony, Garh Road, Meerut
which was owned by one Rekha Gupta
accused-applicant no. 1 wife of Ved
Prakash on 1.07.2008 after advancing her
an amount Rs.50,000/- and the remaining
portion of the said plot was agreed to be
sold in favour of brother of opposite party
no. 2 Subhash Chandra and from him also
the
same
amount
was
taken
i.e.
Rs.50,000/-. As per the terms and
conditions of the agreement the accusedapplicant no. 1 was required to execute
the sale deed of the said plot after
obtaining permission as well as obtaining
succession certificate within one month
but the accused-applicant no. 1 had taken
on
various
dates
an
amount
of
Rs.6,00,00/- from the brother of opposite
1 All. Smt. Rekha Gupta & Ors. Vs. State of U.P. & Anr.
59
party no. 2 and Rs.16,00,000/- from the
opposite party no. 2, apart from amount
which was already advanced under the
agreement on the pretext for seeking
permission
and
continued
to
avoid
execution of the sale deed saying that she
had not got permission and sometimes she
would say that her son was not agreed to
the said sale. The opposite party no. 2 due
to old relation with the accused-applicant
could not put much pressure on her and
believing her assurance continued to pay
her money but he came to know that the
accused-applicant
no.
1
had
taken
permission stealthy from the committee
on 10.11.2009 and she was keeping him
under false impression that the same had
not been given and thus she wanted to
usurp the amount which had already been
extended to her by playing fraud upon the
opposite party no. 2. Further it is
mentioned in the said FIR that in order to
usurp the said money of opposite party
no. 2 and his brother, accused applicant
no. 1 and accused-applicant nos. 2 to 4
who are his sons namely, Varun Gupta,
Rajat Gupta and Vaibhav Gupta had
conspired with each other and sold the
said plot to one Vimla wife of Brahma
Singh, Dinesh Kumar son of Brahma
Singh, Savita wife of Dinesh Kumar,
resident of 118-B, Takshila Colony,
Meerut in a forged manner also colluding
with the Registrar and representing that
the said property was clear property.
When the opposite party no. 2 talked to
Vimla, Dinesh Kumar and Savita etc. it
transpired that they had full knowledge
about
the
agreement
having
been
executed in favour of the opposite party
no. 2 in respect of the said plot but in
order to deprive the opposite party no. 2
of his rights, they got the said sale deed
executed in their favour with ill intention,
playing fraud upon the opposite party no.
2. They raised illegal wall on the said plot
on the northern side and wanted to grab
the whole plot. When the opposite party
no.2 visited the spot and tried to stop
illegal possession being taken, they
indulged in abusing and also gave threat
that the said plot had been purchased by
them and if he comes again, he would be
killed. The Investigating Officer, after
having investigated the case, submitted
charge-sheet against the above-mentioned
accused-applicants
under
the
abovementioned sections.

5. In the affidavit filed in support of
the application, it is stated by the
applicants that the husband of the
applicant no. 1 Ved Prakash Gupta had
purchased the plot in question on
21.2.1987 through a registered sale deed
and the same was mutated in his name.
After his death, the applicants came in its
possession. The opposite party no. 2
intended to purchase the said plot from
applicant no. 1 regarding which an
unregistered agreement was entered into
between them on 08.05.2008. The total
sale amount settled was Rs.16,25,000/-
and payment of Rs.50,000/- was made to
the applicant no. 1. and as per the terms
and conditions, the opposite party no. 2
was to get the sale deed registered within
one month. A copy of the said agreement
to sell has been annexed as Annexure-2.
Further it is stated that instead of getting
the sale deed executed, the opposite party
no. 2 sent a cheque dated 25.10.2008
which was refused by the applicant no. 1.
In the meantime, the applicants got good
value of their property i.e. Rs.43,10,000/-
and executed registered sale deed in
favour of the vendees, which is annexed
as Annexure-4. The opposite party no. 2
had sent a notice dated 10.3.2010 for
executing the sale deed in which it was
60 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned that at the time of executing
the agreement to sell, the amount of
Rs.50,000/- was given and remaining
balance would be paid at the time of
execution of the sale deed copy of the
same is annexed as Annexure-5. Another
notice dated 5.4.2010 was sent by
opposite
party
no.
2
specifically
mentioning that the remaining amount of
Rs.15,75,000/- would be paid at the time
of execution of the sale deed, copy of the
same is annexed as Annexure-6. The
opposite party no. 2 again sent notice
dated 17.4.2010 and 8.5.2010 in which
the
balance
amount
was
against
mentioned
as
Rs.15,75,000/-.
The
applicant no. 1 sent a reply of the notice
dated 10.3.2010 on 18.5.2010 through
Devendra Kumar Kaushik, her advocate.
After receipt of reply of the said notice,
opposite party no. 2 filed civil suit no. 314
of 2011 for injunction against the
applicants in the court of Civil Judge
(S.D.), Meerut, copy of the same is
annexed
as
Annexrure-7.
Written
statement was filed therein denying the
allegation made in the plaint, copy of the
same is annexed as Annexure-8. During
pendency of the civil suit, opposite party
no.2 got it amended by adding few facts.
The trial court framed as many as 24
issues to be decided in the said suit and
the same is still pending. It is further
mentioned that the opposite party no. 2
without any rhyme or reason has lodged
the first information report against the
applicants on 16.11.2013.There was not
even a whisper in the FIR regarding filing
of the civil suit by opposite party no. 2
and allegations made in the FIR were
different from the contents of notices sent
by the opposite party no. 2 and the suit
filed by him. The allegation of payment of
Rs.6,00,000/- has been shown in the FIR
whereas no such averment was made in
the notices or in the suit, which itself goes
to show that the FIR was lodged
absolutely on the false and frivolous
ground. The police has recorded the
statement of the opposite party no. 2 who
repeated the same version as given in the
FIR and has also recorded the statement
of witnesses of registered sale deed
namely, Pramod Kumar and Pawan
Kumar as well as the statement of Branch
Manager of SBI and all the witnesses of
unregistered agreement to sell namely,
Pramod Tyagi, Om Prakash and the
Secretary of Sahkari Samiti. The police
also made a request to opposite party no.2
to hand over the original unregistered
agreement but the same could not be
produced
by
him
despite
repeated
requests.
The
Investigating
Officer
contacted the Branch Manager of SBI
who gave his report that a draft of
Rs.4,00,000/ dated 25.10.2008 was got
cancelled on 29.12.2009 by the informant
and was deposited in the account of the
opposite party no. 2. The police also
recorded the second statement of the
informant and several questions were put
to
him
which
were
not
replied
satisfactorily.
The
police
has
also
recorded the statement of purchaser of the
plot in question namely, Dinesh Kumar,
Smt. Vimla and Smt. Savita on 7.2.2014
who have stated that they had purchased
the
plot
in
question
for
adequate
consideration.
The
statement
of
independent witness Jai Bhagwan was
recorded who stated that Smt. Rekha
executed sale deed only after lapse of
time. On the basis of FIR, the police
investigated the case and came across the
notices, civil suit and various other things
and ultimately came to the conclusion that
no offence against the applicants was
made out and submitted final report on
18.2.2014. The Superintendent of Police
1 All. Smt. Rekha Gupta & Ors. Vs. State of U.P. & Anr.
61
(Crime) rejected the final report and again
further investigation was ordered. The
police again recorded third statement of
the informant who leveled the allegation
of taking Rs.6,50,000/- from the opposite
party no. 2 by the applicant, which was
never mentioned in any of the notices nor
in the civil suit, which makes it evident
that only in order to harass and humiliate
the entire family of the applicants, the
said false allegations have been made.
The police has also recorded statement of
his brother namely, Subhash Chandra and
second statements of the witness of
agreement to sell namely, Pramod Tyagi
and Om Prakash. Police has also recorded
the statement of witness Hari Mohan
Gupta and second statement of Branch
Manager, SBI on 19.5.2014. It has again
recorded statement of Promod Singh,
Secretary of the Society who stated that
NOC was given to Smt. Rekha Gupta on
10.11.2009. The police had also recorded
the statement of witness Pradeep Kumar
son of Mangu Singh who had got
prepared the demand draft and ultimately
submitted
charge
sheet
against
the
applicants on 12.10.2014 in the court of
Judicial Magistrate, who has taken
cognizance on 22.10.2014. It is further
mentioned that as per prosecution only an
unregistered
agreement to sell was
prepared which did not give any right,
title or interest to the opposite party no. 2
over the property in dispute as the same
was not binding upon the applicant no. 1.
Since no right accrued to the opposite
party no. 2, hence the applicants were free
to execute the sale deed of the said plot to
any other person. No illegality was
committed by the applicants in the said
sale being full owner of the said property.
It is further mentioned that earlier the
applicants had approached this Court and
was granted stay against their arrest till
submission of the police report vide order
dated 13.5.2014. Further it is mentioned
that this matter is of civil nature and the
initiation of criminal proceedings is
nothing but an abuse of process of court.
Further, it is mentioned that no offence
under sections 420, 467, 468, 471, 120B,
504 and 506 IPC has been made out
against the applicants, hence criminal
proceedings need to be quashed.

6. In rebuttal by filing a counter
affidavit, the opposite party no. 2 has
stated therein that plot no. A-82 area
856.75 sq. yards was purchased by Late
Ved Prakash Gupta (husband of the
applicant no. 1) in Takshila Colony from
Takshila
Sahkari
Avas
Samiti
on
21.2.1987 through registered sale deed,
pursuant to which his name was mutated
thereon and after his death the applicant
no. 1 and her sons who are applicant nos.
2 to 4 became its owner being legal heirs
of the deceased. The applicant no. 1 on
her own had proposed to sell the said plot
on certain terms and conditions which led
to executing an agreement dated 1.7.2008
between the parties duly signed by
applicant no. 1 in the presence of the
witnesses mentioned therein which is
annexed as Annexure CA-1. Half portion
of the said plot was to be purchased by his
brother and while remaining half was
agreed to be purchased by the opposite
party no. 2 for a consideration of
Rs.16,25,000/- only. At the time of
execution of the agreement to sell, an
amount of Rs.50,000/- as part payment of
consideration
was
accepted
by
the
applicant no. 1 and rest of the amount was
agreed to be paid by the opposite party
no. 2 at the time of execution of the sale
deed. Therefore, right from the inception,
the intention and motive of the accusedapplicant no. 1 was not clear, as at the
62 INDIAN LAW REPORTS ALLAHABAD SERIES
time of execution of the agreement to sell
dated 1.7.2008, no permission was ever
sought by her from Takshila Sahkari Avas
Samiti for execution of the sale deed,
moreover, applicants were also not having
succession certificate on the date of
execution of the agreement to sell.
According to the terms and conditions of
the agreement, the opposite party no.2
requested the applicants for execution of
the sale deed but in the absence of
permission from the concerned Sahkari
Avas Samiti, request of the opposite party
no. 2 was turned down by the applicants.
Moreover, the applicants demanded and
accepted Rs.6,00,000/- in certain parts
only on the ground for seeking permission
from Takshila Sahkari Avas Samiti for
executing the sale deed in favour of the
opposite party no. 2. A demand draft of
Rs.4,00,000/- was handed over to the
applicant no. 1 on 25.10.2008 which was
issued from the account of opposite party
no. 2 maintained in the SBI, Khatauli,
Muzaffar Nagar but the same was never
put for clearance by her and after expiry
of 14 months, the same was returned to
the opposite party no. 2 which shows the
intention of the applicants that they
deliberately, with ill motive, after receipt
of Rs.6,50,000/- from the opposite party
no. 2, had not executed the sale deed of
the plot in question. The opposite party
no.2 facilitated the applicant no. 1 in
terms of money by depositing Rs.3,94,200
in the office of the said Samiti on
7.11.2009 by way of requisite dues of the
development and maintenance charges.
Immediately,
after
receiving
the
outstanding dues, the Samiti granted
permission for execution of the sale deed
but even after no objection certificate was
given by concerned Samiti, the applicants
were not executing the sale deed as per
agreement, hence opposite party no. 2
made a request to the applicant for
execution of the same through registered
notice dated 10.3.2010 wherein the date
of execution of sale deed was mentioned
as 25.3.2010. The applicant no. 1
communicated to the opposite party no. 2
that she was ready to execute the sale
deed after 20 days from the time which
was mentioned by the opposite party no.
2. After completion of 20 days, the
opposite party no. 2 put his appearance
from morning till evening along with all
the documents and requisite fee for
registration of sale deed as well as
balance
amount
of
payment
of
consideration in the office of Sub
Registrar-I, Meerut. Copy of the same is
annexed as Annexure CA-2. A legal
notice dated 6.5.2010 was also got served
by opposite party no. 2 upon the
applicants to appear before the Office of
Sub Registrar-I, Meerut for execution of
sale deed, copy of which is annexed as
Annexure CA-3. The said legal notice
was replied by the applicants in which it
was admitted by them that the agreement
to sell was executed by them as well as
money mentioned therein was received by
them, copy of the same is annexed as
Annexure CA-4. Opposite party no. 2
having no option left, filed a civil suit
being civil suit no.314 of 2011 before
Civil Judge (Senior Division), Meerut
seeking prohibitory injunction against the
applicants with further prayer that a
direction be issued to the applicants to
execute sale deed with respect to the said
plot. A written statement was also filed
from the side of the applicants and in
paragraph no. 3 of which the applicant no.
1 and applicant no. 4 admitted that an
agreement to sell was executed by them
but the same was unregistered. During the
pendency of the said suit, it transpired that
in breach of the agreement, by way of
1 All. Smt. Rekha Gupta & Ors. Vs. State of U.P. & Anr.
63
committing cheating and fraud with
concealment of fact, the applicants
executed a registered sale deed of the said
plot on 6.1.2010 in favour of Smt. Vimla
Devi, Dr. Dinesh Kumar and Smt. Savita.
Thereafter, immediately the opposite
party no. 2 moved an application for
amendment which was allowed. The
opposite party no. 2 is exercising his civil
right for seeking part performance of the
proposed sale deed of the plot in question
in his favour through court as his matter is
well covered under section 53-A of the
Transfer of Property Act but at the same
time it was also a criminal liability on the
part of the applicants who after having
received Rs.6,50,000/- and entered into an
unregistered agreement, have fraudulently
executed the sale deed of the same plot to
some other persons
by committing
cheating, forgery on valuable security and
forgery for the purposes of cheating by
using a forged document. Therefore, there
is no justification of quashing the
proceedings.

7. Some more facts have been
placed on record from the side of the
applicants through rejoinder affidavit
dated 04.09.2016 in which it is mentioned
that
it
is
admitted
position
that
unregistered
agreement to sell was
executed by the applicant no. 1 on a
Rs.100/- stamp paper in which though the
names of Smt. Rekha Gupta and her sons
Varun Gupta, Vaibhav Gupta and Rajat
Gupta have been mentioned as party no.1
but the said unregistered agreement was
only shown to be signed by Smt. Rekha
Gupta and by no other person. The said
agreement being unregistered, would not
create any right, title or interest on the
opposite party no. 2 which was executed
on payment of Rs.50,000/- and the total
settlement between the parties was
Rs.16,25,000/-. It is further mentioned
that opposite party no. 2 has annexed the
certificate of appearance before the Sub
Registrar, Meerut on 22.4.2010 and has
also annexed notice dated 06.05.2010 and
both these papers show that he admitted
this fact that he had paid Rs.50,000/-
while
remaining
amount
of
Rs.15,75,000/- was yet to be paid.
Therefore,
it
is
clear
that
except
Rs.50,000/-, no further payment has been
made in any form by the opposite party
no. 2. Further, it is mentioned that the
averments made in the plaint are totally
different from that of the notices given to
the
applicants
as
nowhere
was
it
mentioned in the notice that the opposite
party no. 2 ever made payment of
Rs.50,000/- but in suit it was alleged that
the applicants were given cash amount of
Rs.2,00,000/- and Rs.4,00,000/- which
itself
shows
the
falsehood
in
the
prosecution story. Further, it is mentioned
that execution of unregistered agreement
to sell would not confer any right, title or
interest upon opposite party no.2 and the
applicants had legal rights to execute sale
deed in favour of any other person and
that matter is of civil nature and no
criminal liability would arise. Allegation
of making payment of Rs.2,00,000/- and
Rs.4,00,000/- later on, is totally false
which have been made only to pressurize
the applicants as the said fact is totally
missing from the application given to Sub
Registrar and is also missing in various
notices which have been annexed as
Annexure CA-3 to the counter affidavit.
The draft of Rs.4,00,000/- allegedly
issued in the name of the applicant no. 1
was never presented in the bank and the
same was returned to the opposite party
no. 2 which itself is clear from the
statement of Branch Manager, therefore,
the
charge-sheet
filed
against
the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants is totally malafide and needed
to be quashed. The matter being of civil
nature,
the
amount
of
Rs.50,000/-
allegedly paid by opposite party no. 2
under the terms and conditions of the
agreement to sell could be recovered by
filing civil suit which is still pending. It is
simply a case of non-execution of sale
deed and it should also not be ignored that
after investigation initially final report
was submitted but on the direction of
superior officer, investigation was further
made and Investigating Officer was left
with no option but to submit charge sheet
which has been submitted without any
evidence on record. The present dispute is
subjudice before the civil court.

8. Learned counsel for applicant has
relied upon the judgment of Supreme Court
in
Paramjeet
Batra
vs.
State
of
Uttarakhand and others 2012 LawSuit
(SC) 840 wherein it is held that civil
transaction made also have a criminal
texture. High Court must see whether civil
matter is a cloak of Criminal offence. If a
civil remedy is available and adopted by the
complainant, the High Court should not
hesitate to quash the proceedings to prevent
the abuse of the process of the Court. In this
case
complaint
attributed
forgery,
fabrication of documents and grabbing
profit of running business by appellant
appointed to be Manager of the Chicken
Corner. The appellant was to receive
Rs.25% of the net profit as salary. The
appellant claimed tenancy of business
premises
by
filing
civil
suit
for
injunction and obtained order of status
quo. Possession was delivered by the
appellant to the complainant who failed
to appear and opposed the application u/s
482 Cr.P.C.. It was held that the
continuation of criminal proceedings
would be an abuse of process and hence
they were quashed because civil court
had
observed
that
the
documents
produced by the appellant for claiming
tenancy would have to be proved by
evidence and hence status quo was directed
till pendency of the suit. The complainant
started criminal proceedings alleging that
documents filed by the appellant in the
civil suit were fabricated. It was held that
the grievance of the complainant about
forgery
of
the
documents
will
be
considered by the civil court and the
appellant can deal with about such forgery
in the said civil suit. The possession of the
shop was handed over by the appellant to
the complainant. In these circumstances,
criminal proceedings if continued, were
held to be an abuse of process of Court.

9. Learned counsel for the applicant
also placed reliance on AIR 1979
Supreme Court 850 Trilok Singh and
others vs. Satya Deo Tripathi. In this
case a truck was purchased under hire
purchase agreement and default was
caused which led to seizure of truck by
the financier. The purchaser launched
criminal prosecution against financier. It
was held that the dispute raised was of
purely
civil
nature
and
criminal
proceedings initiated were nothing but an
abuse of the process of court which
deserves to be quashed.

10. Learned counsel for the applicant
has also placed reliance on Kunstocom
Electronics Pvt. Ltd. vs. GILT Pack Ltd.,
2002 LAWSuit (SC) 112. In this case
question examined was whether objection
ought to be raised at the time of framing
of charge only. Answer was in the
negative and it was held that there was no
hard and fast rule that the objection as to
cognizability
of
offence
and
maintainability of the complaint should be
1 All. Smt. Rekha Gupta & Ors. Vs. State of U.P. & Anr.
65
allowed to be raised only at the time of
framing of the charge. Such was not
intention of the High Court in passing the
order dated 15.5.1996. In any case, in
Ashok Chaturvedi and others vs. Shitul H.
Chanchani and another, (1998) 7 SCC
698 it was held that determination of the
question as regards the propriety of the
order of the Magistrate taking cognizance
and issuing process need not necessarily
wait till the stage of framing the charge.

11. Lastly the reliance has been
placed by the applicant upon Rajiv
Thapar and others vs. Mandan Lal
Kapoor, 2013 LawSuit (SC) 69 in which
it has been held that the High Court can
exercise powers under section 482 Cr.P.C.
or Article 227 or suo moto to prevent
abuse of process of law and can rely on
material produced by accused if suspicion
is shown as to allegations in complaint,
accused may not be discharged. Care and
caution
should
be
shown
while
considering application to quash process
as quashing of process results in negation
of prosecution at initial stage.

12. From the citations which have
been relied upon by the learned counsel
for the applicant, it is evident that through
these citations, learned counsel for
applicant is trying to convey to the court
that in the present case it being a civil
matter, criminal proceedings would not
lie. He has, during the argument, mainly
emphasized that only Rs.50,000/- were
paid to the accused-applicant no.1 by the
opposite
party
no.
1
pursuant
to
unregistered agreement to sell having
been executed by the accused applicant
no. 1 in favour of opposite party no. 2 for
sale of the property in question. Only
remaining amount was to be paid at the
time of execution of sale deed which has
been mentioned above. It was argued that
such kind of unregistered document does
not confer any power upon the opposite
party no. 2 to claim transfer of property
because any such kind of deal whereunder
immovable property would transfer from
one hand to another has got to be
registered document. Therefore, in the
present case, the alleged agreement to sell
which is said to have been executed by
the
accused-applicant
in
favour
of
opposite party no. 2 being document written
on simply a stamp of Rs.100/- would not
extend any right or title to get the said deal
executed in favour of the opposite party no.
2. At the most, Rs.50,000/- which have been
paid by the opposite party no. 2 to the
applicant no. 1 can be claimed back through
filing recovery suit and no criminal case
could be initiated for recovery of said
amount nor any case of cheating would lie
for such kind of recovery. Further it is
mentioned that the payment of Rs.2.00.000/-
and Rs.4,00,000/- which is stated to have
been made subsequently is also a false claim
as no such transaction has taken place
between the two sides and the same has only
been stated in order to put pressure upon the
accused-applicants.
Since
the
alleged
agreement to sell was not a valid and
acceptable document, the accused-applicants
were fully empowered to sell their land to
any other person and accordingly, they have
chosen to sell the same in favour of three
other persons named above.

13. On the other hand learned
counsel for the opposite party no. 2 has
vehemently opposed the quashing of the
proceedings saying that the intention of
the
accused-applicants
of
cheating
opposite party no. 2 was there right from
the beginning because an amount of
Rs.50,000/- was admittedly taken at the
time of execution of the agreement to sell
66 INDIAN LAW REPORTS ALLAHABAD SERIES
though it is an unregistered agreement but
the same would certainly indicate that the
accused-applicant no.1 had admitted to
execute the sale deed of the said property
in favour of the opposite party no. 2
otherwise the said amount of Rs.50,000/-
would not have been accepted/taken by
the accused-applicant no.1. The intention
of the accused applicants right from the
beginning was to cheat the opposite party
no.. 2 because several notices were sent to
the accused applicants to come to office
of Sub Registrar for execution of the sale
deed as the opposite party no. 2 was ready
to pay the balance amount and remained
present at the said office and despite
sufficient notice having been given to the
applicants, they did not appear for
execution of the sale deed after taking the
remaining amount, instead they have sold
the said property in favour of third
persons thereby it is apparent that the
accused-applicants
have
cheated
the
opposite party no. 2.

14. Reliance may be placed by me
on S.G. Gupta vs. Ashutosh Gupta
(2010) 6 SCC 562 in which it was held
that positive assertion was made in
complaint that assurance had been given
by the petitioner (attorney of accused no.
1) to the complainant that property in
question was free from all encumbrances
and that the accused no.1 was the sole
owner
and
that
had
not
such
a
representation been made relating to
status of ownership of property in
question, complainant may not have
entered into transaction at all. It was held
that whether the petitioner was truly
mistaken as regards information given by
him is an important issue which needs to
be decided in answering the charge made.
Prima-facie case for going to trial, was
thus, made out. Further, it is held that if at
very initiation of negotiations it was
evident that there was no intention to
cheat, dispute would be of a civil nature.
However, such a conclusion would
depend on evidence to be led at the time
of trial.

15. Another reliance may also be
placed by me on N. Devindrappa vs. State
of Karnataka, (2007) 5 SCC 228, in this
case finding of fact by the courts below that
appellant-accused
dishonestly
induced
complainant to deliver him Rs.2000/- as
advance in cash, as part-payment allegedly
for sale of the plot of land, knowing fully
that he was not the owner of the said plot.
Evidence of complainant corroborated by
bogus receipt issued by the accused bearing
signatures of the accused and complainant
and handwriting of the accused was testified
by the handwriting expert. It was held that
the issuance of bogus receipts by the
accused given to complainant, amounts to
cheating as also inducement to complainant
of being provided a plot by the accused.
Since property includes money, hence
offence under section 420 IPC was made
out. Further it is held that the case of the
appellant that he had no intention to cheat
the complainant and that the case was of
civil nature, it was held that an act can result
in both civil and criminal liability. Hence
merely because the act of appellant had civil
liability that does not mean that it cannot
also have criminal liability.

16. The above two citations would
suffice for me to emphasize that the
present case could be covered under the
above established proposition of law
because in the present case liability of
accused-applicant could be civil as well as
criminal both. It is admitted case of the
parties that the opposite party no. 2 had
given
Rs.50,000/-
to
the
accused-
1 All. Om Prakash Vs. State of U.P.
67
applicants for sale of the plot in question
by the applicant in favour of opposite
party no.2 and the remaining amount was
to be paid subsequently. If the accusedapplicant did not want to sell the said plot
to the opposite party no. 2, they should
not have received/accepted the said
amount of Rs.50,000/-. It is also true that
the agreement to sell which is stated to
have been executed by the accusedapplicant in favour of opposite party no..2
is not a registered document, hence on the
civil side the claim to get the sale deed
executed of the disputed plot would not be
possible to make because of said document
being unregistered one, as, for transfer of
immovable
property
such
kind
of
transaction is bound to be a registered
document. In the present case, it is not a
registered document but it cannot be
denied that the accused-applicant has
accepted Rs.50,000/- despite the fact that
they did not have any intention to sell the
said land to the opposite party no. 2 and
did not return that money also. Therefore,
it cannot be said that the offence would
not be covered under the definition of
cheating which is defined under section
419 IPC and which is punishable under
section 420 IPC prima-facie. It is apparent
that the accused-applicant instead of
selling the said plot to the opposite party
no.2, sold the same to other three persons
on higher amount. Therefore,intention not
to sell the said land to opposite party no. 2
was right from the beginning. Whatever
other factual disputes are referred in the
present
case
such
as
payment
of
Rs.6.00,000/-
over
and
above
of
Rs.50,000/-, same has been paid or not, is
a subject matter of evidence which would
be seen only during the trial. In such
conspectus, I consider it not appropriate
to quash the proceedings under inherent
jurisdiction of this Court, therefore, the
application deserves to be dismissed and
is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.05.2019

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

CIVIL MISC. WRIT PETITION No.38033 of 2013
(u/s - 482 Cr. P.C.)

Om Prakash ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Daya Shankar Mishra, Sri Chandrakesh
Mishra.

Counsel for the Opposite Party:
A.G.A., Sri Raj Kumar.

A. Criminal Procedure Code, 1973 -
Section 319 Cr.P.C - Objective - real
culprit should not get away unpunished -
Based on latin doctrine : "litigantes ab
cœtibus summa debet non putat de
manu mali legem" (Para 6)

Criminal Procedure Code, 1973 - U/s 319
Cr.P.C Court can proceed against non-accused
only if it appears from evidence that a non
accused person was also an active participant
of that particular offence (Para 6).

B. Criminal Procedure Code, 1973 - Power
under Section 319 Cr.P.C - can be
exercised only during pendency of the
inquiry or trial. Power /s 319 Cr.P.C not to
be exercised after conclusion of trial -
After judgment is delivered court could not
fix a future date to exercise power under
Section 319 Cr.P.C. (Para 33)

C. Criminal Procedure Code, 1973 -
Section 319 Cr.P.C- Evidence- Trial Judge
is duty bound to take into account the
evidence collected by the Investigating
Officer-during
investigation
while