# Smt. Vandana Malviya v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 1160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-13
- **Case number:** Application U/s 482 No. 17673 of 2024
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vandana-malviya-v-state-of-u-p-anr-52414
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 323, 504, 506 419 & 420 -
applicant
sold
property
based
on
a
General Power of Attorney (GPA) that was
later revoked by her brother-allegations of
cheating and dishonest inducement were
not
substantiated-no
evidence
of
dishonest intent at the time of executing
the GPA or thereafter-disputes over the
distribution of sale proceeds should be
resolved through civil proceedings, not
criminal-summoning order and criminal
proceedings
quashed-
Application
allowed. (Paras 8, 15, 20 and 22)

HELD:
Learned
counsel
for
both
parties
have
interpreted relevant clause of said GPA in their
favour, however, no much resistance was made
at the behest of counsel for complainant that
even prima facie on basis of material before
Magistrate concerned, no case is made out
under Sections 323, 506 IPC. (Para 8)

There is no material on record that share of
proceeds was handed over to complainant and
his brothers. Counsel for both parties have
interpreted clauses of GPA in their favour and as
already observed the interpretation of GPA can
be done only in civil proceedings on basis of
evidence and not in criminal proceedings. It has
already been observed earlier that on basis of
contents of complaint and statements even
prima facie no ingredients of offence under
Sections 323, 506 IPC are made out. Therefore,
only consideration left is, whether on basis of
material
available
and
rival
submissions
ingredients of Section 420 IPC are made out or
not as well as whether requisite reasons were
assigned while passing impugned summoning
order as required under Section 204 Cr.P.C.
(Para 15)

As referred above, Section 420 IPC provides
cheating
and
dishonest
inducement
of
property. Therefore, the allegation would have
substance only when the complainant had put
a case that applicant has dishonestly induced
three brothers to execute GPA. Subsequent
dishonest, if any, would depend on basis of
clauses of GPA. Since on face of it there is
ambiguity on the issue of share of proceeds
of sale deeds, therefore, for said purpose civil
remedy is appropriate remedy. In this regard
para 38 of a judgment passed by Supreme
Court in C. Subbiah alias Kadambur Jayaraj &
ors. Vs Superintendent of Police & ors., 2024
SCC OnLine SC 935 is relevant and the same
is reproduced hereinafter....(Para 20)

In view of above, impugned order dated
16.01.2024 passed under Section 204 Cr.P.C.
also does not take note of clauses of GPA and in
a very cursory manner only on ground that
proceeds of sale deeds were not shared to
applicant, applicant was summoned under
Section 420 IPC also. Therefore, as discussed
above, ingredients of Section 420 IPC were not
made out as well as ingredients of Section 323,
506 IPC are also not made out. (Para 22)

Appeal dismissed. (E-14)

List of Cases cited:

C. Subbiah alias Kadambur Jayaraj & ors. Vs
Superintendent of Police & ors., 2024 SCC
OnLine SC 935

## Text

1160 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 8 ILRA 1160
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/s 482 No. 17673 of 2024

Smt. Vandana Malviya ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Shashi Kant Shukla

Counsel for the Respondent:
Aditya Gupta, Aditya Malviya, G.A., Harshit
Gupta

Criminal Law - Indian Penal Code,1860 -
Sections 323, 504, 506 419 & 420 -
applicant
sold
property
based
on
a
General Power of Attorney (GPA) that was
later revoked by her brother-allegations of
cheating and dishonest inducement were
not
substantiated-no
evidence
of
dishonest intent at the time of executing
the GPA or thereafter-disputes over the
distribution of sale proceeds should be
resolved through civil proceedings, not
criminal-summoning order and criminal
proceedings
quashed-
Application
allowed. (Paras 8, 15, 20 and 22)

HELD:
Learned
counsel
for
both
parties
have
interpreted relevant clause of said GPA in their
favour, however, no much resistance was made
at the behest of counsel for complainant that
even prima facie on basis of material before
Magistrate concerned, no case is made out
under Sections 323, 506 IPC. (Para 8)

There is no material on record that share of
proceeds was handed over to complainant and
his brothers. Counsel for both parties have
interpreted clauses of GPA in their favour and as
already observed the interpretation of GPA can
be done only in civil proceedings on basis of
evidence and not in criminal proceedings. It has
already been observed earlier that on basis of
contents of complaint and statements even
prima facie no ingredients of offence under
Sections 323, 506 IPC are made out. Therefore,
only consideration left is, whether on basis of
material
available
and
rival
submissions
ingredients of Section 420 IPC are made out or
not as well as whether requisite reasons were
assigned while passing impugned summoning
order as required under Section 204 Cr.P.C.
(Para 15)

As referred above, Section 420 IPC provides
cheating
and
dishonest
inducement
of
property. Therefore, the allegation would have
substance only when the complainant had put
a case that applicant has dishonestly induced
three brothers to execute GPA. Subsequent
dishonest, if any, would depend on basis of
clauses of GPA. Since on face of it there is
ambiguity on the issue of share of proceeds
of sale deeds, therefore, for said purpose civil
remedy is appropriate remedy. In this regard
para 38 of a judgment passed by Supreme
Court in C. Subbiah alias Kadambur Jayaraj &
ors. Vs Superintendent of Police & ors., 2024
SCC OnLine SC 935 is relevant and the same
is reproduced hereinafter....(Para 20)

In view of above, impugned order dated
16.01.2024 passed under Section 204 Cr.P.C.
also does not take note of clauses of GPA and in
a very cursory manner only on ground that
proceeds of sale deeds were not shared to
applicant, applicant was summoned under
Section 420 IPC also. Therefore, as discussed
above, ingredients of Section 420 IPC were not
made out as well as ingredients of Section 323,
506 IPC are also not made out. (Para 22)

Appeal dismissed. (E-14)

List of Cases cited:

C. Subbiah alias Kadambur Jayaraj & ors. Vs
Superintendent of Police & ors., 2024 SCC
OnLine SC 935

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)
8 All. Smt. Vandana Malviya Vs. State of U.P. & Anr.
1161

1. Heard Sri Shashi Kant Shukla,
learned counsel for applicant, learned AGA
for State and Sri Aditya Gupta, Advocate
for Opposite Party No. 2.

2. In the present case there are few
undisputed facts that applicant is the sister
of complainant. She has two other brothers
also. Complainant and his two brothers
have executed a registered General Power
of Attorney (hereinafter referred to as
"GPA") on 05.07.2021 in favour of present
applicant to sale out share of scheduled
property situate in Uttarakhand. Relevant
Clause
10
of
GPA
is
reproduced
hereinafter:

"10. To sell our share in
the said Scheduled Property in
whole or in parts, to any person(s),
to execute proper sale deed(s), to
present the same for registration,
before the concerned Sub-Registrar
of
Assurances,
to
admit
the
execution thereof, to receive sale
consideration by cheque/ demand
draft/ RTGS/ bank transfer in her
name or in our names and to
handover the possession to the
purchaser(s) on site and to issue
receipt thereof."

3. Further, undisputedly applicant
has sold some part of scheduled properties
by different sale deeds. Later on only
complainant has executed a registered
cancellation deed of GPA on 21.12.2021. It
is also not under much dispute that even
thereafter on basis of GPA applicant had
sold some part of scheduled property by
different sale deeds (from 30.11.2021 to
30.12.2021 as many as five sale deeds were
executed on basis of GPA). It is the case of
applicant that as soon as she came to know
about cancellation of GPA she does not
further execute any sale deed on basis of
said GPA.

4. In aforesaid circumstances, only
complainant, and not his two other
brothers, filed a criminal complaint against
applicant under Sections 323, 504, 506 419,
420
IPC
on
19.04.2023.
Relevant
paragraphs of complaint are mentioned
hereinafter:

"3. यह तक पररवादी व प्रभाि मालवीय
व प्रवीर् मालवीय ने तमलकर अपनी सगी बहन श्रीमिी
वांदना मालवीय पत्नी श्री तप्रयदशषन मालवीय तन0 31ए
जवाहर लाल नेहरू रोड थाना जाजषटाउन प्रयागराज को
तदनाांक 8-7-2021 को मुख्िारेआम तनयुक्त कर तदये
िदुपरान्द्ि प्राथी को एक भी रूपया अदा नही की
तलहाजा िनहा मुख्िारे आम तनरस्िीकरर् तदनाांक 2112-2021 को अपना सम्पूर्ष हक व तहस्सा के बावि
मुख्िारे आम का तनरस्िीकरर् तकया जो आरातजयाि के
हक व तहस्से मे 11 व्यतक्त्तयो का हक व तहस्सा था
तजसमे मेरी मािा श्रीमिी लीला देवी मालवीय का
1/11 हक व तहस्सा है प्राथी भी 1/3 तहस्से का
मातलक है तजसके बावि पांजीकृि मुख्िारे आम
तनष्पादन व तनरस्िीकरर् तकया।
4- यह नक उक्त भूनम का सम्पूणट
भाग1/11 का नवक्रय विटमाि समय में नकया िा
चुका है व प्राथी के हक व नहस्ट्से को नवक्रयपत्र
कर नदया निसके बावि प्राथी िे अनभयुक्ता श्रीमिी
वन्दिा मालवीय को एक नवनधक िोनटस नदिांक
27.9.2022 को भेिी गयी निसका उत्तर अभी
िक िही नदया गया और ि ही प्राथी का रूपया
नियमािुसार िोनटस िो मु० 22,52,060/-रूपया
बैिामे के अिुसार होिा है नवक्रयमूल्य का एक भी
रूपया अदा िहीं नकया बनल्क गाली गुप्ता व
धमकी बराबर दे रही है।
5- यह तक पररवादी के जब नोतटस का
जवाब अतभयुक्ता ने नहीं तदया िब अपने हक व तहस्से
का पैसा मॉगने गया िो अतभयुक्ता प्राथी के साथ
मारपीट की एवां प्राथी को धक्का मारकर घर से बाहर
तनकाल तदया इस प्रकार अतभयुक्ता प्राथी के साथ
धोखाधडी व जालसाजी करके सारी सम्पतत्त को तवक्रय
कर दी है जो तक एकदम गलि है। उपरोक्त अतभयुक्ता
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
श्रीमिी वन्द्दना मालवीय पररवादी के साथ धोखाधडी व
अमानि में खमानि तकया है।"

5. In pursuance of above complaint
statement of complainant was recorded
under Section 200 Cr.P.C. as well as
statements of witnesses were also recorded
under Sections 202 Cr.P.C. and they are
reproduced hereinafter:

"ियान पररवादी अन्तगशत िारा 200
द०प्र०सं०
नाम पांकज मालवीय तपिा स्वां० प्रहलाद
नारायर् पिा 58/44 तत्रपोतलया बहादुरगांज, थाना
जाजषटाउन ने सशपथ बयान तक मेरे माां के नाम देहरादून
के हक जमीन थी। तजसमें ज्वाइट बेन्द्चर से बेचा गया।
माां के देहान्द्ि के बाद हम 3 भाई बहन थे हमारे ही
तप्रयदशषन मालवीय आर०टी०ओ० बरेली के पद से
ररटायषड हुए थे। बहन वन्द्दना मालवीय के पक्ष में एक
मुख्िारे आम 8-7-2021 को हम िीनो भाइयो िे
बहि के पक्ष में निष्पानदि नकया। उस वायदे के
साथ में िमीि को बेचकर हम सबको पैसा नदया
िावे लेनकि आि िक एक भी पैसा िहीं नमला
मांगिे पर मेरी बहि वन्दिा एवं बहिोई नप्रयदशटि
िहीं देिे है और धमकी देिे है। सभी बैनामे का
दस्िावेज फाइल में दातखल है। मैं ररटायर आदमी ह ाँ
बीमार ह ाँ। मैंने कही और मुकदमा नहीं तकया है। मेरा
शेयर 1/3 22 लाख 52 हजार के लगभग होिा है।
ियान
अन्तगशत
िारा
202
सी०आर०पी०सी०

नाम व पिा- अजय पाठक पुत्र भरि लाल
पाठक, तनवासी तत्रपोतलया चौक, इलाहाबाद ने बहलफ
बयान तकया तक- मैं व पांकज मालवीया एक साथ पढ़िे
थे िथा मोहल्ले के पडोसी है। हम लोगों से अच्छे सांबांध
है। पांकज मालवीय कुल िीन भाई एक बहन है। भाई
क्रमशः पांकज मालवीय प्रभावि मालवीय व प्रवीर्
मालवीय व बहन श्रीमिी बांदना मालवीय है, तजनकी
शादी जवाहर लाल नेहरू रोड थाना-जाजषटाउन,
प्रयागराज में अपने पति व बच्चो के साथ तनवासी
करिी है। िथा पांकज मालवीय की ितबयि खराब रहिी
थी, तजस कारर् उनकी बहन ने सभी भाइयों से राय
मशतवरा लेकर उत्तराखांड की भूतम की देखरेख व तवक्रय
हेिु राय मशतवरा लेकर अपने हक में यानी इनकी बहन
वांदना मालवीय ने अपने हक में मुख्िार-ए-आम तलया,
जो इन लोगों की मािा श्रीमिी लीलादेवी मालवीया का
हक व तहस्सा था, उनकी मृत्युपराांि िीनो भाईयो का
नाम अांतकि हो चुका है। िदनुसार इनकी बहन तद०
08-07-21 को उत्तराखांड वाली भूतम का मुख्िार-एआम तनयुक्त होने के बाद सम्पूर्ष भूतम तवक्रय कर दी है,
तजसका साक्ष्य सम्पूर्ष बैनामा पत्रावली में उपलब्ध है।
िथा मेरे सामने उत्तराखांड की भूतम का मुख्िार-ए-आम
तनयुक्त तकए थे, तजसके बाबि एक भी रूपया अदा नहीं
तकए थे, िथा जाजषटाउन जाने पर पांकज मालवीय को
गाली गुप्ता व मार-पीट िथा पैसा देने से इांकार करिे है।
ियान
अन्तगशत
िारा-202
सी०आर०पी०सी०
नाम व पिा-अतनल कुमार रस्िोगी पुत्र
स्व० लाभचन्द्र रस्िोगी 148, गाडीवान टोला,
इलाहाबाद ने बहलफ बयान तकया तक-मैं पांकज
मालवीय को भली-भॉति जानिा ह ाँ वो 50/44
तत्रपोतलया बहादुरगांज प्रयागराज में रहिे है। हमारा व
पांकज मालवीया से बचपन से दोस्िी है और बराबर
आना-जाना रहिा है, िथा इसकी सगी बहन श्रीमिी
बांदना मालवीया ने तद० 08-07-21 को पांजीकृि
मुख्िार-ए-आम पांकज मालवीय व प्रभाि मालवीय व
प्रवीर्ष मालवीय ने तमलकर पांजीकृि मुख्िारनामा तनयुक्त
तकए जो मेरे समक्ष अपने सगी बहन वांदना मालवीय के
हक में तनयुक्त तकए थे तक मेरी उत्तराखांड की भूतम को
देखरेख व तवक्रय हेिु तदया गया था, लेतकन इनकी बहन
ने सांपूर्ष भूतम तवक्रय कर तदया, तजसमें पांकज मालवीया
को एक भी रूपया अदा नहीं तकया। हम लोग प्रतितदन
एक साथ बैठिे है िथा इनके सगी बहन बांदना मालवीया
के यहाां गए िो उन्द्होंने पैसा देने से साफ इांकार कर तदया
िथा पांकज मालवीया को भद्दी-2 गाली देिे हुए अपने
घर से बाहर तनकाल तदया िथा तवक्रया पत्र का सम्पूर्ष
बैनामा साथ में सांलग्न तकया है।"

6. Chief Judicial Magistrate,
Prayagraj vide impugned order dated
16.01.2024 summoned present applicant to
face trial under Sections 323, 506, 420 IPC.
Relevant part of impugned order is
reproduced hereinafter:
8 All. Smt. Vandana Malviya Vs. State of U.P. & Anr.
1163
"From
perusal
of
documents, it transpires that a
General Power of Attorney was
executed by the complainant and
his two brothers in favour of
Vandana Malwiya on 08.07.2021
authorising her to execute sale
deeds and receive consideration in
her name or in the name of the
brothers. This General Power of
Attorney was cancelled by the
complainant on 21.12.2021. The
complainant has also filed copies
of various sale deeds executed by
Vandana
Malwiya
after
the
cancellation of the General Power
of Attorney stating that the General
Power of Attorney has not been
revoked by its executants. The
complainant has stated that he has
not been given his share of the
consideration
by
Vandana
Malwiya and
filed his
bank
statements in support thereof. A
bare
perusal
of
the
bank
statements show that no money
was
received
from
Vandana
Malwiya. The complainant has
also stated that Vandana Malwiya
had threatened him and also beat
him.
The evidence produced on
record prima facie suggest that
Vandana Malwiya had committed
cognizable offences u/s 420, 323,
506
IPC.
Hence,
sufficient
grounds exist to summon the
accused.

Order

Vandana
Malwiya
is
summoned u/s 420, 323, 506 IPC in
complaint case no. 928/2023. The
complainant shall take appropriate
steps within 10 days. The office
shall thereafter issue process. Fix
27.02.2024."

7. The reasons assigned to
summon applicant in aforesaid impugned
order was that according to GPA share of
proceeds of sale deeds was required to be
given to applicant as well as his two
brothers, however, with dishonest intention
applicant though executed number of sale
deeds but has not handed over share of
proceeds thereof to complainant and his
brothers.

8. Learned counsel for both parties
have interpreted relevant clause of said
GPA in their favour, however, no much
resistance was made at the behest of
counsel for complainant that even prima
facie on basis of material before Magistrate
concerned, no case is made out under
Sections 323, 506 IPC.

9. So far as offence under Section
420 IPC is concerned, said Section is
quoted hereinafter:

"420.
Cheating
and
dishonestly inducing delivery of
property.-Whoever
cheats
and
thereby dishonestly induces the
person deceived to deliver any
property to any person, or to make,
alter or destroy the whole or any
part of a valuable security, or
anything which is signed or sealed,
and which is capable of being
converted into a valuable security,
shall
be
punished
with
imprisonment of either description
for a term which may extend to
seven years, and shall also be
liable to fine."
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Learned counsel for applicant
submits that GPA was executed by three
brothers including complainant in favour of
their sister, i.e., applicant. In entire
complaint or statements recorded before
Magistrate, no allegation was made that
GPA was itself executed on dishonest
inducement of applicant. Even the GPA was
revoked only by complainant and not by his
two other brothers. Even other two brothers
have not produced as witnesses under
Section 202 Cr.P.C.

11. Learned counsel for applicant
further submits that only allegation made in
complaint as well as in the statements is
that the proceeds of sale deeds were
usurped by applicant and its due share was
not given to complainant as well as his two
brothers. However, for that relevant clauses
of GPA has to be interpreted but the same
can be done in civil suit and not in criminal
proceedings.

12. Learned counsel appearing for
complainant has referred the contents of
complaint as well as statements that despite
a specific clause in GPA due share of
complainant from proceeds of various sale
deeds was not handed over, thus the
applicant has committed an offence of
cheating. He also refers the details of
different sale deeds executed by applicant
on basis of GPA and total proceed thereof
was around Rs. 7 crores. Various notices
were issued to applicant, however, terms of
GPA
were
violated
with
dishonest
intention.

13. Heard learned counsel for
parties and perused the material available
on record.

14. Undisputed facts have already
been referred above that complainant and
his two brothers have executed a GPA in
favour of applicant, i.e., their sister, to sell
out the scheduled property. Applicant has
executed various sale deeds on basis of
GPA even after its revocation at the behest
of complainant.

15. There is no material on record that
share of proceeds was handed over to
complainant and his brothers. Counsel for
both parties have interpreted clauses of
GPA in their favour and as already
observed the interpretation of GPA can be
done only in civil proceedings on basis of
evidence and not in criminal proceedings. It
has already been observed earlier that on
basis of contents of complaint and
statements even prima facie no ingredients
of offence under Sections 323, 506 IPC are
made out. Therefore, only consideration
left is, whether on basis of material
available and rival submissions ingredients
of Section 420 IPC are made out or not as
well as whether requisite reasons were
assigned
while
passing
impugned
summoning order as required under Section
204 Cr.P.C.

16. It has already been referred
above that there is no allegation against
applicant that she has induced complainant
and his two brothers with dishonest
intention to execute a registered GPA in her
favour. Therefore, only consideration left
is, whether after GPA was executed and on
basis of it various sale deeds were executed
by applicant, she with an dishonest
intention, does not part away due share of
complainant and his two brothers from
proceeds of sale deeds.

17. In this regard contents of
revocation of deed of GPA executed by
complainant on 21.12.2021 would be
8 All. Smt. Vandana Malviya Vs. State of U.P. & Anr.
1165
relevant and relevant part thereof is
mentioned hereinafter:

"नवनदि हो नक नकन्ही अपररहायट
कारणों से मुझ मुनकर का िालमेल अपिी सगी
बहि मुख्िारआम श्रीमिी वन्दिा मालवीय पत्िी
श्री नप्रयदशटि मालवीय पुत्री स्ट्व० प्रहलाद िारायण
मालवीय से िहीं बि पा रहा है निस कारण मैं
मुनकर सम्पनत्त उपरोक्त में निनहि अपिे हक व
नहस्ट्से के बाबि नकसी प्रकार को कोई अनधकार
अपिी सगी बहि मुख्िारआम श्रीमिी वन्दिा
मालवीय पत्िी श्री नप्रयदशटि मालवीय पुत्री स्ट्व०
प्रहलाद िारायण मालवीय को िहीं देिा चाहिा ह ाँ
इसनलए मैं मुनकर पंिीकृि मुख्िारआम नदिांनकि
08.07.2021ई० के िहि सम्पनत्त उपरोक्त में
निनहि अपिे हक व नहस्ट्से के बाबि अपिी सगी
बहि मुख्िारआम श्रीमिी वन्दिा मालवीय पत्िी
श्री नप्रयदशटि मालवीय पुत्री स्ट्व० प्रहलाद िारायण
मालवीय को नदये गये समस्ट्ि अनधकार िररये इस
मुख्िारिामा निरस्ट्िीकरण निरस्ट्ि करिा ह ाँ।"

18. Aforesaid reasons assigned for
revocation of GPA does not indicate that
reason for it was the dishonest intention
developed with applicant after sale deeds
were executed for not sharing the due
share, if any, from proceeds of sale deeds to
complainant and his brothers. Therefore,
even till date of revocation of GPA, i.e.,
21.12.2021, there was no allegation of
dishonest intention of applicant. The
criminal
complaint
was
filed
on
19.04.2023, i.e., after a substantial period
of about two and half years and appears to
be only due to reason to put pressure on
applicant supposedly on ground that
negotiations were failed. Complainant has
not challenged any sale deed or has not
filed any civil suit so that clauses of GPA,
now revoked, can be interpreted on basis of
rival submissions.

19. At this stage, I have carefully
perused the statement of complainant
recorded under Section 200 Cr.P.C. that it
talks about assurance only and nothing has
been mentioned about any clauses of GPA
that it was provided therein that proceeds of
sale deeds have to be shared amongst the
complainant and his brothers.

20. As referred above, Section 420
IPC provides cheating and dishonest
inducement of property. Therefore, the
allegation would have substance only when
the complainant had put a case that
applicant has dishonestly induced three
brothers to execute GPA. Subsequent
dishonest, if any, would depend on basis of
clauses of GPA. Since on face of it there is
ambiguity on the issue of share of proceeds
of sale deeds, therefore, for said purpose
civil remedy is appropriate remedy. In this
regard para 38 of a judgment passed by
Supreme Court in C. Subbiah alias
Kadambur Jayaraj and Others vs.
Superintendent of Police and Others,
2024 SCC OnLine SC 935 is relevant and
the same is reproduced hereinafter:

"38. It is thus clear that
from the complaint, there is no
such allegation therein which
can persuade the Court to hold
that the intention of the accused
appellants was to defraud the
complainant
right
from
the
inception of the transactions.
The accused appellants have
unquestionably, passed on some
plots as well as part profits from
the
land
deals
to
the
complainant but the dispute is
regarding the quantification of
profits and full satisfaction of
the
share
claimed
by
the
complainant proportional to the
investments made by him."
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
21. In aforesaid circumstances, this
Court is of the considered opinion that
complainant has failed to make out a case
even prima facie that applicant has
dishonestly induced complainant and his
brothers to execute GPA or even thereafter.
Even otherwise, at the stage of revocation
of GPA, at the behest of applicant, there
was
no
reference
of
any
dishonest
intention. The only grievance left with
complainant is that proceeds of sale deeds
were not shared. However, for that an
interpretation of clauses of GPA would be
required, which cannot be done in criminal
proceedings and for that civil remedy
appears to be the best remedy.

22. In view of above, impugned
order dated 16.01.2024 passed under
Section 204 Cr.P.C. also does not take note
of clauses of GPA and in a very cursory
manner only on ground that proceeds of
sale deeds were not shared to applicant,
applicant was summoned under Section
420 IPC also. Therefore, as discussed
above, ingredients of Section 420 IPC were
not made out as well as ingredients of
Section 323, 506 IPC are also not made
out.

23. In the result, application is
allowed. Impugned summoning order dated
16.01.2024 passed by Additional Chief
Judicial Magistrate, Room No. 7, Prayagraj
in Complaint Case No. 628 of 2023 (Pankaj
Malviya vs. Smt. Vandana Malviya), under
Sections 420, 323, 506 IPC, Police Station
George Town, District Allahabad as well as
further proceedings thereof are also hereby
quashed.
----------
(2024) 8 ILRA 1166
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.

Election Petition No. 3 of 2024

Maneka Sanjay Gandhi ...Petitioner
Versus
Rambhual Nishad & Ors. ...Respondents

Counsel for the Petitioner:
Prashant Singh Atal, Amit Jaiswal Ojus Law, Dr.
Pooja Singh, Vijay Vikram Singh

Counsel for the Respondents:

Civil Law- The Representation of People
Act, 1951 - Sections 81 & 86 -Code of Civil
Procedure,1908 - Order VII Rule 11 (d) -
Election petition-petitioner challenged the
election
of
the
returned
candidateSultanpur Lok Sabha Constituency- of -
election petition filed beyond the 45-day
limit prescribed by Section 81 of the
Representation
of
People
Act,
1951-
Section 86 mandates dismissal of petitions
not
complying
with
Section
81-
no
provision allows for condonation of delaypetition
found
to
be
time-barreddismissed. (Paras 4, 5, 6, 8, 9, 10 and 16)

HELD:
Hon'ble the Supreme Court opined in the said
case that the applicability of the provisions of
the Limitation Act by virtue of Section 29 (2)
thereof is to be judged not from the terms of
the limitation Act but by the provisions of the
Act relating to filing of election petition and their
trial to ascertain as to wherein it is complete
code in itself which does not admit application
of any provisions of the Limitation Act
mentioned in Section 29 (2) of that Act. (para 9)

Referring to various earlier decisions of Hon'ble
Supreme Court of India including those wherein
it has been held that the Act 1951 was a
complete
Code
and
also
taking
into
consideration various amendments made by the
Legislature in the said Act, especially Section 81
thereof, and the earlier existing Section 85
which empowered the Election Commission in
its
discretion
to
condone
the
delay
in