# Tuphail Ahmad & Ors v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 693
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Crl. Misc. Writ Petition No. 11789 of 2023
- **Bench:** Vivek Kumar Birla, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tuphail-ahmad-ors-v-state-of-u-p-ors-49509
- **Pages:** 5

## Headnote

A. Criminal Law-Constitution of India,
1950-Article 226- Indian Penal Code,
1860-Sections 420, 467, 468 & 471Impugned FIR lodged in respect of sale
deed-two sale deeds were subsequently
executed in respect of the same plotpower of attorney holder had executed at
least 10 sale deeds on behalf of petitionerthe fact concealed in the suit that the
same plot had been sold by the petitioner
no 2 and 3 to the petitioner no. 4 who is
daughter-in-law of the petitioner no. 1 by
registered sale deed wherein his son is
one of the witness- Therefore, the suit
filed after 31 years concealing all the
material facts is nothing but an attempt
to cover up the criminality of the act
committed by the petitioner no. 1 in
collusion with other co-accused personsHence, a civil dispute is pending and no
criminality is attached in the act, is not
sustainable in the eye of law.(Para 1 to
13)

B. 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
is 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. Criminal prosecution cannot be
thwarted
merely
because
civil
proceedings are also maintainable.(Para
11,12)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

10 All. Tuphail Ahmad & Ors. Vs. State of U.P. & Ors.
693
made to an officer having the requisite
authority to perform the act demanded.
Furthermore, the authority against whom
mandamus is issued, should have rejected
the demand earlier. Therefore, a demand
and its subsequent refusal, either by words,
or by conduct, are necessary to satisfy the
court that the opposite party is determined
to ignore the demand of the applicant with
respect to the enforcement of his legal
right. However, a demand may not be
necessary when the same is manifest from
the facts of the case, that is, when it is an
empty formality, or when it is obvious that
the opposite party would not consider the
demand."

(Emphasis supplied)

17. As the petitioner has no legally
enforceable right for seeking a direction to
the Director General Of Police for initiation
of legal proceedings against other officers
of Police Department and also because the
petitioner has not approached the authority
with the aforesaid demand, the instant writ
petition in respect of the aforesaid relief
cannot be entertained.

18. In view of the aforesaid
discussion, the Writ Petition is dismissed.
----------
(2023) 10 ILRA 693
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Crl. Misc. Writ Petition No. 11789 of 2023

Tuphail Ahmad & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vineep Pandey, Sri Pranvesh, Sri Agnivesh

Counsel for the Respondents:
G.A., Sri Sumit Goyal

A. Criminal Law-Constitution of India,
1950-Article 226- Indian Penal Code,
1860-Sections 420, 467, 468 & 471Impugned FIR lodged in respect of sale
deed-two sale deeds were subsequently
executed in respect of the same plotpower of attorney holder had executed at
least 10 sale deeds on behalf of petitionerthe fact concealed in the suit that the
same plot had been sold by the petitioner
no 2 and 3 to the petitioner no. 4 who is
daughter-in-law of the petitioner no. 1 by
registered sale deed wherein his son is
one of the witness- Therefore, the suit
filed after 31 years concealing all the
material facts is nothing but an attempt
to cover up the criminality of the act
committed by the petitioner no. 1 in
collusion with other co-accused personsHence, a civil dispute is pending and no
criminality is attached in the act, is not
sustainable in the eye of law.(Para 1 to
13)

B. 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
is 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. Criminal prosecution cannot be
thwarted
merely
because
civil
proceedings are also maintainable.(Para
11,12)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Trisuns Chemical Indsy Vs Rajesh Agarwal &
ors. (1999) 8 SCC 686

2. Paramjeet Batra Vs St. of U.K. & ors. (2013)
11 SCC 673
694 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Vesa Holdings Pvt. Ltd. & anr.. Vs St. of Ker.
& ors. (2015) 8 SCC 293

4. Dilip Kumar Singh @ Deepu Singh Vs St. of
U.P. & ors. CMWP No. 18302 of 2022

5. St. of Har. & ors. Vs Bhajan Lal & ors. (1992)
Supp. (I) SCC 335

6. M/s Neeharika Infra. Pvt. Ltd. Vs St. of Mah.
(2021) AIR SC 1918

7. Leelavati Devi @ Leelawati & anr. Vs St. of
U.P. SLP (Crl) No. 3262 of 2021

(Delivered by Hon'ble Vivek Kumar Birla,
J. & Hon'ble Vinod Diwakar, J.)

1. Heard Sri Agnivesh holding brief
of Sri Vineet Pandey, learned counsel for
the petitioners, Sri Sumit Goyal, learned
counsel for the informant, Sri Virendra
Kumar Pal, learned A.G.A for the State
respondents and perused the records.

2. The relief sought in this petition is
for quashing of the first information report
dated 11.07.2023, registered as Case Crime
No. 249 of 2023, under Sections 420, 467,
468, 471 IPC, Police Station Cantt.,
District Bareilly.

3. The FIR impugned herein has
been lodged in respect of sale deed
executed on 24.02.1992. Allegation in the
FIR is that one Raj Kumar Malhotra, who
was having registered power of attorney
dated 10.04.1991 in his favour executed
by Tuphail Ahmad (petitioner no.1) for
selling the plots of the property, which
was being developed by the petitioner
no.1-Tuphail Ahmad known as Bukhara
Enclave,
District
Bareilly.
He
had
executed a sale deed dated 24.02.1992 in
respect of plot no.18, area 229 sq.yard, in
favour of the informant-Dr. Rajesh
Tandon possession whereof was also
handed
over.
Thereafter,
again
by
registered sale deed dated 04.02.2004 the
petitioner no.1-Tuphail Ahmad alongwith
others executed through Raj Kumar
Malhotra, his power of attorney holder
sold the said plot no.18 to the petitioner
no.2-Vijay Prakash and petitioner no.3Ritesh Agarwal, who in turn sold the said
plot no.18 to the petitioner no.4-Rafikan
Begam, daughter-in-law of the petitioner
no.1-Tuphail Ahmad by registered sale
deed dated 14.07.2011 wherein, the
petitioner
no.5/Accused
no.6-Tasleem
Ahmad (son of Tuphail Ahmad) and
petitioner no.6/Accused No.7-Budhpal
Singh are the witnesses. It is stated that
whereas
the
informant
throughout
remained in possession of the said plot
no.18. The allegation in the present first
information report is that the subsequent
sale deeds are nothing but a fraud played
upon the informant, as all accused were
aware of all the facts right since the
beginning, therefore, the offences have
been committed.

4. It is submitted by the learned
counsel for the petitioner that the present
criminal prosecution has been lodged
after a delay of about 31 years and prior
to
lodging
of
the
impugned
first
information report Original Suit No.191 of
2023 (Tuphail Ahmad vs. Rajesh Tandon)
for cancellation of sale deed dated
24.02.1992 executed in favour of the
informant-Dr.Rajesh Tandon filed by the
petitioner no.1 has already been instituted
on 05.07.2023. He submits that petitioner
no.1 is an old man aged about 80 years; the
petitioner nos.2, 3 and 4 are bona fide
purchaser and the petitioner nos.5 and 6 are
only witnesses of the sale deed dated
14.07.2011. Submission, therefore, is that a
civil dispute is being given colour of
criminal prosecution and is liable to be
10 All. Tuphail Ahmad & Ors. Vs. State of U.P. & Ors.
695
quashed. It was also pointed out that Raj
Kumar Malhotra had died in the year 2013.

5. Per contra, learned counsel for the
informant pointed out that the informant is
a Doctor by profession and is employment
in Delhi and his wife is also Professor of
Radiology
in
University,
College
of
Medical Science in Delhi and at present are
resident of Delhi who had purchased the
plot through registered sale deed dated
24.02.1992 executed by one Raj Kumar
Malhotra, power of attorney holder of
Tuphail Ahmad- petitioner no.1. The same
person
had
executed
the
subsequent
registered sale deed dated 04.02.2004 of
the property in question to the accusedpetitioner no.2-Vijay Prakash and accused
petitioner
no.3-Ritesh
Agrawal,
who
subsequently re-sold the property to the
accused-petitioner no.4-Rafikan Begam,
daughter-in-law of the petitioner no.1Tuphail Ahmad by registered sale deed
dated 14.07.2011, wherein Tasleem Ahmad
(petitioner no.5) son of the petitioner no.1
is one of the witness and as such a fraud
has been played by Tuphail Ahmad
(alongwith all the other accused persons),
who had sold the property to the informant
as back in the year 1992. He submits that
clearly the property in question which
has now been fraudulently reconveyed
to his immediate family member i.e
daughter-in-law and son being a witness
to such sale deed. He further submits
that as per his instructions Raj Kumar
Malhotra, power of attorney holder had
executed at least 10 sale deeds on
behalf
of
petitioner
no.1-Tuphail
Ahmad, which were never questioned
by him. It is next submitted that just
before 5 days a suit for cancellation of
sale deed has been filed for cancelling
the sale deed dated 24.02.1992 executed
in favour of the informant on coming to
know that the informant is initiating
criminal
proceedings.
He
further
submits that therefore, taking defence
of civil dispute by itself would not be
sufficient in the present case as the
offences as alleged have been clearly
made out against the petitioners and
in no uncertain terms criminality is
attached to this act.

6. Learned AGA opposed the
prayer for quashing of the FIR and
has adopted the arguments of learned
counsel for the informant.

7. We have considered the rival
submissions of the learned counsel
for the parties and perused the
records.

8. Apart from finding force in the
arguments of the learned counsel for the
informant we further find that the
Original Suit No.191 of 2023 (Tuphail
Ahmad vs. Rajesh Tandon) filed by the
the
petitioner
no.1-Tuphail
Ahmad
nowhere mentions that two sale deeds
were subsequently executed in respect
of the same plot no.18 by Raj Kumar
Malhotra, power of attorney holder on
04.02.2004. This fact has also been
concealed in the suit that the same plot
no.18 had been sold by the petitioner
no.2-Vijay Prakash and petitioner no.3Ritesh Agarwal to the petitioner no.4-
Rafikan Begam- daughter-in-law of the
plaintiff-Tuphail
Ahamd-
petitioner
no.1 herein by registered sale deed dated
14.07.2011 wherein his son is one of the
witness. Therefore, the suit filed after about
31 years concealing all these materials of
facts is nothing but an attempt to cover up
the criminality of the act committed by the
petitioner no.1 in collusion with other coaccused persons.
696 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The Hon'ble Apex Court in Trisuns
Chemical Industry vs. Rajesh Agarwal
and Others, (1999) 8 SCC 686 has held in
paragraphs 7, 8 and 9 as under:-

"7. Time and again this Court has
been pointing out that quashment of FIR or
a complaint in exercise of inherent powers
of the High Court should be limited to very
extreme exceptions [vide State of Haryana
vs. Bhajan Lal (1992 suppl.(1) SCC 335)
and Rajesh Bajaj vs. State NCT of Delhi
(1999(3) SCC 259)].

8. In the last referred case this court
also pointed out that merely because an act
has a civil profile is not sufficient to denude
it of its criminal outfit. We quote the
following observations:

"10. It may be that the facts narrated
in the present complaint would as well
reveal a commercial transaction or money
transaction. But that is hardly a reason for
holding that the offence of cheating would
elude from such a transaction. In fact,
many a cheatings were committed in the
course of commercial and also money
transactions."

9. We are unable to appreciate the
reasoning that the provision incorporated
in the agreement for referring the
disputes to arbitration is an effective
substitute for a criminal prosecution
when the disputed act is an offence.
Arbitration is a remedy for affording
reliefs to the party affected by breach of
the agreement but the arbitrator cannot
conduct a trial of any act which
amounted to an offence albeit the same
act may be connected with the discharge
of any function under the agreement.
Hence, those are not good reasons for the
High Court to axe down the complaint at
the threshold itself. The investigating
agency should have had the freedom to
go
into
the
whole
gamut
of
the
allegations and to reach a conclusion of
its
own.
Pre-emption
of
such
investigation would be justified only in
very extreme cases as indicated in State
of Haryana vs. Bhajaj Lal (Supra).

(Emphasis supplied)

10. The Hon'ble Apex Court in
Paramjeet
Batra
vs
State
Of
Uttarakhand & Others, (2013) 11 SCC
673 has clearly held that the complaint
disclosing civil transactions may also
have criminal texture. Para 12 of the said
judgment reads as under:-

"12. While exercising its jurisdiction
under Section 482 of the Code the High
Court has to be cautious. This power is to
be used sparingly and only for the
purpose of preventing abuse of the
process of any court or otherwise to
secure ends of justice. Whether a
complaint discloses a criminal offence or
not depends upon the nature of facts
alleged
therein.
Whether
essential
ingredients
of criminal
offence are
present or not has to be judged by the
High Court. A complaint disclosing civil
transactions may also have a criminal
texture. But the High Court must see
whether a dispute which is essentially of
a civil nature is given a cloak of criminal
offence. In such a situation, if a civil
remedy is available and is, in fact,
adopted as has happened in this case, the
High Court should not hesitate to quash
criminal proceedings to prevent abuse of
process of court."

(Emphasis supplied)

11. In Vesa Holdings Pvt. Ltd. & Anr.
Vs State of Kerala & Ors, (2015) 8 SCC
293 the Hon'ble Apex Court has held that
given set of facts may make out a civil
wrong as also a criminal offence and only
10 All. Mahant Govind Sharan Ji Maharaj Vs. State of U.P. & Ors.
697
because a civil remedy may be available to
the complainant that itself cannot be a
ground to quash a criminal proceeding.
Relevant extract of para 13 of the said judgment
reads as under:-

"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...."

(Emphasis supplied)

12. A Co-ordinate Bench of this Court
in Criminal Misc. Writ Petition No.18302
of 2022 (Dilip Kumar Singh @ Deepu
Singh vs. State of U.P. and 3 Others) has
held as under:-

"Considering the aforesaid facts, it cannot
be denied that there is no express bar to the
simultaneous continuance of a criminal
proceeding as well as civil proceedings. Citing
the decision rendered by Hon'ble Supreme
Court in (1999) 8 SCC 686 (Trisuns Chemical
Industry Vs. Rajesh Agarwal & Others). It has
been held that criminal prosecution cannot be
thwarted merely because civil proceedings are
also maintainable. Merely because an act has a
civil profile is not sufficient to denude it of its
criminal outfit.

Thus, even if the civil proceedings are
subjudice
before
the
Provident
Fund
Commissioner,
Varanasi,
the
criminal
prosecution can still proceed against the
petitioner.

Having
considered
the
submissions
advanced by learned counsel for the parties and
from the perusal of records, it is apparent that
the allegations in the FIR do constitute
ingredients of a cognizable offence."

(Emphasis supplied)

13. In this view of the matter and the law
laid down by the Hon'ble Apex Court in the
case of Trisuns Chemical Industry (supra),
Paramjeet Batra (supra), Vesa Holdings
(supra) as well as judgment passed by a Coordinate Bench of this Court in the case of Dilip
Kumar Singh @ Deepu Singh (supra) and
considering the facts and circumstances of the
case as alleged in the first information report
and the contents of the Original Suit No.191 of
2023 (Tuphail Ahmad vs. Rajesh Tandon) as
already discussed in the proceeding paragraphs,
we find that the argument of the learned counsel
for the petitioners that as a civil dispute is
pending and no criminality is attached in the
act, is not sustainable in the eye of law hence,
stands rejected.

14. We also find that on a bare reading of
the impugned FIR a cognizable offence is made
out. Therefore, in view of the law laid down by
Hon'ble Supreme Court in the case of State of
Haryana and others vs. Bhajan Lal and
others, 1992 Supp. (1) SCC 335 and M/s
Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharashtra, AIR 2021 SC 1918 and in
Special Leave to Appeal (Crl.) No.3262/2021
(Leelavati Devi @ Leelawati & another vs. the
State of Uttar Pradesh) decided on 07.10.2021,
no case has been made out for interference
with the impugned first information report.
----------
(2023) 10 ILRA 697
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Misc. Writ Petition No. 15890 of 2013

Mahant Govind Sharan Ji Maharaj
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents