H I GH COURT OF UTTA RA N CH TA L v. St at e of Ut t aranchal

H I GH COURT OF UTTA RA N CH A L A T N A I N I TA L Cr i m i n a l M i sc. A p p l i ca t i o n N o . 2 2 4 o f 2 0 0 6 Subhash Singh S/ o lat e Am eer singh R/ o Mohalla Shekhpura P.S. Kankhal Dist r ict Har idwar Versus ..….Applicant

St at e of Ut t aranchal 2. Sum an Kum ar S/ o Shri Dharm pal R/ o 838/ 7, Bazaar Laxm ansar Am rit sar, Punj ab 3. Ashut osh Shar m a S/ o Shr i Bhusan Sharm a R/ o v illage Ladowal, Tehsil & Dist rict Ludhiana, Punj ab 4. At hj arva Sharm a S/ o Shr i Bhusan Sharm a R/ o v illage Ladowal Tehsil & Dist r ict Ludhiana, Punj ab 5. M/ s S.R. Traders regist ered No. 298/ M.B.D. / 1971 Part ner Sanj eev Kum ar Agrawal S/ o Prem Nat h Agrawal R/ o Chauk Moni, Am r it sar P.S. Am rit sar, Punj ab At present R/ o Singhdwar, Kankhal Dist r ict Har idwar .. .Respondent s Sr i Siddar t ha Sah lear ned counsel for t he applicant . Sr i Raj eev Mohan lear ned AGA. H o n ' b l e J. C. S. Ra w a t , J. 1 . The pet it ion under sect ion 482 Cr.P.C. has been filed for quashing t he or der dat ed 03.02.2005 passed by Chief Judicial Magist rat e, Har idwar in m isc. case No.9/ 2005 and order dat ed 04.03.2006 passed by Addl. Sessions Judge, Har idwar crim inal rev ision No.65/ 2006. I t has been prayed t hat t he Chief Judicial Magist rat e m ay be direct ed t o pass an appropr iat e orders on t he applicat ion of t he applicant filed under sect ion 156( 3) Cr.P.C. for direct ing t he S.H.O. Thana, Jwalapur, Dist rict Haridwar t o regist er t he FI R against t he respondent No.2 t o 5.

Brief fact s of t his case are t hat t he applicant filed an applicat ion before t he Chief Judicial Magist rat e against t he respondent Nos. 2 t o 4 under sect ion 156( 3) Cr.P.C. for seek ing a direct ion lodging t he FI R against t he four above said respondent s. I t was alleged t hat t he sale deed and a power of at t orney was execut ed fraudulent ly by t he aforesaid respondent s in respect of khasra No. 184 & 191 of v illage Shekhpura alias Kankhal, Par gana Jwalapur, t ehsil & dist r ict Haridwar. I t was furt her alleged t hat t hey had no r ight t o execut e or t ransfer in accordance w it h t he prov isions of t he Transfer of Propert y Act . The applicat ion filed by t he applicant was rej ect ed by t he Chief Judicial Magist rat e v ide order dat ed 03.02.2005. Feeling aggr ieved by t he said order, a crim inal rev ision was preferred before t he Addl. Sessions Judge. The Addl. Sessions Judge dism issed t he sam e v ide it s order dat ed 04.03.2006. Feeling aggrieved by bot h t he orders, t he present pet it ion has been filed before t his Court .

I t has t o be det erm ined t hat whet her t he applicat ion filed under sect ion 156( 3) Cr.P.C. discloses t he a crim inal offence or it is m er ely a civ il m at t er. Bot h t he court s below had held t hat t he present case does not fall w it hin t he am bit of cr im inal case and t here is a lack of m ens- rea.

I t was cont ended t hat t he applicant and one- Hem Chandra are t he owners and in possession of t he propert y in disput e and t heir nam es are recorded in t he revenue records. The respondent No.3 & 4 had execut ed a power of at t orney in t he nam e of Sum an Kum ar- respondent No.2 in respect of t he propert y in quest ion. The respondent No.2 sold t he said propert y t o t he respondent No.5. Thereaft er, t he respondent No.5 filed a m ut at ion applicat ion before t he Asst t . Collect or and t he sam e is st ill pending. I t was cont ended t hat bot h t he court s below erred in rej ect ing t he applicat ion of t he applicant filed under sect ion 156( 3) Cr.P.C. I t furt her cont ended t hat t he civ il and cr im inal rem edies can proceed sim ult aneously t he offence com es w it hin t he purview of cr im inal m ischief. Learned AGA has point ed out t hat t he com plaint does not disclose t he cr im inal liabilit y. I t was also point ed out t hat sale deed which is filed before t his Court clear ly show s t hat a part of t he land was purchased by t he respondent No. 3 & 4 and as such t he sale deed was execut ed.

Before exam ining t he respect ive cont ent ions of t he part ies, it would be appropriat e t o deal w it h t he prov isions of sect ion 420, 463 & 467 I PC. Sect ion 420 prov ides as under: - " 420. Cheat ing and dishonest ly including delivery of propert y - Whoever cheat s and t hereby dishonest ly induces t he person deceived t o deliver any propert y t o any person, or t o m ake, alt er or dest roy t he whole or any part of a valuable securit y, or anyt hing is signed or sealed, and which capable of being convert ed int o a valuable securit y, shall be punished w it h im pr isonm ent of eit her descr ipt ion for a t erm which m ay ext end t o seven years, and shall also be liable for fine. " Sect ion 463 I PC prov ides t hat { whoever m akes any false docum ent s or false elect ronic record or part of a docum ent or elect ronic record, w it h int ent t o cause dam age or inj ury} , t o t he public or t o any person, or t o subm it any claim or t it le, or t o cause any person t o part w it h propert y , or t o ent er int o any express or im plied cont ract , or wit h int ent t o com m it fraud or t hat fraud m ay be com m it t ed, com m it s forger y. Sect ion 467 I PC deals wit h t he forgery of valuable securit y, will et c. and it pr ov ides as under: - " 467: - Whoever forges a docum ent which purport s t o be a valuable secur it y or a w ill, or an aut horit y t o adopt a son, or which purport s t o give aut horit y t o any person t o m ake or t ransfer any valuable secur it y, or t o receive t he principal, int erest or div idends t hereon, or t o receive or deliver any m oney, m ovable propert y, or valuable securit y, or any docum ent purport ing t o be an acquit t ance or receipt acknowledging t he paym ent of m oney, or an acquit t ance or receipt fro t he delivery of any m ovable propert y or valuable secur it y, shall be punished w it h ( im pr isonm ent for life) or w it h im prisonm ent of eit her descr ipt ion for a t erm which m ay ext end t o t en years, and shall also be liable t o fine. "

The m ens- rea should be t here from t he beginning when t he t ransact ion was m ade bet ween t he part ies, I f t here is no m ens- rea at t he incept ion, it w ill not be a crim inal offence and it w ill rem ain a civ il. I n t his m at t er, a part of t he land belonged t o t he respondent No. 3 & 4 and as such t hey have a right t o claim over t he propert y. I f t heir claim s are wrong, it can be agit at ed before t he civ il court . I n v iew of t he recit al of t he sale deed, I am of t he v iew t hat t here is no m ens- rea in t his m at t er. The lack of m ens- rea t o t ake t he inference t hat it is a m erely civ il m at t er. As such, I find t hat t his is purely a case of civ il nat ure and t here is no m ens rea.

I n v iews of t he foregoing discussions, I am com plet ely in agreem ent w it h t he decisions of t he court s below. Therefore, t he pet it ion is liable t o be dism issed.

The pet it ion is dism issed accordingly. Dat ed 20.04.2006 LSR ( J.C.S. Ra w a t , J.)