Bhupendra Singh v. Rishi Chabra), under Sections
Case Details
Neutral Citation No.-2023:AHC:174888 Court No. - 91 Case :- APPLICATION U/S 482 No.- 26732 of 2023 Applicant :- Smt. Meena R Chabra And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhinav Gaur,Ankit Shukla,Mohd. Rashid Siddiqui,Sr. Advocate Counsel for Opposite Party :- G.A.,Sudhir Mehrotra Hon'ble Gajendra Kumar,J. 1. Heard learned counsel for the applicants, learned counsel for the opposite party no.2 and learned AGA for the State- respondents. 2. The instant Application U/S 482 Cr.P.C. has been filed with a request to set aside the order dated 28.06.2023 passed by the learned Chief Judicial Magistrate, Moradabad in Case No.1472 of 2017 arising out of case crime No.583 of 2017 (Bhupendra Singh Vs. Rishi Chabra), under Sections 420, 467, 468, 471 and 506 IPC, Police Station-Civil Lines, District- Moradabad. 3. The prosecution story in brief is as follows:- Initially, opposite party no.2 preferred an application under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate wherein, learned CJM had directed for preliminary enquiry. Thereafter, upon the direction of the learned CJM, concerned S.I. had submitted its report before the court with a specific finding that there is a registered agreement to sell between the applicants and opposite party no.2, but opposite party no.2 has backed out from the said agreement and has been 1 trying to falsely implicate the applicant and no forgery whatsoever has been committed by the applicant in the instant case. Opposite party no.2 has also preferred another complaint before the SSP, Moradabad, wherein, SSP, Moradabad had directed for enquiry into the allegation of the opposite party no.2. Upon the direction of SSP, Moradabad, SSI as well as Inspector of Anti-Land Grabbing Cell, Moradabad had submitted its report dated 17.03.2017 and 03.05.2017 respectively mentoning therein with a specific finding that no forgery whatsoever has been committed by the applicants as has been alleged by the opposite party no.2. It has further been alleged that without considering the facts and circumstances of the case and brushing aside the enquiry reports, learned Chief Judicial Magistrate had directed for
Facts
registration of the impugned First Information Report against the applicant. Upon the direction of learned CJM, the impugned FIR dated 24.05.2017 was registered as case crime No.420, 467, 468, 471 and 506 IPC at Police Station-Civil Lines, District-Moradabad against the applicants. 4. As per version of the First Information Report, first informant and Kanti Devi and others are the owners of the land contained in Gata No.934 situated at Gram Sahpur Tigari, Police Station-Civil Lines, District-Moradabad. It has also been alleged that applicants and first informant entered into a memorandum of understanding dated 26.03.2015 for the sale of land for alleged consideration of Rs.21,25,00,000/-. It was further agreed between the parties that sale deed of the said land will be executed within eleven months. But, applicants have manipulated the sale consideration of Rs.21,25,00,000/- into Rs.5 crores in the memorandum of understanding. It has also been alleged in the impugned FIR 2 that applicants and first informant entered into an agreement to sale dated 26.03.2015, wherein the sale consideration was allegedly agreed to be Rs.21,25,00,000/- and the applicants allegedly manipulated the amount of Rs.21,25,00,000/- into Rs.1,25,00,000 by deleting '2' from Rs.21,25,00,000/-
Legal Reasoning
whitener prima facie shows that some facts were attempted to be concealed. The I.O. has mentioned in his report that the party will lose if burden lies on it and is not properly discharged, which shows that the I.O. has made an endeavour to decide the case, which shows that I.O. is prejudiced. So far as the report of FSL is concerned, the O.P. No.2 has opposed
Arguments
5. Learned counsel for the applicants submits that applicants have been falsely implicated in the present case due to ulterior motive. First Information Report does not disclose any offence whatsoever and alleged story of forgery gets belied from the very fact that first informant and his family members have executed the registered agreements (four in number) to sale in favour of the applicants with disclosing amount of consideration of Rs.5 crores. It's a purely civil dispute, which has falsely been given colour of criminality. It is also submitted that as applicants were desirous of purchasing a piece of plot in the alleged property i.e. Gata No.934, but, in this regard, opposite party no.2 appeared before the applicants and said that he had his family members were willing to sell a plot of 3.47 acres situated at village-Shahpur Tigari contained in Gata No.934. When the applicants conducted an enquiry with due diligence of the land in question, they got to know that an area of about 4,000 sq. meter in the land in question was already sold to some 24 persons about 30 years ago and this fact was not disclosed to the applicants by the opposite party no.2. In this regard, several litigations were also instituted against the opposite party no.2 as he has not handed over the possession of the said pieces of land to the said 24 persons and also had defaulted in clearing its Betterment Charges to Awas Vikas Parishad, Moradabad. It is further submitted that opposite party no.2 admitted that aforesaid fact and proposed that a registered agreement to sell 3 will be executed by the opposite party no.2 in favour of the applicants in respect of the land in question and the lands earlier sold to 24 persons will be bought back by the applicants, as such, once the said 24 plots are bought back, the applicants shall be lawful title holder and owner of the said plots and also the remaining portion of land. It is further submitted that in the recital of the Memorandum of Understanding, it has been admitted by the opposite party no.2 that about 4,000 sq meters of land was sold by them to 24 different persons and that there are several disputes concerning the said plots, which are pending consideration against the opposite party no.2 regarding the possession of the same and deposit of Betterment Charges to the Awas Avam Vikas Parishad, Moradabad. It has also been mentioned in paragraph No.2 of the said Memorandum of Understanding that applicants will purchase/buy back the land from 24 allottees. Paragraph No.6 of the said Memordanum of Understanding further states that applicants were paying the entire consideration towards the said 24 alloottees, the registered sale deed will be executed in favour of the applicants in respect of the said land. Thereafter, acting in pursuance of the said registered agreement to sell and Memorandum of Understanding, the applicants started purchasing/buying back the 24 plots from their respective vendors. Till date, the applicants have purchased/bought back 19 plots out of total 24 plots and the remaining plots are also being under process of being purchased and registered agreement to sell has already been executed in this regard. Therefore, as a consequence of the said transaction, all litigations and dispute between the opposite party no.2 and its 24 vendors came to an end as the applicants purchased the 4 said pieces of plots from the said vendors thereby paying due consideration of the same to the vendors, which shows that applicants complied with the terms of the Memorandum of Understanding and registered agreement to sell in a most bonafide manner. It is further submitted that opposite party no.2 instead of holding their end of the bargaining as stated in the registered agreement to sell and Memorandum of Understanding, they instituted a Original Suit No.469 of 2016 before the Court of Civil Judge, Jr. Division, Moradabad against the present applicants with a request to cancel the registered agreement to sell dated 26.03.2015 in a mala fide and malicious manner. Thereafter applicants preferred Original Suit No.1658 of 2019 before the Court of Civil Judge, Sr. Division, Moradabad with a request to grant permanent injunction against the opposite party no.2 from interfering with peaceful possession of the land in question and also restraining the opposite party no.2 from demolishing the boundaries of the said plot. It is further submitted that vide order dated 19.12.2019, learned court below has granted injunction against the opposite party no.2 from interfering in the peaceful possession of the properties in question till the final disposal of the suit. Thereafter, said order dated 19.12.2019 challenged by the opposite party no.2 in an Appeal No.04 of 2020 before the court of learned District Judge, Moradabad, wherein, learned District Judge vide order dated 27.01.2020, directed the parties to maintain status quo with respect to the properties in question, thereafter, objections were filed by the applicants. But, without considering the documents already available on record and pleading made by the applicants therein, the learned court below vide order dated 17.12.2020 admitted the appeal and set aside the order 5 dated 19.12.2019 passed by the court of learned Civil Judge, Sr. Division, Moradabad with a direction to reconsider the Application No.6C/2. Learned counsel for the applicants further submits that as per provisions contained in Section 50 of the Registration Act, it is evident that no manipulation whatsoever as has been alleged, has not been committed by the applicants. It is further submitted that Investigating Officer has recorded the statements of Mr. Rajendra Chudmani, Smt. Kanti Devi, Jitendra Singh and Virendra Singh, under Section 161 Cr.P.C., who have executed the agreement to sale in relation to the suit property in favour of the applicants, therefore, after perusal of the material evidences on record, I.O. has proceeded to submit final report dated 13.06.2017, a copy of which has been annexed as Annexure-18 to the affidavit. Thereafter, opposite party no.2 in a malicious manner, preferred a protest petition against the said final report dated 13.06.2017. It is further submitted that learned court below vide order dated 11.08.2021 without assigning any reasons, has rejected the final report bearing No.299 of 2017 submitted by the I.O. and has directed for further investigation, which is wholly arbitrary and illegal and has been passed without any application of judicial mind. It is further submitted that as per report of Forensic Science Laboratory, Moradabad and on the basis of legal advice provided by Joint Director Prosecution, Moradabad, Investigating Officer has proceeded to submit the final report dated 05.04.2022 mentioning therein that instant criminal prosecution has been initiated by the opposite party no.2 with ulterior motive and no offence whatsoever is made out against the applicants. It has also been recorded by the I.O. that present dispute between the parties are of purely civil in 6 nature and no criminal liability can be fastened upon the applicants. Again, opposite party no.2 in a malicious manner, preferred a protest petition upon the said final report dated 05.04.2022. It is further submitted that learned court below vide order dated 28.06.2023 without assigning any reasons, has rejected the final report submitted by the I.O. and has directed for further investigation and further summoned the applicants to face trial. It is further submitted that there is no evidence of forgery, thus, no offence under Sections 467, 468, and 471 IPC is made out against the applicants as the agreement to sale is a registered documents, which is also not denied by the prosecution. In absence of forgery, there is no evidence against the applicants which shows that applicants have committed any cheating, therefore, no offence under Section 420 IPC is made out against the applicants, as such, the entire criminal proceedings against the applicants is nothing but an abuse of process of law, which is liable to be quashed. 4. On the other hand, learned counsel for the opposite party has opposed the submissions aforesaid and submitted that applicants are involved in committing the aforesaid offences. A forgery has been committed by the applicants in the documents, which later on came to the notice of the opposite party no.2 and resultantly, impugned FIR was lodged against the applicants. It is also submitted that two times I.O. has submitted Final Report. There was material available on the record as collected during the investigation and after perusing the entire allegations made in the FIR and evidence/material collected by the I.O., the learned CJM has rightly come to the conclusion that offences are made out against the applicants 7 and rightly summoned the accused persons by invoking power under Section 190(1)(b) Cr.P.C. It is also submitted that learned CJM was not bound by the opinion given by the I.O. while submitting the Final Report. In support of his submission he has placed reliance upon the judgment of Hon'ble Apex Court in the case of Pratibha Manchanda and another Vs. State of Haryana and another passed in Criminal Appeal No.1793 of 2023 arising out of S.L.P. (Crl.) No.8146 of 2023 dated 07.07.2023. 5. This Court has the occasion to go through the recent judgment of Apex Court in the case of Sri Gulam Mustafa Vs. The State of Karnataka and another; (2023) 5 S.C.R. 354. The relevant paragraphs of the aforesaid order reads as under:- "36. What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no.2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance. 1.5.- The High Court fell in error in not invoking its wholesome power under Section 482 of the Code to 8 quash the FIR. Accordingly, the Impugned Judgment, being untenable in law, is set aside. Consequent thereupon, the FIR, as also any proceedings emanating therefrom, insofar as they relate to the appellant, are quashed and set aside. [Para 39] [371-C-D]" 6. This Court has also the occasion to go through the recent judgment of Apex Court in the case of R. Nagender Yadav Vs. The State of Telangana and another passed in Criminal Appeal No.2290 of 2022 arising out of S.L.P. (Criminal) No.4629 of 2021 dated 15.12.2022. The relevant paragraphs of the aforesaid order reads as under:- "17. While exercising its jurisdiction under Section 482 of the CrPC, the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure the ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. Whether the essential ingredients of a criminal offence are present or not, has to be judged by the High Court. A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, as has happened in the case on hand, the High Court should have quashed the criminal proceeding to prevent abuse of process of court." 7. In the case of State of Haryana Vs. Bhajan Lal; 1992 Supp. (1) SCC 335, the Hon'ble Apex Court has issued following guidelines. The relevant paragraphs of the order is reads as follows:- "In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of 9 the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- ï7 myriad kinds of cases wherein such power should be exercised: (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any 10 of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 8. In the present case, it is not in dispute that there has been a dealing between the parties regarding sale and purchase of landed property i.e Arazi/Gata No.934 area 3.47 hectare situated at Village-Shahpur Tigari, Police Station-Civil Line, District-Moradabad of which, Opposite Party no.2 and others have been the owners in possession of the land regarding which memorandum of understanding was prepared and four agreements to sale were executed and registered. Main allegation of the opposite party no.2 is that in agreements to sale/memorandum of understanding there has been manipulation/forgery committed by the applicants and the amount of Rs.21,25,00,000/- has been substituted by 1,25,00,000/- and when this fact came to his notice, he lodged an FIR. Paper No.53, copy of memorandum of understanding between the parties shows that there has been an understanding between the parties regarding sale of a land admeasuring 11.139.00 sq.meter for Rs.5 crores only. There are four copies of agreements to sale each for Rs.1,25,00,000/- and Rs.15,00,000/- are recited as to have been received as advanced money. All the four agreements to sale are registered documents. There is a presumption regarding the 11 genuineess of the same unless they are cancelled under the law. I.O. after completing the investigation came to the conclusion that there has been committed no forgery in the case and the four agreements to sale were executed and registered and consideration amount of Rs.5 crores were settled between the parties and resultantly, submitted final report. Against which, protest petition was filed by the opposite party no.2. Vide order dated 11.08.2021, the final report was cancelled and further investigation was ordered to be carried out. A report by Crime Branch, Moradabad by Mahesh Babu Sharma, Sub-Inspector dated 25.08.2022 has been submitted, which is a detailed report, in which it is disclosed that opposite party no.2 is a educated person and deals in property business, rate was fixed as Rs.8978/- per sq. meter. As per allegation made by the opposite party no.2 the number which is whitenered is 21,25,00,000/- in place of which figure of Rs.1,25,00,000/- has been made. But, what is found behind the whitenered figure is Rs.8978/- per sq. meter, which is the rate of land as is disclosed from the FSL Report. Again, final report was submitted with the detailed summary report. Protest petition was filed against the aforesaid final report and vide order dated 28.06.2023, the learned CJM, Moradabad has set aside the final report and summoned the applicants for the offences under Section 420, 467, 468, 506 IPC by invoking the provisions contained in Section 190(1)(b) of Cr.P.C. as State case. The learned CJM, substitiuing the opinion made by the I.O. came to the conclusion that a memorandum of understanding was made part of the agreement to sale. In agreement to sale 24 sale deeds were to be obtained back in the name of the sellor, in violation of the agreement to sale, the applicants have got those sale deeds in 12 their favour and application for mutation was filed which was rejected and the Betterment charges were also to be paid in respect of those 24 sale deeds. It is further observed that there has been a use of whitener and initials have not been made thereon and there is no recitation made in the documents regarding the use of whitener. There might have been cutting signed instead of using the whitener for any amendment to be effected in the documents. The use of
Decision
the same in view of the above facts case of fraud/forgery is made out in respect of the documents. From the above observation/conclusion/opinion, it is apparent that the learned Magistrate has not disclosed in his order what is the evidence/ material collected by the I.O. on the basis of which, case of fraud/forgery is made out against the applicants. It is settled law that a Magistrate is not bound by the opinion given by the I.O., but for summoning a accused by invoking the provisions of Secction 190(1)(b) Cr.P.C., there should be some material/evidence collected by the I.O. during investigation on the basis of which, prima facie ingredients of the offence are fulfilled and offence is made out and there is material available on record to summon the accused for proceeding against him for the offences allegedly committed by him. I.O. has come to a definite conclusion based on the FSL Report that there is no case of fraud/forgery is made out in the case and the figure which has been whitenered is Rs.8978/- and 13 not 21,25,00,000/-. No other evidence/material is available on records as recorded/collected by the I.O. during investigation. From the record, it is apparent that dispute between the parties principally is of civil nature which has been given unnecessarily colour/flavour of criminality. It is also worth noting that from the uncontroverted allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused-persons. So far as the case of Pratibha Manchanda and another (supra) relied upon by the counsel for the opposite party no.2 is concerned, the case is distinguishable on facts as the same was based on Criminal Appellate Jurisdiction qua Section 438 Cr.P.C. 9. In such view of the matter and for all the reasons recorded above as well as the case-laws cited above, the present Application succeeds and is, accordingly, allowed. 10. The impugned order dated 28.06.2023 passed by the learned Chief Judicial Magistrate, Moradabad and the entire proceedings of Case No.1472 of 2017 arising out of case crime No.583 of 2017 (Bhupendra Singh Vs. Rishi Chabra), under Sections 420, 467, 468, 471 and 506 IPC, Police Station-Civil Lines, District-Moradabad against the present applicants are, hereby set aside/quashed. 11. Let a copy of this order be sent back to the court below forthwith. Order Date :- 2.8.2023 Ashutosh (Gajendra Kumar, J.) 14