State v. Ashok Pathak & Another) under Section

Judgment

1. Heard Sri Pranjal Krishna, the learned counsel for the applicant, Sri Anurag Kumar Singh, the learned counsel for the respondent-CBI and perused the records.

2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has prayed for quashing of the entire criminal prosecution of the applicant in Criminal Case No. 5539 of 2021 (State v. Ashok Pathak & Another) under Section 120-B read with Section 420, 467, 468 & 471 IPC along with the charges dated 31.03.2023, the cognizance order dated 06.02.2021 and charge sheet dated 29.12.2020

arising out of Crime No. RC0532020S0001, Police Station CBI/SCB/ Lucknow, District Lucknow pending before the learned Special Judicial Magistrate, CBI, Lucknow.

3. The CBI registered FIR No. RC0532020S0001 on 04.02.2020 against - (1) Sri Ashok Pathak, (2) Sri Kapil Pratap Rana and (3) Sri Vijnayjit Lal Verma, Advocate and (4) others, on the basis of a written complaint dated 04.02.2020 sent by the Inspector of Police, CBI-SCB Lucknow stating that Writ Petition No. 15233 (M/B) of 2016 was filed in this Court in the name of Sri Khurshid Agha by Sri Ashok Pathak through Sri Vinayjit Lal Verma, Advocate on the basis of forged documents. Contents of the complaint dated 04.02.2020 prima facie disclose commission of cognizable offences under Section 120- B r/w 420, 467, 468 & 471 IPC by the accused persons.

4. After conducting investigation, the CBI has submitted a charge sheet dated 29.12.2020 inter alia stating that while making investigation regarding filing of the aforesaid writ petition which had been disowned by its petitioner, it came to light that the land regarding which the aforesaid writ petition was filed, was registered in the name of Tractor Workshop Training Centre Driver Zere Ehatmam UPCC Lucknow. Thereafter vide order dated 10.05.2016, the District Magistrate placed the entire land under Principal, Secretary, Grih, Gopan, Government of U.P. An assignment deed dated 17.03.1997 had purportedly been executed by Sri Khurshid Aga in the favour of Kapil Pratap Rana, Secretary of M/s Adhunik Sahkari Grih Nirman Samiti Limited. On the basis of this assignment deed, Kapil Pratap Rana entered into a sale agreement with M/s Antriksh Landmarks Pvt. Ltd. for an amount of Rs. 45,89,04,000/- out of which Rs. 2 crore was paid by M/s Antriksh Landmarks Private Ltd. to Sri Kapil Pratap Rana through four cheques amounting to Rs. 50 lakh each on 11.12.2015. M/s Antriksh Landmarks Pvt. Ltd. had issued a cheque for balance amount of Rs. 43,89,04,000 on 09.12.2015 in favour of Kapil Pratap Rana. The amount of Rs. 2 crore received by Kapil Pratap Rana from M/s Antriksh Landmarks Pvt. Ltd. was transferred in the account of Ashok Pathak and his family members. Rs. 77 lakh were transferred to the bank account of the applicant through three cheques on

11.12.2015 and 15.12.2015. In a nutshell, the allegation against the applicant is that some government property was attempted to be grabbed on the basis of false documents and the applicant received a part of the benefit out of fraudulent transactions regarding that government property. He has been charged for commission of offence under Section 120-B read with 209, 420, 467, 468 & 471 IPC. While taking cognizance of the offences, the court has taken cognizance of offences under Sections 120B r/w 420, 467, 468 & 471 IPC only and cognizance has not been taken in respect of the offence under Section 209 IPC.

5. While assailing validity of the charge sheet and the criminal proceedings instituted on the basis thereof, the learned counsel for the applicant has submitted that besides transfer of Rs. 77 lakhs to the applicant’s bank account in three transactions through banking channel, there is absolutely no allegation against him. Mere receipt of amount through banking channel does not even prima facie make of any offence warranting trial of the applicant.

6. The learned counsel for the applicant has submitted that the Special Judicial Magistrate, CBI, Lucknow has wrongly framed charges against the applicant by the impugned order dated 31.03.2023 whereas the ingredients of none of the sections mentioned in the order are made out as against the applicant.

7. The learned counsel for the applicant has contended that the offence of forgery is not made out against the applicant and he has relied upon a judgment of the Hon’ble Supreme Court in the cases of Mohammed Ibrahim & Ors v. State of Bihar & Ors.: (2009) 8 SCC 751 in support of this submission. In that case, the question that arose for consideration was whether the material on record prima facie constitutes any offences against the accused. The contention of the appellant was that if the allegations made in the complaint and FIR, even if accepted to be true in entirety did not disclose the ingredients of any offence of forgery (Sections 467 and 471) or cheating (Section 420) or insult (Section 504) or wrongful restraint (Section 341) or causing hurt (Section 323) and there was no other material to show any offence and therefore, their application ought to have been accepted. Before proceeding to answer the question, the Hon’ble Supreme Court observed that: - “8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See G. Sagar Suri v. State of U.P.: (2000) 2 SCC 636 and Indian Oil Corpn. v. NEPC India Ltd. (2006) 6 SCC 736] Let us examine the matter keeping the said principles in mind.”

8. The present case is not a case which can be said to be a case which is essentially of a civil nature. It is settled law that a precedent should be read and applied keeping into consideration the factual background in light of which the case was decided. Therefore, the aforesaid case would not be applicable to the facts of the present case.

9. Relying upon the judgment in the case of Baliya alias Bal Kishan v. State of Madhya Pradesh: (2012) 9 SCC 696, he has submitted that the ingredients of criminal conspiracy are also not made out in the present case. This judgment was given in an appeal arising out of a judgment passed by the High Court of Madhya Pradesh dismissing two criminal appeals filed by the accused persons against the trial Court’s order of conviction, after completion of trial and it does not deal with the scope of 482 Cr.P.C.

10. Per contra, Sri Anurag Kumar Singh, the learned counsel for the respondent-CBI has submitted that while making investigation regarding filing of a writ petition in the name of Khurshid Agha without the petitioner having signed or authorized filing of the writ petition, it came to light that a series of transactions had been made in respect of certain Government land in an attempt to grab the same on the strength of fake documents. During Investigation it has come to light that the applicant stands benefited from those transactions in as much as Rs. 77 lakhs have been transferred to his bank account. He has submitted that the applicant has not been able to give any explanation as to why was this amount transferred to his bank account. This conduct of the applicant makes out a case for his trial for the offence of criminal conspiracy for commission of offences. He has submitted that the charges are yet to be established by leading evidences, which can only be done during the trial.

11. Sri. Anurag Kumar Singh has relied upon the judgments in the case of Soma Chakravarty v. State through CBI:(2007) 5 SCC 403, in which it was held that: - “10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.”

12. The learned Counsel for the respondent has also relied upon the judgment in the case of Sanghi Brothers (Indore) Private Limited v. Sanjay Choudhary & Ors.: (2008) 10 SCC 681, wherein the Hon’ble Supreme Court referred to its earlier judgment in the case of State of Karnataka v. L. Muniswamy: (1977) 2 SCC 699, wherein it was held that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. The court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into.

13. In exercise of its jurisdiction under Section 482 Cr.P.C., this Court cannot go into the disputed question of facts so as to record a satisfaction of innocence of the applicant.

14. When the allegation against the applicant is of having received a Rs. 77 lakh as a part of the total financial benefit of rs.2 Crores availed by the co-accused who is alleged to have tried to grab public property on the strength of forged documents and to have committed the offences under Sections 420, 467, 468 & 471 IPC and the allegation against the applicant is that he is involved in the criminal conspiracy to commit those offences, I am of the view that the prosecution has to be given an opportunity to establish the case by leading evidence during the trial and there is no good ground to quash the proceedings without the trial.

15. The application lacks merit and the same is dismissed.

16. The trial court shall proceed with the trial expeditiously in accordance with law after scrutinizing the material placed on record and without being influenced by the observation made in this order. Order Date: 24.04.2025 Pradeep/- (Subhash Vidyarthi J) PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

arising out of Crime No. RC0532020S0001, Police Station CBI/SCB/ Lucknow, District Lucknow pending before the learned Special Judicial Magistrate, CBI, Lucknow.

3. The CBI registered FIR No. RC0532020S0001 on 04.02.2020 against - (1) Sri Ashok Pathak, (2) Sri Kapil Pratap Rana and (3) Sri Vijnayjit Lal Verma, Advocate and (4) others, on the basis of a written complaint dated 04.02.2020 sent by the Inspector of Police, CBI-SCB Lucknow stating that Writ Petition No. 15233 (M/B) of 2016 was filed in this Court in the name of Sri Khurshid Agha by Sri Ashok Pathak through Sri Vinayjit Lal Verma, Advocate on the basis of forged documents. Contents of the complaint dated 04.02.2020 prima facie disclose commission of cognizable offences under Section 120- B r/w 420, 467, 468 & 471 IPC by the accused persons.

4. After conducting investigation, the CBI has submitted a charge sheet dated 29.12.2020 inter alia stating that while making investigation regarding filing of the aforesaid writ petition which had been disowned by its petitioner, it came to light that the land regarding which the aforesaid writ petition was filed, was registered in the name of Tractor Workshop Training Centre Driver Zere Ehatmam UPCC Lucknow. Thereafter vide order dated 10.05.2016, the District Magistrate placed the entire land under Principal, Secretary, Grih, Gopan, Government of U.P. An assignment deed dated 17.03.1997 had purportedly been executed by Sri Khurshid Aga in the favour of Kapil Pratap Rana, Secretary of M/s Adhunik Sahkari Grih Nirman Samiti Limited. On the basis of this assignment deed, Kapil Pratap Rana entered into a sale agreement with M/s Antriksh Landmarks Pvt. Ltd. for an amount of Rs. 45,89,04,000/- out of which Rs. 2 crore was paid by M/s Antriksh Landmarks Private Ltd. to Sri Kapil Pratap Rana through four cheques amounting to Rs. 50 lakh each on 11.12.2015. M/s Antriksh Landmarks Pvt. Ltd. had issued a cheque for balance amount of Rs. 43,89,04,000 on 09.12.2015 in favour of Kapil Pratap Rana. The amount of Rs. 2 crore received by Kapil Pratap Rana from M/s Antriksh Landmarks Pvt. Ltd. was transferred in the account of Ashok Pathak and his family members. Rs. 77 lakh were transferred to the bank account of the applicant through three cheques on

11.12.2015 and 15.12.2015. In a nutshell, the allegation against the applicant is that some government property was attempted to be grabbed on the basis of false documents and the applicant received a part of the benefit out of fraudulent transactions regarding that government property. He has been charged for commission of offence under Section 120-B read with 209, 420, 467, 468 & 471 IPC. While taking cognizance of the offences, the court has taken cognizance of offences under Sections 120B r/w 420, 467, 468 & 471 IPC only and cognizance has not been taken in respect of the offence under Section 209 IPC.

5. While assailing validity of the charge sheet and the criminal proceedings instituted on the basis thereof, the learned counsel for the applicant has submitted that besides transfer of Rs. 77 lakhs to the applicant’s bank account in three transactions through banking channel, there is absolutely no allegation against him. Mere receipt of amount through banking channel does not even prima facie make of any offence warranting trial of the applicant.

6. The learned counsel for the applicant has submitted that the Special Judicial Magistrate, CBI, Lucknow has wrongly framed charges against the applicant by the impugned order dated 31.03.2023 whereas the ingredients of none of the sections mentioned in the order are made out as against the applicant.

7. The learned counsel for the applicant has contended that the offence of forgery is not made out against the applicant and he has relied upon a judgment of the Hon’ble Supreme Court in the cases of Mohammed Ibrahim & Ors v. State of Bihar & Ors.: (2009) 8 SCC 751 in support of this submission. In that case, the question that arose for consideration was whether the material on record prima facie constitutes any offences against the accused. The contention of the appellant was that if the allegations made in the complaint and FIR, even if accepted to be true in entirety did not disclose the ingredients of any offence of forgery (Sections 467 and 471) or cheating (Section 420) or insult (Section 504) or wrongful restraint (Section 341) or causing hurt (Section 323) and there was no other material to show any offence and therefore, their application ought to have been accepted. Before proceeding to answer the question, the Hon’ble Supreme Court observed that: - “8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See G. Sagar Suri v. State of U.P.: (2000) 2 SCC 636 and Indian Oil Corpn. v. NEPC India Ltd. (2006) 6 SCC 736] Let us examine the matter keeping the said principles in mind.”

8. The present case is not a case which can be said to be a case which is essentially of a civil nature. It is settled law that a precedent should be read and applied keeping into consideration the factual background in light of which the case was decided. Therefore, the aforesaid case would not be applicable to the facts of the present case.

9. Relying upon the judgment in the case of Baliya alias Bal Kishan v. State of Madhya Pradesh: (2012) 9 SCC 696, he has submitted that the ingredients of criminal conspiracy are also not made out in the present case. This judgment was given in an appeal arising out of a judgment passed by the High Court of Madhya Pradesh dismissing two criminal appeals filed by the accused persons against the trial Court’s order of conviction, after completion of trial and it does not deal with the scope of 482 Cr.P.C.

10. Per contra, Sri Anurag Kumar Singh, the learned counsel for the respondent-CBI has submitted that while making investigation regarding filing of a writ petition in the name of Khurshid Agha without the petitioner having signed or authorized filing of the writ petition, it came to light that a series of transactions had been made in respect of certain Government land in an attempt to grab the same on the strength of fake documents. During Investigation it has come to light that the applicant stands benefited from those transactions in as much as Rs. 77 lakhs have been transferred to his bank account. He has submitted that the applicant has not been able to give any explanation as to why was this amount transferred to his bank account. This conduct of the applicant makes out a case for his trial for the offence of criminal conspiracy for commission of offences. He has submitted that the charges are yet to be established by leading evidences, which can only be done during the trial.

11. Sri. Anurag Kumar Singh has relied upon the judgments in the case of Soma Chakravarty v. State through CBI:(2007) 5 SCC 403, in which it was held that: - “10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.”

12. The learned Counsel for the respondent has also relied upon the judgment in the case of Sanghi Brothers (Indore) Private Limited v. Sanjay Choudhary & Ors.: (2008) 10 SCC 681, wherein the Hon’ble Supreme Court referred to its earlier judgment in the case of State of Karnataka v. L. Muniswamy: (1977) 2 SCC 699, wherein it was held that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. The court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into.

13. In exercise of its jurisdiction under Section 482 Cr.P.C., this Court cannot go into the disputed question of facts so as to record a satisfaction of innocence of the applicant.

14. When the allegation against the applicant is of having received a Rs. 77 lakh as a part of the total financial benefit of rs.2 Crores availed by the co-accused who is alleged to have tried to grab public property on the strength of forged documents and to have committed the offences under Sections 420, 467, 468 & 471 IPC and the allegation against the applicant is that he is involved in the criminal conspiracy to commit those offences, I am of the view that the prosecution has to be given an opportunity to establish the case by leading evidence during the trial and there is no good ground to quash the proceedings without the trial.

15. The application lacks merit and the same is dismissed.

16. The trial court shall proceed with the trial expeditiously in accordance with law after scrutinizing the material placed on record and without being influenced by the observation made in this order. Order Date: 24.04.2025 Pradeep/- (Subhash Vidyarthi J) PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench