Ashok Kumar and Others vs Gokul Chand

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Criminal Procedure Code for quashing the order dated 16.02.2013 passed by First Additional Session Judge, Guna in Criminal Revision No. 76/2012 whereby revision filed by the present petitioners has been dismissed and the order dated 1.3.2012 passed by the J.M.F.C. in private complaint No. 2561/2008 framing charges under Sections 420, 465, 120-B of I.P.C. against the petitioners has been upheld. Brief facts of the case are that one Gokul Chand Jain filed a private complaint against the present petitioners as well as his daughter Rajkumari Jain alleging that Rajkumari sold one shop in the favour of Nitin Kumar and Rahul Kumar, minor sons of petitioners, while she was having no authority to execute the sale deed because the property was owned by Gokul Chand. During the Pendency of the said complaint, Gokul Chand/respondent died and name of Pradeep Kumar who is his son was substituted. After examining the complainant and his witnesses under Sections 200 and 202 of Cr.P.C., learned Trial Court has framed the charge u/s 420 of I.P.C. The petitioners challenged the said order before the Revisional Court in Criminal Revision No. 146/2009 and the same was allowed and the matter was remitted back to the trial Court with a direction to pass a fresh order after hearing both the parties. Learned trial Court after hearing both the parties and as per the evidence, framed the charges under Sections 465, 420 and 120-B of I.P.C. against the petitioners, dismissing the application filed by them u/s 245 of Cr.P.C. contending that charges under Sections 420, 465 and 120-B of I.P.C. are not made out. Revision against the said order has also been dismissed. Hence this petition.

It is submitted by the learned counsel for the petitioners that impugned order passed by the learned trial Court is contrary to law and the same has been passed without application of mind. There is no evidence on record to show that the petitioners have cheated the complainant. Offence u/s 465 of I.P.C. is also prima facie not made out. No allegation has been made that petitioners have created any false document. There is no allegation against the present petitioners regarding criminal conspiracy against the complainant. Petitioners are fathers of bona fide purchasers. It is submitted that if the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceeding should continue.

The learned counsel for the respondent submits that Pendency of civil suit does not bar criminal proceedings. In the instant case, petitioners with the connivance of daughter of respondent/complainant, namely Rajkumari, got executed a sale-deed in favour of their minor sons knowing well that said Rajkumari is not the owner of the disputed property, hence, the petitioners cannot escape from criminal liability.

In order to appreciate the contentions advanced by the learned counsel for the parties, I have perused the record.

Admittedly, Rajkumari (since dead) is the daughter of respondent/complainant Gokulchand. It is also not disputed that Rajkumari had executed a sale deed in favour of minor sons of petitioners. As per the allegations in the complaint, the deceased Gokulchand was owner of two shops, out of which, he transferred one shop in favour of his daughter who was widow and residing at Aron because her husband had left her. The petitioners and Rajkumari entered into a conspiracy to usurp the second shop of deceased Gokulchand and got executed a sale deed on 31.12.1993 in favour of minor sons of the petitioners and thereafter they remained silent for about one year. On 14.12.1994, Gokulchand came to know about the execution of the sale deed. In his statement, Gokulchand stated that he had kept one shop for himself, however, Rajkumari, Ashok and Vinod got executed a sale deed of his shop without his knowledge. The consideration has not been paid to him. Pradeep Kumar Jain, who is the son of Gokulchand, has supported the statement of Gokulchand.

It is pertinent to mention that Gokulchand in Para 7 of his cross-examination has categorically admitted that he has filed a civil suit for cancellation of registered sale deed as well as for Ejectment. Thus, the civil suit is pending in between the parties. It is also pertinent to mention that neither the petitioners have signed the sale deed, nor the sale deed is in their favour. The question as to whether the transactions are genuine or not would fall for consideration before the Civil Court as admittedly Gokulchand has filed a civil suit. In the sale deed, it is mentioned that late Gokulchand had executed a registered Mukhtyarnama (power of attorney) on 22.02.1994 authorizing Rajkumari to sell shop/house belonging to late Gokulchand and Gokulchand was in need of money, therefore, on the direction of Gokulchand, this sale deed is being executed. The question as to whether late Gokulchand had executed a registered power of attorney in favour of Rajkumari and due to need of money, Gokulchand authorized Rajkumari to sell the shop/house is to be decided by the Civil Court and the criminal court cannot determine the same.

Hon''ble Supreme Court in the case of State of Harayana and Others Vs. Bhajan Lal and Others, reported in 1992 Suppl. (1) SCC 335 has held as under:-

This Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the Constitution of India or the inherent powers u/s 482, Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:-

(1) 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.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) 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.

(4) 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 u/s 155(2) of the Code.

(5) 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.

(6) Where there is an express legal bar engrafted in any 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 specified provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) 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.

In the instant case, it appears that it is a classic illustration of non-application of mind by the learned Magistrate. The learned Magistrate did not scrutinize even the contents of the complaint. Considering that civil litigation is pending between the parties, continuance of criminal proceedings would be sheer abuse of process of law. Hence, the petition deserves to be allowed. Consequently, the petition is allowed and the charges framed by the learned trial Court against the petitioners under Sections 420, 465, 120-B of I.P.C. are quashed.