Chandra Singh Sajwan vs State Of Uttarakhand & Another

Lok Pal Singh, J

By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the charge sheet dated 06.09.2008, passed by learned Chief Judicial Magistrate Chamoli, in criminal case no. 1172 of 2008, State Vs. Chandra Singh Sajwan and others, under Sections 166, 167, 120B, 420, 447 of IPC, as also the entire proceedings of aforesaid criminal case pending in the selfsame court.

2) Brief facts of the case are that a complaint was lodged by the Sub Divisional Magistrate Joshimath, District Chamoli on 02.12.2007, alleging therein that one Atul Sharma purchased the land of persons, who belongs to scheduled tribe community, and got his name mutated over the same land in the revenue records, in collusion with the other accused persons, for which the official concerned passed the order against the law, ignoring the documents placed on record as well as the provisions of U.P. Zamindari Abolition and Land Reforms Act., 1950. The first information report was lodged against six named persons, but the petitioner was not named in the first information report. On the basis of said FIR, a case crime no. 211 of 2007, under Sections 166, 167, 218 and 420 of I.P.C., was registered at Police Station Joshimath, District Chamoli.

3) The Investigating Officer investigated the matter and submitted charge-sheet against five accused persons under sections 166, 167, 120B, 420 and 447 of I.P.C., in the Court of Chief Judicial Magistrate, Chamoli (Gopeshwar) on 06.09.2008. It is contended that in the accused column of charge-sheet, the name of petitioner was included, but in the FIR, name of petitioner/applicant was not included and his name is added later on during the investigation by the I.O. though there were no evidence against the applicant.

4) It is further contended that on the basis of report of Supervisor Kanoongo, Joshimath dated 06.08.1996, the Assistant Collector, Ist Class, Joshimath, District Chamoli passed an order on 07.08.1996, by which he declared total 15 Nali 12 Muthi land of Khasra nos. 15, 16, and 17 of Khata Khatauni no. 3 as non-agricultural land. Thereafter, on 03.09.1996 the Assistant Collector, Ist Class, Joshimath, District Chamoli passed an order, by which he declared 31 Nali land of Khasra no. 18 as non-agricultural land, on the basis of report of Supervisor Kanoongo/Tehsildar, Joshimath, District Chamoli on the ground that this land is not for agricultural purposes.

5) It is also contended that while deciding writ petition no. 180 (M/S) of 2008 M/s Ski @ Snow Resorts Pvt. Ltd. Vs. State of Uttarakhand, co-ordinate Bench of this Court, vide its judgment and order dated 30.09.2008, has held that the provisions of section 157-B of U.P. Zamindari Abolition and Land Reforms Act will not be applicable to the areas, governed by Kumaon and Uttarakhand Zamindari Abolition and Land Reforms Act and the transfer of land in favour of Atul Sharma is legal and valid and the proceeding initiated under Sections 166 and 167 of U.P. Zamindari Abolition and Land Reforms Act. are abuse of process of law.

6) Learned counsel for the applicant would further submit that co-accused, having similar role, moved separate petitions under section 482 Cr.P.C., before this Court. The petitions of co-accused were numbered as Criminal Misc. Application (C-482) No. 846 of 2008, Mahipal Singh vs State & others and Criminal Misc. Application (C-482) No. 119 of 2009, Garib Das V/s State & others. Hon'ble High Court stayed the further proceedings of both the cases until further orders. It is contended that the case of the present applicant is also on the same footing.

7) The record of the abovementioned Criminal Misc. Application (C-482) no. 846 of 2008, Mahipal Singh vs State & another and Criminal Misc. Application (C-482) no. 119 of 2009, Garib Das vs State of Uttarakhand & another, were called from the record room. On perusal of aforementioned C-482 petitions, it is evident that on the death of applicant Mahipal Singh, applicant in C-482 petition no. 846 of 2008, the C-482 petition has become infructuous and, accordingly, the same was disposed of as infructuous by the co-ordinate Bench of this Court vide order dated 17.05.2013. C-482 petition no. 119 of 2009, filed by applicant Garib Das, was dismissed as withdrawn by the co-ordinate Bench of this Court vide order dated 22.07.2013. The operative portion of the same reads as under:

"Permitted to be withdrawn with aforesaid liberty. Petitioner shall appear / surrender before the trial court on or before 23.08.2013, as stated by learned counsel for the petitioner. In the event of moving bail application, the same shall be decided by trial court, sympathetically, if possible on the same day. If for any reason, bail is posted for further hearing, then petitioner shall be enlarged on interim bail on his furnishing a personal bond to the satisfaction of trial court for the period till regular bail is decided finally. It is, however, made clear that if petitioner fails to appear / surrender before the trial court till 23.08.2013, then learned Magistrate shall be at liberty to proceed against the petitioner in accordance with law."

8) Thus, it is amply clear that now no interim protection is there in favour of applicants of those C-482 petitions, a mention of which has been made in this Criminal Misc. Application, filed under Section 482 of Cr.P.C.

9) Learned counsel for the applicant would submit that no specific role is assigned to the applicant in this matter and no prima-facie case is made out against him. The alleged act is performed by the applicant in discharge of his official duty and applicant passed the orders on the basis of legal papers presented by the person concerned.

10) It is also submitted that the Investigating officer, without proper investigation into the matter and in a routine manner, and without any statement and evidence, submitted charge sheet dated 06.09.2008 against the applicant and other co-accused persons. The proceedings initiated against the applicant are nothing but abuse of process of Court and liable to be quashed. It is also contended that the alleged incident took place on 03.09.1996, but the respondent no. 2 got lodged the FIR on 02.12.2007 i.e. after about 11 years from the date of alleged incident. The delay has not been explained by the respondent no. 2, which clearly shows that the FIR has been lodged as an after thought which is not permissible under the law.

11) It is contended that the first information report does not reveal commission of any offence by the applicant and all the allegations, levelled in the first information report against the applicant, appears to have been fabricated by complainant / respondent no. 2 herself. Even the documentary evidence have not supported the case of prosecution and there are several material contradictions in the statement of respondent no. 2 and first information report, but the investigating officer has illegally relied upon the same and submitted the charge sheet.

12) Per contra, learned counsel for the complainant / respondent no. 2 would submit that the FIR was lodged against six accused persons with the allegations that the accused persons prepared the documents and got the sale deed / lease deed in their favour from Dr. Vijay Singh Pal, the then land / lease holder of land. The present applicant and co-accused persons did not mention their caste neither in the lease deed nor in the sale deed because the present applicant and co-accused persons were not members of the Scheduled Tribe community. It is contended that after completion of investigation, the Investigating Officer found prima facie case against the present applicant and the co-accused persons in respect of offences punishable under Sections 166, 167, 120B, 420 and 447 of IPC and thereafter submitted charge sheet against the accused persons, including the applicant, on 06.09.2008. The Sub Divisional Magistrate, Joshimath inquired into the matter and found the involvement of the Supervisory Kanoongo and other officials in regard to preparation of document and their involvement in the said crime. In fact, the said land was given by the State Government on lease in the year 1972 by the Deputy Commissioner of Chamoli for the use of agricultural, horticultural, animal husbandry, including piscicultural and poultry form for a period of 99 years. Para 2 sub-clause (3) of said lease deed clearly stipulates that the lease holder has no right to transfer and sublet the lease to any other person. Otherwise also, Section 157B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 restricts transfer of land by member of Scheduled Tribe to any person who does not belong to the Scheduled Tribe community. The then State Government issued Notifications dated 19th June, 1965 and 17th November 1995, clearly providing that the provisions of Section 157B of the UPZA & LR Act will be applicable to the Kumaon and Uttarakhand Divisions. It is contended that it is impossible to believe that the present applicant, who was the then Naib Tehsildar, had no knowledge of the same. Despite that he committed forgery and made mutation of property in the name of Vijay Singh Pal. It is contended that as soon as the fact regarding forgery committed by the applicant came into the knowledge of the complainant, an inquiry was conducted and, thereafter, FIR was lodged against the present applicant.

13) Hon'ble Apex Court in Mridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr.1, has held that the distinction between mere breach of contract and cheating, which is a criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In this case, in the FIR, there were allegations of fraudulent and dishonest intention including allegations of fabrication of documents, the correctness or otherwise whereof can be determined only during trial when evidence is adduced.

14) In Vesa Holdings (P) Ltd. and Anr. v. State of Kerala and Ors.2, Hon'ble Supreme Court has observed thus:

"12. The settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception."

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."

15) It is settled position in law that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused person.

16) Their Lordships of the Hon'ble Supreme Court in the case of Sonu Gupta vs Deepak Gupta and others 3, have held that prima facie satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs of said judgment are excerpted here-in-below:

"7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accuse persons before the courts below or in this Court lest it prejudices one or the other party in future.

Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."

17) Hon'ble Apex Court in Ramesh Chander and another 4 certain principles in respect Amit Kapoor vs has laid down of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.

18) Since, prima facie case is made out against the applicant, the learned Magistrate after perusal of the FIR and on the basis of evidence collected by the I.O., has rightly taken cognizance and summoned the applicant to face the trial in respect of the offences punishable under Sections 166, 167, 120B, 420, 447 of IPC. I do not find any illegality, perversity or jurisdiction error in the order under challenge, as such, the same needs no interference at this stage.

19) In view of the findings recorded above, criminal misc. application filed under Section 482 of Cr.P.C. fails and is hereby dismissed.