Girish Chandra Agarwal vs State of U.P. and Another

Ravindra Singh, J.—This application has been preferred by the applicant Girish Chandra Agarwal with a prayer to quash the charge-sheet dated 19.1.2011 in Case Crime No. 627 of 2007 under Sections 420, 467, 468, 471, 406 and 120B. I.P.C. P.S. Etmadpur district Agra pending in the court of learned A.C.J.M. IXth, Agra in Criminal Case No. 98 of 2011. The fact in brief of this case are that the F.I.R. of this case has been lodged by O.P. No. 2 Sri Shanti Swaroop Goel on 4.11.2007 at P.S. Etmadpur in Case Crime No. 627 of 2007 under Sections 419 and 420, I.P.C. it is alleged therein that the accused Raghubir Singh had entered into an agreement with O.P. No. 2 on 11.4.2007 to sell his land of khata No. 222, khasra No. 298. Rajasva Gram Nadau, having the area of 2.449 hectare, it was registered in the office of the Sub-Registrar, Etmadpur on 11.4.2007, the consideration of the sale was Rs. 53,14,000, the amount of Rs. 30,000 was paid on 11.4.2007, at the time of execution of the agreement of sale of the land, it was settled that the remaining amount of consideration i.e., Rs. 23,14,000 shall be paid at the time of execution of the sale deed. The O.P. No. 2 had paid the amount of Rs. 2,12,600 as stamp fee, O.P. No. 2 was given the assurance that the sale deed would be executed on the date settled, the signature of O.P. No. 2 was obtained on a blank stamp paper of Rs. 10 for the purpose of using the same for measurement of the land and O.P. No. 2 was permitted to construct the boundary wall, thereafter, O.P. No. 2 constructed the boundary wall of the said land, the date for execution of the sale deed was fixed on 10.10.2007, O.P. No. 2 went in the office of the Sub-Registrar on 10.10.2007 alongwith the bank draft of the remaining amount of the consideration alongwith its expenses, but the sale deed was not executed in favour of O.P. No. 2 with the intention to commit a fraud and to usurp the money of O.P. No. 2 and by playing fraud with dishonest intention the half of the portion of the above mentioned land'' was sold to Kusum Kunj Sahkari Awas Samiti Limited and its sale deed was executed knowing It well that the agreement to sale was already executed of the same land in favour of O.P. No. 2, in the commission of the alleged offence the applicant and other co-accused persons played an important role in hatching the conspiracy, during investigation the statement of Shanti Swaroop Goel, Vijendra Pal, Umesh Kapur, Eash Goel, Devendra Sethi, Ramesh Babu, Vijai Sikwar have been recorded u/s 161, Cr. P.C., the statement of other formal witnesses constable Kunwar Singh Bhadauria, S.I. Sukhbir Singh Chauhan, S.S.I. Sudhir Kumar Singh, S.O. Raj Kumar Rai and S.H.O. Vijai Singh was also recorded u/s 161, Cr. P.C. on the basis of the statement of the above mentioned witnesses recorded u/s 161, Cr.P.C. charge-sheet dated 19.1.2011 has been submitted by the Investigating Officer against the applicant, co-accused Raghubir Singh, Ramvir Singh, Ram Chandra and Vinod Kumar under Sections 420, 467, 468, 471, 406 and 120B, I.P.C. on which the learned A.C.J.M. IXth, Agra had taken cognizance on 25.1.2011, being aggrieved from the impugned charge-sheet dated 19.1.2011, the present application u/s 482, Cr. P.C. has been filed with a prayer to quash the impugned charge-sheet.

Heard Sri Prashant Misra, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri Vipin Kumar Saxena learned counsel for O.P. No. 2.

It is contended by the learned counsel for the applicant that it has been specifically alleged in the F.I.R. that O.P. No. 2 had entered into an agreement to purchase the land from the co-accused Raghubir Singh who had executed a registered agreement to sale, an amount of Rs. 30,000 was given to the co-accused Raghubir Singh, no specific allegation has been made against the applicant with regard to the agreement to sale or non-execution of the sale deed. The applicant has been named in the F.I.R. without having any reason that he had also played an important role in the commission of the alleged offence in furtherance of a conspiracy during investigation the statement of the witnesses have been recorded, the Investigating Officer has not collected any material to establish the involvement of the applicant in the commission of the alleged offence. The applicant is not a witness of agreement to sale, even there is no allegation that O.P. No. 2 was persuaded or induced to purchase the land by the co-accused Raghubir Singh, the material collected by the Investigating Officer is not prima facie disclosing the commission of any cognizable offence against the applicant, the applicant has been charge-sheeted only on the basis of doubt and suspension and due to ulterior motive of O.P. No. 2 because the applicant Is a friend of the co-accused Vinod Kumar, co-accused Vinod Kumar is the Secretary of Kusum Kunj Sahkari Awas Samiti Limited who purchased the land from the co-accused Raghubir Singh, its sale deed was executed on 24.10.2007 before the Sub-Registrar, Etmadpur, Agra on which the applicant has put his signature as a witness of the sale deed whereas the applicant was not having any knowledge that in respect of the same land any registered agreement to sole was entered in favour of O.P. No. 2, he was having no knowledge that the co-accused Raghubir Singh had executed a registered agreement to sell on 11.4.2007 in favour of O.P. No. 2, he had received the amount of Rs. 30,000 as earnest money at the time of the execution of the agreement to sell, one another agreement was also executed between Raghubir Singh and O.P. No. 2 on 11.4.2007 and stamp paper of Rs. 10 which is containing the actual agreement to sale for consideration of Rs. 95,73,750, out of which an amount of Rs. 30,000 was given by O.P. No. 2 as earnest money to Raghubir Singh, rest of the amount of Rs. 65,73,750 was to be paid by O.P. No. 2, at the time of execution of the sale deed within six months by 10.10.2007. this agreement to sale was executed in the presence of two independent witnesses who have put their signature on it. Thereafter, O.P. No. 2 served a registered notice on 6.10.2007 upon the accused Raghubir Singh for execution of the sale deed on 10.10.2007. the co-accused Raghubir Singh was present in the office of the Sub-Registrar Etmadpur but the sale deed could not be executed, the Sub-Registrar, Etmadpur had issued a certificate showing the presence of the co-accused Raghubir Singh on 10.10.2007 in his office. The F.I.R. has been lodged due to ulterior motive, O.P. No. 2 himself has committed a fraud, after investigation the Investigating Officer came to the conclusion that O.P. No. 2 has lodged the F.I.R. in which false allegation has been made, Suit No. 1099 of 2007 has already been filed by O.P. No. 2 in the court of the learned Civil Judge (Senior Division), Agra in which both the parties are appearing, final report dated 16.12.2007 was submitted by the Investigating Officer Raghubir Singh Cahuhan, but the same was protested by O.P. No. 2, thereafter the protest petition was allowed on 24.10.2009 by the learned A.C.J.M. XIIIth, Agra and the order of further investigation was passed, thereafter, further investigation was done and without any proper reason the charge-sheet has been submitted against the applicant also, during the course of investigation the arrest of the applicant was stayed in Criminal Misc. Writ Petition No. 17556 of 2010 but the learned Magistrate concerned has not perused the case diary and without applying the judicial mind cognizance has been taken in a routine manner. The fabric of the case Is purely civil in nature, in such a situation the charge-sheet submitted against the applicant may be quashed.

In reply to the above contention, it is submitted by the learned A.G.A. and Sri Vipin Kumar Saxena, learned counsel for O.P. No. 2 that the applicant is named In the F.I.R., the applicant and other co-accused persons by playing fraud have cheated O.P. No. 2, the co-accused Raghubir Singh has executed the agreement to sale in the office of the Sub-Registrar, he had received the earnest money of Rs. 30,000 from O.P. No. 2, no sale deed was executed in favour of O.P. No. 2, contrary to it half of the portion of the land has been sold to Kusum Kunj Sahkari Awas Samiti Limited by executing the sale deed, the applicant is a witness of the subsequent sale deed, which was executed on 24.10.2007, the applicant himself has admitted that he was the friend of the co-accused Vinod Kumar, Secretary of Kusum Kunj Sahkari Awas Samiti Limited, the applicant was having the knowledge that the aforesaid land which was already sold to O.P. No. 2, its agreement to sale was already executed and the co-accused Raghubir Singh had already received an amount of Rs. 30,000 as earnest money and in a pre-planned manner by way of playing fraud In furtherance of the conspiracy, the applicant and other co-accused persons have committed the alleged offence. The material collected by the Investigating Officer is prima facie disclosing the commission of the offence punishable under Sections 420, 467, 468, 471, 406 and 120B, I.P.C. against the applicant and other co-accused persons. The learned Magistrate concerned has not committed any error in taking cognizance vide order dated 25.1.2011, the fabric of the case is not purely civil in nature, on the basis of filing of the civil suit, it cannot be said that no criminal offence Is made out against the applicant, the present application is devoid of merits, the same may be dismissed.

Considering the submission made by the learned counsel for the applicant, learned A.G.A. and the learned counsel for O.P. No. 2 and from the perusal of the record it appears that in the present case, F.I.R. has been lodged by O.P. No. 2, it is a case in which cheating has been committed with O.P. No. 2 and an amount of Rs. 30,000 has been misappropriated/usurped, the co-accused Raghubir Singh has executed an agreement to sell in favour of O.P. No. 2 of the land of khata No. 222 khasra No. 298, Rajasva Gram Naddau, having the area of 2.44 hectare on 1.4.2007, an amount of Rs. 53,14,000 was settled as sale consideration out of which an amount of Rs. 30,000 was allegedly paid by O.P. No. 2 as earnest money, thereafter, the agreement to sale was not executed and half of the portion of the above mentioned land has been sold by the co-accused Raghubir Singh to Kusum Kunj Sahkari Awas Samiti Limited whereas the boundary of the aforementioned land was already constructed by O.P. No. 2 with the consent of the co-accused Raghubir Singh, the subsequent sale deed was executed on 24.10.2007, the applicant is the witness of the subsequent sale deed, allegation has been made that the applicant and the co-accused have committed the alleged offence in a pre-planned manner in furtherance of the conspiracy, the allegation made against the applicant and other co-accused persons are prima facie disclosing the commission of the offence punishable under Sections 420, 467, 468, 471, 406 and 120B, I.P.C. By filing a civil suit, it cannot be said that no criminal case has been committed by the applicant and other co-accused persons, further proceedings are initiated for claiming the right, the learned Magistrate concerned has not committed any error in taking cognizance vide order dated 25.1.2011, there is no good ground to interfere in the charge-sheet submitted by the Investigating Officer on which the learned Magistrate concerned has taken cognizance, therefore, the prayer for quashing the impugned charge-sheet dated 25.1.2011 in Case Crime No. 627 of 2007 under Sections 420, 467, 468, 471, 406 and 120B, I.P.C. P.S. Etmadpur district Agra in Criminal Case No. 98 of 2011 is refused. Accordingly, the application is dismissed.