w w w . L a w y e r S e r v i c e s . i n



Radhey Shyam Gupta & Others v/s State of U.P. & Another


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- SHYAM CORPORATION PRIVATE LIMITED [Active] CIN = U17120GJ2010PTC060509

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- RADHEY SHYAM GUPTA INDIA PRIVATE LIMITED [Active] CIN = U70101DL1999PTC099885

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- SHYAM & SHYAM (INDIA) PVT LTD [Active] CIN = U23101WB1983PTC036757

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- SHYAM G LTD [Strike Off] CIN = U36911RJ1984PLC002921

Company & Directors' Information:- SHYAM COMPANY LIMITED [Strike Off] CIN = U17111UP1946PLC001423

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

    Application U/S 482 No. 1697 of 2016

    Decided On, 29 July 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAHUL CHATURVEDI

    For the Applicant: Amit Saxena, Mushir Khan, Advocates. For the Respondents: G.A., Abdul Majeed, Sufia Saba, Advocates.



Judgment Text


1. Heard Sri Saurabh Singh, learned counsel for the applicants, Ms. Sufia Saba, learned counsel for opposite party no. 2 and learned AGA for the State.

2. After exchange of pleadings between the parties, the matter riped up for final arguments.

3. The matter was heard at length and order was reserved to be dictated in Chamber.

4. Considering learned arguments of the rival parties, it is imperative to extract bare skeletonized facts of the case for proper appraisal and adjudication in the matter.

5. The prayer sought by the applicants is for invoking extraordinary jurisdiction of this Court under Section 482 Cr.P.C. and to quash proceedings of Criminal Case No. 3302 of 2015 (State v. Radhey Shyam Gupta and others) under sections 147, 148, 149, 406, 329 and 386 IPC, P.S. Barra, District Kanpur Nagar pending in the court of I-Additional Chief Metropolitan Magistrate, Kanpur Nagar.

6. It is pertinent to mention here that by virtue of Court's order dated 22.01.2016 passed by coordinate Bench of this Court, further proceedings of the instant case were stayed and notices were issued to opposite party no. 2.

FACTS OF THE CASE

7. One Munni Devi resident of Kolkata is lease holder of plot no. 1342, Block -W-II, Phase Juhi Kala, Damodar Nagar, Kanpur Nagar admeasuring are 387 Square yards (herein after referred to as ''dispute land'). This disputed plot was a lease hold property of Kanpur Development Authority vide lease deed dated 18.01.1978 for a period of 99 years, as she as resident of Kolkata, due to some financial crunch, she had to enter into an agreement to sell the dispute property on 27.10.2010 with one Ms. Mamta Gupta (Applicant no. 2). The covenants of the aforesaid agreements to sell stood as under:

(a) Total amount of sale consideration is 25 lakhs, out of which she acknowledged that she received five post dated cheques of different dates for an amount of Rs. 2 Lakhs (the detail of the aforesaid cheques were quoted on the foot of the instrument.

(b) Ms. Munni Devi assured that she would get the disputed land freehold within a period of one year and get the sale-deed registered.

(c) The possession of the disputed land has not been handed over till the land is not declared as free hold and would be handed over on the date of the registration of the sale-deed.

8. In paragraph 5 of the petition, it has been alleged by the deponent, Ms. Mamta Gupta that on the same date yet another agreement to sell was executed by way of Joint Notarized Affidavit (Annexure no.3), signed by contesting parties, namely Munni Devi and Mamta Gupta (Applicant no. 2), whereby the terms of the deed were changed upside down and instead agreed sum of Rs. 25 Lakhs, it was mentioned therein that the total consideration of Rs. 35 Lakhs, out of which Munni Devi has received Rs. 25 Lakhs and only 10 Lakhs were left to be paid by applicant no. 2. Not only this, the original lessee, Ms. Munni Devi has handed over the actual physical possession of the disputed property to Mamta Gupta (Applicant No. 2). It was also agreed upon that Munni Devi would get the land in question free hold within a period of one year and get the "sell deed" registered.

9. Perusal of the record reveals that after receiving the actual physical possession, applicant no. 2, Ms. Mamta Gupta has raised two pucca rooms as well as the address. In support of this, the bill of electricity department for the month of July/August, 2015 is annexed as Annexure No. 4 to the petition.

10. Since Munni Devi failed to get land freehold for her requisite inaction and on account of providence whereby the husband of Mamta Gupta went in renal failure, resultantly, she in acute financial duress, she could not file the suit for Specific Performance for executing the actual sale-deed through decree of court.

11. Since the prices of the land were accelerating sky high, Munni Devi has filed a suit against Mamta Gupta (Applicant No. -2) bearing Original Suit No. 1553 of 2015 in the court of the Civil Judge (Senior Division), Kanpur Nagar with the prayer for mandatory injunction against the defendant Mamta Devi (Applicant No. -2) to vacate the disputed property and hand over the possession of the disputed property within the time allowed, along with pendentalite and future damages. No interim relief was granted in favour of plaintiff, Munni Devi in the aforesaid Suit. Contention raised by counsel for applicant that mere filing of the above suit with above prayer clearly establishes and admits that the actual physical possession of "disputed property" was lying with the applicants.

12. Meanwhile, during pendency of suit the original lessee, Munni Devi came to contact with a rank stranger, namely; Kaptan Singh, s/o late Dashrath Singh r/o W-Block , Keshar Nagar, P.S. Naubasta, Kanpur Nagar (the informant of present FIR) and alleged "Power of Attorney Holder" of Mrs. Munni Devi, who has lodged the present FIR of Case Crime No. 645 of 2015 through an application filed an application under section 156(3) Cr.P.C. on 15.09.2015, under sections 147, 148, 149, 406, 329 and 386 IPC against Ms. Mamta Gupta, Radhey Shyam Gupta and three unknown persons. In the aforesaid FIR, opposite party no. 2 Kaptan Singh projected himself as "Power of Attorney Holder" of Mrs. Munni Devi. Browsing of the FIR indicates that opposite party no. 2 came out of blue in the month of August, 2015. The aforesaid FIR spells out the entire story with addition that out of five cheques, only one cheque of Rs. 2.00 Lakhs was got encashed but future of rest of the cheques were not known, Ms. Mamta Gupta got dispassionate so the sale-deed could not be executed, even after lapse of a year. In the rest of the averments, opposite party no. 2 has painted a story that after receiving Power of Attorney from Mrs. Munni Devi on 05.08.2015, he visited the disputed site on 20.08.2015, where he (opposite party no. 2- Kaptan Singh) was maltreated and hurled with filthy abuses by applicant no. 2 (Ms. Mamta Gupta), her husband- Radhey Shyam Gupta and other accomplices and assaulted by lathis, dandas, kicks and fists. Meanwhile, Ms. Mamta Gupta extended threats to life by whimpering sensation of knife on his chest, got blank paper signed. It was also contended that injured Ram Pratap Singh (an associate of opposite party no. 2) was not medically examined at the relevant time rather he was claimed to be medically examined at Ursala Hospital, Kanpur Nagar on unknown date and time.

13. Thereafter, an FIR was registered by opposite party no. 2 and later on the matter was brought on board before coordinate Bench, whereupon the interest of the applicants, were protected vide interim order dated 28.11.2015 passed in Criminal Misc. Writ Petition No. 27277 of 2015 till submission of report under section 173 (2) Cr.P.C. The police after completion of the investigation in the matter submitted charge sheet against Radhey Shyam Gupta, Smt. Mamta Gupta, Suraj son of Mishrilal Gupta, Ram Bihari Vishwakarma and Mishrilal son of Chhotey Lal under the aforementioned sections of the Penal Code.

14. Since opposite party no. 2 was extending threats for dispossessing, applicant no. 2, Ms. Mamta Gupta filed Original Suit No. 2077 of 2015 in the court of the Civil Judge (Senior Division), Kanpur Nagar whereupon the Civil Judge on 06.10.2015 was pleased to grant temporary injunction in favour of plaintiff, Ms. Mamta Gupta (Applicant No. 2) and the said interim order is still pending and operational (Annexure No. 6 to the petition).

15. It has been argued by the learned counsel for the applicants that the dispute is purely civil in nature and no criminality could be attached to it, and moreover the civil court is seized with the matter and criminal proceedings has been initiated by a rank outsider namely; Kaptan Singh (opposite party no. 2), who has no locus standi, is simply an arm twisting just to terrorize the applicants.

16. Per contra, counsel for opposite party no. 2, Ms. Sufia Saba in her counter affidavit vehemently refuted the allegations made by the applicants in the application filed under section 482 Cr.P.C. while filing counter affidavit, sworn by opposite party no. 2- Kaptan Singh, wherein she has categorically admitted that there was an "agreement to sell" between the parties on 27.10.2010 but has seriously disputed the veracity of Annexure No. 3 (subsequent drawing notarized affidavit), dated 27.10.2010. It is also alleged that out of five cheques, only one cheque was encashed and rest of the cheques were received unpaid and no legal action has ever initiated by Mrs. Munni Devi for this default. It has also been brought on record that on account of forged notarized affidavit, dated 27.10.2010, opposite party no. 2- Kaptan Singh lodged yet another FIR against four named accused persons, including Ms. Mamta Gupta (applicant no. 2) and the investigation of the case is still pending. She also disputed that any construction was raised by Ms. Mamta Gupta (applicant no. 2). It is also alleged that it is blatant attempt on the part of applicants to grab the disputed property, without paying the agreed sale consideration or without having any legal right or authority of the aforesaid disputed property.

17. On the aforementioned factual premises, this Court is required to adjudicate into the matter. Having heard the counsels at length and learned A.G.A., the Court is keen to adjudicate the issue in the light of settled legal norms.

18. The first and foremost about the locus of opposite party no. 2- Kaptan Singh to ignite the instant criminal prosecution. It is undisputed that the contesting parties have entered into an agreement to sell on 27.10.2010 and from the FIR, it has been borne out that on 05.08.2015, the alleged Power of Attorney was executed by Mrs. Munni Devi in favour of Kaptan Singh but astoundingly no power of attorney in this regard has been annexed with the record. There are balled averments, conferring this stature of Kaptan Singh (opposite party no. 2), which cannot be accepted on its face value. For all the practical purposes, he is rank outsider and stranger to the ''surreptitious' deal, therefore, the criminal prosecution initiated at his behest would lead into nullity. In all fairness, he ought to have annexed the Power of Attorney allegedly executed by Ms. Mamta Devi in his favour with the counter affidavit. On the strength of bald Power of Attorney the opposite party no.2 Kaptan Singh has initiated the criminal case.

19. Section 482 envisages inherent power to the High Courts to pass necessary orders for securing the ends of justice. In the case of Indian Oil Corporation v. NEPC India Ltd [2006 (VI) SCC 736], the Division Bench of Hon'ble Apex Court reviewed the precedents on the exercise of jurisdiction under section 482 Cr.P.C., and formulated the guiding principles in the following terms:

"12.....

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

20. The jurisdiction of 482 Cr.P.C., is required to examine whether the allegations in the complaint constitute the ingredients, necessary for the alleged offence, under the Penal Code. If the aforementioned averments are taken to be true on its face value, it do not constitute the ingredients necessary for the offence. The criminal proceedings can be quashed for the allegations made in the complaint do not disclose commission of the offence under the Penal Code. The complaint must contain the basic facts necessary for making out offence under the Penal Code.

21. In a recent judgement passed on 30.01.2020 in case of Ahmad Ali Quraishi and another v. The State of Uttar Pradesh and another in Criminal Appeal No. 138 of 2020, Honble the Apex Court while critically analysing scope and ambit of Section 482 Cr.P.C. took patronage of the principles of law enunciated in the case of State of Haryana and others versus Bhajan Lal and others, [1992 suppl. (1) SCC 335,] wherein seven categories of cases has been identified where power envisaged under Article 226/82 Cr.P.C. can be exercised by the High Courts for quashing criminal proceedings. Relevant portion of the case of Ahmad Ali Quraishi (Supra) wherein reliance upon the principles of law laid down in the case of State of Haryana (Supra) is essential to be extracted herein, which runs as under :

In paragraph 102, this Court enumerated seven categories of cases where power can be exercised under Article 226/Section 482 Cr.P.C. by the High Court for quashing the criminal Proceedings. Paragraph 102 is as follows: ­ "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 adn inflexible guidelines or rigid formulae and to give an exhaustive list of 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 under Section 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 non­cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 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 ther 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/o where there is specific provision 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 malafide 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."

22. It is alleged that the applicants have committed an offence under sections 147, 148, 149, 406, 329 and 386 IPC. Thus, it would be necessary to examine the ingredients made in the complaint, read on their face value, would attract offence under the Penal Code. In this regard, it is pertinent to re-peruse Section 405 IPC once again, which is referred to herein below:

"Section 405. Criminal breach of trust Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust.'"

23. A careful perusal of aforesaid section 405 IPC establishes the aim to explore as to how the aforesaid section can be divided into four categories, which are as follows:

(a) Criminal Breach Of Trust.

(b) Entrustment

(c) Property

(d) Criminal Misappropriation

24. Now to understand aforesaid four categories embedded in the section in a better way, it is essential to dissect every category in seriatum.

(a) Criminal Breach of Trust: The offence of criminal breach of trust, as defined under this section, is similar to the offence of embezzlement under the English law. A reading of the section suggests that the gist of the offence of criminal breach of trust is 'dishonest misappropriation' or 'conversion to own use' another's property, which is nothing but the offence of criminal misappropriation defined u/s 403. The only difference between the two is that in respect of criminal breach of trust, the accused is entrusted with property or with dominion or control over the property.

(b) Entrustment: As the title to the offence itself suggests, entrustment or property is an essential requirement before any offence under this section takes place. The language of the section is very wide. The words used are 'in any manner entrusted with property'. So, it extends to entrustments of all kinds-whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. "The term "entrusted" found in a 405, IPC governs not only the words "with the property" immediately following it but also the words "or with any dominion over the property"

(c) Property: The definition in a 405 does not restrict the property to movables or immovable alone. In R K Dalmia vs Delhi Administration, the Supreme Court held that the word 'property' is used in the Code in a much wider sense than the expression 'movable property'. There is no good reason to restrict the meaning of the word 'property' to movable property only, when it is used without any qualification in Section 405 IPC. Whether the offence defined in a particular section of IPC can be committed in respect of any particular kind of property, will depend not on the interpretation of the word 'property' but on the fact whether that particular kind of property can be subject to the acts covered by that section.

(d) Misappropriation: Dishonest misappropriations the essence of this section. Dishonesty is as defined in section 24, IPC, causing wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in section 23, IPC. In order to constitute an offence, it is not enough to establish that the money has not been accounted for or mismanaged. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.

25. Thus, the aforesaid discussion emanates that the condition necessary for the Act to constitute an offence under section 405 IPC is that the accused was entrusted for some property or dominion over the property. It can be easily culled out from the allegations made in the FIR that out of the five post dates cheques, one cheque of Rs. 2.00 Lakhas was encashed by Mrs. Munni Devi.

26. From perusal of paragraph 12 of the recent judgement passed on 3rd January, 2019 by a Division Bench of the Hon'ble Apex Court in Criminal Appeal No. 9 of 2019 [Satish Chandra Ratan Lal Shah v. State of Gujarat and another] a similar controversy arose wherein for recovery of a certain amount, the respondent had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. Whereupon Hon'ble the Apex Court in the aforesaid matter laid down the principle of law that mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Therefore, mere breach of promise, agreement of contract does not constitute an offence.

27. In the case of B.Suresh Yadav v. Sharifa Bee and another [2007(13) 107] Hon'ble the Apex Court in paragaph 12, while adjudicating a similar matter held as under:

"12. While executing the sale deed, the appellant herein did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute. ...."

28. Interesting in the instant case, the contesting parties have filed their civil cases bearing Original Suit No. 1553 of 2015 (Munni Devi v. Mamta Gupta) with a prayer for mandatory injunction against the defendant (Ms. Mamta Gupta) to get the premises in dispute vacated, whereas Ms. Mamta Gupta (applicant no. 2)/plaintiff filed Civil Suit No. 2077 of 2015 in the court of the Civil Judge (Senior Division), Kanpur Nagar with a prayer for permanent injunction against the defendant not of dispossess her possession over the plot in dispute wbereby vide order dated 06.10.2015, the court of the Civil Judge (Senior Division), Kanpur Nagar granted temporary injunction in favour of Ms. Mamta Gupta (applicant no. 2). Aforesaid both the cases are still pending for adjudication in one and the same court I..e. Civil Judge (Senior Division), Kanpur Nagar and it is borne out from the record that written statements have been filed in both the cases and the court is seized with mater. Record also reveals that in both the proceedings, two different stories have been woven. In paragraph 2 of the Original Suit No. 2077 of 2015, it is averred that the total amount agreed upon between the parties is 35 Lakhs, out of which Rs. 25.00 Lakhs have been paid to Mrs. Munni Devi . At this juncture, this Court in exercise of power envisaged under section 482 Cr.P.C. reserve its position to opine upon the joint notarized affidavit signed by Mrs. Munni Devi as well as Ms. Mamta Guta, dated 27.10.2010 (annexure 3 to the petition), veracity and genuineness of which has been seriously disputed by opposite party no. 2- Kaptan Singh in his counter affidavit.

29. Hon'ble the Apex Court in its recent decisions passed in the cases of Md. Allauddin Khan v. State of Bihar (Criminal Appeal No. 675 of 2019) as well in CBI v. Arvind Khanna (Criminal Appeal No. 1420 of 2017) on 15th April of 2019 and 17th October 2019 respectively. In the case of Md. Allauddin Khan v. State of Bihar (Supra) it has opined "In overview, the High Court has no jurisdiction to appreciate the evidence of the proceeding under section 482 Cr.P.C. , because whether there are contradictions or /and inconsistencies in the statements of witnesses, is essentially an issue relating to appreciation of evidence and same can be gone into by Judicial Magistrate during trial when the entire evidence is adduced by the parties and this is not the stage where the evidence could be appreciated."

30. Similarly in the case of CBI v. Arvind Khanna (Supra), paragraph 22 states that "the correctness of the defence, where such amount was received by the respondent by his father or not, is a serious factual dispute. It is not admitted position as recorded by the High Court. The correctness of the defence of the respondent is to be gone into, only after appreciating the evidence during the trial. "

31. In the instant case, there are two documents, annexed by the applicants. Though both the documents were executed on 27.10.2010 and signed by the contesting parties, this Court is at serious loss to spell out the genuineness of the aforesaid documents either way. Moreover, the civil courts are seized with the mater and they are required to adjudicate the pivotal question by taking evidence at their discussion on the point.

32. This Court in exercise of power envisaged under section 482 Cr.P.C., on the aforementioned guidelines provided by the Hon'ble Apex Court in the referred cases, is not in a position to appreciate the contention raised by Ms. Sufia Safa whereas she claims that document annexure 3 (joint notoriazed), dated 27.10.2010 is forged one, at present juncture.

33. Hence, thrashing the entire material on record, where the parties have entered into a contract according to their own wisdom and advanced certain amount of money, thereafter the applicants are in possession of the disputed property. Visualizing facts and evidence in the matter, the court of Civil Judge (Senior Division), Kanpur Nagar passed interim injunction in favour of Ms. Mamta Gupta (applicant no. 2) in Original Suit No. 2077 of 2015 (Mamta Gupta v. Munni Devi) and at present the competent civil courts are seized with the matter, therefore, engaging a stranger viz; Kaptan Singh and initiating criminal prosecut

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ion under his aegis is nothing but twisting of arms of the applicants. Needless to mention here that for the sake of argument if it is assumed that all the covenants of the agreement to sell have not been complied with even then the fact remains that five post dated cheques were handed over to Ms. Munni Devi and the applicants are enjoying the state over the disputed property. 34. The 7th sub clause of Bhajan Lal's case (supra) establishes that where criminal proceedings attended with malafies and/or where the proceedings are maliciously initiated with an ulterior motive for wreaking vengeance with a view to spite him due to private and personal grudge. It is astpnishing as to when the grievance of the rival parties has properly been addressed by the court concerned and written statements of the respective defendants have already been submitted then no justifiable reason arises to array the stranger named Kaptan Singh as opposite party no. 2, the self-proclaimed Power of Attorney Holder without any requisite and relevant document to initiate criminal case against the appicants by knitting an imaginary story. In the FIR, he alleges that on the date of incident, he along with Ram Pratap Singh visited the disputed site wherein Mamta Devi (applicant no. 2) and her husband hurled filthy abuses upon the and assaulted with the lathi and danda, causing serious injuries over the person of Ram Pratap but astoundingly there no medical injury report to corroborate the allegation, thus, this Court can safely reach to the conclusion that the additions are simply embellishment just switch over the episode into a serious and grimmer drama. 35. Relying upon the aforesaid discussions, made herein above, this Court finds that there is no case against the applicants under section 406 IPC and rest of the allegations are tangent to the main allegation without any corroborating evidence. 36. Hence in the light of a critical, analytical and elaborated confab on the issue, the criminal prosecution initiated against the applicants under sections 147, 148, 149, 406, 329 and 386 IPC have no bones to stand with, therefore, quashed. However, court of Civil Judge (Senior Division), Kanpur Nagar, adjudicating the matter, is expected to speed up the trials of Original Suit No. 1553 of 2015 (Ms Mamta Devi v. Munni Devi) and Original Suit No. 2077 of 2015 (Mamta Devi v. Munni Devi) and dispose of the same as expeditiously as possible, keeping in view that pleadings have been exchanged between the parties. 37. The entire proceedings of Criminal Case No. 3302 of 2015 (State v. Radhey Shyam Gupta and others) under sections 147, 148, 149, 406, 329 and 386 IPC, P.S. Barra, District Kanpur Nagar pending in the court of I-Additional Chief Metropolitan Magistrate, Kanpur Nagar is, hereby, quashed and the present application filed under Section 482 Cr.P.C., is allowed. 38. Certified copy of the judgement be transmitted to the court concerned at the earliest.
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