HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- APPLICATION U/S 482 No. - 38217 of 2016 Applicant :- [ENTITY] And Another Opposite Party :- [ENTITY] and Another Counsel for Applicant :- [ENTITY],[ENTITY] Counsel for Opposite Party :- [ENTITY],[ENTITY] Hon'ble [ENTITY]-VII,J.
This application u/[SECTION] [ACT] has been filed with the prayer to quash the entire proceedings of criminal case no. 2458 of 2016, arising out of case crime no. 500 of 2015, under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] IPC, P.S. Cantt., District, Varanasi pending before the Chief Judicial Magistrate, Varanasi and further to stay further proceedings of the aforesaid case.
Heard Shri [ENTITY], learned Senior Counsel assisted by S/Shri [ENTITY] and [ENTITY], learned counsel for the applicants, Shri [ENTITY], learned Senior Counsel assisted by Shri [ENTITY], learned counsel for the opposite party no.2 and the learned AGA appearing for the State.
It is submitted by the learned Senior Counsel appearing for applicants that order taking cognizance on the charge sheet is illegal and without application of judicial mind. Offences levelled against the applicants in the present matter are not attracted. In fact initially an agreement to sell was entered into between the parties. Thereafter, sale-deed was executed in the name of [ENTITY], wife of [ENTITY] (opposite party no.2) and [ENTITY], wife of [ENTITY] (applicant no.1). During consolidation, mutation order was also passed. An application was moved on behalf of applicants side to change the address shown in the mutation order, which was allowed. Thereafter at several stages proceedings of various nature were initiated. One writ petition is still pending before this Court and matter is subjudice. F.I.R. was lodged in the matter colouring civil dispute into criminal dispute. It is also submitted that property was purchased in the name of wife of opposite party no.2 and wife of applicant no.1. Since lady belonging to family of opposite party no.2 is also known as '[ENTITY]' opposite party no.2 challenged the order passed on the application moved by applicants side for changing the address in revenue record and also one [ENTITY] was executed in connivance with the opposite party no.2 changing the name of [ENTITY] as [ENTITY]. Referring to documents annexed with this application and other documents it is further submitted that [ENTITY] and [ENTITY] are two different persons. Opposite party no.2 only with a view to create pressure and harass the applicants committed fraud. One application was moved to the District Magistrate concerned which was enquired into and was found that [ENTITY] and [ENTITY] are two different persons. F.I.R. was also lodged to this effect on the basis of enquiry conducted on the direction of District Magistrate concerned. Thus, the allegations levelled in the F.I.R. are also false. The Investigating Officer has not investigated the matter properly and did not collect the genuine documents, instead, submitted charge sheet only on the basis of oral version of opposite party no.2. It is also submitted that initially opposite party no.2 and applicant no.1 both were living together in a house and therefore address shown in the said sale deed was common. No prima facie case is made out. It is purely a civil nature dispute. Efficacious remedy is in the pending civil litigation. Continuation of proceeding of aforesaid criminal case is nothing but an abuse of process of law. In support of his submissions, learned counsel for the applicants placed reliance on the decision of Apex Court in Vineet Kumar and others vs. [ENTITY] And another, 2017(5) ADJ 438 (SC) and a decision of this Court in Suresh Chandra Gupta vs. [ENTITY] And another, 2016 (2) ADJ 664.
On the other hand, learned Senior Counsel appearing for opposite party no.2 as well as the learned AGA appearing for State submitted that a prima facie case is made out. There is sufficient evidence against the applicants to proceed with trial. Order taking cognizance on the charge sheet is in accordance with law. There is no infirmity or illegality in the said order. Referring to the documents annexed with the affidavit and the application under [SECTION] [ACT] it is also submitted that sale deed was related to [ENTITY] and [ENTITY] belonging to the family of opposite party no.2. They moved application for mutation and during consolidation mutation order was passed. At this juncture, learned Senior Counsel specifically referred to the address of purchaser, whose names were mutated over the disputed property at initial stage and also the address given in the sale deed and further submitted that applicants' native village is different. They did not purchase the disputed property rather they moved application during consolidation after passing the mutation order preparing forged document for change of the address of [ENTITY]. At one stage they succeeded in their goal but later on order passed on the said application moved by the applicants was set aside. Though litigation at several stages are pending between the parties yet a prima facie case is made out against the applicants to proceed with trial. Persons, whose names were shown in the sale deed, were resident of village Odar, P.S. Phoolpur but applicants are resident of different village and their present address is also different with the address given in the sale deed. Since name of wife of applicant no.1 is also [ENTITY], hatching conspiracy an application was moved with intention to grab the property. All ingredients of alleged offences are available in the present matter. There is no infirmity or illegality in the impugned order. In support of his submissions, learned counsel for opposite party no.2 placed reliance on the decision of Apex Court in [PRECEDENT].
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws relied upon by the learned counsel for the parties carefully.
Prosecution case in brief is that on behalf of opposite party no.2 one F.I.R. was lodged in the matter mentioning therein that applicants with intention to cheat the opposite party no.2 and real [ENTITY] and also to commit fraud after passing the mutation order in the consolidation proceeding moved an application to change the address of purchaser, whose name was mutated over the disputed property. Allegation against applicants is also that applicant no.2 is not the real purchaser instead she is personating herself as [ENTITY]. It appears that after investigation in the present matter Investigating Officer submitted charge sheet and cognizance was taken by the impugned order.
Before dealing with the submissions advanced by the learned counsel for the parties, I find it necessary to mention here that there is no bar to start criminal prosecution pending civil dispute. Only requirement is that from the averments made in the F.I.R./ complaint commission of offence must appear to have been committed. Hence, merely on this ground that several civil disputes regarding the subject matter are pending between the parties, present prosecution cannot be quashed nor cognizance order can be set aside.
It is also clear from the record that sale-deed was executed in the name of [ENTITY] wife of [ENTITY], [ENTITY] wife of [ENTITY], Village Odar, Paragana Kolasla, District Varanasi showing current address as House No. S 24/2 Tajpur, Orderly Bazar, Paragana Shiv Pur, Tehsil and [ENTITY]. It is also evident that at initial stage mutation order was passed on the basis of aforesaid address. It further appears that after passing of the mutation order, an application was moved on the part of applicants to change the address shown in the mutation order. It is also clear that name of husband of [ENTITY] shown in the sale deed or mutation order is not [ENTITY], rather it is only [ENTITY] wife of [ENTITY]. Informant's case is that neither the applicants have concern with the said sale deed nor with the disputed property, rather they have taken advantage of the name of applicant no.2 which is same as is disclosed in the said sale deed.
In this matter, none of the documents annexed with this application or with supplementary affidavit filed on the part of the applicants support this fact that applicants were the resident of village Odar, Paragana Kolsala. No document was shown during argument by the learned counsel for the applicants to establish that current address shown in the sale deed was the address of the applicants. If Voter Identity Card as well as the papers regarding Gas connection and receipt regarding house tax are also taken into consideration then also house number shown in the sale deed regarding the current address of the purchaser is different with the address of the applicants shown in the aforesaid documents. Gas connection papers, house tax papers as well voter identity card relied upon by the learned Senior Counsel appearing for the applicants are not unimpeachable documents. It need evidence for its authentication. Other arguments raised by the learned counsel for the parties require leading of evidence which can best be done before the Trial Court at appropriate stage. Only on the basis of affidavit and the documents annexed with the application and supplementary affidavit, a conclusive opinion cannot be taken that allegations levelled in the F.I.R. are false. Applicants case is not covered with any of the category of the guidelines laid down by the Apex Court in [PRECEDENT]. It can also not be held that it is purely a civil nature dispute. Documents on which basis application was moved before the Court concerned for change of address in the mutation order was prepared outside the Court, therefore, it can also not be held that Court below had no jurisdiction to take cognizance in the matter or to proceed with trial. It is settled legal position that at the stage of taking cognizance and summoning the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused person or not. The Court dealing with the matter is not required to analyze the material at this stage to find-out as to whether the matter will lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence as is done after recording the evidence in trial. In this matter, as per the allegations made in the F.I.R., at this stage, it cannot be said that offences levelled against the applicants are not attracted. A prima facie case is made out against the applicants to proceed with trial. Further, applicants cannot get any help with the law laid down in the case laws relied upon by the learned counsel for the applicants as facts of the present case are different with the facts of said cases. Criminal prosecution can continue independently to the civil proceeding. There is no illegality, infirmity, impropriety or perversity in the said order. Hence, the prayer made in the application is refused.
However, it is observed that in case applicants surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants to surrender before the court concerned.
With the above observations, the application stands disposed of.
Order Date :- 30.10.2019 safi