Allahabad High Court
Satendra Prakash And Another vs State Of U.P. And Another on 11 September, 2018
Bench: Arvind Kumar Mishra-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 42
Case :- MATTERS UNDER ARTICLE 227 No. - 6659 of 2018
Petitioner :- Satendra Prakash And Another
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Brijesh Pratap Mishra,Sriram Dhar Dubey
Counsel for Respondent :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the petitioners, learned A.G.A. for the State and perused the record.
By way of the instant petition, the petitioners have sought for quashment of the order dated 15.02.2018 passed by the Civil Judge (Senior Division) FTC/Additional Chief Judicial Magistrate, Etah, in Criminal Complaint No.43 of 2018 Smt. Vinod Kumari Vs. Satendra Prakash and another under Section 420 I.P.C., Police Station Malwan, District Etah and the order dated 24.08.2018 passed by the Sessions Judge, Etah in Criminal Revision No.84 of 2018 Satendra Prakash and another Vs. Smt. Vinod Kumar and another.
Succinctly, contention has been raised on behalf of the petitioners that during pendency of the civil suit, an application was moved under Section 156(3) Cr.P.C. involving the same facts and circumstances of the case and bringing out a case for offence committed under Section 420 I.P.C. which is against spirit and mandate of law. Once civil suit in respect of the same subject matter was pending, the proceeding by was of application under Section 156 (3) Cr.P.C. cannot be initiated and in case the Court proceeds with it that would be in abuse of the process of the Court.
It so happened that a civil suit for cancellation of the sale deed was filed by respondent no.2 against the present petitioners wherein the proceeding is going on, during pendency of such suit, an application under Section 156(3) Cr.P.C. was moved before the Magistrate concerned alleging therein element of cheating against the petitioners, the Magistrate treated the aforesaid application as complaint and proceeded to record statement of the complainant and her witnesses and after considering the statement and contents of the complaint, passed the impugned summoning order dated 15.02.2018 whereby the present petitioners have been summoned under Section 420 I.P.C.
Feeling aggrieved by the aforesaid summoning order, Criminal Revision No.84 of 2018 was filed by the petitioners before the Sessions Judge, Etah who after considering the merit of the case dismissed the revision vide order dated 24.08.2018 which is also in the teeth of law in such cases that during pendency of the civil suit, proceeding initiated by way of the application under Section 156(3) Cr.P.C. regarding the same matter is erroneous and perverse and the same cannot be allowed to go on.
Specific contention has been raised on behalf of the petitioner that assuming it to be that any proceeding can be initiated by way of the application/complaint like the present one, even then the summoning order passed in this case is cryptic and non-speaking and it does not contain ground for prima facie satisfaction. In fact, the amount of the sale consideration to the tune of Rs.4,00,000/- was given by the present petitioners to respondent no.2. The statement of respondent no.2 and her witnesses does not conform each other and the same cannot be believed as such but the court below instead of heeding to the aforesaid aspects passed the impugned orders which requires indulgence by this Court, at this juncture.
Learned AGA has supported the summoning order and has submitted that the summoning order is just and legal and requires no interference by this Court.
Considered the submissions.
In this case, the allegations made in the complaint by respondent no.2 relate to alleged act of cheating and it has been claimed that respondent no.2 has been cheated by her real brothers-in-law (Devar) and they have acted in collusion with each other and have got the sale deed executed by her. The learned Magistrate while passing the summoning order has taken into consideration the entire contents of the complaint as well as the statement recorded under Section 200 and 202 Cr.P.C. thereafter opined that prima facie case is made out against the present petitioners at least for summoning them and summoned them. When the matter came before the lower revisional court, it found that no error committed and nothing adverse has been done and satisfaction of the learned Magistrate insofar as prima facie case is concerned cannot be faulted with in view of the fact that the same was based on material on record, therefore, dismissed the revision.
Upon perusal of contents elaborated in the accompanying affidavit and upon consideration of various documents annexed with this petition, obviously it cannot be said that prima facie evidence is lacking at least for summoning the applicants under Sections 420 IPC. The factual aspect of this case cannot be appreciated and gone into so as to believe in the theory mooted by the petitioners that the entire process is in utter misuse of the process of the court. It cannot be said that the summoning order passed by the learned Magistrate is either cryptic or non-speaking and prima facie evidence is lacking for summoning the petitioners.
However, considering the argument advanced by the learned counsel for the petitioners in the end that it would be better if things are settled between the parties as both the parties belong to the same family and they are family members and good sense may prevail between them, therefore, an opportunity for negotiation should be provided to them.
In case the petitioners want to explore possibility of settlement, they are at their wisdom to move such application for entering into negotiation with respondent no.2 before the court concerned. In case such an application is moved, it is the bounden duty of the court concerned to provide each and every opportunity for negotiation and agreement/settlement between the parties because both the parties belong to the same family.
Insofar as prayer made in this writ petition is concerned the same is refused and the petition stands dismissed with observation that efforts may be taken for amicable settlement of the dispute by the petitioners.
The observation made in this order shall not have any reflection on merits of the case.
Cost easy.
Order Date :- 11.9.2018
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