Ripudaman Saharan vs State Of U.P. And Others
2022 Latest Caselaw 22395 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 24.11.2022
 
Delivered on 22.12.2022.
 
Court No. - 84 
 

 
Case :- APPLICATION U/S 482 No. - 2694 of 2003 
 

 
Applicant :- Ripudaman Saharan 
 
Opposite Party :- State of U.P. and Others 
 
Counsel for Applicant :- Amit Misra,Amit Daga,Prateek Kumar,Rajul Bhargava,Sushma Singh,Viresh Misra 
 
Counsel for Opposite Party :- Govt.Advocate,L.M. Singh,Manish Singh,Pankaj Agarwal,R.K. Jain 
 
With
 
Case :- APPLICATION U/S 482 No. - 1633 of 2004 
 

 
Applicant :- Smt. Sharda Saharan 
 
Opposite Party :- State Of U.P And Another 
 
Counsel for Applicant :- Ajay Vashishtha,Aditya Prakash Singh,Amit Mishra,Prateek Kumar,Viresh Mishra 
 
Counsel for Opposite Party :- Govt. Advocate,L.M. Singh,Manish Singh,Sushil Shukla,Sushma Singh,Vineet Kumar Singh 
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Sushil Shukla, learned counsel for applicants and Sri Manish Singh, Advocate for Opposite Parties.

2. Applicants have approached this Court for quashing the entire proceedings pending in the court of Chief Judicial Magistrate, Gautam Budh Nagar vide case no.989/2003/9, State Vs. Ripudaman Kumar Saharan and another arising out of charge-sheet submitted in Crime No.499 of 2002 under Sections 420, 467, 468 and 471 I.P.C. Police Station, Sector 20 Noida, District Gautam Budh Nagar.

3. Facts of both cases being same, hence they are decided by this common judgment.

4. Facts of present case starts wayback in year 1981 when plot in question i.e. residential Plot No.C-39 Sector 15 Noida was allotted in favour of one Ashok Kumar who took possession thereof on 25.5.1981.

5. On 25.10.1984, said Ashok Kumar had executed an alleged Special Power of Attorney in favour of applicant Ripudaman Saharan (applicant in Application No.2694/2003) in regard to plot in question, the subject matter of dispute.

6. Facts further unfold that owner of plot in question Ashok Kumar allegedly applied for permission from competent authority of Noida to sell plot in question in favour of Smt. Sharda Saharan (applicant in Application No.1633 of 2004), which was duly granted and applicant Ripudaman Saharan on basis of said special power of attorney, transferred plot in question in favour of applicant Smt.Sharda Saharan through an alleged registered sale deed. Applicant Smt. Sharda Saharan thereafter constructed a building after getting necessary permission from appropriate authority.

7. It appears that certain dispute arose and informant (Kishan Lal Barwa) who claimed himself to be owner of plot in question on basis of alleged other registered sale deed dated 7.8.1984 executed by Ashok Kumar, the owner in favour of the complainant.

8. In these circumstances, applicant Smt. Sharda Saharan filed Original Civil Suit No.842 of 1986 against complainant/O.P.No.2 for permanent injunction. Meanwhile, erstwhile owner Ashok Kumar died and informant filed a Original Suit No.1503 of 1990 against applicant Ripudaman Saharan for permanent injunction as well as for cancellation of special power of attorney by way of amendment in the plaint.

9. In civil litigation, Original Civil Suit No.842 of 1986 filed by Smt. Sharda Saharan against complainant/informant was decreed by order dared 27.4.1991 with finding that document in support of sale deed as well as sale deed in favour of applicants were genuine.

10. Informant preferred Civil Appeal No.74/1991 which was dismissed vide order dated 23.1.1992 which was further challenged in a Second Appeal before this Court bearing Nos.448 of 1992 and the same was dismissed vide order dated 18.2.2022 with finding that no evidence was produced against possession and rights of applicant Smt.Sharda Saharan.

11. During pendency of civil appeal, complainant after more than two decades launched criminal proceedings against applicants by way of filing an application under Section 156 (3) Cr.P.C. alleging that special power of attorney executed in favour of applicant Ripudaman Saharan by erstwhile owner Ashok Kumar was forged as well as consequent sale in favour of other applicant was also forged wherein a direction was passed by the Magistrate to lodge an F.I.R. against applicants.

12. Investigating Officer conducted investigation and submitted a charge-sheet dated 24.8.2002 in Case Crime No.499 of 2002 under Sections 467, 468, 471 and 420 I.P.C. at P.S. Sector 20, Noida, Gautam Budh Nagar.

13. C.J.M. Noida took cognizance of charge-sheet and summoned the applicants for above referred offences.

14. Original Civil Suit No.1503 of 1990 filed by the complainant was dismissed by Civil Court on 15.3.2004 and thereafter another Civil Suit bearing No.395 of 2005 by the informant, also came to be dismissed on 1.11.2008.

15. First Appeal No.768 of 2008, thereof is presently pending before this Court.

16. Above referred Civil Suit was in regard to declaration of ownership in respect of plot in question.

17. Applicant Smt.Sharda Saharan filed an Execution Case No.20 of 2010 for execution of decree dated 27.4.1991 passed in Original Civil Suit No.842 of 1986 which is still pending in which an order was passed on 7.7.2014 directing the Amin to execute decree, but proceedings arising thereof are still pending.

18. In above background, of various civil suits and delay of almost 16 to 17 years in filing an application under Section 156 (3) Cr.P.C. by the complainant, learned counsel for applicant Shri. Sushil Shukla vehemently argued that civil litigations between applicants and complainant commenced in 1986 and complainant instituted suit in 1991, still he waited for more than a decade to launch criminal proceedings against applicants by way of filing an application under Section 156 (3) Cr.P.C., therefore, there was an inordinate delay on part of complainant without any explanation, which itself shows that criminal proceedings were product of vengeance and to cloak a civil dispute with criminal offence.

19. Learned counsel for the applicants has heavily placed reliance on a judgment of Supreme Court in Kishan Singh (Dead) Through Lrs Vs. Gurpal Singh and Ors, (2010) 8 SCC 775, that:

"In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide Chandrapal Singh v. Maharaj Singh [(1982) 1 SCC 466 : 1982 SCC (Cri) 249 : AIR 1982 SC 1238]; State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426: AIR 1992 SC 604] ; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636: 2000 SCC (Cri) 513: AIR 2000 SC 754] ; and Gorige Pentaiah v. State of A.P. [(2008) 12 SCC 531 : (2009) 1 SCC (Cri) 446] ) ".

20. Learned counsel for applicants has further placed reliance on a judgment of Supreme Court in Rajeshbhai Muljibhai Patel & Ors. Vs. State of Gujarat and Anr, (2020) 3 SCC 794, that when issue is in regard to genuineness of documents, such as power of attorney is pending or already decided in affirmative in a civil suit, it was the view of Supreme Court that F.I.R. ought not to have been allowed to continue for alleged offence of forgery or cheating. Further counsel for applicants has placed reliance upon the judgment of Supreme Court in M.Srikanth Vs. State of Telangana & Anr, (2019) 10 SCC 373, that when a matter is in regard to validity of a document, as in present case validity of special power of attorney was subjudice in civil court or decided against the complainant, he is not permitted to institute a criminal prosecution on same allegations.

21. Learned counsel for applicants further submitted that in present case, civil court has already held that special power of attorney was a genuine document, therefore, criminal proceedings are liable to be quashed as it would fall in category no.1 and 3 carved out by the Supreme Court in State of Haryana v. Bhajan Lal: 1992 Supp (1) SCC 335.

22. Learned counsel for applicants has also placed reliance upon a judgment of Supreme Court in Prof. R.K. Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr, (2019) 16 SCC 739, in respect of scope of inherent powers of this Court under Section 482 Cr.P.C. as well as that ingredients of alleged offences are not made out and in this regard he placed reliance upon a judgment of Supreme Court in Chandran Ratnawaswami Vs. K.C. Palaniswamy & Ors, (2013) 6 SCC 740.

23. Per contra, learned counsel for opposite parties submitted that delay in lodging F.I.R. would not fatal, considering facts of the present case, where sale deed executed in favour of the complainant was not doutful and that during investigation, hand writing expert has opined that signature of owner Ashok Kumar on alleged special power of attorney did not match with his original signature however, it matches with signature on sale deed executed in favour of complainant, therefore, an offence of cheating and forgery are prima-facie made out against applicants.

24. Learned counsel for opposite parties has placed heavy reliance on a judgment of this Court in Smt. Shiela Gupta Vs. State of U.P. (Criminal Misc. Application under Section 482 No.11657 of 2022, decided on 26.9.2022 as well as judgment of Supreme Court in Ravinder Kumar Vs. State of Punjab 2001 (7) SCC 690, relevant paragraphs 13 and 15 whereof are mentioned hereinafter:

"13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

15. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgement cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR."

25. Learned counsel appearing for opposite parties also submitted that Directorate Finger Print Experts, State of U.P., Lucknow being a public servant, therefore, report has presumption of correctness by virtue of Section 114 (e) of the Indian Evidence Act.

26. Heard learned counsel for parties, perused records as well as written submission.

27. In brief, above referred submissions of learned counsel for opposite parties are that it was a case of complainant that signatures of owner of plot in question i.e. Ashok Kumar was forged on special power of attorney executed in favour of one of the applicant and has placed reliance on an expert report collected during investigation and further sale deed executed on basis of said special power of attorney itself became forged.

28. Argument of learned counsel for applicants in brief are that since issue of genuineness of special power of attorney and sale deed has already been settled in their favour in various civil suits between parties as well as there was huge delay in lodging F.I.R. and that it will amount to give a criminal colour to purely a civil dispute.

29. Facts of civil litigations and findings thereof are not in dispute wherein civil suit filed by complainant for permanent injunction against one of the applicant was rejected with specific finding that one of the applicant is in possession of the plot in dispute and the complainant has not been able to produce any evidence contrary to it. This finding has been upheld upto this Court as well as another Civil Suit No.395 of 2005 filed by complainant regarding execution of special power of attorney was dismissed by allowing an application under Order VII Rule 11 C.P.C. vide order dated 1.11.2008, therefore, in civil litigation, special power of attorney has been considered to be a genuine document.

30. In these circumstances, delay in launching criminal proceedings in the year 2002 by way of filing an application under Section 156 (3) Cr.P.C. by the complainant after he lost civil litigation as well as after 16 years when complainant came to know about special power of attorney become relevant. There is no explanation for extraordinary delay and there is no whisper about such delay in filing the application under Section 156 (3) Cr.P.C. except a vague explanation that relevant documents were lost.

31. It has been brought on record that presently matter is pending before civil court in regard to execution of decree in favour of applicants.

32. In order to consider other submissions, I have carefully perused contents of F.I.R. as well as evidence collected during investigation. The only relevant evidence is in nature of a expert opinion of hand writing expert which creates doubt on the signature of erstwhile owner of property in question on special power of attorney, but complainant despite being plaintiff as well as defendant in different civil proceedings has never tried to get any expert opinion of hand writing expert in civil litigation and has lost challenge to genuineness of special power of attorney up to this Court, therefore, even ingredients of the alleged offence of cheating and forgery are not prima-facie made out against the applicants.

33. In view of the above discussion, I find that facts of present case are squarely covered by ratio of Kishan Singh (supra) that delay in initiating criminal proceedings after complainant lost civil suit will amount to abuse of process of law as well as law declared in M.Srikanth (supra) that where a dispute has already been decided by a civil court after recording evidence and hearing of parties in accordance with law, it would not be proper to permit the complainant to prosecute the applicants regarding allegations of validity of same documents, therefore, present case is covered by category no.1 and 3 as carved out by Supreme Court in Bhajan Lal (supra). The outcome of the above discussion is that there is an attempt on behalf of complainant to cloak the civil dispute with a criminal nature, therefore, it is a fit case to exercise inherent powers to secure the ends of justice as this is a clear case of abuse of process of law.

34. Accordingly, both applications are allowed and criminal proceedings arising out of Crime No.499 of 2002 under Sections 420, 467, 468 and 471 I.P.C. Police Station, Sector 20 Noida, District-Gautam Budh Nagar against the applicants are hereby quashed.

Order Date.22.12.2022

SB/AK