Vijay Bahadur Alias Vijay Kumar vs State Of U.P. And Another
2023 Latest Caselaw 14332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:98694
 
Judgment Reserved on 28.4.2023.
 
Delivered on 8.5.2023.
 
Court No. - 76
 
Case :- APPLICATION U/S 482 No. - 21688 of 2022
 
Applicant :- Vijay Bahadur Alias Vijay Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- M J Akhtar,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Arun Kumar,Satya Dheer Singh Jadaun
 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri V.M.Zaidi, learned Senior Counsel assisted by Sri M J Akhtar, learned counsel for applicant and Sri Sunil Kumar Srivastava, learned A.G.A.

2. Applicant has approached this Court by filing Criminal Misc. Application under Section 482 Cr.P.C. for quashing the charge-sheet dated 8.7.2021 as well as entire proceedings of Criminal Case No.2633 of 2021 (State of U.P. Vs. Viijay Kumar) under Sections 420 and 406 I.P.C., Police Station:Noorpur, District-Bijnor, pending in the Court of Civil Judge (Junior Division)/Chief Judicial Magistrate, Bijnor (arising out of Case Crime No.45 of 2021).

3. According to the F.I.R. lodged by complainant Sanjeev Kumar (O.P.No.2) against the applicant herein that one Late Gursahai Dasji has executed a Will dated 6.10.1980 in favour of present applicant, Virendra and Ram Das, but subsequently the said will was cancelled on 6.5.1981 and thereafter, rights of all the aforesaid three persons came to an end. The document also recorded that no family will reside inside the Ashram, but the present applicant has declared himself to be 'Chela' of Late Gursahai Dasji changed his name and started residing inside the Ashram along with his wife and family members. They have captured the Ashram and by cheating used entire money of donation for their benefit only. Applicant has also committed forgery and has prepared a forged Mukhtarnama showing his name to be Vijay Kumar 'Chela' of Late Gursahai Dasji and extracted money from other persons by playing fraud.

4. Investigation was conducted on the above referred F.I.R. and statements of witnesses were recorded and finally charge-sheet was submitted against the present applicant under Sections 406 and 420 I.P.C.

5. In charge-sheet, complainant Sanjeev Kumar and two persons namely Vishwa Shanti Kumar Singh and Sanjay Kumar were proposed as prosecution witnesses. Charge sheet was submitted on 8.7.2021 and learned Judicial Magistrate, Chandpur, Bijnore took cognizance on 25.11.2021 and summoned the applicant vide order dated 25.11.2021. In these circumstances, applicant has approached this Court seeking the aforesaid reliefs.

6. Learned Senior Counsel for the applicant submitted that it is a case where civil dispute has been a colour of criminality by the complainant and the investigation was conducted without considering and taking note that various civil litigations are pending in regard to the property in question.

7. Learned counsel for the applicant has referred to the contents of paragraph nos.9.14,15,16 and 17 of the affidavit which are mentioned hereinafter wherein number of suits pending between the parties are referred.

"9. That the applicant and the other dispel of Baba Gursahai Das Ji were not happy with the same, consequently they have approached to the court by means of filing a Civil Suit No.193 of 1984 for permanent injunction against Baba Gursahai Das Ji and Anurag Kumar Son of Vijay Tyagi and others. The suit was contested by the defendant of the same in the court of 2nd Additional Munsif, Bijnor. The court below has framed the issues regarding the maintainability of the said suit by the applicant and other dispel of Baba Gursahai Das Ji as well as whether Gursahai Das Ji has executed any sale deed in favour of the defendant of the disputed property. The issue no.3 was framed regarding the right of the plaintiff of the said suit (applicant) whether the plaintiff has no right to suit. The learned Munsif Magistrate, vide its judgement and order dated 30.05.1987 had decreed the suit against the defendant by granting the injunction in favour of the plaintiff of the said suit and also hold that the applicant who was one of the plaintiff in the said suit was held to be the Chela of Gursahai Das Ji and also hold the suit filed by him along with other plaintiff was maintainable under the law by deciding the issue no.3 of the said suit. The operative portion of the said order is quoted below -

वादी का वादी प्रतिवादी के विरुद्ध डिक्री किया जाता है, प्रतिवादी को आदेष दिया जाता है कि वह खसरा नं0-686 रकबा 4 बीघा 3 बिस्सा 12 दिस्वांसी स्थित सम्पत्ति में कोई निर्माण करके उक्त सम्पत्ति की प्रकृति न बदले तथा उक्त सम्पत्ति पर झण्डा परमेश्वर साहब के कब्जे में हस्तक्षेप न करें, पक्षकार वाद व्यय स्वयं वहन करेंगे।

14. That the applicant after knowing the said fact has filed a civil suit i.e. Original Suit No. 2216 of 2020 in the court of Civil Judge (Senior Division). Bijnor again as one of the plaintiff as a Manger of the Temple against Shailendra Chandra Son of Talsha Singh and Lalsha Singh Son of Janghi Singh who has executed the sale deed in favour of his son as well as the father of the first informant without any authority for grant of permanent injunction against them in the court of Civil Judge (Senior Division), Bijnor and the same is pending for its final disposal. True copy of the plaint of the Suit No.216 of 2020 dated 02.07.2020 is being filed herewith and marked as Annexure No. 2 to this affidavit for kind perusal of this Hon'ble Court.

15. That thereafter he also came to know that the said Shailendra had also executed a sale deed of the property of the Temple in favour of the father of the first informant on 25.10.1995. The applicant thereafter has again approached to the court to protect the interest and the property of the Ashram and Temple by means of filing a Civil Suit ie. Original Suit No. 576 of 2020 (Samadhi Mandir and others Vs. Dal Singh and others) for cancellation of sale deed dated 25.10.1995 and also claimed the possession of the same. The said suit is still pending before the court below. The court below has also issued notice against the defendant of the said suit. True copy of the plaint of Suit No. 576 of 2020 dated 02.11.2020 is being filed herewith and marked as Annexure No. 3 to this affidavit for kind perusal of this Hon'ble Court.

16. That it is important to mention here that the said Shailendra who is one of the defendant in both the suits with a view of harass the applicant and to build up the pressure upon him to withdraw the said suits has also filed a Civil Suit i.e. Original Suit No.590 of 2020 (Shailendra Chandra Yadav Vs. Vijay Bahadur) in the court of Civil Judge (Senior Division), Bijnor, but subsequently the said Shailendra has moved an application to withdraw the said suit, the court below vide its order dated 06.02.2021 has permitted the plaintiff of the said suit to withdraw the same without any further permission to file the said suit. True copy of the order dated 06.02.2021 is being filed herewith and marked as Annexure No.4 to this affidavit for kind perusal of this Hon'ble Court.

17 That there was no dispute that the applicant is the dispel of Baba Gursahai Das Ji as held by the Civil Court in Original Suit No. 193 of 1984 and he is also managing the affairs of the said temple and protecting the affairs of the said temple by means of filing the civil suit since 1984. The applicant has filed the following suit against the person who want to illegally grab the property of the temple. The applicant has also in one of the suit impleaded Baba Gursahai Das Ji as defendant who has illegally transferred the property of the temple. The details of the said suits are as follows -:

(i) O.S. No. 106 of 1981 (Vijay Kumar Chela of Gursahai Das Vs. Gursahai Das and others)

(ii) O.S. No. 193 of 1984 (Vijay Kumar Chela of Gursahai Das Vs. Anurag Kumar and others).

(iii) O.S. No. 644 of 1996 (Vijay Kumar Vs. Jalaluddin and others)

(iv) O.S. No. 216 of 2020 (Vijay Kumar Vs. Shailendra and Others.)

(v) O.S. No. 576 of 2020 (Vijay Kumar Chela of Gursahai Das Vs. Dal Singh and others)"

8. Learned Senior Counsel has placed reliance on a judgment passed by Supreme Court in R. Nagender Yadav Vs. State of Telangana & Anr, (2023) 2 SCC 195.

9. Learned Senior Counsel also placed reliance on a judgment passed by Supreme Court in Mitesh Kumar J.Sha Vs. State of karnataka & Ors, 2021 SCC OnLine SC 976, that when a civil dispute has been given a criminal colour, High Court has power under Article 482 Cr.P.C. to quash the proceedings.

10. Learned Senior Counsel also placed reliance on a judgment passed by Supreme Court in Randheer Singh Vs. State of U.P. & Anr, 2021 SCC OnLine SC 942, wherein it has been held that where an issue of a civil nature has been given a colour of criminal offence, High Court shoud not hesitate to quash the proceedings as held by this Court in Paramjeet Batra v. State of Uttarakhand [(2013) 11 SCC 673].

11. This application was filed on 12 7.2022 and was taken up for hearing on 19.10.2022, 23.11.2022, 29.11.2022 and on 28.4.2023, however, O.P. No.2 is represented by their respective counsel, but no counter affidavit has been filed. Even they were not present on the date of hearing, nor they have filed any written submission

12. Learned A.G.A. has opposed the above submission and submitted that it is a case where the applicant by illegal means, cheating and forgery has usurped the property in question in his name and used it for his personal use. Applicant and his family members have no claim on the property in dispute. Civil dispute is pending between the parties which does not bar that no criminal proceedings can be initiated against the applicant wherein it has been found on basis of evidence collected during investigation that he has committed an offence under Sections 406 and 420 I.P.C.

13. Heard learned counsel for parties and perused the records.

14. For reference, relevant provisions of Sections 405 and 420 I.P.C. are mentioned hereinafter:

"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"

"420. Cheating and dishonestly inducing delivery of property. --Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

15. This Court has discussed the power of High Court under Section 482 Cr.P.C. in Application under Section 482 Cr.P.C. No.11657 of 2022, Smt. Sheila Gupta Vs. State of U.P. & Anr decided on 26.9.2022 and for reference, same is mentioned hereinafter:

"Law on Inherent powers of the High Court u/s 482 Cr.P.C. could be explained in following words :-

I) Inherent power of the High Court under section 482 CrPC, an extraordinary power is with purpose and object of advancement of justice, which is to be exercised 'to give effect to any order under the CrPC', or 'to prevent abuse of process of any court', or 'to secure ends of justice', making arena of the power very wide, yet it is to be exercised sparingly, with great care and circumspection, that too in the rarest of rare cases.

II) It is no more res integra that exercise of inherent power could be invoked to even quash a criminal proceeding/First Information Report/Complaint/ chargesheet, but only when allegation made therein does not constitute ingredients of the offence/offences and /or are frivolous and vexatious on their face, without looking into defence evidence, however such power should not be exercised to stifle or cause sudden death of any legitimate prosecution. Inherent power does not empower the High Court to assume role of a trial court and to embark upon an enquiry as to reliability of evidence and sustainability of accusation, specifically in a case where the entire facts are incomplete and hazy, similarly quashing of criminal proceedings by assessing the statements under section 161 CrPC at initial stage, scuttling is nothing but scuttling a full fledged trial.

III) There can not be any straight jacket formula for regulating the inherent power of this Court, however the Supreme Court has summarised and illustrated some categories though not exhaustive in which this power could be exercised in catena of judgments. Some of them are State of Haryana Vs Bhajan Lal: 1992 Supp (1) SCC 335, Zandu Pharmaceutical Works Ltd Vs. Mohd Sharaful Haque: (2005) 1 SCC 122, Ahmed Ali Quarashi and Anr Versus The State of Uttar Pradesh: 2020 SCC Online SC 107, Joseph Salvaraja A v. State of Gujarat (2011) 7 SCC 59, Sushil Sethi and another Vs The State of Arunachal Pradesh and others (2020) 3 SCC, 240, Priti Saraf and Anr Vs State of NCT of Delhi and Anr : 2021 SCC Online SC 206 and they are: allegations made in FIR/complaint/,if are taken at their face value and accepted do not prima facie constitute any offence or are so absurd and inherently improbable to make out any case or no cognizable offence is disclosed against the accused, criminal proceedings is maliciously instituted with an ulterior motive and with a view to spite the accused due to private and personal grudge, or where there is a specific legal bar engrafted in any of the provisions of the Code or in the concerned Act for institution and continuance of the proceedings or when dispute between the parties constitute only a civil wrong and not a criminal wrong, further courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.

IV) In Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra : (2019) 14 SCC 350, the Apex Court has laid emphasis on the principles laid down in two of its previous judgements namely, State of Karnataka v. M. Devendrappa: 2015 (3) SCC 424 and Indian Oil Corporation v. NEPC India Ltd. & Ors.: (2006) 6 SCC 736 and held that quashing of criminal proceedings is called for only when the complaint does not disclose any offence, or the complaint is frivolous, vexatious, or oppressive and further clarified that defences available during a trial and facts/aspects whose establishment during the trial may lead to acquittal cannot form the basis of quashing a criminal complaint. The criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature, if the ingredients of the alleged offence are prima facie made out in the complaint.

(V) The Supreme Court in M/s Neeharika Infrastructure Pvt. Ltd Versus State of Maharashtra and Others (Criminal Appeal No. 330 of 2021, decided on April 13, 2021) has categorically held that High Court is not justified in passing the order of not to arrest and or no coercive steps either during the investigation or till the final report/ charge sheet is filed under section 173 CrPC, while dismissing/disposing petition under Section 482CrPC and/or under Article 226 of the Constitution and even in exceptional cases where High Court is of the opinion that a prima facie case is made out for stay of further investigation,such order has to be with brief reasons, though such orders should not be passed routinely, casually and/or mechanically.

(VI) Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. (see Ramveer Upadhyay & Anr. versus State of U.P. & Anr. 2022 SCC Online SC 484).

(VII) A careful reading of the complaint, the gist of which we have extracted above would show that none of the ingredients of any of the offences complained against the appellants are made out. Even if all the averments contained in the complaint are taken to be true, they do not make out any of the offences alleged against the appellants. Therefore, we do not know how an FIR was registered and a charge-sheet was also filed.....It is too late in the day to seek support from any precedents, for the proposition that if no offence is made out by a careful reading of the complaint, the complaint deserves to be quashed. (See, Wyeth Limited & others vs, State of Bihar & another, Criminal Appeal No.1224 of 2022 (Special Leave Petition (Crl.) No.10730 OF 2018), decided on 11th August, 2022)."

16. From the materials available on record, it cannot be disputed that multiple civil litigations are pending between the parties, details of which are already referred in the preceeding paragraphs.

17. Learned Senior Counsel for applicant has also brought on record an order passed in Civil Suit in supplementary affidavit filed on 5.12.2022 wherein an injunction has been granted in favour of the applicant as well as documents referred above has been provided to the Investigating Officer also.

18. In the case in hand, complainant/informant has been declared himself to be a resident of same Ashram and has not disclosed in the F.I.R. that multiple civil litigations are pending before Civil Courts as well as from charge-sheet also, it does not appear as to how the offence is made out against the applicant. All the issues mentioned in the F.I.R. and the investigation can be decided only on the basis of outcome of civil litigations pending before Civil Court and at this stage to hold that the applicant has committed offence of misappropriation of money, property or cheating could have an adverse effect in case the Civil Court decides the case otherwise.

19. Recently, in R. Nagender Yadav (supra) Supreme Court has held in paragraph 19 that:

"19. While exercising its jurisdiction under Section 482CrPC, the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure the ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. Whether the essential ingredients of a criminal offence are present or not, has to be judged by the High Court. A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, as has happened in the case on hand, the High Court should have quashed the criminal proceeding to prevent abuse of process of court."

20. As discussed above, ingredients of offence under Sections 405 and 420 I.P.C. as referred above are prima-facie absent since there is nothing on record as to whether the property in question was entrusted by someone to the applicant and he has dishonestly misappropriated or converted the same for his own use as well as basic ingredients of cheating and dishonestly using the delivery of property also does not appear to be present in this case since there is no evidence that applicant has deceived any person to deliver anybody. As referred above, since multiple civil litigations are pending between the parties and the dispute therein is still to be decided in respect of ownership or the possession of property in question, therefore, as held by Supreme Court in State of Haryana Vs. Ch. Bhajan Lal, 1992 SCC (Cri) 426, that criminal proceedings can be quashed where the uncontroverted allegations made in F.I.R. 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 as well as where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.

21. As discussed above, in the present case, complainant has given a criminal colour to a civil dispute in order to take advantage of relatively quick remedy as well as taking note of number of judgements of Supreme Court, wherein it has expressed its disapproval for imparting criminal colour to a civil dispute, merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute, such an exercise is nothing but an abuse of process of law which must be discouraged in its entirety.

22. Above observations of Supreme Court, squarely covers in the facts of present case.

23. Accordingly, application is allowed, charge-sheet dated 8.7.2021 as well as entire proceedings of Criminal Case No.2633 of 2021 (State of U.P. Vs. Viijay Kumar) under Sections 420 and 406 I.P.C., are hereby quashed.

Order Date :- 8.5.2023

SB