Allahabad High Court

Riyasat vs State Of U.P. And Another on 4 April, 2025

Author: Saurabh Srivastava

Bench: Saurabh Srivastava





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No- 2025:AHC:47276
 
Reserved on 10.03.2025
 
Delivered on 04.04.2025
 
Court No. - 74
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1450 of 2020
 

 
Petitioner :- Riyasat
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Rakesh Kumar Mishra,Vidya Bhushan Srivastava,Vijit Saxena
 
Counsel for Respondent :- G.A.,Mukti Nath Dwivedi
 

 
Hon'ble Saurabh Srivastava,J.

1. Heard Sri Vijit Saxena along with Sri Rakesh Kumar Mishra, learned counsel for petitioner and Sri Gaurav Gupta, learned counsel for respondent no.2 as well as learned AGA.

2. By means of present petition, petitioner has challenged order dated 10.01.2020 passed by learned Additional Sessions Judge, Court No.10, Shahjahanpur in Criminal Revision No.145 of 2019 (Riyasat and others Vs. Natthu) as well as summoning order dated 29.05.2019 passed by learned Civil Judge (J.D.)/Judicial Magistrate Tilhar, Shahjahanpur in Complaint Case No.3270 of 2019 (Natthu Vs. Riyasat and others), under Sections 420, 467, 506 IPC, Police Station Jaitipur, District Shahjahanpur along with entire criminal proceedings of the said complaint case, pending in the court of learned Civil Judge (J.D.)/Judicial Magistrate Tilhar, Shahjahanpur.

3. Brief facts of the present case are that petitioner and respondent no.2 are co-sharer of Gata No.22, measuring 0.040 hectare situated in Village Bajheda Bhagwanpur, P.S. Jaitipur, District Shahjahanpur. Petitioner executed a sale deed on dated 13.11.2018 in favour of one Rajpal (co-accused in the said complaint case) in pursuance of a piece of land from the said plot number. Being aggrieved with the same, respondent no.2 preferred Original Suit No.219 of 2018 (Natthu Vs. Rajpal and 6 others) for seeking permanent prohibitory injunction with regard to Gata No.22 and on the same date, interim injunction was granted by learned court concerned in favour of respondent no.2, wherein written submission had already been preferred at the behest of petitioner and the said suit is pending to be adjudicated finally till today. Another suit being Original Suit No.237 of 2018 (Natthu Vs. Riyasat and 3 others) was also preferred by respondent no.2 for cancellation of sale deed dated 13.11.2018 before Civil Judge (J.D.), Tilhar, Shahjahanpur and the said suit is also pending to be decided finally till date.

4. Meanwhile, on dated 04.12.2018, during pendency of the said two suits, respondent no.2 also preferred an application under Section 156(3) Cr.P.C. against petitioner leveling allegations of forgery and cheating in respect of disputed land which was treated as complaint case and registered as Complaint Case No.3270 of 2018 (Natthu Vs. Riyasat and others), wherein after recording statements under Section 200 and 202 Cr.P.C., learned court concerned summoned the petitioner along with three other persons under Sections 420, 467, 506 IPC vide order dated 29.05.2019. Being aggrieved with the said summoning order, petitioner along with other accused persons preferred Criminal Revision No.145 of 2019 (Riyasat and others Vs. Natthu) which was dismissed by learned revisional court vide impugned order dated 10.01.2020.

5. On previous occasion, this Court has passed the following orders:-

"1. Heard learned counsel for the parties.

2. Judgment reserved.

3. It is apparent from the record that counter affidavit has already been filed at the behest of Shri Gaurav Gupta and the arguments raised on the basis of certain judgments which crystal clearly indicated that proceedings which have been initiated by respondents wherein petitioner participated, were civil in nature, but after passing certain orders by learned court concerned, separate criminal proceedings have been initiated on the similar set of facts.

4. The core question involves in this matter is as under:-

(i) Whether any facts over which the civil proceedings has already been initiated and certain orders were passed by concerned civil court, separate proceedings on similar set of facts at the criminal side, can be initiated?

(ii) The law laid down by Hon'ble Apex Court till today whether permit the simultaneous proceedings initiated by same parties at criminal side as well as civil side settle the proposition which has to be followed by circumstances, if available as regard to question no. (i) above?

5. Over these two issues both the learned counsels are hereby directed to prefer written arguments alongwith the list and copy of the judgments relied upon by 24.3.2025 and thereafter judgments shall be pronounced on 4.4.2025."

6. In the said order, two questions were framed by this Court and in pursuance of the said questions, written arguments were sought by learned counsel for parties and the same have already been preferred through which, following submissions were made.

7. Learned counsel for petitioner submitted that dispute between the parties is purely of civil in nature for which two civil suits have already been preferred at the behest of respondent no.2 which are still pending to be decided finally by learned courts concerned and also interim injunction has already been granted in favour of respondent no.2 but without mentioning the said facts, respondent no.2 preferred application under Section 156(3) Cr.P.C. against petitioner levelling allegations of forgery and cheating, whereupon petitioner was summoned vide order dated 29.05.2019. Learned counsel for petitioner further submitted that respondent no.2 has already availed civil remedies available to him as per law and only to harass and grab the land of petitioner, he initiated criminal proceedings against petitioner by way of concealing the fact with regard to pendency of two civil suits and as such, the same may be quashed.

8. Learned counsel for petitioner argued that being co-sharer of the disputed property, petitioner had executed sale deed only in respect of his share without committing any fraud or preparing any false documents and as such, no offence under Section 420 and 467 IPC is made out and moreover, being aggrieved with the same, respondent no.2 had already preferred two civil suits therefore, criminal proceedings initiated at the behest of respondent no.2, is nothing but abuse of process of law.

9. In support of his submissions, learned counsel for petitioner relied upon the following judgments rendered by Hon'ble the Apex Court:-

(i) Kusha Duruka Vs. State of Odisha [2024 AIR SC 790]

(ii) Radheyshyam Vs. State of Rajasthan [Criminal Appeal No.3020 of 2024, decided on 22.07.2024]

(iii) A.M. Mohan Vs. State represented by SHO [2024 INSC 233]

(iv) Md. Ibrahim and others Vs. State of Bihar and another [2009 (3) SCC (Cri) 929]

10. Per contra, Sri Gaurav Gupta, learned counsel for respondent no.2 vehemently opposed the prayer sought through the instant petition and rebutted the stands taken up by learned counsel for petitioner by way of submitting that when petitioner started hindrance on peaceful possession over the land of respondent no.2 then respondent no.2 preferred civil suit for permanent injunction for protecting his land and when this fact came into knowledge of petitioner, thereafter he executed forge sale deed in favour of co-accused persons without having any right over the land in dispute. In sofar as initiation of criminal proceedings against petitioner is concerned, learned counsel for respondent no.2 submitted that petitioner was fully aware about family settlement and he has no share left over the disputed land and by way of committing cheating and preparing forge documents, he executed sale deed, therefore act of the petitioner comes under the civil wrong as well as criminal liabilities. Learned counsel for respondent no.2 further submitted that criminal proceeding cannot be quashed only on the ground that civil dispute is pending, it depends upon the fact and circumstances of each case and as such, impugned orders passed by learned courts are just and proper.

11. In support of his submissions, learned counsel for respondent no.2 place reliance upon the following verdicts rendered by Hon'ble the Apex Court as well as this Court and other other High Court:-

(i) M.S. Sheriff and another Vs. State of Madras and others [AIR 1954 (SC) 397]

(ii) Lalmuni Devi Vs. State of Bihar [(2001) 2 SCC 17]

(iii) Kamla Devi Agrawal Vs. State of West Bengal and others [AIR 2001 Supreme Court 3846]

(iv) Jai Prakash Gupta Vs. State of U.P. and another [2021 0 Supreme(All) 125]

(v) Gopal Singh Tomar Vs. The State of M.P. [2025 Supreme (Online)(M.P.) 622]

(vi) State of Haryana and others Vs. Ch. Bhajan Lal and others [1990 0 Supreme(SC) 740]

11. Learned AGA also opposed the prayer as made through the instant petition by way of seconding the arguments raised by learned counsel for respondent no.2. Learned AGA also apprised this Court that a petition in shape of Matters Under Article 227 No.792 of 2020 filed at the behest of three other accused persons challenging the same orders which impugned in the present petition, had already been dismissed vide order dated 07.02.2020 passed by Coordinate Bench of this Court and as such, the present petition may also be dismissed.

12. After having the rival submissions extended by learned counsel for parties, it is apparent that the arguments raised by learned counsel for petitioner are broadly based upon the undisputed fact that respondent no.2 has already availed civil remedies available to him by way of institution of suit for permanent injunction and another suit for cancellation of sale deed and now only as an arm twisting mechanism, present criminal proceedings have been initiated which has been denied by Hon'ble the Apex Court in the case of Radheyshyam (supra). It is also evident from the records that at no point of time, civil proceedings have been intimated to learned court concerned while preferring complaint case against petitioner by respondent no.2, for concealment of facts, learned counsel for petitioner relied upon judgment rendered by Hon'ble the Apex Court in the case of Kusha Duruka (supra) wherein it has been that suppression of material facts from the court of law, is actually playing fraud with the court. The maxim supressio veri, expression faisi, i.e. suppression of the truth is equivalent to the expression of falsehood. The proper emphasis has been drawn by learned counsel for petitioner that once respondent no.2 has already availed the civil remedies available to him, a complainant who persists with a prosecution, is itself a misconceived criminal proceedings in accordance with law which has been held is the case of A.M. Mohan (supra).

13. The substance of the arguments which attracting the factual matrix of the matter regarding non attraction of Section 467 and 420 IPC since it is not the case of respondent no.2 that certain impersonation or any act committed by petitioner by way of executing registered sale deed without having any title recorded in the revenue records, rather, fact is otherwise that petitioner executed registered sale deed for part and parcel of the plot in favour of co-accused over which name of petitioner was duly entered and the same is not under the dispute by respondent no.2, and the similarly preferred complaint has already been quashed by Hon'ble the Apex Court in the case of Md. Ibrahim (supra). The rights avail by petitioner being co-sharer in the property which is jointly owned by petitioner and respondent no.2 and without determining the issue which is still pending to be adjudicated before learned civil court concerned in shape of suit for cancellation of sale deed, the issue cannot be determined whether any offence is made out or not?

14. In counter to the arguments raised by learned counsel for petitioner, learned counsel for respondent no.2 relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Lalmuni Devi (supra) wherein it has been held that merely because a civil claim is maintainable, it does not mean that the criminal complaint cannot be maintained but at the same time, the dictum pronounced by Hon'ble the Apex Court as latest one, has to be given regard for adjudicating the controversy in light of the judgment passed by Hon'ble the Apex Court and as such, judgments rendered in Radheyshyam (supra) and A.M. Mohan (supra) have to be given preference for adjudication of the instant controversy which are holding the field till today.

15. The argument raised by learned AGA that the other co-accused already approached this Court for challenging the same orders which are impugned in the present petition and defeated vide order dated 07.02.2020 passed by Coordinate Bench of this Court in Matters Under Article 227 No.792 of 2020 dismissing the same but by way careful consideration of the judgment dated 07.02.2020, it is crystal clear that the issues raised through the instant petition along with arguments carried by learned counsel for petitioner, have not been apprised to the Coordinate Bench of this Court which culminated into dismissal of the said petition. The core issue which has already been made in shape of questions to be dealt in the instant matter, is quite in the judgment passed by Coordinate Bench of this Court and as such, parity of judgment dated 07.02.2020 cannot be exceeded to while adjudication of the controversy which is raised by learned counsel for petitioner and the same has to be adjudicated by this Court in light of the judgments relied upon by learned counsel for petitioner as well as learned counsel for respondent no.2.

16. In view of the aforesaid facts and circumstances and giving highest regards to the latest judgments rendered by Hon'ble the Apex Court in the case of Radheyshyam (supra) and A.M. Mohan (supra), the allegations whatsoever have been put forward through the complaint preferred at the behest of respondent no.2, are not in the manner that petitioner sold out the property by way of executing registered sale deed pertains to some another person but petitioner executed sale deed for the property which has been recorded in the revenue records against his name and as such, there is hardly any attraction of Sections 467 and 420 IPC.

17. In view thereof, order dated 10.01.2020 passed by learned Additional Sessions Judge, Court No.10, Shahjahanpur in Criminal Revision No.145 of 2019 (Riyasat and others Vs. Natthu) as well as summoning order dated 29.05.2019 passed by learned Civil Judge (J.D.)/Judicial Magistrate Tilhar, Shahjahanpur in Complaint Case No.3270 of 2019 (Natthu Vs. Riyasat and others), under Sections 420, 467, 506 IPC, Police Station Jaitipur, District Shahjahanpur, are hereby set aside only in respect of petitioner herein. Matter is remitted back to the learned Civil Judge (J.D.)/Judicial Magistrate Tilhar, Shahjahanpur at the stage of summoning who shall pass fresh order only in respect of petitioner herein in light of the observations made hereinabove.