Allahabad High Court
Ghanshyam Dubey vs State Of U.P. And Another on 9 January, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:4396
Reserved
Court No. - 73
Case :- APPLICATION U/S 482 No. - 24207 of 2024
Applicant :- Ghanshyam Dubey
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Lokesh Kumar Dwivedi
Counsel for Opposite Party :- G.A.,Pradyuman Vashishth,Rajiv Lochan Shukla,Rajrshi Gupta,Utkarsh Prasad
Hon'ble Raj Beer Singh,J.
1. Heard Sri Rakesh Pandey, learned Senior Advocate, assisted by Sri Lokesh Kumar Dwivedi, learned counsel for the applicant, Sri Dilip Kumar, learned Senior Advocate, assisted by Sri Rajiv Lochan Shukla, learned counsel for the opposite party no.2/informant and learned A.G.A. for the State.
2. This application u/s 482 Cr.P.C. has been preferred for quashing of entire proceedings of Criminal Case No. 13486 of 2023 (State Vs. Ghanshyam Dubey), arising out of Case Crime No.10 of 2023, under Sections 419, 420, 467, 468, 471, 120B IPC, P.S.- Suriyawa, District- Bhadohi, pending in the court of Judicial Magistrate-Ist, Court No.2, Bhadohi/Gyanpur.
3. The prosecution version in brief is that that the opposite party no.2/informant Bholanath Shukla has lodged first information report alleging that he has purchased land in Arazi No.552, situated at Suriyava Patti and his name was recorded in revenue record. He came to know that regarding that land a forged Power of attorney (hereinafter referred as POA) shown to be executed by land-owner/ tenure-holder Smt. Rajkumari Devi was prepared in the name of Hari Prashad, who is driver of Ghanshyam Dubey (applicant). The applicant and his driver Hariprasad have executed two sale-deeds of the land of Arazi No.552 by way of alleged POA. First sale deed was executed on 20.04.1992 in favour of Lal Bihari, Bhaskar, Vinod and Kanchan Devi and second sale deed dated 22.04.1992 was executed in favour of Navratan, Shankar Prasad, RamChandra and Kalyan. In said sale-deeds, no reference was made regarding validity of said POA and even that POA was not seen by the Sub-Registrar and it was not attached with the said sale-deeds. Regarding the said forged POA, Late Umakant, who was husband of Rajkumari, has filed a Civil Suit No.259/1992 as attorney-holder of Rajkumari. In the said civil suit, Hari Prasad or any other accused has not produced said POA or copy of the same. The said civil suit was dismissed in default on 16.12.2022 and that sale-deeds were returned to Sub-Registrar. After that the Sub Registrar has referred sale deed dated 22.04.1992 to Additional District Magistrate/District Registration Officer, Bhadohi, who after considering case of both the parties, found that the sale-deed dated 22.04.1992 was forged one, executed by Hari Prasad on basis of forged POA. After investigation of the matter, applicant and co-accused persons have been charge-sheeted for offence under section 419, 420, 467, 468, 471, 120B IPC.
4. Learned Senior Advocate appearing for the applicant submitted that dispute between the parties is purely civil in nature and no criminal offence is made out. The civil suit (OS No. 259/1992) is pending before the Civil Court and whether the alleged POA was executed by Rajkumari Devi or otherwise, is yet to be decided by the Civil Court. As per allegations, two sale-deeds were executed on 20.04.1992 and 22.04.1992, which were not registered. The applicant is neither seller of the property nor the purchaser in the said sale-deeds. He is not even a witness of the said sale-deeds. Power of Attorney holder Hari Prasad has filed an affidavit dated 29.10.2010 and made statement before the Court that he is Power of Attorney holder of Rajkumari. It was submitted that informant Bhola Nath Shukla has got prepared a bogus affidavit of Hari Prasad reversing his earlier affidavit dated 29.10.2010. Bhola Nath Shukla has made an application in Civil Suit No.259/1992 to become a party as plaintiff but the same was not accepted as such and he was impleaded as defendant. Interim order dated 14.05.1993 was passed in the said civil suit and the informant Bhola Nath Shukla was aware about that interim order of status quo but despite that two sale deeds dated 20.09.2013 and 04.10.2013 were executed in favour of the informant. Bhola Nath Shukla got suit No.259 of 1992 dismissed for want of prosecution on 16.12.2022 and as such both the sale-deeds dated 20.04.1992 and 22.04.1992 were returned to Sub-Registrar, Bhadohi and he has referred the sale deeds to ADM (Finance) for necessary direction regarding registration. The ADM (Finance) illegally assumed the role of civil court and declared that both the sale deeds are based on fraud. Under influence of Bholanath Shukla, the son of Hari Prasad has received both the original sale-deeds from the office of Sub-Registrar, Bhadoi on 21.01.2023 and on same date he has informed the police that he has lost both the said sale-deeds. Informant Bhola Nath has criminal history of 8 cases and he has filed an application under Section 156(3) Cr.P.C. against applicant and others, which was registered as a complaint case vide order dated 05.04.2016. The revision filed against order dated 05.04.2016 was dismissed and that complaint was ultimately dismissed on 21.02.2024 under Section 203 Cr.P.C. Learned Senior Advocate has referred facts of the matter and it was submitted that there is no credible evidence against the applicant and that no prima-facie offence is made out against him. The dispute between the parties is civil in nature and whether the POA was executed by said Rajkumari or not, is yet to be decided by the Civil Court and thus, the impugned proceedings are liable to be quashed.
5. Learned AGA and learned Senior counsel for opposite party No.2 have opposed the application and submitted that a prima facie case is made out against applicant and co-accused persons. It was stated that with intention to grab the land of Arazi No.552, the applicant has prepared forged POA in question in favour of his driver Hari Prasad, shown to be executed by owner of the property, namely Rajkumari, whereas said Rajkumari has never executed any such power of attorney. On the basis of said forged POA, two sale-deeds were executed by Hari Prasad, one in favour of the daughter of applicant namely, Kanchan Devi and one Lal Bihari, Bhaskar and Vinod and another in favour of one Navratan, Shankar Prasad, Ram Chandra and Kalyan. When land owner Rajkumari got to know about the forged POA and the said sale-deeds, she executed a power of attorney in favour of her husband Uma Kanth Pathak and said civil suit was filed. The Court of Civil Judge (J.D.), Kanpur, has summoned the said two original sale-deeds from office of Sub-Registrar and directed the same to be kept in sealed cover during pendency of the civil suit and later an order of status-quo was passed. In Civil Suit No.259/1992, alleged power of attorney holder Hari Prasad has submitted an affidavit dated 04.11.2011, stating that he was driver of applicant Ghanshyam Dubey, who has informed him that Rajkumari has executed a power of attorney in his favour and he has to execute a sale-deed at Registrar office and accordingly he has put his thumb impression on the sale deeds in question. He has also stated that neither he has ever seen Raj Kumari nor he has met her. It was submitted that after death of Rajkumari, her legal heirs namely, Janardan, Shiv Prakash Pathak and Om Prakash Pathak have executed sale-deed of Arazi No.552 in favour of informant on 20.09.2013 and name of informant was mutated in revenue record as Bhumidhar. Legal heirs of Rajkumari have executed another sale-deed of remaining land on 04.10.2013 in favour of informant and name of informant was mutated in revenue record.
6. It was further submitted that Bhola Nath Shukla impleaded himself as defendant No.13 in civil suit no.259/1992. The civil suit was dismissed for want of prosecution and the sale-deeds kept in sealed cover, were returned to Sub-Registrar office. The Sub-Registrar, Bhadohi has sent a report to ADM (Finance and Revenue), who has denied to accept both the sale-deeds executed by Hari Prashad vide order dated 05.01.2013 and recorded a finding that no such power of attorney allegedly executed by Rajkumari in favour of Hari Prasad exists and as such two aforesaid sale-deeds are forged documents and can not be legally registered. One of the purchaser namely Navratan filed an application for restoration regarding order dated 05.01.2023 but the same was also dismissed. The said two sale-deeds dated 20.04.1992 and 22.04.1992 shown to be executed by Hari Prasad in alleged capacity of holder of power of attorney of Rajkumari, were subsequently returned to Ram Dhani on 20.01.2023 and said Ram Dhani has taken a stand that both the sale-deeds have been misplaced. It was stated that there is sufficient material on record, which indicate that the alleged POA shown to be executed by Rajkumari in favour of Hari Prasad is a forged document and applicant was involved in forgery of that POA and thus, it could not be said that dispute is purely civil in nature. After registration of first information report, the matter was thoroughly investigated and applicant was charge-sheeted on the basis of evidence. Learned counsel has referred facts of the matter and material on record and submitted that a prima-facie case is made out against the applicant and the application under Section 482 Cr.P.C. is liable to be dismissed.
7. I have considered the rival submissions and perused the record.
8. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgement reported in State of Haryana and others Vs. Ch. Bhajan Lal AIR 1992 SC 605, the Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. In this connection, a reference may also be made to the case of R. Kalyani vs. Janak C. Mehta and Others, 2009 (1) SCC 516, Rupan Deol Bajaj vs. K.P.S. Gill (1995) SCC (Cri) 1059, Rajesh Bajaj vs. State of NCT of Delhi, (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd vs. Biological E Ltd. & Ors, 2000 SCC (Cri) 615. It has been held that if a prima facie case is made out disclosing ingredients of the offence, court should not quash the charge sheet/complaint. It is equally well settled that at this stage questions of fact cannot be examined and a mini trial cannot be held.
9. It is also settled view that where dispute between the contesting parties is predominantly civil in nature and the criminal proceedings have been used to settle the civil dispute, such proceedings cannot be permitted to continue. However, where a prima facie criminal offence is made out, the criminal proceedings cannot be stalled, merely because the civil suit is pending with reference to same set of document. It is not a hard and fast rule that both the cases can not continue together. Therefore, mere pendency of the civil suit seeking declaration in respect of the same document cannot be a ground to quash the criminal proceedings.
10. In case of Mitesh Kumar J. Sha vs. State of Karnataka and others, AIR 2021 SC 5298:2021 SCC OnLine SC 976, somewhat similar controversy was involved and after considering various earlier judgments, Hon'ble Apex Court held that, "Although, there is perhaps not even an iota of doubt that a singular factual premise can give rise to a dispute which is both, of a civil as well as criminal nature, each of which could be pursued regardless of the other." The Court further held that only on the ground that complainant instituted multiple civil suit, it is not necessary that it was only to import it a criminal colour and ultimately the Court has to scrutinize, whether the relevant ingredients for a criminal case are even prima facie made out or not. The Court has also taken note that the criminal proceedings cannot be quashed solely because the dispute was referred to arbitration and arbitration proceedings had taken place thereafter.
11. Keeping in view the aforesaid position, in the instant matter it may be seen that it is not disputed that the owner of the disputed land of Arazi No.552 was Smt Rajkumari and that co-accused Hari Prashad has executed two sale deeds of said property on the basis of alleged forged POA shown to be executed by said Rajkumari. As per prosecution, when Rajkumari came to know about the fact of forged POA and said sale deeds, she has executed a power of attorney in favour of her husband and a civil suit was filed for cancellation of POA and sale deeds dated 20.04.1992 and 22.04.1992 executed on the basis of alleged POA. As per prosecution, said Hari Prashad is none but the driver of applicant-accused Ghanshyam Dubey. It was shown sale deed dated 20.04.1992 was executed in favour of Kanchan Devi, Lal Bihari, Bhaskar and Vinod. Said Kanchan Devi is daughter of the applicant and thus, it appears that indirectly applicant is beneficiary of the property sold through sale deed dated 20.04.1992 on the basis of alleged forged POA. It was shown that after the civil suit No.259/1992 was dismissed for want of prosecution, the sale-deeds kept in sealed cover, were returned to Sub-Registrar office. The Sub-Registrar, Bhadohi has made a report to ADM (Finance and Revenue), who vide order dated 05.01.2023 has declined to accept the sale deeds dated 20.04.1992 and 22.04.1992 executed by Hari Prashad and recorded finding that no such power of attorney (POA) allegedly executed by Rajkumari in favour of Hari Prasad exists and as such two aforesaid sale-deeds are forged documents and can not be legally registered. One of the purchaser namely Navratan filed an application for recall of order dated 05.01.2023 but the same was also rejected. The said POA has not been brought on record and the sale-deeds dated 20.04.1992 and 22.04.1992 were subsequently returned to Ram Dhani, who is son of co-accused Hari Prashad, on 20.01.2023 and said Ram Dhani has taken a stand that both the sale-deeds have been misplaced.
12. It is apparent from facts of the matter that the informant has made clear allegations that a forged power of attorney of the land owner Rajkumari Devi was prepared in favour of driver of applicant, namely, Hariprasad. It is correct that applicant is neither seller nor purchaser of the property but the prosecution has put a case that power of attorney holder, namely, Hariprasad was driver of applicant and POA was prepared by the applicant. Though, it was shown that said Hariprasad has filed an affidavit dated 29.10.2010, wherein he has stated that he is attorney holder of Rajkumari Devi but it was also shown that in Civil Suit No.259/1992 said Hariprasad has submitted an affidavit dated 04.11.2011 stating that he is driver of applicant Ghanshyam Dubey and he has informed him that Rajkumari has executed a power of attorney in his favour and he has to execute sale-deed at office of Sub-Registrar and accordingly he has put his thumb impression on the sale-deeds. It was further stated by Hariprasad that he has never seen Rajkumari and he has never met her. Here, it would be pertinent to mention that the said power of attorney was never brought on record in the sale proceedings or in this case. It was further shown that legal heirs of Rajkumari have executed sale-deed in favour of informant and name of the informant was mutated in revenue record. The aforesaid facts raise a serious doubt about the authenticity and genuineness of alleged POA and provide support to the prosecution version that alleged POA was forged one. It is correct that civil suit is pending between the parties, wherein genuineness and validity of POA would be examined by the civil court but in view of clear and substantial accusations regarding forgery in the alleged POA, the impugned proceedings can not be quashed merely on the ground of pendency of the said civil suit. When there are clear allegations of forgery supported by some material, the criminal proceedings may go on despite the fact that civil proceedings are pending between the parties, wherein validity of forged document is involved. It is correct that applicant is neither seller of the property nor the purchaser but the aforesaid facts, particularly considering affidavit dated 04.11.2011 of Hariprasad, wherein he has stated that he does not know said Rajkumari Devi and that it was applicant accused Ghanshyam Dubey, who has told him that Rajkumari has executed a power of attorney in his favour and that at the instance of applicant-accused, he has executed said two sale-deeds, coupled with order dated 05.01.2023 passed by the ADM(F) and other incriminating circumstances, it can not be said that no prima-facie criminal offence is made out against the applicant. The version of prosecution that the property of said Rajkumari was sold by way of forged POA by hatching a conspiracy is not without substance. Further, the fact that alleged POA has not been brought on record and the son of co-accused Hariprasad has taken stand that the said original sale-deeds have been lost, speaks a lot. The contention raised on behalf of the applicant that Bholanath Shukla has got prepared a bogus affidavit of Hariprasad (subsequent affidavit) can not be accepted at this stage. In fact submissions raised by learned counsel for the parties call for determination on questions of fact, which may adequately be discerned/adjudicated only by the trial court. Even the submissions made on point of law can also be more appropriately gone into by the trial court. In view of allegations made in the first information report and the material collected during investigation, it cannot be said that no prima facie case is made out against the applicant and thus, the impugned proceedings are not liable to be quashed. Hence, the present application under Section 482 Cr.P.C. is liable to be dismissed.
13 . Accordingly, the application under Section 482 Cr.P.C. is dismissed.
Order Date :- 09.01.2025
SP/-/S K Srivastava
