Rais Alam vs State Of U.P. Thru. Its Prin. Secy. Home ...
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Allahabad High Court

Rais Alam vs State Of U.P. Thru. Its Prin. Secy. Home ... on 30 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


In The Hon'ble High Court Of Judicature At Allahabad
 
Sitting at Lucknow
 
* * * 
 
Neutral Citation No. - 2025:AHC-LKO:44107
 
Court No. - 15
 

 
(1) Case :- APPLICATION U/S 482 No. - 5977 of 2025
 
Applicant :- Rais Alam
 
Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Home Lko. And Another
 
Counsel for Applicant :- Ajeet Kumar
 
Counsel for Opposite Party :- G.A.
 
Along with
 
(2) Case :- APPLICATION U/S 482 No. - 5532 of 2025
 
Applicant :- Naushad Alam
 
Opposite Party :- State Of U.P. Thru. Addl. Chif Home Lko. And Another
 
Counsel for Applicant :- Dinesh Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 
and
 
(3) Case :- APPLICATION U/S 482 No. - 5617 of 2025
 
Applicant :- Riyaz Ahmad
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Applicant :- Ajeet Kumar
 
Counsel for Opposite Party :- G.A.,Karunesh Singh
 

 
Hon'ble Subhash Vidyarthi J.
 

1. Heard Sri Ajeet Kumar, the learned counsel for applicant in Application U/s 482 No.5977 of 2025 and 5617 of 2025, Sri Dinesh Kumar Mishra, the learned counsel for the applicant in Application U/s 482 Cr.P.C. No.5532 of 2025, Sri Satyendra Srivastava, the learned A.G.A. appearing on behalf of the State and Sri Sudhir Kumar Pandey, the learned counsel for the opposite party no.2 in all the applications.

2. Counter affidavit has already been filed in Application U/s 482 Cr.P.C. No.5977 of 2025 and counter affidavit in both the other applications has been filed today and the same are taken on record. The learned A.G.A. states that he will advance his submissions in opposition of the applications on the basis of material available on record and he does not propose to file any counter affidavit.

3. All the aforesaid three applications under Section 482 Cr.P.C. have been filed seeking quashing of charge-sheet dated 28.04.2025, cognizance/summoning order dated 26.06.2025 along with the entire proceedings of Case No.26938 of 2025, arising out of Case Crime No.1245 of 2023, under Sections 406, 419, 420, 447, 467, 468, 471, 504, 506 I.P.C. Police Station Kotwali, District Barabanki, pending in the Court of learned Chief Judicial Magistrate, Court No.18, Barabanki.

4. The aforesaid case has been instituted on the basis of an F.I.R. lodged by the opposite party no.2 on 27.11.2023 against the applicants and another person Mohd. Amir Kidwai stating that a plot land bearing Khasra No.500/2 measuring 0.283 hectares situated at Nawabganj Obri, Barabanki is the ancestral property of the complainant. On 02.12.2016, the applicants had entered into a registered agreement to purchase the property for a sale consideration of Rs.58,00,000/- within a period of six months. They had paid merely Rs.40,00,000/- on 26.12.2016 and the balance amount of Rs.18,00,000/- was not given and the time of six months stipulated in the agreement expired. In the meanwhile, the complainant was made to execute a registered sale deed dated 22.11.2017 in favour of one Kulsum Bano.

5. The F.I.R. states that on some undisclosed date, the complainant was taken to Barabanki under the pretext of payment of the balance amount of sale consideration and for execution of four other registered deeds, but the accused persons got a forged sale deed prepared by Mohd. Amir Dabir Kidwai (the other co-accused, who has since died) and the complainant's name was deceitfully mentioned as a witness. The complainant demanded a copy of the registered documents, but the accused persons stated that they would give the certified copies to him later on, but they did not give it to him. Meanwhile, whenever the complainant demanded money, the accused persons kept on avoiding the same and they did not pay him the balance money.

6. On 04.11.2023 the complainant obtained certified copies of the deeds from which he came to know that deeds were got executed by some Mohd. Amir Dabir Kidwai after making the complainant a witness of the execution of the sale deed and possession of the complainant's entire land was taken by the accused persons.

7. After investigation the Investigating Officer had submitted a closure report dated 09.06.2024 stating that no evidence could be gathered regarding commission of any offence by the accused persons. Upon a protest made by the opposite party no.2 the Chief Judicial Magistrate, Barabanki passed an order dated 17.10.2024, directing further investigation in the matter. The co-accused Mohd. Amir Dabir Kidwai expired during further investigation and thereafter a charge-sheet dated 28.04.2025 has been submitted against the aforesaid three applicants and another person Smt. Wasim Azra wife of late Mohd. Usman for commission of offences under Sections 406, 419, 420, 447, 467, 468, 471, 504, 506 I.P.C. The charge-sheet mentions that investigation against the marginal witness Shafikul Hasan and other persons is still continuing. 

8. Assailing the validity of the charge-sheet, the learned counsel for the applicants have submitted that a bare perusal of the F.I.R. indicates that the same has been filed assailing the validity of a sale deed dated 22.11.2017, the execution whereof had been witnessed by the complainant himself. Although the sale deed was executed on 22.11.2017 in the presence of the complainant, he has filed the F.I.R. challenging validity of the sale deed after a delay of six years and there is no explanation for the delay. They have submitted that the allegations leveled in the F.I.R. disclose existence of a dispute between the parties which essentially is of a civil nature.

9. Sri Sudhir Kumar Pandey, the learned counsel for the opposite party no.2 has vehemently opposed the applications. He has submitted that the opposite party no.2 was aged about 75 years when he was made to sign as a witness to the execution of the sale deeds in the year 2019. He has taken the court to the extracts of case diary quoted in the counter affidavit wherein the Investigating Officer has recorded that the accused persons have fraudulently executed a sale deed in respect of the complainant's land and when he demanded return of the balance amount of sale consideration, he was threatened. It is also recorded in the case diary that prior to execution of the agreement dated 26.12.2016 by the opposite party no.2, Rs.21,00,000/- had changed hands between the seller late Mohd. Amir Kidwai and the accused Naushad Alam and thereafter Naushad Alam executed the agreement dated 26.12.2016 fraudulently. The Investigating Officer has also recorded in the case diary that two Civil Appeal Nos.2241 of 1972 and 1181 of 1974 were filed before Hon'ble the Supreme Court in which three properties namely (i) Mayfair Building, Hazratganj, Lucknow, (ii) Masjidwali Kothi along with its appurtenant land situated in District Barabanki including land in dispute bearing Gata No.500/2, measuring 0.023 hectares and (iii) ancestral property of Rasoolpur House, fell in the share of Rani Akhtar Jahan Beghum. Two third of the share of Rani Akhtar Jahan Beghum devolved upon her brother Moinuddin Hasan and one third devolved upon her sister Ijjat Jahan. Ijjat Jahan transferred the property to her daughter Israt Zafar and Israt Zafar transferred the property to the opposite party no.2 Mohiuddin Hasan through a power of attorney. The Investigating Officer has further recorded that the land in question is recorded in the revenue records as ancestral property of Raja Mohammad Ezaz Rasool Khan, who is a predecessor of the opposite party no.2 and the name of predecessors of late Amir Kidwai is not recorded therein.

10. In parcha no.46 of the case diary prepared on 27.12.2024, the Investigating Officer has recorded that the accused persons had transferred money to late Mohd. Amir Kidwai through cheques dated 16.05.2016, 20.05.2017, 19.04.2017, 25.04.2017 and 26.04.2017. Prior to execution of the agreement dated 26.12.2016 by the opposite party no.2, a transaction of Rs.21,00,000/- had already taken place between Naushad Alam and Mohd. Amir Kidwai and thereafter Naushad Alam entered into an agreement dated 26.12.2016 from which it transpired that Naushad Alam got a new document prepared fraudulently.

11. The learned counsel for the applicant has drawn attention of the court to the document filed as Annexure No.5 to the counter affidavit, which is copy of an order dated 03.01.1989 passed by the Hon'ble Supreme Court deciding Civil Appeal Nos.2241 of 1972 and 1161 of 1974, on the basis of a compromise. However, none of the parties to the present case were a party to any of the aforesaid two appeals.

12. The learned counsel for the opposite party no.2 has relied upon a decision of the Hon'ble Supreme Court in the case of Kamaladevi Agarwal Vs. State of West Bengal and others: (2002) 1 SCC 555 (Para-15).

13. From the aforesaid facts it appears that even as per the F.I.R. version, the opposite party no.2 had entered into an agreement dated 02.12.2016 to sell his property to the applicants for a sale consideration of Rs.58,00,000/-. He admits to have received Rs.40,00,000/- in furtherance of the aforesaid agreement dated 02.12.2016. The copy of the aforesaid agreement dated 02.12.2016 has been annexed as Annexure No.4 to the application under Section 482 Cr.P.C., which mentions the total agreed sale consideration to be Rs.58,00,000/-. The amount paid under the agreement to be Rs.20,00,000/-, the purchasers had the liberty to get the sale deed executed in respect of the property either in whole or in parts, in his favour or in favour of the persons nominated by him, after making payment of the balance sale consideration within a period of two months. The opposite party no.2 has stated in the F.I.R. that the amount received by him under the agreement was Rs.40,00,000/- and the period under which the sale deed was required to be executed was six months. The opposite party no.2 claims that he has not executed any sale deed in favour of the applicants and there is no averment that he has refunded the amount of Rs.40,00,000/- taken by him under agreement, he has complaint about non-payment of the balance amount of sale consideration and he has not expressed any willingness to refund the money. The opposite party no.2 does not claim that he had sent any notice for specific performance of the agreement dated 02.12.2016 stating that he was ready and willing to perform his part of the contract. Although the agreement mentions the period for execution of the sale deed as two months, the opposite party no.2 has stated that this period was six months and it is settled law that the time period mentioned in an agreement to sell immovable property is not of essence of the contract and it is not inflexible.

14. Even as per the F.I.R. averment, the execution and registration of sale deed executed by late Mohd. Amir Dabir Kidwai was witnessed by the opposite party no.2. Although, this deed was registered in the year 2017 and the opposite party no.2 having witnessed its execution and registration had full knowledge of the execution and registration of the deed, he claims to have acquired knowledge of the same upon obtaining its certified copy on 04.11.2023 and he claims that only thereafter he came to know that showing him as a witness to the execution and registration, Mohd. Amir Kidwai had executed a sale deed in respect of his property under which possession of his land was taken. The F.I.R. does not make a mention of the date when the possession of the property of the opposite party no.2 was taken and obviously the date of possession would be the same as date of execution of the sale deed i.e. 01.01.2019. The opposite party no.2 did not take any action to protect the possession of his property or to reclaim the same.

15. Without disputing the correctness of the F.I.R. averments, even if the opposite party no.2 came to know about execution of the sale deed and having been divested of the possession of his property, he has not instituted any suit for cancellation of the sale deed and for recovering possession of the property. Without making any observations, which may affect the rival claims of the parties regarding title of the immovable property, it appears that there are rival claims regarding title and possession of the property in dispute, which can be adjudicated by the competent Civil Court only. In any case, a sale deed cannot be cancelled through criminal proceedings instituted on the basis of an F.I.R. and the same can only be cancelled by the competent Civil Court in a suit filed seeking a decree for cancellation of the sale deed.

16. From the aforesaid facts, it appears that the dispute between the parties is regarding rival claims to title and possession of the property and the opposite party no.2 has taken recourse to the criminal law by giving a false color of criminality to the dispute which otherwise is of a civil nature.

17. The excerpts of case diary quoted in the counter affidavit and referred to in the previous parts of this judgment fortify the observation of this court that the dispute between the parties is essentially of civil nature.

18. Although, the Investigating Officer had initially filed a closure report, after re-investigation he has erroneously submitted a charge-sheet against the applicants. The trial court has also not adverted to the aforesaid aspects of the matter and has erred in taking cognizance of the offences when the dispute between the parties is essentially of a civil nature.

19. In view of the foregoing discussions, this court is of the considered view that the impugned charge-sheet dated 28.04.2025, cognizance/summoning order dated 26.06.2025 along with the entire proceedings of Case No.26938 of 2025, arising out of Case Crime No.1245 of 2023, under Sections 406, 419, 420, 447, 467, 468, 471, 504, 506 I.P.C. Police Station Kotwali, District Barabanki, pending in the court of learned Chief Judicial Magistrate, Court No.18, Barabanki are liable to be quashed.

20. Accordingly, all the aforesaid three applications under Section 482 Cr.P.C. are allowed. The impugned charge-sheet dated 28.04.2025, cognizance/summoning order dated 26.06.2025 and the entire proceedings of Case No.26938 of 2025, arising out of Case Crime No.1245 of 2023, under Sections 406, 419, 420, 447, 467, 468, 471, 504, 506 I.P.C. Police Station Kotwali, District Barabanki, pending in the court of learned Chief Judicial Magistrate, Court No.18, Barabanki are quashed.

(Subhash Vidyarthi J.)

Order Date: 30.07.2025

Ram.