Nitin Kumar vs State Of U.P. And Others
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Allahabad High Court

Nitin Kumar vs State Of U.P. And Others on 5 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:25946
 
Court No. - 29
 

 
Case :- APPLICATION U/S 482 No. - 2729 of 2016
 

 
Applicant :- Nitin Kumar
 
Opposite Party :- State of U.P. and Others
 
Counsel for Applicant :- Mohd.Yasin
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Shree Prakash Singh,J.
 

1. Rejoinder affidavit filed today by learned counsel for the applicant is taken on record.

2. Heard learned counsel for the applicant, learned A.G.A. for the State-opposite party No.1 and perused the record.

3. In view of the order, which is proposed to be passed today, notices to opposite party Nos.2 to 5 is hereby dispensed with.

4. The instant application has been filed with the prayer to quash the impugned order dated 22.08.2015 passed by learned Chief Judicial Magistrate, Ambedkar Nagar in Complaint Case No.5607 of 2014 : Nitin Kumar vs. Virendra Kumar and others, P.S. Tanda, District Ambedkar Nagar as well as order dated 02.11.2015 passed by learned Sessions Judge, Ambedkar Nagar in Criminal Revision No.178 of 2015 : Nitin Kumar Jaiswal vs. State of U.P.

5. The contention of learned counsel for the applicant is that on 03.05.1984, Ayodhya Prasad Jaiswal executed a registered will deed in favour of his wife Smt. Narayan Devi and nephew Subhash Chandra including his four children, namely, Nitin Kumar (the present applicant), Niranjan Kumar, Nikil Kumar and Naveen Kumar, all are the brothers and Smt. Narayan Devi was precluded from transferable rights of the property in registered will deed. On 18.10.1989, the applicant including other predecessor filed a civil suit for permanent injunction bearing Regular Suit No. 1097 of 1989 : Subhash Chandra & others vs. Smt. Narayan Devi and others before Munsif, Akbarpur, District Faizabad wherein an interim order was passed while directing the parties to maintain status quo of the suit property. Subsequently on 07.12.1991, Smt. Narayan Devi executed a sale deed of the suit property which was registered on 09.12.1991 before Sub Registar, Tanda, Faizabad and on 13.05.1992, Munsif Magistrate, Akbarpur, District Faizabad had cancelled the registered sale deed executed by Smt. Narayan Devi.

6. He next submits that on 31.12.1996, the Additional Tehsildar, Tehsil Tanda, District Ambedkar Nagar dismissed the mutation case on the ground that the registered sale deed is cancelled. Later on, on 21.09.2011, Tehsildar, Tanda herein opposite party No.5 colluded with the opposite party Nos.2 to 4 mutated the property in question without providing the time to the applicant and the other stakeholders for filing of objections. Thus, a complaint is instituted against the Tehsildar including the parties, bearing Complaint Case No.5607 of 2014 wherein the statement of the complainant as well as the witnesses were recorded but the same was not considered in a right perspective and resulted into dismissal of the complaint on 22.08.2015 which is under challenge in this application. Further the order dated 22.08.2015 was also challenged before the revisional court i.e. the Court of Sessions Judge, Ambedkar Nagar under Section 397 of Cr.P.C. bearing Criminal Revision No.178 of 2015 whereby a prayer was sought that the order dated 22.08.2015 may be set aside and the matter may be remanded back to be decided afresh but ignoring the same, the Sessions Judge passed the order on 02.11.2015, whereby the revision was dismissed which is also under challenge.

7. It is further contended that, in fact, cancellation of the registered sale deed, was in the knowledge of the opposite party Nos.2 to 5 but concealing the same they moved mutation application before the Tehsildar concerned and in collusion with Tehsildar, the suit property was mutated in favour of the opposite party Nos.2 to 5. He submits that this fact was brought before the learned trial court that there was a clear cut intention to commit cheat and forgery but the trial court ignored the same and took another view that matter pertains to the civil dispute and, therefore, the plea was rejected. He pleaded that it is a clear cut case of offence committed by the opposite party Nos.2 to 5 but this fact has also been ignored by the revisional court and the revisional court has also adopted the findings and discussions of learned trial court.

8. Concluding his arguments, learned counsel for the applicant submits that the order dated 22.12.2015 passed by the learned Chief Judicial Magistrate, Ambedkar Nagar as well as order dated 02.11.2015 passed by learned Sessions Judge, Ambedkar Nagar are erroneous and unlawful thus the those may be set aside.

9. On the other hand, learned A.G.A. for the State has opposed the contention raised by learned counsel for the applicant and submits that the learned trial court as well as revisional court has rightly decided the matter as the matter pertains to civil dispute which is being given colour of criminality. He pleaded that, in fact, there are several litigation with respect to the property in question and both the parties have claimed their rights at the various level of the civil courts and the revenue courts and those were either decided or pending consideration. He next pleaded that, in fact, the applicant has been failed before the trial court as well as revisional court to substantiate that there was iota of intention to commit offence. Thus, submission is that the instant application is liable to be dismissed.

10. Having heard learned counsel for the parties and after perusal of record, it transpires that suit property was transferred by way of a registered sale deed and subsequently the same was cancelled by the competent court. It is also apparent that the mutation application which was instituted before the Tehsildar was also went up to the court of Commissioner and thereafter the matter was remanded back to the Tehsildar and the Tehsidar mutated the land in question in favour of opposite party Nos.2 to 5. There are other set of litigation with respect to the same property between the parties. The applicant and the other stakeholders have failed to demonstrate before the trial court and revisional court as well as before this Court that there was any record produced before the court of Tehsildar regarding cancellation of registered sale deed.

11. The learned trial court has dealt with the contention raised by learned counsel for the applicant and ultimately came to the conclusion that matter pertains to a dispute civil in nature. The finding of revisional court is also apparent that the issue with respect to the dispute between the parties has been discussed and it has also been discussed that there was no evidence adduced before the trial court regarding any concealment of facts.

12. This Court may refer the judgment rendered in the case of Syed Yaseer Ibrahim vs. State of Uttar Pradesh and Another : (2022) 17 SCC 611 wherein it has specifically been held in paragraphs 9, 10 and 11 that if a civil dispute is sought to be given the colour of criminal wrongdoing, the same would amount to abuse of process of law. Paragraphs 9, 10 and 11 are referred hereunder :-

"9. Both the FIR and the charge-sheet, which has been submitted after investigation, would leave no manner of doubt that there are rival contentions of the appellant, on the one hand, and the second respondent, who is the complainant, on the other, which form the subject of a pending suit. The contesting parties lay a claim to the immovable property, which is in dispute. The appellant founded his claim on the strength of an alleged deed of gift. On the other hand, the second respondent has claimed on the basis of a Will alleged to have been executed in his favour. The second respondent has instituted a suit for declaration and possession which is pending. The suit was dismissed in default on 13 October 2014. The sale deed was executed by the appellant on 24 November 2014. The suit has been restored to file on 21 April 2016. Each of the rival claims would be tested in the course of the evidence adduced at the trial of the suit.

10. Mr Sanjay Singh submitted that since the sale took place during the pendency of the suit, doctrine of lis pendens will apply. This itself is an indicator of the position that it is essentially a dispute of a civil nature. The execution of a sale deed, during the pendency of the suit, may attract the doctrine of lis pendens , but, from reading the charge-sheet as it stands, it is evident that there is no element of criminality which can stand attracted in a matter which essentially involves a civil dispute between the appellant and the second respondent.

11. Insofar as the appellant is concerned, none of the ingredients of the offence punishable under Section 420 of the IPC have been found to exist after the investigation was complete. Neither the FIR nor the charge-sheet contain any reference to the essential requirements underlying Section 420. In this backdrop, the continuation of the prosecution against the appellant would amount to an abuse of the process where a civil dispute is sought to be given the colour of a criminal wrong doing."

13. Further more recently, Hon'ble Supreme Court in the case of Naresh Kumar and another vs. State of Karnataka and another arising out of SLP (Crl.) No.1570 of 2021 decided on 12.03.2024 rejecting the view of High Court provided that it has to be looked into that whether on the first hand, the dispute between the parties is primarily civil in nature.

14. In the case of Paramjeet Batra vs. State of Uttarakhand : (2013) 11 SCC 673, it has been provided that a complaint disclosing civil transactions may also have a criminal texture but the High Court must see whether a dispute which is essentially of a civil nature, is given a clock of criminal offence. It is further provided that for any dispute, a civil remedy is available and in fact, the same is adopted. The High Court should not hesitate to quash the civil proceedings to prevent abuse of the process of law.

15. So long, the instant case is concerned, admittedly, there was civil dispute since long and basically the dispute was regarding a property which was sold out by the person who in fact was restrained to transfer the same. The matter went up to civil court as well as revenue court several times and the issue regarding the civil rights were agitated and decided, therefore, there might be some criminal texture which comes out but ultimately the dispute is civil in nature and the civil remedy is not only provided but that has admittedly been availed by the parties.

16. Considering all over facts and circumstances of the case, this Court finds that there is no merit in the application, thus, this application is hereby dismissed.

(Shree Prakash Singh, J.)

Order Date :- 5.5.2025

Shubhankar