Devesh Kabadwal vs State Of Uttarakhand And Others
2022 Latest Caselaw 3875 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
     Criminal Misc. Application No. 927 of 2018

Devesh Kabadwal                                       .....Applicant

                                  Vs.

State of Uttarakhand and others                     .....Respondents

Present:- Mr. Pulak Agarwal, Advocate for the applicant.

Mr. T.C. Aggarwal, learned Deputy Advocate General along with Mr. Tumul K. Nainiwal and Ms. Lata Negi, Brief Holder for the State.

Mr. B.M. Pingal, Advocate for private respondents.

Criminal Misc. Application No. 926 of 2018

Krishna Nand Joshi .....Applicant

Vs.

State of Uttarakhand and others .....Respondents

Present:- Mr. Prateek Tripathi, Advocate holding brief of Mr. Vipul Sharma for the applicant.

Mr. T.C. Aggarwal, learned Deputy Advocate General along with Mr. Tumul K. Nainiwal and Ms. Lata Negi, Brief Holders for the State.

Hon'ble Sharad Kumar Sharma, J (Oral)

These are the two C-482 applications, they are emanating from a same set of incident and involves common question of facts, hence for the purposes of brevity, they are being decided together.

2. The applicant to the present C-482 applications, has put a challenge to the summoning order dated 27.04.2018, which had been passed by the court of Additional Chief Judicial Magistrate, Haldwani, District Nainital, in Criminal Case No. 2122 of 2018, for the commission of offences under

Section 420, 467, 467 & 120 of I.P.C., which was got registered at P.S. Kathgodam, District Nainital.

3. The brief facts, which engage consideration in the present cases are that the deceased-Haruli, Devi was said to be the predecessor owner of Khata No. 310 Khasra No. 177, 179/1, situated at Village Khera, Golapar, Haldwani, District Nainital. She was succeeded by three sons, namely, Mohan Chandra Joshi, Krishna Nand Joshi & Girish Chandra Joshi. Under the revenue clause of partition, it goes without saying that three brothers would have succeeded their shares to extent of 1/3 shares of the said property, which has devolved on the sad demise of their mother, i.e. late Smt. Haruli Devi. One of the co- brother, namely, Mr. Krishna Nand Joshi, has sold the property of his share to the present applicant, which is being disputed by the respondent, who was the other co-sharer, contending thereof, that the property, which has been sold by Mr. Krishna Nand Joshi to the present applicant by the sale deed dated 19.04.2017, in fact, it is in relation to the property, which stood settled within them, under an oral partition, thus the sale deed would be bad.

4. In relation to the aforesaid controversy, the parties are already under litigation, in a proceedings, which was held under Section 229-B/176 of the Zamindari Abolition and Land Reforms Act, which has been registered as Revenue Case No. 22/246 of 2017-18 "Mohan Chandra Joshi and another Vs. State and others", wherein the respondent nos. 2 & 3, are the plaintiffs, and Mr. Krishna Nand Joshi and

the present applicant, are the defendants, in the said case.

5. As per the perusal of the plaint of the said suit, if the relief clause of the suit, is taken into consideration, the plaintiffs-respondents herein of the suit, had prayed for setting aside the sale deed dated 19.04.2017, which was relief no.1 to the said suit, which stood instituted on 12.10.2017. The suit proceeded, and ultimately it was decided by the judgment and decree dated 21.09.2022, and the following judgment was rendered, which is extracted hereunder:

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6. In fact, the relief sought by the respondents/plaintiffs for quashing of the sale deed dated 19.04.2017, which was a principal relief in the suit, was denied, and admittedly according to the respondents, as against the said judgment and decree dated 21.09.2022, an appeal before the

concerned Commissioner, is presently pending consideration, at their behest. It was subsequent to the institution of the suit, that an F.I.R. dated 10 of 2018 dated 25.01.2018, was registered by the present respondents, for the offences under Section 420 of I.P.C., contending thereof, that in fact the sale made by Mr. Krishna Nand Joshi, to the present applicant by the sale deed dated 19.04.2017, is in relation to the share, which has been settled by the oral partition made by late Smt. Haruli Devi, and which has fallen in the share of the present applicant.

7. On the said F.I.R., the investigation was carried and after completion of the investigation, the concerned Investigating Officer has submitted the charge-sheet being Charge-Sheet No. 23 of 2018 dated 06.04.2018, on which the cognizance have been taken and a Criminal Case No. 2122 of 2018 "State Vs. Krishna Nand Joshi and others", had been registered and, the same is pending consideration for trying the present applicant for the offences under Section 420, 467, 468 & 120-B of I.P.C., on which, the summoning order dated 27.04.2018, has been issued against the present applicant.

8. The chronological date of the controversy, which was resorted to by the respondent for settlement of his right, once they have instituted a suit on 12.10.2017, putting a challenge to the sale deed dated 19.04.2017, which was executed by Mr. Krishna Nand Joshi, in favour of the present applicant, the proceedings ought to have been decided by the regular civil court, where the suit was

instituted by the respondents themselves, rather than, subsequently filing an F.I.R. on 25.01.2018, giving a civil dispute, a criminal color, and that too in the context of a reference of the sale deed, which has said to have been wrongly executed by Mr. Krishna Nand Joshi, in favour of the present applicant.

9. Hence, this Court is of the opinion that once the plaintiffs-respondents herein, have already been ventured into adjudication of their rights on the basis of their old settlement of devolvement of the rights to the extent of 1/3 share, which they claim to have divested after the death of Smt. Haruli Devi, all the issues about the propriety of the sale deed, about the extent of right settled with them, about the areas or the kuras, which has been settled, they will all fall for subject matter to be considered in a regular proceedings, which the respondents themselves have restored to by filing a suit under Section 229-B/176 of the U.P. Zamindari Abolition and Land Reforms Act.

10. It cannot be ruled out that the registration of the present F.I.R. is nothing, but an attempt to give the civil proceedings, a criminal colour, in order to exert pressure, on the present applicant and the seller of the applicant, namely, Mr. Krishna Nand Joshi, by resorting to the criminal proceedings, which has been deprecated by the judgment of the Hon'ble Apex Court as reported in "State of Haryana and others Vs. Bhajan Lal and others" as reported in 1992 Supp.(1) SCC 335, which has provided, that when the parties have already ventured into a civil proceedings for the settlement of a right, the same

ought not to be diverted to be adjudicated in a criminal proceedings by registration of an F.I.R.

11. In view of the aforesaid reasons, the C-482 applications would stand allowed, as a consequence thereto, the inter se rights between the parties are left open to be decided in the regular revenue proceedings, of which, the appeal is pending at the behest of the respondent. However, it is made clear that the whatsoever observations, made by this Court, while deciding this C-482 application is independent to and exclusively confined to the present C-482 application, and will have no bearing, so far as the pending appeal of the respondent is concerned, that is to be exclusively decided on its own merit.

12. Accordingly, the Criminal Case No. 2122 of 2018, "State Vs. Krishna Nand Joshi and other", which is still pending before the court of Additional Chief Judicial Magistrate, Haldwani, District Nainital, would hereby stand dropped.

13. Accordingly, the C-482 applications would hereby stand allowed.

14. This judgment would hereby apply to the connected C-482 Application No. 926 of 2018, because it is the same criminal case.

(Sharad Kumar Sharma, J.) 02.12.2022 Mamta