Uttarakhand High Court
Unknown vs Shamsher Singh And on 4 November, 2022
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reports, orders or
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Date COURT'S OR JUDGES'S ORDERS
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C482 No. 915 of 2019
Hon'ble Sharad Kumar Sharma, J.
Mr. Sanpreet Singh Ajmani, Advocate, for
the applicant.
Mrs. Lata Negi, Brief Holder, for the State of
Uttarakhand.
Mr. Ganga Singh Negi, Advocate, for the
respondent No.3.
In the present C482 Application, the
applicant is aggrieved by the Chargesheet No. 8/19
dated 6th January, 2019, and the summoning order
dated 8th February, 2019, as it has been passed by
the Judicial Magistrate, Haldwani, in Criminal Case
No. 605 of 2019, State Vs. Shamsher Singh and
another, whereby, he has been summoned by the
Trial Court to be tried for the offence under Section
420 of the IPC, as a consequence of the registration
of FIR No. 101 of 2018 dated 6th July, 2018.
It has been argued by the learned counsel for
the applicant, that the FIR, was nothing but a
deliberate act of malicious proceedings, in an
attempt to override the effect of the judgment and
decree rendered in regular Civil Suit No. 33 of
2014, Shri Shamsher Singh Vs. Shri Pawan Kumar
Kanojia, wherein, the Suit was filed in relation to
khet No. 80, lying in village Jaidevpur, Tehsil
Haldwani, District Nainital.
In the said Suit, when it was pending
consideration, the defendant has filed a counter
claim, being paper No. 13-Ka/1, contending
thereof, for adjudication of right in relations to
khasra No. 33, which was claimed to have been
sold, but it has been wrongfully mentioned that the
possession of the same was not granted.
The Suit proceeded after framing of issues
and the parties led their respective evidence and the
learned Trial Court, while deciding the said Suit,
along with the counter claim, had arrived at a
conclusion, as it has been recorded in para 28 of the
said judgment, that there was no element of fraud,
having been committed by the present applicant in
relation to the two properties, which were subject
matter of trial in the said Suit, i.e. khet No. 88 or
khet No. 33, which was subject matter of the
counter claim too which was filed by respondent.
The relevant part of the judgment as contained in
para 28 is extracted hereunder :-
"28. rF;kRed fLFkfr ,oa fof/kd fLFkfr ij fopkj djus
ds ckn ;g U;k;ky; bl er dh gS fd izfroknh bl rF; dks
lkfcr djus esa vlQy jgk gs fd cSukesa esa [ksr la[;k 80 ds
ctk; 33 dk vadu oknh ds }kjk fd;s x;s Ny dk ifj.kke gSA
rnuqlkj fook|d fcUnq la[;k&1 oknh ds i{k esa ldkjkRed :i
ls rFkk fook|d fcUnq la[;k&3 izfroknh ds fo:} udkjkRed
:i ls fuf.kZr fd;k tkrk gSA"
While dealing with issue No.2 pertaining to
as to whether, the defendant had made any attempt
to occupy the Khet No. 80, belonging to the
plaintiff, the finding has been recorded in para 31
of the Trial Court's judgment, and it has been
answered against defendant by the judgment and
decree dated 31st May, 2018.
The said judgment, admittedly, has attained
finality, since has not been put to challenge before
any Superior Court, by the any of the aggrieved
party.
It has been argued by learned counsel for the
applicant, that the subsequent registration of the
FIR No. 101 dated 6th July, 2018, for alleged
commission of offence under Section 420 of the
IPC, as per the contents of the FIR, it was reflected
to be once again in relation to two disputed plots,
which were already subject matter of Suit, in which,
the degree has already been rendered in favor of the
private applicant.
It cannot be ruled out, that the registration of
the FIR, was nothing but a deliberate act to override
the effect of the judgment and decree dated 31st
May, 2018, rendered in favour of the applicant, by
giving it a colour of criminal proceeding by
registration of subsequent FIR.
The Coordinate Bench has taken note of this
aspect at the stage, when the C482 Application was
admitted with regard to the effect of the judgment
and decree rendered in Civil Suit No. 33 or 2014
and had granted the interim order in favour of the
present applicant.
Coming to the fact, that the
complainant/respondent is a judgment debtor of
Civil Suit No. 33 of 2014, which was adjudicated
by the judgment of 31st May, 2018, he could not
have any right to agitate his claim in relation to khet
Nos. 80 or 33 by filing the FIR on 6th July, 2018,
which would be nothing but a malicious proceeding
at the behest of the respondents.
On that limited count itself, since the
intentional act of the complainant was to give
criminal colour to the proceedings of Civil Suit, it
is barred by the principles laid down by the
judgment of Hon'ble Apex Court as rendered in
State of Haryana Vs. Bhajan Lal as reported in
1992 Supp. (1) SCC 335.
In that view of the matter, this C482
Application is allowed, and as a consequence
thereto, the summoning order dated 8th March,
2019, as well as the Chargesheet No. 8/19 dated 6th
January, 2019, and the entire criminal proceedings
of Criminal Case No. 605 of 2019, State Vs.
Shamsher Singh and another, pending consideration
before the Court of Judicial Magistrate, Haldwani,
District Nainital, would hereby stand quashed.
(Sharad Kumar Sharma, J.)
Dated 04.11.2022
Shiv
