Smt. Premlata Sethi And Others ... vs State Of Uttarakhand And Others
2022 Latest Caselaw 3558 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

     Criminal Misc. Application No. 1576 of 2019


Smt. Premlata Sethi and Others           ...... Petitioners


                           Vs.

State of Uttarakhand and Others          ..... Respondents

Present:
Mr. Aditya Singh and Mr. Pranav Singh, Advocates for the
petitioners.
Mr. Navneet Kaushik, Advocate for the respondent.
Mr. Narayana Dutt, Brief Holder for the State.



                      JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to

the followings:-

(A) Order dated 12.11.2018, passed in

Complaint Case No.1594 of 2014,

Nupur Singh Vs. Premlata Sethi and

Others, by the court of Additional

Chief Judicial Magistrate, Roorkee,

District- Haridwar ("the case"). By it,

the court directed that there are

sufficient grounds for framing

charge under Section 420 IPC

against the petitioners, and;

              (B)   Judgment       and       order         dated

                    06.07.2019,    passed      in    Criminal





                        Revision No. 748 of 2018, Smt.

Premlata Sethi and others Vs. State

of Uttarakhand and others, by the

court of Additional Sessions Judge,

District Haridwar ("the Revision").

                        By it, the order dated 12.11.2018,

                        passed       in   the   case,    has     been

                        confirmed.


3.              Facts    necessary         to      appreciate         the

controversy, briefly stated, are as follows; the respondent

no.2 ("the complainant") filed an application under

Section 153 of the Code of Criminal Procedure, 1973

("the Code"), against the petitioners. According to it, the

petitioners sold a property ("the property") to the

husband of the complainant ("the buyer") for a

consideration of Rs. 2 Crores 40 Lakhs. The sale deed

was executed on 03.02.2012. The Indian Overseas Bank

Branch ("the Bank") was a tenant in the property. The

property had also been mortgaged with the Bank. The

petitioners had taken loan against the property, but

knowingly that the property could not be sold, as it was

mortgaged in the Bank, the property was sold by

cheating. The sale deed recorded that there is no charge

to the property and no loan had been taken against it.

This application, under Section 156 (3) of the Code was

treated as a complaint. Enquiry was done and by an

order dated 26.10.2013, passed in the case, the

petitioners were summoned to answer the accusations

under Section 420 IPC.

4. The orders summoning the petitioners were

challenged before this Court in proceedings under

Section 482 of the Code being C-482 No. 1734 of 2016.

The petition was decided on 18.05.2017 and the

petitioners were granted four weeks' time to surrender

before the court. The proceedings of the case

commenced. Statement of the complainant was recorded

under Section 244 of the Code. At that stage, arguments

were advanced on behalf of the petitioners on charge.

The court, by the impugned order dated 12.11.2018,

passed in the case, held that there are sufficient grounds

to frame charge against the petitioners. This order dated

12.11.2018, passed in the case, was further

unsuccessfully challenged by the petitioners in the

Revision.

5. Heard learned counsel for the parties and

perused the record.

6. On behalf of the petitioners, it is argued

that no offence under Section 420 IPC is made out

against the petitioners; there has been no reason or

ground to order framing charge against the petitioners.

The following points have been raised by the learned

counsel:-

(i) The property was to be auctioned, as

the petitioners had failed to repay

the loan. The notice of publication

was widely circulated in the small

town of Roorkee. The buyer knew

that the petitioners had taken loan

against the property.

(ii) The buyer had agreed to repay the

loan.

(iii) The buyer had, in fact, given the

cheques in the name of the Bank,

which was to be deposited

straightway in the Bank. It,

according to learned counsel for the

petitioners, reflects that the buyer

was well aware that the property was

mortgaged with the Bank and loan

was to be repaid. Therefore, there

was no cheating.

(iv) The petitioners had no intention to

cheat the buyer.

(v) The property was sold through a

power of attorney holder Mr. Vinod,

who was Accountant of the buyer.

(vi) The complainant did not have any

personal knowledge of the

transactions.

(vii) The petitioners settled the claim of

the Bank as One Time Settlement.

(viii) The complainant was not staying

with the buyer. They were staying

separate. The complainant had no

occasion to have any personal

knowledge of the transactions. The

complainant had admitted that she

was not present when the sale deed

was executed.

7. Learned counsel for the petitioners would

also refer to provisions of Section 420 IPC, to argue that

one of the essentials for attracting this offence is

intention, which should be dishonest. It is argued that

the complainant had no occasion to say about intention

of either the petitioners or the buyer.

8. It is also argued that a power of attorney

holder or a legal representative, if had no personal

knowledge of the transactions, cannot either file

complaint or depose before the Court. Reference has

been made to the judgment in the case of A.C.

Narayanan Vs. State of Maharashtra and Another,

(2014)11 SCC 790, particularly paragraph 26 has been

referred to. It is as hereunder:-

                               "26. As          noticed      hereinabove,
                    though Janki             Vashdeo      Bhojwani [Janki

Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217] relates to powers of power-of-attorney holder under CPC but it was concluded therein that a plaint by a power-of-attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well-settled position that criminal law can be put in motion by anyone (vide Vishwa Mitter) and under the statute, one stranger to transaction in question, namely, legal heir, etc. can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies (vide Ashwin Nanubhai Vyas v. State of Maharashtra ). Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the court in order to prove the complaint, it is permissible for the power-of-attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power-of-attorney holder

or legal representative(s) should have knowledge about the transaction in question so as to be able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to abovequoted reasons. Keeping these aspects in mind, in M.M.T.C., this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of the NI Act."

9. In Para 33 of the judgment in the case of

A.C. Narayanan (supra), the Hon'ble Supreme Court

summarised the conclusion as follows:

"33. While holding that there is no serious conflict between the decisions in M.M.T.C. and Janki Vashdeo Bhojwani, we clarify the position and answer the questions in the following manner:

33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent.

33.2. The power-of-attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power-of-attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

33.3. It is required by the complainant to make specific assertion as to the knowledge of the power-of-attorney holder in the said

transaction explicitly in the complaint and the power-of-attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

33.4. In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.

33.5. The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person."

10. Learned counsel for the complainant has

also raised the following points:-

(i) There was no auction notice of the

property till 03.02.2012. Therefore, it

is wrong to say that the buyer was

aware that the property was

mortgaged with the Bank.

(ii) It is also wrong to say that the

cheques, for consideration, were

given in the name of the Bank. It is

argued that, in fact, the cheques

were given in the name of one of the

vendors, who, subsequently, paid

some amount from her account in

the loan account. Certain documents

have been referred to.

(iii) The intention of the petitioners is

further referred to from the fact that

post execution of sale deed, the

petitioners had obtained Rs. 75

Lakhs from the buyer when he was

ill. There has been false recital in the

sale deed.

11. It is a petition under Section 482 of the

Code, challenging an order framing charge against the

petitioners. The law on this point is much settled. At the

stage of framing charge, a mini-trial is not conducted.

The Court has to broadly see as to whether the court has

applied its mind to the entire record and documents

placed before it.

12. In the case of Amit Kapoor Vs. Ramesh

Chander and Another, (2012) 9 SCC 460, the extent of

intervention, at the stage of framing charge, has been

discussed by the Hon'ble Supreme Court. In Para 30, the

Hon'ble Supreme Court observed as hereunder:-

"30. We have already noticed that the legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste.

A Bench of this Court in State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659 : 1996 SCC (Cri) 820] referred to the meaning of the word "presume" while relying upon Black's Law Dictionary. It was defined to mean "to believe or accept upon probable evidence"; "to take as proved until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was a civil transaction between the parties would not by itself alter the status of

the allegations constituting the criminal offence."

13. In the case of Asian Resurfacing of Road

Agency Private Limited and Another Vs. Central Bureau

of Investigation, (2018)16 SCC 299, the Hon'ble Supreme

Court further observed, "Thus considered, the

challenge to an order of charge should be entertained

in a rarest of rare case only to correct a patent error

of jurisdiction and not to reappreciate the matter."

14. By the impugned order, it has been

directed that there are sufficient grounds to frame

charge under Section 420 IPC against the petitioners.

Section 420 IPC is as hereunder:-

"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

15. Cheating has been defined under Section

415 IPC. It is as hereunder:-

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."

16. A bare reading of the provisions make it

abundantly clear that, in fact, mental element has great

bearing to attract the provisions of Section 420 IPC. It is

not an act simpliciter. There should be a dishonest

intention to induce somebody to deliver a property.

17. In the case of A.C. Narayanan (supra), the

question involved was as to whether a power of attorney

holder can file a complaint and speak for its principle?

Instant is not a case as such. The complainant is not a

power-of-attorney holder. The buyer was sold certain

property by the petitioners through a power-of-attorney

holder. The question, which is being raised, is that being

legal representative of the buyer, the complainant did

not have any personal knowledge of the transactions.

She could not have deposed as a witness.

18. It is not a case, which is merely based on

some personal knowledge. Intention can never be read in

the mind. It may be inferred to from the actions and

deeds committed by a person or with the help of

attending circumstances. It is not disputed that the

complainant is the wife of the buyer. It is admitted that

at the time when the sale deed was executed, both the

buyer and the complainant were staying separate. It is

also admitted that they had a divorce suit pending then.

During the course of argument, on behalf of the

complainant, a statement is given that, in fact, the

parties had no acrimony as such. The complainant was

unhappy with the drinking habits of her husband (he

was the buyer), to which she always kept on

unsuccessfully resisting. It is argued that as a result of

it, unfortunately, her husband died.

19. The Court is examining the order framing

charge. Various points have been raised. The Court does

not propose to hold a mini-trial, but to the extent of

appreciating the arguments, the matter would definitely

require some deliberations.

20. On behalf of the complainant, it is argued

that, prima facie, offence under Section 420 IPC is made

out. It is a case based on documents. The sale deed is on

record. It makes abundantly clear that the buyer was

cheated by the petitioners. They induced the buyer to

purchase the property, procured cheques, but did not

deliver the property either to the buyer or to the

complainant. It is argued that, in fact, the petitioners

sold the property without knowledge of the Bank, with

whom the property was mortgaged.

21. It is the admitted case that Rs. 1.22 crores

were paid to the petitioners by the buyer. The petitioners

did receive this amount. The sale deed was executed

through a power-of-attorney holder. It is also true that in

her cross-examination, done at the stage of 244 of the

Code, in answer to one question, the complainant has

referred to Vinod, the power-of-attorney holder, as their

accountant. But merely because the power-of-attorney

holder happened to be the accountant of the buyer, it

cannot be said that the transactions were fair.

22. Admittedly, in the sale deed, at internal

page 35, it is recorded that "the property is free from

all encumbrances and charges. It is not mortgaged.

No loan has been taken against it." Admittedly, this

averment is false. What is being justified is that the

buyer knew it. It is argued on behalf of the complainant

that till 03.02.2012, there was no auction notice.

Learned counsel for the petitioners could not show even

a single document, which could reveal that, in fact, the

auction notice was so widely publicised so as to presume

that the buyer knew that the property had been

mortgaged with the Bank. The sale deed was executed

on 03.02.2012. It makes reference to 3 cheques, which,

according to the petitioners, were not honoured. In fact,

in internal page 59 of the sale deed, the reference to

these cheques has been made. They are cheque nos.

000477, 000478 and 000479 of Rs. 50 Lakhs, 25 Lakhs

and 43 Lakhs, respectively.

23. It is also an admitted case that after the

death of the buyer, the petitioners had filed a suit for

cancellation of the sale deed dated 03.02.2012 in a court

at Lucknow, which was admittedly dismissed. It is also

admitted that, subsequently, the petitioners filed

another suit for cancellation of the sale deed in Roorkee,

which has also been dismissed but the appeal is

pending. It is admitted fact that the petitioners never

divested of the possession from the property even after

execution of the sale deed.

24. On behalf of the complainant, it has been

argued that, in fact, till 2018, the petitioners had taken

rent of the property.

25. The Original Suit No.231 of 2018, was filed

by the petitioners for cancellation of the sale deed dated

03.02.2012, in the court at Roorkee. It records that the

Cheque No. 000477 of Rs. 50 Lakhs was presented in

the Bank on 15.02.2012, when it was dishonoured.

Thereafter, when the petitioners met the buyer, who was

unwell, the buyer sought time from the petitioners,

pleading his illness. The copy of the plaint is Annexure

12 to the petition. In Para 16 of it, the petitioners have

categorically stated that, thereafter, the condition of the

buyer started deteriorating rapidly, but till last time, he

kept on assuring the petitioners to pay balance Rs. 1

Crore 18 Lakhs. It is based on this assurance, according

to the petitioners, they did not deposit the cheques again

in the Bank. But, unfortunately, the buyer died on

12/13.08.2012.

26. During the course of argument, on behalf

of the complainant, a statement was given that after

execution of sale deed, on 03.02.2012, Rs. 75 Lakhs

were paid by the buyer to the petitioners. This fact has

not been disputed by learned counsel for the petitioners.

In fact, Bank statement has been filed by the

complainant on this aspect.

27. This Court is trying to read out the minds.

It is not something, which has happened in privacy. It is

not something, which is within personal knowledge of

the buyer. The complainant says that her husband has

been cheated. Admittedly, the sale deed writes that the

property is free from encumbrances and it is not

mortgaged with any bank. This statement is admittedly

false.

28. An argument is given that the cheques for

consideration were in the name of Bank, but, during the

course of argument, learned counsel for the petitioners

could not even indicate it. Annexure-11 is a Cheque

bearing Number 000477. It is not in the name of any

bank. In fact, it is an account payee cheque in the name

of one of the petitioners, Ms. Premlata Sethi. It is dated

15.02.2012, which, according to the petitioners, was

dishonoured. Along with this annexure, another Cheque

No.000889 of the ICICI Bank has been placed. It is a

cheque issued by the petitioner Premlata Sethi in the

loan account. These 2 cheques, which are part of

Annexure 11 to the petition, make it explicitly clear that

it is wrong to say that the buyer did give the cheques in

the name of the Bank. The buyer did deliver the cheques

to the petitioners in their individual name. The another

Cheque No. 000889 further confirms it that the

petitioner Premlata Sethi paid Rs. 10 Lakhs from her

own individual account to the account of M/s Shubham

India Distributors. It had taken loan from the Bank

against the property.

29. During the course of argument, on behalf

of the complainant, argument has been raised that, in

fact, the petitioner did not inform the Bank. Reference

has been made to a document, which is with regard to

loan account of the petitioners. It is filed along with the

supplementary affidavit dated 03.04.2022 of the

complainant. It records "On receipt of a legal notice by

our Roorkee br in Dec 12 we came to know that

subjects have sold the collateral security on

03.02.13 to one Mr. Dhrub Singh for Rs. 240 lacs

without Bank's permission." It also reveals that the

name of account/borrower is M/s Shubham India

Distributors. Loan was taken by M/s Shubham India

Distributors.

30. The property was sold by the petitioners to the

buyer on 03.02.2012. They had received Rs. 1.22 Crores.

Disputed are three cheques, one of which, bearing

no. 000477, was dishonoured, when presented on

15.02.2012. The cheques were not presented again for

payment. Rs. 75 Lakhs were, as per learned counsel for

the complainant, provided to the petitioner by the buyer.

The sale deed records that the property was free from

any charge or encumbrance. This is false. The property

was mortgaged with the Bank. The petitioners did not

even inform the Bank their intention to sell the property

to the buyer. Suits for cancellation of the sale deed, filed

by the petitioners, have been dismissed. The petitioners

did neither return the money, which they had received

from the buyer nor did they return the property to the

buyer. Have the petitioners cheated the buyer? In view of

it and other attending circumstances, this Court is of the

view that there are sufficient grounds for framing charge

under Section 420 IPC against the petitioners. The Court

below did not commit any error. Therefore, there is no

reason to make any interference. Accordingly, the

petition deserves to be dismissed.

31. The petition is dismissed.

(Ravindra Maithani, J.) 10.11.2022 Ravi Bisht