The High Court quashed criminal proceedings against bona fide applicants who purchased property with knowledge it had been previously sold, finding lack of mens rea and abuse of process of law under Section 482 Cr.P.C.
Cognizance order in Case No. 7767/2011 quashed against the applicants; further proceedings stayed.
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Court No. - 74
Case :- APPLICATION U/S 482 No. - 5465 of 2012
Applicant :- Meraj Ali And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Srivastava,Manish Dev Singh Counsel for Opposite Party :- Govt.Advocate,Ashok K Pandey
Hon'ble Om Prakash-VII,J.
On the request of learned counsel for the parties the matter is being decided finally.
Present application has been filed with the prayer to quash the proceedings of case no. 7767 of 2011 (State Vs. Shafqat Ali and others) arising out of crime no. 2018 of 2011, under Sections 420, 467, 468, 471 IPC, Police Station Izzat Nagar, district Bareilly pending in the court of Chief Judicial Magistrate, Bareilly. Further prayer has been made to stay further proceedings of the aforesaid case.
Heard Sri Manish Dev Singh, learned counsel for the applicants, Sri Ashok K Pandey, learned counsel appearing for the opposite party no. 2, learned A.G.A. and perused the entire record.
Submission of learned counsel for the applicants is that applicants are bonafide purchasers. They purchased the property in question after making proper enquiry. Offences levelled against them are not made out. At this juncture learned counsel for the applicants referred to the ingredients of offence under Sections 420, 467, 468, 471 IPC and contents of the FIR and further argued that none of the ingredients of aforesaid offence are available in the present matter against the applicants. It is also argued that if sale deed of a property was executed by a person which had already been sold out, the person who executed the subsequent sale deed may be held responsible but the applicants who are the bonafide purchasers cannot be prosecuted. Referring to the aforesaid facts, it is also argued that continuation of the present proceedings against the present applicants is nothing but an abuse of process of law.
Learned counsel appearing for the opposite party no. 2 and learned A.G.A. argued that despite having knowledge that disputed property had already been sold to the opposite party no. 2, applicants have purchased the same. All the offences levelled in this matter against the applicants are also attracted. There is no illegality, infirmity or perversity in the impugned order.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record.
In this matter, as is evident from the record, applicants are the subsequent purchasers of the property in question. Opposite party no. 2 had purchased the disputed property earlier from Shafaqat Ali and Ishmat Ali. If the ingredients of the offences levelled in the present matter are taken into consideration in the light of the submissions raised across the Bar, continuation of the proceedings of the aforesaid criminal case against the present applicants, who are bonaifde purchasers and have purchased the disputed property after paying consideration amount, cannot be permitted. Essential ingredients, 'mens rea' as well as dishonest intention from the very beginning to attract the offence of cheating are not available against them. It appears that concerned Magistrate while taking cognizance on the charge sheet submitted in the matter did not take into account the essential ingredients of the aforesaid offences in correct manner. Person who had purchased the property after paying the consideration amount and after making proper enquiry cannot be directed to face criminal trial particularly where the name of the vendor was recorded in the revenue record at the time of execution of the second sale deed. It may be mentioned here that person who had already sold out the disputed
property to the opposite party no. 2 may be held responsible for the aforesaid offence but the present prosecution cannot continue against the present applicants. It may also be mentioned that documents in question executed in favour of the applicants is not a forged document, therefore, on this basis also continuation of the proceedings of the aforesaid criminal case against the applicants is nothing but an abuse of process of law. Thus, the application having substance is liable to be allowed. Cognizance order taken in the aforesaid criminal case is liable to be quashed.
In view of the above, the Application u/s 482 Cr.P.C. is allowed.
The entire proceedings of case no. 7767 of 2011 (State Vs. Shafqat Ali and others) arising out of crime no. 2018 of 2011, under Sections 420, 467, 468, 471 IPC, Police Station Izzat Nagar, district Bareilly pending in the court of Chief Judicial Magistrate, Bareilly against the applicants are quashed.
Order Date :- 8.1.2020
Sachdeva
3 issues framed by the court
Whether criminal proceedings against bonafide purchasers can be quashed on grounds of lack of mens rea.
Whether continuation of prosecution against applicants amounts to abuse of process of law.
Whether the impugned cognizance order suffered illegality as it failed to account for essential ingredients of the offence.
2 provisions across 2 enactments
Meraj Ali And Others
OM Prakash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
