Dismissed

Anjum Parvez v. State of U.P.

Allahabad HC1 Sept 2021A482/12188/2021

Case brief

AI extract

What is this about?

This court rejected an application under Section 482 Cr.P.C. seeking to quash summoning orders in a cheating case. The applicant contended that there was no authorization for the alleged transaction and that the facts were disputed civil matters. The court held that the existence of a prima facie case was sufficient to issue summons and refused to sift evidence on disputed civil transactions at th

What did the court decide?

The application seeking quashing of the order of summoning and the revisional court order is dismissed.

Anjum Parvez Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2021)

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Court No. - 49

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Case :- APPLICATION U/S 482 No. - 12188 of 2021

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Applicant :- Anjum Parvez Opposite Party :- State of U.P. Counsel for Applicant :- Mohit Singh

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Hon'ble Vivek Agarwal,J.

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Heard Sri Mohit Singh, learned counsel for the applicant and Sri Vikas Goswami, learned AGA for the State.

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This Application U/S 482 Cr.P.C. has been filed by the applicants claiming quashing of the order dated 27.02.2020 passed by the learned Additional Sessions Judge, Court No.13, Moradabad in Criminal Revision No.128 of 2017 (Anjum Parvez and another Vs. State of U.P. and another). Applicants are also challenging the order dated 15.05.2017 passed by the learned Chief Judicial Magistrate, Moradabad in Case No.743 of 2015 (Irfan Ali Vs. Anjum Parvez), under Section 420 IPC, Police Station-Pakbada, District-Moradabad.

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Brief facts of the case are that, according to the applicants they had purchased two flats from one M/s. Parsavnath Builder. They had obtained bank loan for purchasing said flats. Loan was obtained in the year 2009, but due to certain financial crisis, they could not re-pay the loan and, therefore, had approached the complainant, who is a property dealer and who was instrumental in getting them the said property.

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It is submitted by Sri Mohit Singh, counsel for the applicants that said property dealer/complainant in a cunning and conniving manner in the name of settlement of bank dues deposited Rs.15,00,000/-(fifteen lakhs), which were, in fact, drawn form the account of nephew of the present applicants namely, Iqbal Haseeb and deposited in the bank, but

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fraudulently complainant had filled the deposit slip in his name and on the basis of such deposit slip, he started claiming ownership of the property and started pressing the applicants to get the name of the complainant transferred in the records of the Builder with the help of the Builder. It is submitted that complainant was only a facilitator in arriving at a settlement with the bank. Complainant did not pay a single penny and, therefore, on two occasions, police filed final report recommending closure of the case, but in Criminal Court, this order of closure of case was set aside and in the first instance, the learned Magistrate directed for registration of case as a complaint case. Against this, revision was filed; matter was remanded to the Magistrate; Magistrate maintained his order, thereafter, again revision was filed, which was dismissed against which, complainant had approached this High Court. On the directions of the High Court, matter was remanded to the Magistrate who has directly issued summons against the present applicants.

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Applicants are aggrieved of this order of summoning and submits that this order of summoning is contrary to the facts available on record, inasmuch as, a broker is allowed to take advantage of certain fraudulent documentation in the form and shape of a bank deposit slip and has lodged a false and frivolous case.

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It has come on record that, in fact, High Court vide order dated 06.03.2017 in Application U/S 482 No.6928 of 2017 had set aside the orders passed by the court below i.e. the court of the Magistrate and the revisional court treating the case to be a complaint case and had remanded the matter to the learned Magistrate to consider the submissions of the applicants/complainant in the light of the order dated

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27.08.2015 as also protest petition filed against the final report and had directed the Magistrate to pass an appropriate order after giving due opportunity of hearing to the complainant as required under the law within a period of two months from the date of receipt of a certified copy of this order.

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After getting orders from the High Court learned Chief Judicial Magistrate, Moradabad vide order dated 15.05.2017, which is also one of the impugned orders in this application decided the protest petition and held that prima facie a case is made out against Anjum Parvez, Smt. Nilofar Anjum and Iqbal Haseeb under Section 420 IPC. It however exonerated Rajesh Jain and accordingly disposed off protest petition.

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Against this order passed by the learned Chief Judicial Magistrate, Moradabad, Criminal Revision was filed before the learned District and Sessions Judge, Moradabad on the ground that prima facie no ingredients to constitute an offence under Section 420 IPC are made out and the flats in question were booked by revisionist nos.1 and 2 in their names and, therefore, there was no violation of any provisions of law by the revisionist.

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Learned Revisional Court vide order dated 27.02.2020 noted a fact that for the flat Nos.B-214 and B-215, present applicants had authorized the complainant to enter into 'one time settlement' (O.T.S.) with the Bank.

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It was also agreed that after O.T.S., said flats shall be mutated in the name of the complainant, but after initiation of mutation proceedings in the name of the complainant, the present applicants raised objection asking the Director of the Builder Company to not to proceed with mutation proceedings.

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Iqbal Haseeb had also moved an application to Parsavnath Developer Ltd. asking them to transfer said flat in his name and had also requested to not to transfer said flats in the name of the complainant.

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An agreement to sell is available on record, which is not disputed by the learned counsel for the applicants. Therefore, when all these documents namely letter of authorization for 'one time settlement', initial authorization for mutation in the name of the complainant and, thereafter, letters causing obstruction in mutation, are such circumstances, which have been taken to constitute an offence of cheating as described under Section 415 of IPC, which is punishable under Section 420 IPC and, therefore, taking all the attendant circumstances into consideration, revisional court dismissed the revision application moved by the present applicants against the order taking cognizance and summoning against the present applicants.

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In my opinion, perusal of the record and the submissions made by Sri Mohit Singh, learned counsel for the applicants indicate towards a vide gap in the pleadings and the documentary evidence, which is prima facie available on record.

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As per Sri Mohit Singh, counsel for the applicants, case of the applicants is that, they had not authorized the complainant for 'one time settlement'. Complainant had accompanied Iqbal Haseeb, nephew of the applicants and, in fact, money was deposited by Iqbal Haseeb and not by the complainant.

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However, there is no explanation as to the fact that if money was paid by Iqbal Haseeb, then what was the occasion for the applicants to enter into an agreement to sell with the

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complainant and why they had initially authorized the complainant to get mutation of the said flats in his name through the Builder and what transpired, thereafter that made them to change their mind and raise objections in regard to mutation to be carried out in favour of the complainant and subsequently getting another objection filed in the hands of their nephew, Iqbal Haseeb not only objecting to the mutation in favour of the complainant but also seeking mutation in the name of Iqbal Haseeb.

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At this stage, Sri Mohit Singh, counsel for the applicants submits that the applicants had filed objections as complainant, Irfan had not paid any sale consideration.

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These pleas which have been raised by Sri Mohit Singh are matter of inquiry during trial. It will reveal the extent of culpability of the parties and whether a civil transaction was sought to be given a criminal colour by the complainant or that complainant is actually a victim of cheating in the hands of the accused persons. These issues on the basis of available documentary evidence cannot be decided either at the stage of summoning or in summary jurisdiction of this Court to be exercised under Section 482 Cr.P.C, therefore, in my opinion, impugned orders of summoning and the subsequent order passed by the revisional court dismissing the revision filed by the applicants cannot be faulted with, especially when they all are read in terms of the earlier revisional order passed by the revisional court at the instance of the complainant, which was decided on 27.08.2015 and, thereafter, subsequent order of the High Court dated 06.03.2017.

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It is settled principle of law that at the time of the summoning, court concerned is only required to see existence of prima facie case against the accused, it is not required to sift

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the evidence so to judge the culpability of the accused to the extent of their conviction. When tested on this touchstone, there is no error apparent in the impugned orders calling for any interference, therefore, Application fails and is dismissed.

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Order Date :- 1.9.2021 Ashutosh

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Digitally signed by Justice Vivek Agarwal Date: 2021.09.02 11:00:43 IST Reason: Document Owner Location: High Court of Judicature at Allahabad

Anjum Parvez v. State of U.P.

Case brief

What is this about?

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Anjum Parvez v. State of U.P.

Case brief

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