Dismissed

Surendra Pal Singh @ Bhala Singh and 2 Others v. State of U.P. and Another

Allahabad HC12 Sept 2022A482/23231/2022

Case brief

AI extract

What is this about?

The High Court held that a Section 482 Cr.P.C. petition seeking quashing of proceedings in a land purchase dispute was not maintainable. The Court found prima facie elements of cheating and maintained that civil remedies remained available to the applicant.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed. Liberty granted to move discharge application and bail application.

Surendra Pal Singh @ Bhala Singh and 2 Others Vs State of… — Quashing and FIR | Allahabad HC (2022)

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Court No. - 90/In Chamber

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Case :- APPLICATION U/S 482 No. - 23231 of 2022

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Applicant :- Surendra Pal Singh @ Bhala Singh And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Javed Raza Counsel for Opposite Party :- G.A.

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Hon'ble Ram Manohar Narayan Mishra,J.

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Heard learned counsel for the applicant and learned A.G.A.

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The present 482 Cr.P.C. petition has been filed for quashing the charge-sheet dated 23.08.2019 as well as summoning order dated 27.09.2019 passed by A.C.J. (J.D.), court no. 3, Pilibhit as well as entire proceedings of Criminal Case No. 751 of 2019 (State Vs. Surendra Pal Singh and others), arising out of Case Crime no. 109 of 2019, under Sections 406, 420, 504, 506, 452 I.P.C. Police Station Neuriya, District Pilibhit, pending before learned A.C.J. (J.D.) Pilibhit and further prayed for staying proceeding of the aforesaid case till disposal of the application.

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There are two disputes involved in the present; therefore, it would be appropriate to mention the facts of the case, which are as follows:

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FIR in the present case was lodged at the instance of opposite party no. 2 Shishendra Shekhar Mandal, resident of Joshi Colony, Pilibhit, U.P., against accused persons Surendra Pal Singh and others, on the report dated 29.05.2019, wherein, it is stated that the informant is resident of Joshi Colony, Pilibhit, U.P. He had negotiated to purchase land belonging to accused Surendra Pal Singh, who is resident of village Dhaki, District Udhamsingh Nagar, Uttrakhand for Rs. 27 lakhs; out of which, Rs. 09 lakh were paid by the informant to the accused before witnesses Amar Adhikari and Sri Vikaswala; District Magistrate, Udhamsingh Nagar has given permission for execution of sale deed by 13.06.2018; however, no sale deed was executed by accused Surendra Pal Singh @ Bhola Singh after frequent reminder then after expiry of period for execution of sale deed, the informant demanded his money back, to which, accused Surendra Pal accompanied of his brother-in-law and his younger brother came at the house of informant and abused and threatened him with life and also stated that he will not refund his money and committed house trespass; the informant came to know that accused has also taken advance money from some other persons for sale of land in question and has also taken loan on said land, therefore, accused has

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committed offence of fraud against the informant.

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Learned counsel for the applicant submitted that in agreement to sell, place of execution is shown as Khatima, which lies in district Udhamsingh Nagar, Uttrakhand and the land is also lying in that district; cause of action arises in district Udhamsingh Nagar, but FIR has wrongly been registered at P.S. Neoria, District Pilibhit, U.P.; a date was fixed for execution of sale deed on 6.6.2019, but prior to expiry of that period, the informant lodged the present FIR; dispute between the parties is essentially of civil nature, which has been given a colour of criminal prosecution by the informant with a view to harass and blackmail the applicants; the investigation by the police has also been conducted in perfunctory manner without taking into consideration to the facts of the case; I.O. has wrongly submitted charge-sheet against three accused persons before the court without any rhyme and reason.

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Learned AGA submitted that case is pending before the court of A.C.J. (J.D.) Pilibhit, wherein, warrants have been issued against the applicants as they are not appearing before the court so far; the remedy of suit for specific performance for breach of contract is available with the applicants, but without availing civil remedy in legal manner, present criminal case has been initiated; prima facie offence is made out against the applicants on the basis of prosecution version in present case.

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On perusal of contents of FIR and the case diary as filed with petition, it appears that agreement to sell was executed at Khatima, district Udhamsingh Nagar, wherein, limit for execution of sale deed is shown as 6.6.2019; however, in investigation, I.O. has stated that informant has given photocopy of permission of the District Magistrate, Udhamsingh Nagar regarding execution of sale deed and he had visited the office of the District Magistrate and got said copy of permission verified by the Land Revenue Officer of office of District Magistrate and recorded statement of witnesses to the incident regarding under Sections 504, 506 IPC; after being not executed the said agreement to sell, FIR was lodged for intentionally insulting, criminal intimidation and house trespass against the applicants; agreement to sell is said to be registered in FIR.

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Learned counsel for the applicants cited judgement of Hon'ble Apex Court in Randheer Singh vs. State of U.P. and others, 2021 Supreme (SC) 664 and Syed Yaseer Ibrahim vs. State of U.P. and another in Criminal Appeal No. 295 of 2022 decided on 28.02.2022.

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This Court has perused the said judgement of Hon'ble Apex Court in Syed Yaseer Ibrahim (supra), wherein, prosecution case is that in pursuance of a Power of Attorney executed by Wasif, second respondent visited the disputed property and found that certain work of demolition was being carried out; the applicant has committed offence of Section 420 IPC and three other accused named in FIR alleged to have committed offence of Sections 323, 504, 506 IPC; charge-sheet was filed after investigation in the case against accused, which was challenged by way of application u/s 482 Cr.P.C. before Allahabad High Court in which, the learned Single Judge has dismissed the petition on the ground that disputed question of facts arises, could not be adjudicated in proceedings under Section 482 Cr.P.C.

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Hon'ble Apex Court allowed the appeal and set aside the impugned order passed by learned Single Judge of High Court and quashed the charge-sheet filed in the case, with the observation that neither FIR nor charge-sheet contains any reference to the essential requirements underlying Section 420; the execution of a sale deed, during the pendency of the suit, may attract the doctrine of lis pendens, but from reading the charge-sheet as it stands, it is evident that there is no element of criminality, which can stand attracted in a matter which essentially involves a civil dispute between the applicant and the respondent.

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In above case, a civil suit is pending between the parties with regard to property in question and FIR was lodged by second respondent claiming as holder of special Power of Attorney purportedly executed by plaintiff in the suit.

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In second judgement of Randheer Singh (supra) , the Hon'ble Apex Court, placing reliance on Mohd Irbrahim and others vs. State of Bihar, (2009) 8 SCC 751 and other judgements, cited therein, observed in view of the facts and circumstances of the case, it appears that criminal proceedings are being taken recourse to as weapon of harassment against purchaser; Hon'ble Apex Court has held that the High Court has to see whether the dispute of a civil nature has been given colour of criminal offence; in such a situation, the High court should not hesitate to quash the criminal proceedings as held in Paramjeet Batra vs. State of Uttrakhand (2013) 11 SCC 673, Hon'ble Apex Court allowed the appeal against the accused applicant against the judgement of this High Court.

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In Paramjeet Batra , it is held that a complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute, which is essentially of a civil

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nature, is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.

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In the instant case, this is not a case that informant/complainant has taken recourse to civil remedy available to him with regard to said agreement to sell.

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From perusal of the FIR, it appears that ground available to the applicants is that even after accused Surendra Pal Sing failed to execute sale deed of property within prescribed limit given in the permission letter of District Magistrate and did not refund his money, paid to said accused at the time of agreement to sell and finally denied to pay that amount and misbehaved, abused, threatened by accused accompanied of his relatives-co-accused.

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The facts of the present case are substantially different as compare to the facts of the cases decided by Hon'bel Apex Court cited as above.

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So far as legal territorial jurisdiction of the case is concerned, the incident of house trespass, intentional insult and criminal intimidation, which are attributed in this case are stated to have happened in jurisdiction of District Pilibhit and agreement to sell is stated to have registered at Uttrakhand where property is lying; said issue of territorial jurisdiction is liable to be decided on the basis of matter on record in the light of provision contained in chapter 13 of Cr.P.C. Accused has not denied to have received said earnest money Rs. 09 lakhs from the informant and the accused applicant, in the present case, has also not said that he is ready to refund the earnest money to the informant.

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In the present case, if the accused applicant did not want to sell said property to the opposite party no. 2, he should not have received of Rs. 09 lakhs or should have taken every efforts to refund amount to the informant, therefore, it cannot be said at this stage in proceeding under Section 482 Cr.P.C. that offence of cheating is not made out against the accused applicant as defined under the head of cheating under Section 420 IPC, prima facie.

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In such circumstances, I consider it would not be appropriate to quash the proceeding under inherent jurisdiction of this court; the application is liable to be dismissed.

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The application is accordingly dismissed.

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However, the applicants have got a right to seek discharge under Section 239 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all legal and factual submissions in the said discharge application before the Trial Court, which is without being influenced by observations made in the present case by this Court expected to decide the same in accordance with law.

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It is further observed that in case the applicants have not already enlarged on bail in this case by the court below, they will have a liberty to appear before the court concerned within four weeks from today and move appropriate bail application, their bail application be decided in view the guidelines as laid down by the Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and Another, reported in (2021) 10 SCC 773.

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For a period of four weeks from today, no coercive action shall be taken against the applicants.

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Order Date :- 12.9.2022 Dhirendra/

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Digitally signed by DHIRENDRA KUMAR Date: 2022.09.21 12:47:26 IST Reason: Location: High Court of Judicature at Allahabad

Surendra Pal Singh @ Bhala Singh and 2 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Surendra Pal Singh @ Bhala Singh and 2 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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