Narendra Kumar Singh Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:126526 Reserved on 01.06.2023 Delivered on 14.06.2023

Case :- APPLICATION U/S 482 No. - 32481 of 2016

Applicant :- Narendra Kumar Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ankit Shukla,Anoop Trivedi,Ansar Ahmad,Virendra Pratap Pal Counsel for Opposite Party :- G.A.,Rahul Mishra,Sanjay Mishra

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Hon'ble Siddharth,J.

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Heard Sri Ashutosh Sharma, learned counsel for the applicant; learned AGA for opposite party no.1; Sri Sanjay Mishra, learned counsel for opposite party no.2 and perused the material placed on record.

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This application under Section 482 Cr.P.C. has been filed praying for quashing the charge-sheet dated 27.5.2016 and further proceedings in Case No. 33272 of 2016 in Case Crime No. 203 of 2014, under Sections 420, 467, 468, 471 and 448, pending in the court of Additional Chief Metropolitan Magistrate, Court no.2/Additional Judge, Small Causes Court, Court no.2, Kanpur Nagar.

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The brief facts of the case are that the mother of opposite party no.2 executed an agreement to sell in favour of the applicant on 31.5.2004 regarding House No.133/325, Anandpuri, Kanpur Nagar, for sale consideration of Rs.14 lacs. An amount of Rs.7 lacs was allegedly received by the mother of opposite party no.2 on 31.5.2004 as advance such consideration. The applicant claims that possession of the house was given to the applicant on the very date of execution of the agreement to sell. In the year 2009, one Deshraj Singh, at the instance of the mother of the opposite party no.2 tried to dispossess the applicant from the house in dispute and hence the applicant instituted an Original Suit No. 1129 of 2008 before the civil court, but it was finally dismissed on 27.4.2009. The applicant filed an appeal against the dismissal of the above-noted suit and got an order of injunction from the appellate court. The opposite party no.2 sent a complaint to the Chief Minister of the State alleging grabbing of her house and on the basis of the same FIR was lodged against the applicant as Case Crime No. 203 of 2014. After recording the statement of the mother of opposite party no.2 on Skype from

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America, where she is residing, charge-sheet was submitted against the applicant.

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Learned counsel for the applicant has submitted that despite pendency of the aforesaid Civil Appeal No. 63 of 2009 arising out of Original Suit No. 1129 of 2008, charge-sheet was submitted, when dispute between the parties is purely of civil nature. The applicant is entitled to protect his possession in view of Section 53 of Transfer of Property Act and therefore, the impugned charge-sheet and proceedings deserve to be quashed.

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Learned counsel for the applicant has relied upon the following judgments in support of his contentions:-

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I. Mitesh Kumar J. Sha Vs. The State of Karnataka and others, Criminal Appal No.1285 of 2021.

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ii. Raghvendra Singh and three others Vs. State of U.P. and another, 2022 0 Supreme (All) 1045

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iii. Inder Mohan Goswami and another Vs. State of Uttaranchal and others, Appeal (Crl.) 1392 of 2007

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iv. R. Nagender Yadav Vs. State of Telangana and another, Criminal Appeal No. 2290 of 2022

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v. Govind Prasad Kejriwal Vs. State of Bihar and Another, Criminal Appeal No.168 of 2020

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Learned counsel for opposite party no.2 has vehemently opposed the submission made by learned counsel for the applicant and has submitted that criminal prosecution cannot be thwarted merely because civil proceedings are also pending. He has relied upon the judgement of Apex Court in the Case of Rajesh Bajaj Vs. State NCT of Delhi and others, (1999) 3 SCC 259 and Trisuns Chemical Industry Vs. Rajesh Agrawal and others, (1999) 8 SCC 686 and has submitted that even if there is an arbitration clause in the contract regarding supply of goods and supplier alleges commission of offence of cheating in supply of inferior goods criminal prosecution under Sections 415 and 420 IPC is maintainable.

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Learned AGA has opposed the contentions made by learned counsel for the applicant and has submitted that clear case of cheating, fabrication of

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valuable security, etc., is made out against the applicant and charge-sheet has been submitted after due investigation by the Investigating Officer. The applicant has grabbed the property in dispute on the basis of fabricated agreement to sell. The opposite party no.2 and her mother are residing outside the country and therefore, their property has been grabbed by the applicant. He does not deserves any latitude from this Court.

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Before proceedings with the legal issues involved in this case, this Court deems appropriate to consider factual matrix of this case. The crux of the dispute is the disputed agreement to sell dated 31.5.2004. A perusal of the agreement to sell shows that the first party, Smt. Raj Kumari Shah, mother of the opposite party no.2, had taken Rs.7 lacs as advance sale consideration from the applicant and she had undertaken to execute the sale deed after taking the balance sale consideration of Rs.7 lacs within six months and in case she does not executes the same, the second party, applicant shall have right to get the sale deed executed through Court. There is nothing on record to indicate that any suit for specific performance of contract was ever instituted by the applicant to get the sale deed registered after expiry of six months period from the date of agreement, i.e., 31.5.2004. The Original Suit No. 1129 has been instituted by the applicant in the year 2008 praying for a decree of injunction simplicitor. The aforesaid suit was dismissed by the trial court on 27.4.2009. The court below found that the photocopy of unregistered agreement to sale was filed alongwith the suit, which the court below found to be inadmissible in evidence and therefore the suit was rightly dismissed. Thereafter the applicant claims to have preferred a civil appeal and got the order of status quo in his favour.

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It is clear that the applicant has entered into the possession purportedly on the basis of the alleged agreement to sell dated 31.5.2004 in property in dispute. He has not made any effort to get any sale deed executed in his favour from the mother of opposite party no.2. The original suit has clearly become barred by time and also barred by Order 2, Rule 2 C.P.C. since the earlier suit the applicant did not pleaded for any decree of specific performance of contract to be passed in his favour and against the mother of opposite party no.2. The disputed agreement to sell has lost its relevance and legal effect and the applicant is clearly in unauthorized occupation of the property in dispute.

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The case laws relied upon by the learned counsel for the applicant in the case of Mitesh Kumar J. Sha (Supra) and other cases are distinguishable on facts. From the facts of the present case, it is clear that in the garb of of filing a suit on the basis of inadmissible document and getting an order of status quo in appeal after dismissal of the suit, the criminal proceedings are sought to be quashed. The conduct of the applicant clearly shows that he is using the pendency of civil proceedings as a cloak to protect his illegal possession over the property in dispute. It is not a fit case for quashing the charge-sheet and the proceedings of the case.

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11. The application is devoid of merit and is dismissed.

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