Dismissed

Smt. Mohitlata Sunda and Another v. State of U.P. and Another

Allahabad HC27 Feb 2023A482/32564/2022

Case brief

AI extract

What is this about?

The applicant filed an application under Section 482 Cr.P.C. to quash summons and proceedings alleging cheating, citing contradictions in the complaint and lack of territorial jurisdiction. The court held that contentions relate to disputed facts and quashing is not justified unless allegations are frivolous or non-offence.

What did the court decide?

The prayer for quashing the entire proceedings of the complaint case is refused; the application is rejected.

Smt. Mohitlata Sunda and Another Vs State of U.P. and… — Cheating and Forgery | Allahabad HC (2023)

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Court No. - 45

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Case :- APPLICATION U/S 482 No. - 32564 of 2022

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Applicant :- Smt. Mohitlata Sunda And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rohit Nandan Shukla,Jeetendra Kumar Yadav

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Counsel for Opposite Party :- G.A.,Swetashwa Agarwal

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Samrendra Kumar, Advocate holding brief of Mr. Jeetendra Kumar Yadav, learned counsel for the applicant, Mr. Swetashwa Agarwal, learned counsel for the opposite party and Mr. Amit Singh Chauhan, learned AGA for the State.

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The present 482 Cr.P.C. application has been filed to quash the entire proceedings as well as impugned summoning order dated 04.08.2018 passed by the learned Additional Chief Judicial Magistrate, Court No. 8, Meerut in Complaint Case No. 4380 of 2017 (Sardar Paramjeet Vs. Mohitlata & another) u/s 406 IPC, pending before the court of learned Additional Chief Judicial Magistrate, Court No.8, Meerut.

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Brief facts of the case is that a complaint has been lodged by opposite party no. 2 against the applicants with the allegation that the applicants had approached opposite party no. 2 as they were interested in selling the property bearing no. W 34 measuring area 964 Square Yards situated at Greater Kailash Part-II. On 02.07.2014, the applicants came to the residence of opposite party no. 2 and told that they were interested to sell the aforesaid plot for consideration of Rs. 16 crores and applicants had requested to pay Rs. 1 crore as advance for execution of sale deed in favour of opposite party no. 2 for the aforesaid property in question. It has been further alleged that the opposite party no. 2 came to know that for the aforesaid property in question an agreement to sale has already been executed by the applicant in favour of Vijay Kumar Gupta on 04.01.2014. When the aforesaid was pointed out to the applicants by opposite party no. 2, they assured that they will cancel the aforesaid agreement to sale within three days, therefore, the opposite party no. 2 on the said assurance paid Rs. 40 Lacs in the presence of Gurvinder Singh. In spite of assurance the aforesaid agreement to sale was not canceled nor the money given by opposite party no. 2 was returned, therefore a notice dated 04.05.2017 was sent to the applicants but the same was returned in

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collusion with the postman. Thus the present complaint was filed for dishonest intention of the applicants who cheated and breached the trust of the opposite party no. 2. After recording the statement u/s 200 and 202 Cr.P.C. the applicants have been summoned on 04.08.2018.

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Learned counsel for the applicant has challenged the aforesaid summoning order as well as proceedings on the ground that the complainant has given a statement on oath that payment has been done in Meerut and at another point he is saying that payment has been given in Delhi, which itself contradictory. He further submits that the concerned court does not have territorial jurisdiction to hear the matter as the payment has not been made at Meerut. He next submits that the offence under relevant sections are not made out. The applicants have not breached the trust of opposite party no. 2, it is the opposite party no. 2 who has given false affidavits before the court concerned. He, therefore, submits that the summoning order as well as entire proceedings be quashed by this Court as the same is an abuse process of Court.

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Learned A.G.A. for the State as well as learned counsel for the complainant on the other hand has opposed the submissions made by the learned counsel for the applicants by submitting that the perusal of the complaint as well as summoning order goes to show that the opposite party no. 2 proved the case beyond doubt that Rs. 40 Lacs was given to the applicants as advance for the purpose of execution of alleged property in question, however the applicants have committed breach of trust, not canceling the agreement to sale and firstly he concealed the fact that they had executed a sale deed to some other person and later even after assurance the aforesaid agreement to sale was not canceled and money was taken by them from the opposite party no. 2. He further submits that from the complaint itself it is clear that the money has been given at Meerut because the applicants had gone to Meerut on 02.07.2014 at the residence of opposite party no. 2 for expressing their wish to sale their property. Even otherwise the summoning order is of the year 2018 and non-bailable warrants has already been issued against the applicants but no plausible explanation has been given by learned counsel for the applicants as to why the applicants have approached this Court after so much delay. He next submits that all the contentions raised by the applicant's counsel relate to disputed questions of fact. From perusal of the records, prima facie, it can not be said at this stage that no offence has been committed by the applicant.

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I have considered the submissions made by the learned counsel for

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the parties and have gone through the records of the present application.

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All the contentions raised by the learned counsel for the applicant relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details, which have been touched upon by learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.

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In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Court can not look into the fact as to whether the allegations in the complaint are true or untrue and the same has to be decided by the trial court, thus no interference is required in such cases as the present one. Even though, the inherent power of the High Court under Section 482 Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C. is not to be exercised for the asking.

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The aforesaid has been held by the Apex Court in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. reported in 1992 Suppl.(1) SCC 335. The relevant paragraph of the aforesaid judgment reads as under:-

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"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

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The following observations has also been made by the Apex Court in the latest judgment of Ramveer Upadhyay & another vs. State of U.P. & another reported in 2022 Livelaw (SC) 396. Paragraph no.39 of the aforesaid judgment reads as under:-

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"39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of

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the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Attrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence............."

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In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal reported in 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge sheet.

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Considering the facts and circumstances of the case, this Court finds that the present matter does not fall in any of the categories recognized by the Apex Court, which might justify interference by this Court in order to quash the proceedings. Therefore, the prayer for quashing the entire proceedings of aforesaid complaint case is refused as I do not see any abuse of the court's process either.

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The present application lacks merit and is, accordingly, rejected .

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Order Date :- 27.2.2023 Arti

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Digitally signed by :- ARTI SHARMA High Court of Judicature at Allahabad

Smt. Mohitlata Sunda and Another v. State of U.P. and Another

Case brief

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Smt. Mohitlata Sunda and Another v. State of U.P. and Another

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