Dismissed¶104

Kapil Shankar v. Som Nath Alias Swami Nath Shankar and Another

Himachal Pradesh HC4 Apr 2025CRMMO/1156/2024

Case brief

AI extract

What is this about?

Himachal Pradesh HC (Shimla), Rakesh Kainthla J., decided 04.04.2025 — Section 156(3) CrPC application for FIR refused; inherent power under Section 528 BNSS/Section 482 CrPC after dismissal of first revision (grave miscarriage of justice standard); unregistered family agreement dated 23.09.1987 inadmissible/no advantage; sale by co-owner not cheating against co-sharers, only purchaser may complain; dispute held civil, remedy is civil suit. Relied on Krishnan v. Krishnaveni, Rajinder Prasad v. Bashir, Kailash Verma, Shakuntala Devi, Surender Kumar Jain; applied Shyam Narayan Prasad and Jit Vinayak Arolkar. Petition dismissed.

What did the court decide?

No advantage can be derived from the unregistered agreement relied on by the complainant; an unregistered agreement cannot be used for any purpose. ¶80

Kapil Shankar Vs Som Nath Alias Swami Nath Shankar and Another — Himachal Pradesh HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶104

Issue for consideration

Whether the High Court could interfere under its inherent jurisdiction (Section 528 BNSS / Section 482 CrPC) notwithstanding that the complainant's revision against the Trial Court's order had already been dismissed by the learned Revisional Court. +2 more

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Court's answer

While exercising jurisdiction under Section 528 BNSS the Court can rectify a serious miscarriage of justice or breach of a mandatory provision of law; the learned Courts below having taken a reasonable view, no interference was warranted.

¶66-67

Ratio / Principle

No advantage can be derived from the unregistered agreement relied on by the complainant; an unregistered agreement cannot be used for any purpose.

¶80

Key takeaways

Sale of property by a person does not amount to making a misrepresentation to other co-owners and does not amount to fraud; only the purchaser can complain of fraud where property is conveyed without title.ratio¶81
No case of cheating was made out; the dispute between the parties is civil in nature and the complainant's remedy was to file a civil suit rather than apply under Section 156(3) CrPC.ratio¶97-98
No interference is required with the orders of the learned Courts below while exercising the inherent jurisdiction of the Court; accordingly the petition fails and is dismissed.

Detailed headnote1 paragraphs

Criminal miscellaneous petition (Cr. MMO No. 1156 of 2024) under the inherent jurisdiction (Section 528 BNSS corresponding to Section 482 CrPC) by the complainant challenging concurrent dismissal of his application under Section 156(3) CrPC seeking a direction to the SHO to register an FIR against the respondents, who allegedly sold joint ancestral property at Solan despite relinquishing their shares under an unregistered family agreement dated 23.09.1987. Held, dismissing the petition: (i) no advantage can be derived from the unregistered agreement; (ii) sale of property by a person does not amount to misrepresentation or fraud vis-a-vis other co-owners, and only the purchaser can complain of the vendor's cheating; (iii) the dispute is civil in nature and the remedy is a civil suit; the Courts below took a reasonable view and no interference was warranted.

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Neutral Citation No. ( 2025:HHC:9262 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No. 1156 of 2024 Reserved on: 25.03.2025 Date of Decision: 4^th April 2025.

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Kapil Shankar ...Petitioner

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Versus

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Som Nath @ Swami Nath Shankar & ors. ...Respondents

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting? No For the Petitioner : M/s Khem Raj and Anil Shankar, Advocates.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for setting aside the judgment dated 26.04.2023 passed by learned Additional Sessions Judge-1, Solan (Learned Revisional Court), vide which, the order daetd 28.06.2018 passed by learned Judicial Magistrate, First Class, Court No.2, Solan (learned Trial Court) was upheld. ( The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience .)

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Neutral Citation No. ( 2025:HHC:9262 )

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Briefly stated, the facts giving rise to the present petition are that the complainant filed an application/complaint before the learned Trial Court under Section 156 (3) of the Code of Criminal Procedure (Cr.P.C.) for directing the Station House Officer (SHO) to investigate and register an FIR against the accused. It was asserted that the accused persons are the real uncles of the complainant. The property bearing Khata No. 464/441, Khasra No. 212, and Khata No. 465/442, Khasra No. 194, situated at Mohal Lower Bazar, Solan District, Solan, was the joint ancestral property of the accused and the complainant. A partition deed was executed and registered in the office of the Sub-Registrar, Solan, on 05.08.1955. The parties entered into an agreement on 23.09.1987, in which the accused relinquished their share in the property situated at Solan and they acquired half shares of property No. 3821, Galli No. 22, Khasra No. 2064 Block ‘K’ measuring 50 square yards at Arya Samaj Road, Ragharpura, New Delhi, and property No. 4018, Gali No. 33, Khasra No. 3100/2314, Block no. 1 measuring hundred square yards, Ragharpura Karol Bag New Delhi. This agreement was reduced to writing and was signed by all the members of the family, including the accused persons. The accused sold the

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Neutral Citation No. ( 2025:HHC:9262 )

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property in Delhi about a decade ago and made a huge profit from it. They sold the property situated at Solan without any right, title or interest in it. They had already relinquished their shares in the property located at Solan and had acquired a share in the property located at Delhi. The sale deeds executed by the accused are not binding upon the complainant and other cosharers. The accused have been residing in Canada for the last 40 years, and they are not permanent citizens of India. They concealed this fact from the authorities. The accused committed fraud upon all the co-owners by selling the property located at Solan. The complainant served a legal notice upon the accused. He also filed a complaint at Police Station, Solan, and before Superintendent, Police Solan; however, the police failed to take any action; hence, an application was filed before the learned Trial Court to take action against the accused as per the law.

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The learned Trial Court held that the averments in the application disclosed a dispute of a civil nature. A copy of the Jamabandi placed on record showed that the accused and complainant were recorded as co-owners with other persons. The complainant has a remedy of filing a Civil Suit, and the

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Neutral Citation No. ( 2025:HHC:9262 )

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criminal proceedings were not justified. Therefore, the learned Trial Court dismissed the application filed by the complainant.

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Being aggrieved by the judgment passed by the learned Trial court, the complainant filed a revision, which was decided by the learned Additional Sessions Judge, Solan (learned Revisional Court). Learned Revisional Court concurred with the findings recorded by learned Trial Court that the dispute between the parties was civil and the remedy of the complainant was in filing the civil suit rather than applying under Section 156(3) of Cr.P.C. and dismissed the revision preferred by the complainant.

¶21

Being aggrieved by the judgments passed by the learned Courts below, the complainant has filed the present petition asserting that the learned Courts below erred in appreciating the dispute pending before them. The police failed to carry out a proper investigation into the matter. Learned Trial Court dismissed the complainant’s application without any justification. The entries in the revenue record do not confer any title upon a person, and the learned Trial Court erred in relying upon the entries in the Jamabandis to dismiss the complainant’s

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Neutral Citation No. ( 2025:HHC:9262 )

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application. The order passed by learned Trial Court is based upon conjectures and surmises. The learned Additional Sessions Judge had issued warrants of arrest against the accused but failed to secure their presence. The accused also sent a letter to the learned Additional Sessions Judge showing that they were aware of the proceedings pending before the learned Revisional Court. The accused had no right to sell the property located at Solan; therefore, it was prayed that the present petition be allowed, judgments passed by learned courts below be set aside, and a direction be issued to the concerned SHO to investigate the matter; hence the petition.

¶25

I have heard Mr. Khemraj and Mr. Anil Shankar learned counsel for the petitioner/complainant. Mr Anil Shankar, learned counsel for the complainant, submitted that the learned Courts below erred in appreciating the matter pending before them. The accused had sold the property located at Solan, even though they had relinquished their share in it. They sold the property located in Delhi, which was given to them in a family arrangement. This amounted to cheating. The learned Trial Court should have sent the application to the police for investigation, and the application was wrongly

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Neutral Citation No. ( 2025:HHC:9262 )

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dismissed. Hence, he prayed that the present petition be allowed, the order passed by learned Courts below be set aside, and the application be sent to the Police for registration of the FIR.

¶29

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

¶30

The complainant had filed a revision petition before the learned Revisional Court, which was dismissed. It was laid down by the Hon’ble Supreme Court in Krishnan Vs. In Krishnaveni (1997) 4 SCC 241, the High Court can intervene under Section 482 of CrPC (corresponding to Section 528 of BNSS) when there is a grave miscarriage of justice or abuse of the process of the Court. It was observed:

¶31

“10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there

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Neutral Citation No. ( 2025:HHC:9262 )

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is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of a criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed, and public justice can be ensured only when the trial is conducted expeditiously.

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11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10], a three-judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397(2) of the Code. This Court held that the bar on the power of revision was put to facilitate expedient disposal of the cases, but in Section 482, it is provided that nothing in the Code, which would include Section 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions on this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government decided to prosecute the appellant for an offence under Section 500 IPC. After

¶36

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Neutral Citation No. ( 2025:HHC:9262 )

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obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on maintainability, this Court held that the power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code.

¶39

12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92: 1980 SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393) a four-judge Bench per majority had held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In the Rajan Kumar Machananda case [1990 Supp SCC 132: 1990 SCC (Cri) 537], the case related to the release of a truck from attachment, obviously on the filing of an interlocutory application. It was contended that there was a prohibition on the revision by operation of Section 397(2) of the Code. In that context, it was held that it was not revisable under Section 482 in the exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by provisions contained in Section 397(3), the revision is not maintainable. In the Dharampal case [(1993) 1 SCC 435: 1993 SCC (Cri) 333], which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts, in that case, it could be said that the learned Judges would be justified in holding that it was not revisable since it was a prohibitory interim order of attachment covered under

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Neutral Citation No. ( 2025:HHC:9262 )

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Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limaye case [(1977) 4 SCC 551: 1978 SCC (Cri) 10 ] as upheld in V.C. Shukla case [1980 Supp SCC 92: 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and also in view of our observations stated earlier. The ratio in the Deepti case [(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also not apposite to the facts in the present case. To the contrary, in that case, an application for discharge of the accused was filed in the Court of the Magistrate for an offence under Section 498-A IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court, without applying its mind, had discharged the accused. On appeal, this Court, after going through the record, noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498-A IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused, leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate.

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13. The ratio of the Simrikhia case [(1990) 2 SCC 437: 1990 SCC (Cri) 327] has no application to the facts in this case. Therein, on a private complaint filed under Sections 452 and 323 IPC, the Judicial Magistrate, First Class had taken cognizance of the offence. He transferred the case for inquiry under Section 202 of the Code to the SecondClass Magistrate, who, after examining the witnesses,

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Neutral Citation No. ( 2025:HHC:9262 )

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issued a process to the accused. The High Court, exercising the power under Section 482, dismissed the revision. But subsequently, on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case.

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14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for a decision on the merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.” 9. This position was reiterated in Rajinder

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Prasad v. Bashir, (2001) 8 SCC 522 , wherein it was held:

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“…though the power of the High Court under Section 482 of the Code is very wide, the same must be exercised sparingly and cautiously, particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has

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Neutral Citation No. ( 2025:HHC:9262 )

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been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, “Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code.”

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A similar view was taken in Kailash Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571 , and it was held:

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“5. It may also be noticed that this Court in Rajathi v. C. Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118 ] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code, as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is a serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of the law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.”

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Neutral Citation No. ( 2025:HHC:9262 )

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This position was reiterated in Shakuntala Devi v. Chamru Mahto , (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC OnLine SC 292 , wherein it was observed: -

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“24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases, the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482 was not subject to the prohibition under sub-section (3) of Section 397 of the Code and was capable of being invoked in appropriate cases. Mr Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us.

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25. On the factual aspect, the Magistrate came to a finding that the appellants were entitled to possession of the disputed plot. It is true that while making such a declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same.

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26. The question which is now required to be considered is whether the High Court was right in quashing the order passed by the Magistrate, which was confirmed by the Sessions Judge, on the ground that the application made by the appellants under Section 145(6) of the Code was barred firstly by limitation under Article 137 of the Limitation Act and also by virtue of Section 6 of the Specific Relief Act, 1963.

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Delhi High Court also took a similar view in Surender

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Kumar Jain v. State, ILR (2012) 3 Del 99 and held: —

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Neutral Citation No. ( 2025:HHC:9262 )

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“5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court did enjoy inherent power under section 82 (sic) Cr. P.C. as well to entertain petitions even in those cases. But that power was to be exercised sparingly and with great caution, particularly when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved by the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before the Sessions Court. It all depends not only on the facts and circumstances of each case but as on whether the impugned order brought about a situation that is an abuse of the process of the court, there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court i n Madhu Limave v. State of Maharashtra (1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305: AIR 1979 SC 87, Rai Kapoor v. State (Delhi Administration) 1980 Cri LJ 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571 .”

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Therefore, the Court can rectify a serious miscarriage

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of justice or breach of a mandatory provisions of law while exercising the jurisdiction under Section 528 of BNSS.

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Neutral Citation No. ( 2025:HHC:9262 )

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The complainant has relied upon an agreement dated

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23.09.1987, which shows that the parties had agreed to get their shares transferred, mutated and substituted in the record of Municipal Council, Delhi, Municipal Committee, Solan, Delhi Development Authority, revenue or any other Authority based on the agreement or its true copy. It is undisputed that the agreement was not produced before the revenue authorities and this agreement was unregistered.

¶72

It was laid down by the Hon’ble Supreme Court in Shyam Narayan Prasad v. Krishna Prasad (2018) 7 SCC 646: (2018) 3 SCC (Civ) 702: 2018 SCC OnLine SC 648 that an unregistered partition agreement could not be used for any purpose. It was observed at page 654:

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21. In Roshan Singh v. Zile Singh [Roshan Singh v. Zile Singh, AIR 1988 SC 881: (1988) 2 SCR 1106] , this Court was considering the admissibility of an unregistered partition deed. It was held thus: (AIR p. 885, para 9)

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“ 9 . … Section 17(1)( b ) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. … Two propositions must therefore flow:

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( 1 ) A partition may be effected orally, but if it is subsequently reduced into the form of a document and that document purports by itself to effect a division and embodies all the terms of the

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Neutral Citation No. ( 2025:HHC:9262 )

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bargain, it will be necessary to register it. If it is not registered, Section 49 of the Act will prevent it from being admitted in evidence . Secondary evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872.” (emphasis supplied)

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22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself, and as required under Section 91 of the Evidence Act, the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under the law would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. Since Ext. P-2 is an unregistered document; it is inadmissible in evidence, and as such, it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Ext. P-2.”

¶80

Therefore, no advantage can be derived from the unregistered agreement relied on by the complainant.

¶81

It was submitted that the accused committed fraud by selling the property located at Solan. This is not acceptable. The sale of the property by a person does not amount to making a misrepresentation to other co-owners and does not amount to any fraud. Only the purchaser can make a complaint regarding the fraud committed upon him if the property is conveyed without any title. This position was recognized in Jit Vinayak

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Neutral Citation No. ( 2025:HHC:9262 )

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Arolkar v. State of Goa, 2025 SCC OnLine SC 31 wherein it was observed as under:

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“12. It is pertinent to note that the purchasers under the sale deeds have not made any grievance about the sale deeds. In the case of Mohd. Ibrahim v. State of Bihar(2009) 8 SCC 751 , in paragraphs 20 to 23, this Court held thus:

¶86

“20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such a sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case, the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

¶87

It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused because of being the purchaser, or the third, fourth and fifth accused, because of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.

¶88

As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.

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Neutral Citation No. ( 2025:HHC:9262 )

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A clarification

¶92

23. When we say that the execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such a complaint.” (emphasis added)

¶93

12.1 In this case, it is impossible to understand how the appellant deceived the 4^th respondent and how the act of execution of sale deeds by the appellant caused or was likely to cause damage or harm to the 4th respondent in body, mind, reputation or property. The appellant has not purported to execute the sale deeds on behalf of the 4^th respondent. He has not purported to transfer the rights of the 4^th respondent. There is no allegation that the appellant deceived the 4^th respondent to transfer or deliver the subject property.

¶94

13. Taking the complaint as correct, the offence of cheating under Section 415 of IPC was not made out against the appellant….”

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¶96

No other point was urged.

¶97