Sunday, June 4, 2023

Allahabad HC quashes property fraud case

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The Allahabad High Court has quashed the proceedings in a case of fraud pending in the Court of the Chief Metropolitan Magistrate, Kanpur Nagar, and said that the element of intention will only be determined once the document is declared to be forged or declared to be void ab-initio on the ground of fraud.

A single-judge bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application under Section 482 filed by Akhilesh Kumar Gupta and Another.

The Court observed that to what extent the “process of law” could be “abused” that the criminal proceedings exfacie became vexatious and oppressive and facts of the case are glaring examples of it.

It is a legal battle among advocates of a good standing at District Court, Kanpur. Both the applicant/accused as well as opposite party No 2/complainant are advocates.

The facts further unfolds that the Lawyers’ Association, Kanpur Nagar through its Secretary, filed a civil suit bearing against some advocates and private persons including one Smt Renu Nigam to declare an agreement to sale dated 26.03.2008 being void ab initio on for being fraud.

The said suit is still pending. The applicant No 1 was an advocate for the Association, however, on a certain dispute, he was later on discharged. An FIR was lodged by one advocate on somewhat similar facts wherein opposite party No2/complainant herein was also an accused.

Further facts are that the complainant posted a letter dated 05.09.2019 by a speed post addressed to the Senior Superintendent of Police, Kanpur Nagar that his neighbour one Renu Nigam in connivance with other persons has filed certain documents in the above referred suit, therefore, inquiry be conducted and criminal action be taken against her.

No further proceedings on the said application are placed on record except Renu Nigam submitted duly sworn affidavit dated 10.12.2019 addressed to the ADG, Kanpur that the applicant No 1 herein had committed forgery and submitted documents in the above referred suit without her consent. Similarly, Renu Nigam also filed an affidavit somewhat on similar averments/allegations duly sworn on 24.02.2021 in the civil suit.

There is nothing on record how the complainant got possession of the said affidavit submitted before ADG, Kanpur and on basis of said affidavit, the FIR dated 30.12.2020 was lodged against applicant No 1 and Renu Nigam for committing offence under Sections 420, 467, 468, 471 and 120-B IPC alleging that the applicant No 1 and Renu Nigam hatched conspiracy and prepared forged document in order to grab the property in question.

The allegations made by Renu Nigam which are relied upon by the complainant/opposite party No 2 are still subject matter of the suit and only on the basis of said document, the FIR was lodged. The police machinery investigated the case and came to a conclusion that a case was made out against applicant No1 for committing offence under Sections 420, 467, 468, 471, 120-B and 384 IPC, and no evidence was found against Renu Nigam and therefore she was exonerated.

However, the allegations were found to be true against one other advocate (applicant No 2) for committing the said offences, accordingly, charge sheet was submitted and cognizance was taken.

In these circumstances, the applicants are before the Court challenging the FIR, charge sheet summoning order and entire proceedings arising out of Case under Sections 420, 467, 468, 471, 120-B and 384 IPC, Police Station Kotwali, District Kanpur Nagar.

Vishnu Prakash Srivastava, counsel for applicants, has put forward the case of the applicants that a civil dispute has been given a dark and bright colour of a criminal offence. The complainant has already been accused of committing forgery and with malafide intention, the applicant No 1 was discharged from being advocate from the Association in the above referred suit. Initially Renu Nigam was not even a party to the suit but later on by handwriting on the suit she was made party.

Counsel for applicants said Renu Nigam has submitted an affidavit which still has to be scrutinized and if necessary subjected to cross examination during the suit proceedings however only on basis of the said document, an FIR was lodged and unfair investigation was conducted and despite no material to support the allegations, a charge sheet was filed against the applicants. A document which still has to be declared being forged, the criminal proceedings have pre-determined it to be a forged document and in the case, no forgery or cheating was committed.

Consequently, no offence under Section 384 CrPC can be made out as there was no dishonestly or inducement to deliver any valuable property. The elements of conspiracy are also completely absent. The proceedings are malicious and the ingredients of the offence are prima-facie not made out, therefore, the prayers of the application be allowed.

Per contra, Chandan Agarwal, AGA for the State, and Vipul Pandey, counsel for opposite party No 2/complainant, have supported the investigation that the applicants being committed cheating and forgery and thus induced to deliver valuable security, therefore, the offences of cheating, forgery and extortion are prima-facie made out.

Counsel further submitted that since the prima-facie case was made out, therefore, the circumstance does not warrant any interference under inherent jurisdiction.

The Court said,

Undisputedly, the question of validity of agreement to sale of the property is sub-judice before the Civil Court wherein contrary stands have been taken by the parties by way of filing an affidavit and the suit is still pending, therefore, at this stage, to arrive at a conclusion that any forgery had taken place for the purpose of execution of sale deed would not be a correct approach.

The police machinery has acted only on the basis of an application of complainant and affidavit of Renu Nigam alleging allegations against the applicant No1 only. A similar affidavit has also been filed in the suit proceedings. The documents are still to be scrutinized before the Civil Court, therefore, at this stage, the police authorities ought to have kept constraint not to proceed with the investigation as there was no evidence that the documents in question were in fact forged and the element of deceit was present.

The Court held,

The Court further proceeds to consider whether the ingredients of the alleged offence are prima-facie made out or not. Sections 480, 420 IPC (Cheating and dishonestly induces a person to deliver the property) pre-supposes cheating and thereby dishonestly inducing the person deceived to deliver any property. Such intention would only be satisfied if it is concluded that the ‘sale deed’ is a forged document or executed with fraud. However, the said issue is still pending in the civil suit. Therefore, at this stage, the element of cheating or dishonesty cannot be held to be present.

Similarly the allegations of forgery i.e. making of any false document with intent to cause damage to any person or to support any claim or title is also one of the subject matter in the civil proceedings and only on the basis of an affidavit submitted by Renu Nigam who is also a party respondent in the suit and also filed her reply thereto cannot be a basis to initiate criminal proceedings when the documents are still to be scrutinized. The element of intention will only be determined once the document is declared to be forged or declared to be void ab-initio on the ground of fraud.

“The outcome of the above discussion is that criminal proceedings initiated against the applicants are a glaring example of ‘abuse of process of law’ where a dispute of civil nature has been given colour of criminal offence and further prima facie essential ingredients of alleged offence are not present and therefore, the criminal proceedings itself became vexatious and oppressive,” the Court observed while allowing the application.

“In view of above, the proceedings of Case No 122095 of 2021 (State vs Akhilesh Kumar Gupta and another) in Case Crime No 0356 of 2020 u/s 420, 467, 468, 471, 120-B and 384 IPC, Police Station- Kotwali, District- Kanpur Nagar, pending in the Court of the Chief Metropolitan Magistrate, Kanpur Nagar are hereby quashed,” the Court ordered.

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