C482/921/2023 of SAURABH BALYAN Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No.921 of 2023(Under Section 482 of the Cr.P.C)

Saurabh Balyan

….....Applicant

Versus

State of Uttarakhand & another ….….Respondents

With

Criminal Misc. Application No.922 of 2023(Under Section 482 of the Cr.P.C)

Deepshikha

….....Applicant

Versus

State of Uttarakhand & another ….….Respondents

Present:-

Mr. Bhupesh Kandpal, learned counsel for the applicants. Mr. K.S. Rawal, learned A.G.A. for the State.

Mr. Piyush Garg and Mr. Bhuwan Bhatt, learned counsel for respondent no. 2.

Hon’ble Pankaj Purohit, J. (Oral)

Since the summoning order assailed in both these C482 applications is one and the same, hence both are being decided by this common judgment.

2. These C482 applications have been filed by the applicants challenging the summoning/cognizance order dated 24.09.2022, passed by the learned Additional Chief Judicial Magistrate, Dehradun in Criminal Case No.6632 of 2022, State vs. Praveen Goyal & others as well as the entire proceedings of the aforesaid criminal case.

3. Heard learned counsel for the parties.

4. The brief facts of the case giving rise to filing of the present C482 application, are that, on 05.03.2022, First Information Report was lodged by Smt. Meera Goyal-respondent no.2, against the applicants along with other co-accused Ashish Bhargava, Praveen Goyal & Virendra Verma; and, on the basis of this, FIR No. 111 of 2022 has been registered at Police Station Raipur, District Dehradun. The case has been investigated by the police and after investigation, charge-sheet has been submitted against the applicants and other co-accused under Sections 420, 467, 468, 471 & 120B IPC. On the said charge-sheet, co-accused Ashish Bhargava was not charge-sheeted. As per the charge-sheet, he was residing in USA and investigation was kept pending against him. On this charge-sheet, cognizance was taken by the learned Magistrate on 24.09.2022; and, the applicants were directed to be summoned under Sections 420, 467, 468, 471 & 120B IPC. Feeling aggrieved, the applicants are before this Court.

5. The case, as unfolded, from the FIR is that respondent no. 2-Meera Goyal was bequeathed the subject land from her mother Smt. Jagdeeshwari Gupta by way of Will dated 22.03.2004. Smt. Jagdeeshwari Gupta had purchased this land comprised in Khasra No.39/1, (New No.26Ga) situated at Mauza, Brahmmawala Sahastradhara Road, Pargana Kendriya Doon Dehradun admeasuring about 455.24 Sq. Mtrs. from Smt. Pushpa Tandon by way of registered sale deed dated 22.03.2004.

6. The First Information Report was lodged with these averments that on 12.04.2021 some persons on the instruction of Praveen Goyal S/o Shri Chand Goyal came to the property of respondent no. 2 and took measurement of the plot. The security guard engaged by the respondent no.2 gave this information to her. At this information, respondent no.2 went to the plot. The persons informed respondent no.2 thatone Praveen Goyal has informed them that this land belonged to him and his wife and they are intending to purchase the land. They asked the respondent no.2 to vacate the land immediately.Respondent no. 2, in clear terms informed the persons at work that this is the land of respondent no. 2; and, she is owner in possession of this land and there is water and electricity connection of this land, in her name. Later on, on inquiry, it was found that the applicant-Deepshikha, D/o Shri Rajendra Verma acting as power attorney holder of Ashish Bhargava, S/o Late P.N. Bhargava executed two sale deeds in the name of Praveen Goyal and one in the name of applicant-Saurabh Balyan, S/o Suraj Bhan Balyan, R/o 190 Adarsh Nagar Merrut of the sale deed 22.03.2004.7. Respondent no. 2 alleged that the applicant-Deepshikha has fraudulently prepared these three sale deeds and executed it in the name of Praveen Goyal and applicant-Saurabh Balyan by wrongly mentioning the boundaries of the subject land. Respondent no.2 further alleged that these persons hatched conspiracy by executing forged sale deeds for grabbing the land of respondent no. 2. She alleged that by execution of these sale deeds, the offence has been committed.

8. The FIR has been lodged and the same has been investigated. After investigation, the charge-sheet has been submitted as stated above. In the meantime, respondent no. 2 has also instituted an Original Suit No. 447 of 2022, Smt. Meera Goyal vs. Praveen Goyal & others against the applicants. Praveen Goyal, the applicant-Saurabh Balyan and the applicant-Deepshika have been made defendants in the said suit. The suit was for the permanent injunction. On the strength of the sale deed executed in favour of her mother, and Will was executed in favour of respondent no. 2, the relief claimed in this suit was, permanent injunction against the defendants and all persons claiming through or under them restraining them from interfering in any manner, whatsoever in the title, peaceful possession, use and enjoyment of the plaintiff, of the property detailed in the schedule of the sale deed dated 22.3.2004.

9. The learned Senior Civil Judge, Dehradun has been pleased to grant ad interim injunction in favour of respondent no. 2, vide order dated 22.08.2022, by directing the parties to maintain status quo till the next date fixed.

10. Whereas the case of the applicants, as argued before this Court, is that, applicant-Saurabh Balyan is bona fide purchaser of the land. He purchased the land by way of registered sale deed dated 26.09.2020 executed in his favour by power of attorney holder of Shri Ashish Bhargava, S/o Dr. T.N. Bhargava, Deepshikha D/o Rajendra Verma (applicant in connected C482 application). From the schedule attached to both these sale deeds, it appears that the applicant-Saurabh Balyan

has purchased the land comprising in Old Khasra No.39/3, New Khasra No. 26Ka, admeasuring 108.5 Sq. Mtrs. situated at Mauza Brahmmawala Paragana Parwa, Doon, District Dehradun; while, the land which has been claimed by respondent no. 2 is Plot No.39/1, New Khasra No. 26Ga. It is also argued that by giving colours, civil dispute is changed into criminal case.

11. It has been seriously disputed by learned counsel for the applicants, that the sale deeds, by which, mother of respondent no. 2 had purchased the land from Pushpa Tandon does not have the number of the plot as 26Ga rather it is written as 2Ga.

12. This Court examined the sale deed and gone through the contents of the sale deed dated 22.03.2004 as well as the Will executed in favour of respondent no. 2 and found that the Plot No.26Ga is written in many places and it appears that it might be typographical mistake in the deed.

13. From perusal of the material available on record, it appears that there is dispute deliberately created between the identity of the land purchased by applicant-Saurabh Balyan and respondent no.2-Meera Goyal, only to grab the land by executing sale deeds. The Investigating Officer has submitted the charge-sheet and after conducting the investigation, the learned court below has taken cognizance in the matter.

14. So far as the identity of the land in-question is concerned, this Court finds that it may be an attempt on the part of the applicants to get the sale deed executed through power of attorney holder-Deepshika, in order to

grab the land of respondent no.2-Meera Goyal. But from totality of the facts on examining the records of the case placed before this Court, it is reflected that serious conspiracy hatched to grab the property of respondent no.2 by fraudently executing sale deeds. The applicants and other co-accused are appeared to be hand in gloves with each other. They are witnesses of the sale deeds of each others. The matter needs examination which cannot be done by this Court while exercising inherent powers under Section 482 of Cr.P.C. The case has definitely criminal trappings. This fact can only be ascertained, during course of the trial, when the witnesses will be examined to support the case of the prosecution.

15. The Hon’ble Apex Court in the case of Kamal Shivaji Pokarnekar vs. State of Maharashtra & others; reported in (2019) 14 SCC 350 has held that the High Court ought not to have set-aside the order passed by the trial court issuing summons to the respondents where perusal of the complaint discloses prima facie offence against the respondents as the correctness and otherwise of the allegations raised by the rival parties can only be decided in trial. At initial stage of issuance of process it is not open to stifle the proceedings entering into the merits of the contentions made on behalf of the respondents-accused, who have been summoned. For ready reference, para 4, 5 & 9 of the aforesaid judgment are quoted as under:-

“4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his

judicial mind only with view to taking cognizance of the offence, or in other words, to find out whether prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to conviction or not [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] .

5. Quashing the criminal proceedings is called for only in case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] .9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the trial court issuing summons to the respondents. perusal of the complaint discloses prima facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on

behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.”

16. This Court while using the inherent powers of the Court under Section 482 of Cr.P.C. is not in position to examine the evidence adduced by the parties. Going through the contents of the FIR and the material available on record, prima facie it appears that the offences under Sections 420, 467, 468, 471 & 120B IPC have been made out against the applicants, for which, they deserve trial before the trial court.

17. In view of this observations made hereinabove, this Court in exercise of inherent powers under Section 482 of Cr.P.C. does not find any occasion to interfere in the impugned summoning/cognizance order and/or the criminal proceedings of the Criminal Case No.6632 of 2022, State vs. Praveen Goyal & others, under Sections 420, 467, 468, 471 & 120B of IPC, pending in the court of learned Additional Chief Judicial Magistrate, Dehradun

18. Accordingly, both the C482 applications are hereby dismissed.

(Pankaj Purohit, J.) 22.05.2023