- (1.) THIS is an application under Section 482 CrPC moved by the petitioners to quash the proceedings of Criminal Case No. 1323/2008 under Sections 406 and 420 IPC State vs. Smt. Vineeta Maurya & Ors. Pending in the court of Judicial Magistrate-III, Lucknow along with order dated 20.09.2008 and 20.02.2009 contained in Annexure-1 and Annexure-2 respectively of the petition.
(2.) HEARD learned counsel for the petitioners as well as learned AGA for the State and perused the record. Brief facts of the case are that an FIR was lodged by the respondent No. 3 Rajesh Bahadur Singh against the petitioners and other with the averments that Smt. Vineeta Maurya petitioner No. 1 and respondent No. 3 entered in an agreement to sale and purchase of the property belonging to Smt. Vineeta Maurya for a sum of Rs. 20 lacs. Out of that Rs. 7 lacs were paid as an advance money to petitioner No. 1 by the respondent No. 3 and agreement to sale was executed and registered on 13.11.2006. As the property was already mortgaged for a loan of Rs. 15,91,334/- with the State Bank of India, Charbagh Branch, Lucknow, petitioner No. 1 assured that within two months the amount of loan will be cleared. A school was also running in the property in dispute. It was also assured by the petitioner No. 1 to the respondent No. 3 that she will inform him within two months after clearing the loan and at the same time he may get executed the sale-deed in his favour or any other person to whom he nominate after paying the rest amount and possession of the property will be delivered to him at that time. Severally he requested to the petitioners who are husband and wife to clear the loan of the Bank and to execute the sale-deed in his favour according to the terms and conditions of the deed, but neither she had cleared the loan of the bank nor executed the sale-deed in his favour. On 03.05.2008, he again approached Smt. Vineeta Maurya to execute the sale-deed, but again a deed was executed by her on that date that either she will return the advance money to the respondent No. 3 by 05.07.2008 or will execute the sale-deed in his favour but till the date nothing was done. When on 22.07.2008 at about 4.00 P.M. along with Sunil Kumar when he went to the house of Smt. Vineeta Maurya and inquired from her in the matter, her husband and one Asif with two unknown persons threatened him and stated that neither they will execute the sale-deed nor they will return his money. When he pressed for execution of the sale-deed or to return the money, they badly abused him and beaten him with kicks and fists. A case was registered against both the petitioners including one Asif and two unknown persons. On the report investigation in the matter was started and completing the same, charge-sheet was submitted against both the accused persons/petitioners for trial for the offence under Sections 406 and 420 IPC only. During the course of investigation, a Writ Petition No. 7115 (M/B) of 2008 was filed before this Court. This Court in the writ matter had directed vide order dated 13.08.2008 that till further orders of the court or submission of the charge-sheet whichever is earlier, petitioners will not be arrested. It is said that just after passing this order in writ petition under the collusion of the respondent No. 3, police has submitted that charge-sheet in the matter and learned Magistrate has taken cognizance on the same. When petitioners came to know that non-bailable warrants have been issued against them by the court in the matter and complainant is pressing to the court of learned Magistrate for the proceedings under Section 82 and 83 CrPC against them, this application under Section 482 CrPC has been filed for the relief as said above challenging summoning order and also issuance of order of non-bailable warrant as well as proceedings under Section 82 and 83 CrPC saying that summons were not served on them and matter between the parties relates to civil dispute, so criminal proceedings in the matter are not permissible under law and only to harass and humiliate the petitioners in connivance of police attempt is made to convert it into criminal offence. Learned AGA supported the submission of charge-sheet in the matter saying that criminal remedy is not barred in facts and circumstances of case as knowingly petitioners are avoiding their appearance in court concerned or delaying disposal of case, correctly non-bailable warrant was issued.
(3.) UNDISPUTEDLY, petitioners are husband and wife. It is also admitted to them that petitioner No. 1 entered in agreement to sale of her property with respondent No. 3 and a deed agreement to sale was executed and registered on 13.11.2006. Rs. 7 lacs were paid to the petitioner No. 1 by the respondent No. 3 as an advance money for the same. A school was running in the property in dispute and a loan of Rs. 15,91,334/- was on the petitioner of State Bank of India against the same property in dispute was mortgaged with the bank. It was also agreed between the parties as mentioned in the agreement that petitioners will get clear the loan within two months and she will inform to the respondent No. 3 in this regard, so that he may get executed the sale-deed and get possession. Two months time was fixed for the same. Whether petitioner had cleared the loan of State Bank of India and she was ever ready and willing to execute the sale-deed as per terms and conditions of the agreement and to deliver the possession, it is not clear from the contents of the petition and affidavit filed on her behalf. As per terms and conditions of the agreement (copy of the same annexed with the petition) sale consideration was fixed Rs. 20 lacs and admittedly Rs. 7 lacs were already paid to the petitioners as an advance money. Rest sale consideration was to be paid at the time of execution of the sale-deed. A theory is developed through this petition on behalf of the petitioners that although agreed sale consideration was Rs. 65 lacs, only to save the stamp duty on the request of respondent No. 3, this was shown Rs. 20 lacs in the agreement to sale and respondent No. 3 was not paying balance money as agreed. This shows that as per his own case petitioners joined the hand of respondent No. 3 in his this misdeed and agreed to deceive and cause loss of stamp duty to the State Govt. and also to play fraud on the authorities of the Govt. by executing this deed showing the less value of the property in dispute. Very important fact is that condition No. 1 of the agreement to sale is that cost of the property given in the deed will neither increased nor decreased. If this would have been the position that agreed cost was Rs. 65 lacs, she will sign this deed where cost of the property was shown as Rs. 20 lacs only with the above conditions, it is not believable at this stage of the case. Now record clearly shows that petitioners themselves are not ready to execute the sale-deed in the light of terms and conditions settled between parties under this agreement which is in the shape of written deed and registered. Learned AGA argued record shows that as since very beginning petitioners were not intending to sell the property and only to deceive the respondent No. 3, by inducing respondent No. 3, they have shown their willingness for selling the same only to receive the huge amount of Rs. 7 lacs from the respondent No. 3 and after receiving the same with malafide intention, this story of value of property of Rs. 65 lacs was developed with the help of legal mind to avoid execution of sale-deed or usurp the advance money. This argument cannot be said without force at this stage of the case.;