- (1.) Heard Sri Nirvikar Gupta, learned counsel for the applicants, Sri Brijesh Sahai, learned Senior Advocate, assisted by Sri Bhavya Sahai, learned counsel for O.P. No. 2 and learned A.G.A. representing the State. Perused the records.
(2.) This application under Section 482 Cr.P.C. has been filed by applicants Kamal Singh and Ramesh Chandra against State of U.P. and Brahm Kumar Agarwal with prayer to quash entire proceedings of Complaint Case No. 1339 of 2019, Brahm Kumar Vs. Kamal Singh and another, arising out of Case Crime No. 10 of 2015, under Sections 420 , 467 , 468 , 471 , 120B I.P.C., P.S. Vrindavan, district Mathura, pending in court of A.C.J.M., Court No. 5, Mathura, including order dated 30.7.2018 passed by the A.C.J.M., Mathura, whereby protest petition has been treated as a complaint case and summoning order dated 26.4.2019 passed in above mentioned Complaint Case.
(3.) Learned counsel for the applicants argued that applicant no. 1 was recorded tenure holder of Chak No. 115 Gata No. 477 area 0.893 hectare situate at village Jait, P.S. Vrindavan, District Mathura. He entered into an agreement with O.P. No. 2 for sale of his plot in dispute for a total sale consideration of Rs. 1,32,29,630/-. But complainant requested for mentioning of lower amount of sum because if entire sale consideration is mentioned in the agreement to sell, the same would entail a heavy stamp duty. In such circumstances and notwithstanding with the fact that the earnest money of Rs. 33,07,407/- was received by applicant no. 1, agreement to sell was executed mentioning earnest money to be Rs. 20 lacs and total sale consideration to be Rs. 50 lacs despite the fact that the complainant was required to pay balance sale consideration as against Rs. 1,32,29,630/-. But after payment of Rs. 20 lacs the informant-complainant failed to pay above balance consideration resulting lapse of sum in term of agreement entered in between in form of forfeiture clause. The earnest money paid by first informant stood forfeited. A supplementary agreement was also executed in between parties on 29.5.2013 and the time for execution of sale deed was extended. Even then on account of failure on the part of first informant of being able to pay balance sale consideration and being ready and willing to have the sale deed executed, the applicant no. 1 was not bound by above agreement to sell dated 29.6.2012. Applicant no. 1 executed a sale deed for the same land in favour of applicant no. 2, Ramesh Chandra, on 1.9.2014 for a total sale consideration of Rs. 1,15,00,000/-, which was a valid transaction entered in between. The first informant instituted O.S. No. 913 of 2014 for a decree of relief of specific performance of contract/ agreement to sell dated 29.6.2012 with a contention that the applicant no. 1, being bhumidhar of plot in dispute, had entered into a registered agreement to sell with plaintiff/ first informant for a total sale consideration of Rs. 50 lacs for which Rs. 20 lacs was paid by way of earnest money and deed of agreement to sell was executed on 29.6.2012 with a condition of limitation of one year for execution of sale deed for it. Time and again payment was being made to applicant no. 1, but he did not show his willingness to have sale deed executed. Hence a supplementary agreement was also executed in between parties on 29.5.2013. But it revealed to the plaintiff- first informant that applicant no. 1 had fraudulently executed sale deed of land in question in favour of applicant no. 2, hence, cause of action had arisen for this civil suit and it was filed for above relief. An application under Order 39 Rule 1 C.P.C. for ad-interim injunction was filed with above contention of plaint. Written statement and objection over above application were also filed by present applicants and after hearing on merit the ad-interim injunction application was rejected by court of Civil Judge (Senior Division), Mathura, vide order dated 21.7.2016. Against this order a First Appeal From Order No. 2685 of 2016 was filed before this court and it was dismissed vide order dated 24.10.2016. Against this order a Special Leave Petition No. 3110 of 2017 was filed before Apex Court, but the same was rejected vide order dated 6.3.2017. In between a first information report with same contention, as of plaint, was filed at P.S. Vrindavan, District Mathura, on 19.12.2014 vide Case Crime No. NIL of 2014, which was renumbered as Case Crime No. 10 of 2015 against applicants. This was with false contention of fact having no merit and was with ulterior motive of blackmailing and harassing the applicants, who are poor illiterate farmers. Investigation resulted in submission of final report on 14.3.2015. Protest petition was filed, which was treated as a complaint case vide order dated 28.5.2015. This order was challenged before this court in Criminal Misc. Application u/s 482 Cr.P.C . No. 20145 of 2015, Brahm Kumar Agarwal Vs. State of U.P. and others, challenging the order of the Magistrate for treating the protest petition as a complaint case. This order of Magistrate dated 21.7.2015 was set aside by this court vide order dated 21.7.2015. Matter was remanded back and it was further investigated. But as there was no substance in the assertion, second round of investigation also resulted in submission of final report on 8.4.2016. Investigating officer concluded that the dispute between the parties was of civil nature, regarding which civil suit is pending for disposal. Again protest petition was filed and vide order dated 9.11.2017 again a direction for further investigation was made. In the third round of investigation again final report dated 30.3.2018 was filed. Hence despite final report being submitted thrice in the matter, the contesting respondent again filed a protest petition, which was treated to be a complaint case, wherein statement of complainant was recorded u/s 200 Cr.P.C . and of his witnesses Vivek Agarwal and Bharat Pal were recorded u/s 202 Cr.P.C . On the basis of recording of statements, learned A.C.J.M., Court No. 5, Mathura, passed summoning order dated 26.4.2019 whereby applicants have been summoned to face trial for the offences punishable under Sections 420 , 467 , 468 , 471 , 120B I.P.C. Whereas from the bare perusal of the impugned order of summoning as well as order dated 30.7.2018 treating the protest petition as a complaint case, it is apparent that the same suffer from manifest error apparent on the face of record. Sale deed was rightly executed by applicant no. 1 in favour of applicant no. 2. It was executed after lapse of agreement for sale entered in between applicant no. 1 and informant. The informant- O.P. No. 2 was not ready and willing to perform his part of contract and to have sale deed executed for a residual consideration. Entire fact in dispute on the basis of which this F.I.R. was lodged or protest petition was taken cognizance of by Magistrate were subjudice before Civil Court in above previously instituted O.S. No. 913 of 2014. Initially prima-facie case was held to be missing in dispute while deciding ad-interim injunction application by learned Civil Court and this order was confirmed till Apex Court. Civil suit is still pending. Unless those facts are being decided by civil court, it can never be held that there was any fraud or fabrication on the part of applicant no. 1. Learned Magistrate, in impugned order, has observed that there is in fact a dispute between parties and as such summoning of applicants was made. It was in utter disregard of the laws propounded by this court as well as Apex Court that purely a civil nature dispute for which Original Suit No. 913 of 2014 pending in between was there and for the facts mentioned therein disputed by written statement, pending for disposal by civil court in above suit has been taken, as a basis and reason for summoning of accused-applicants for offences, as above. Criminal Court may never adjudicate that informant was ready and willing to get sale deed executed or it was informant, who failed to perform his obligation under above registered agreement to sell. The payment of earnest money being said by informant- plaintiff has been admitted by applicants- defendants. It has been said to have lapsed in view of forfeiture clause written in the admitted agreement. This fact may also be adjudicated only and exclusively by civil court. This too may not be adjudicated by a criminal court. Hence no offence was made out against applicants. Applicant no. 2 is a bonafide purchaser, who has purchased the land in dispute through registered sale deed after making valid and legal consideration for the plot in dispute. He can never be held for any offence of fraud, deceit or fabrication or false and fictitious security, to summon them. Hence this application with above prayer.;