- (1.) V. N. Mehrotra, J. This petition has been filed under Section 482, Cr. P. C for puashing the complaint Case No. 1833 of 1986 pending in the court of special Chief udicial Magistrate, Allahabad.
(2.) THE facts of the case are that opposite party No. 2 filed a complaint before the Magistrate concerned on 29. 9. 86 asserting that the opposite parties, who are the present applicants, had committed offences punishable under Sections 406,412,420,465,467 and 471, I. P. C. THE complaint produced evidence under Section 290 and 202, Cr. P. C. and on the basis of the same the learned Magistrate passed the impugned order on 24. 2. 1987 sum moning the accused persons to stand their trial before him. In this petition the applicants have asserted that the complainant had filed a complaint only to harass the applicants even after the matter had been fully and finally settled between the parties. It has also been asserted that the complainant had supressed material facts while filing the complaint before the Magistrate and that prima-facie there was no case for summoning the accused persons to continue the proceedings against them. It will be proper to examine the allegations made by the complainant in his com plaint, the complainant was in judicial service and was posted at Allahabad for some years. The opposite party No. 3 Smt. Asha Verma is the daughter of the complainant she was in need of some land for building her house at Allahabad. The applicants were colonisers. They were contacted by the complainant, through one Thath Raj Lal. They assured that they will provide a plot to opposite party No. 3, Smt. Asha Verma, and she became a member of the Society on the assurance that she will get a plot in or about the year 1972. She deposited money with the Society through the accused persons, who are president and Secretary respectively of that Society. The accused persons undertook to make plot No. 3 available to opposite party No. 3 Smt. Asha Verma. The said plot was allegedly acquired by the Society and they asked the complainant to make the necessary deposit. The opposite party No. 3 deposited a sum of rupees thirty six thousand and odd for which a receipt dated 1s. 2. 8s was issued by applicant, No. 2 and accounting was also done and it was found that an amount exceeding Rs. 51,000/- was to be paid by the opposite party No. 2. Thus the opposite party No. 3 further paid an amount of Rs. 21,000/- i. e. Rs. 51,599. 25 in all to the accused persons. Stamp papers were purchased and transfer deed was executed but it was not presented for registration at that time, as it appeared that the society had no transferable right in the plot till that time as they had not till then acquired a registered transfer deed in their favour. It was asserted that this act on the part of the accused persons was fraudulent. It is further asserted that the complainant then inquired from the Society as to when the transfer deed could be got executed and registered. After prolonged talk the accused persons assured and agreed that the transfer deed shall be presented for registration and got registered when they had obtained a registered transfer deed in favor of the society and the contract shall till then remain subsisting and they shall not party with or transfer the plot to any one except Smt. Asha Verma. Relying on these assurance the complainant kept quiet for sometime in the hope that the society will become entitled to the plot and they will execute the sale- deed as promised by them. However, as the accused had no intention to convey the said plot to Smt. Asha Verma, but were interested only in obtaining the money they secretally and without informing the complainant Smt. Asha Verma, transferred the plot to one Sri Vinod Kumar Rai by materially altering the sale-deed in question and making interpolations in it. It is asserted that due to these acts the accused persons have com mitted the offence mentioned above. The applicants have filed affidavit alleging that on 6. 4. 1986 complainant himself moved an application to the Secretary of the Society to return the money with interest as his daughter did not want to purchase the plot of No. 1. Annexure '2' is the copying that application. The applicants have further asserted that the entire money was paid back to Smt. Asha Verma through complainant by order dated 9. 4. 1987 and a receipt for the same was issued on the same day by the complainant on behalf of Smt. Asha Verma mentioning that he has received the amount in full and final settlement of his account. It has also been contended that in order to harass the applicants the complainant filed complaint on 29. 9. 90 concealing this vital fact and obtained order for summoning the applicants. It has been contended that the proceedings will amount to abuse of the process of the court and in view of the deliberate concealment by the complainant the same should be quashed.
(3.) THE opposite parties Nos. 2 and 3 have admitted they had moved an application for repayment of the entire amount and said that they had on 9. 4. 86 actually received that amount. It is, however, contended that the offence under Section 420, I. P. C. had been recommitted by the accused persons and the offences under Sections 465, 467 and 471, I. P. C. THEy had also committed due to the interpolations and alterations made in the sale-deed executed in favour of Smt. Asha Verma. I have considered the arguments by the learned counsel and perused the material produced before me. It is undisputed that money was deposited with the present ap plicants in connection with a contract to execute sale deed in favour of Smt. Asha Verma. In respect of the plot in question. Actually a sale-deed was executed on stamp paper but due to the fact that by that time the society, of which the applicants are president and Secretary respectively, had not acquired title to that plot, the same was not presented for registration. The contention by the complainant himself shows that at that time it was agreed that when the society acquires title to that plot, the sale-deed will be presented for registration. However, it is clear from the material on record that even before the society could acquire title to the plot, the complainant moved an application on behalf of his daughter Smt. Asha Verma praying that the entire amount deposited by her should be paid back. On this application the Society actually refunded the entire amount on 9. 4. 86. In the receipt (Annexure 3), which was signed by the complainant on behalf of Smt. Asha Verma, it was mentioned that the amount in question was received "in full and final settlement of my account. " It will be clear from these documents that the contract be tween the parties thus came to an end as the complainant got his money back from the society. Later on, the society acquired the title to the plot and sold it to a third person. It, however, utilised the same sale-deed wish had been earlier executed in favour of Smt. Asha Verma by changing the name of the purchaser and the amount etc. It is admitted that in respect of the same, proceedings under the Registration Act and the Stamp Act were pending. As is provided by Section 14 of the Stamp Act in case where a second instrument is written in a stamp paper the same shall be treated as unstamped and, obviously, proceedings regarding the same could be initiated against the executant under the Stamp Act. In case interpolations and additions are made, the registration authority could also have jurisdiction to take necessary action in the matter. However, considering the fact that the agreement between the parties came to an end on 9. 4. 1986 by the refund of the entire amount by the Society on the application made by the complainant on behalf of Smt. Asha Verma, it could not be said that the sale-deed which was earlier sought to be executed in her favour still remained in force and interpolation made in the same could entitle the complainant, or Smt. Asha Verma to file complaint for the alleged commission of offences under Sections 465,467,471 etc.;