- (1.) Heard learned counsel for the parties and perused the record. The present petition under Section 482 Cr.P.C. is directed against the proceedings and charge-sheet filed in Case No. 442/9 of 2012 arising out of Case Crime No. 112 of 2012, under Sections 420, 120B of IPC, Police Station Hapur-Kotwali District Hapur. Learned counsel for the petitioners Sri Anoop Trivedi while assailing the charge-sheet and proceedings initiated against the petitioners before the Court below has raised a substantial issue as to the jurisdiction of criminal Court to proceed against the petitioners in a matter that in its entirety is of civil nature and cannot be a subject-matter of criminal prosecution particularly when a registered deed executed by the petitioners has neither been assailed by opposite parties in any manner nor the same has been declared as illegal or void or is otherwise void ab initio. The submission made by the learned counsel for the petitioners has force.
(2.) In paragraph 8 of the petition pedigree of the family is referred to. It is submitted that Seth Tarachand Modi under a registered gift deed bequeathed the property in question in favour of Nagarmal Modi and Jainarain Modi (his nephews) on 28.2.1950. Thereafter Nagarmal Modi and Jainarain Modi under a registered perpetual lease deed registered on 12.11.1950 created leasehold partnership rights in their favour alongwith 2 other persons namely Trilok Chand and Surya Bhan. The covenants of the lease deed, leave no manner of doubt as to the fact that the lease deed is perpetual. The rights which stood created in favour of lease holders in respect of the property in question are also unambiguous which include the right of transfer of individual rights. The leasehold rights and rights in respect of 'Malba' are transferable reserving the preferential rights in favour of the first party namely Nagarmal Modi and Jainarain Modi. There is also a stipulation in the aforesaid lease deed to the effect that in the event of any violation of the terms of the lease deed, the first party shall be entitled to the damages. The aforesaid lease deed has operated between the parties who have been carrying on business and the beneficial interests have now devolved upon their legal successors. Petitioner Nos. 1 and 2 having 1/4th share of leasehold rights being sons of late Surajmal who was one of the co-sharer amongst the second party to the lease deed. The petitioners having regard to the stipulations of original lease deed executed in the year 1950 gave a notice to the co-sharers of the first party expressing the intention of sale of their share on 4.8.2010 whereafter, looking to the unwillingness on their part to purchase, they entered into a sale transaction of their share under a registered deed executed on 28.7.2011 in favour of third parties. For the exercise of this right stipulation No. 4 of the original lease deed would be relevant and the same is reproduced below:
(3.) From the stipulations of original lease deed, it is clear that the parties to the lease deed have transferable rights exercisable in the manner as envisaged in the lease deed itself. Suffice to say that non-observance of any of the pre-requisites stipulated in the lease deed would not be an offence so long as the right to transfer subsists. A first information report has been lodged against the petitioners under Sections 420 read with Section 120B of IPC merely on the ground of having transferred their leasehold rights which rightly vested in them. Once the rights of transfer of the property in question to the extent of share vested in the petitioners being stipulated are available to them, lodging of an FIR for alienation of the said rights will certainly be an abuse of the process of law. The first information report did not come to be registered in a normal course but an application under Section 156(3) of Cr.P.C. was filed before the Court below and it appears that the competent Court having directed for the registration of an FIR against the petitioners has given rise to Case Crime No. 112 of 2012, under Sections 420, 120-B of IPC. After registration of the criminal case against the petitioners, a charge-sheet was also submitted before the Court below. From the perusal of charge-sheet it is evident that the sole material relied upon in the charge-sheet is merely the statements of Sri Ravi Kumar Modi, Sri Radhey Shyam Modi and Jugul Kishore Modi who are the interested party. Not a single evidence relied upon in the charge-sheet tends to satisfy the tests of criminal trial. It is also not the case that the registered deed executed by the petitioners is challenged by the opposite parties. In these circumstances it is difficult to hold that the impugned proceedings are maintainable in the eye of law. Allowing the criminal proceedings to proceed on the basis of a material which in no manner meets the ingredients of Section 420 of IPC amounts to a clear abuse of the process of law. For ready reference Section 420 of IPC is reproduced below: "Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." The execution of transfer deed is not disputed between the parties to the alleged deed. The availability of a civil remedy to the aggrieved person, if any, is also not disputed. Learned counsel for the opposite parties has argued that the petitioners/applicants have alternative remedy of filing discharge application before the Court below, therefore, the petition under Section 482 Cr.P.C. may not be maintainable. In support of his contention he has cited certain Judgments of the Hon'ble Apex Court reported in : (2005) 13 SCC 540, : (2013) 2 SCC 801, : (2009) 6 SCC 364 and : (2006) 7 SCC 188.;