Poonam Srivastava, J. - (1.) Heard Sri Ravindra Nath Rai, learned counsel for the applicants, Sri N.I. Zafari for the contesting opposite party and learned A.G.A.
(2.) This application has been filed to quash the entire proceedings in case No. 62 of 2000, State v. Akil and Ors., pending in the court of Civil Judge (Junior Division), Garhmukteshwar, Ghaziabad. The facts giving rise to the dispute is that one Khushmudi did not have any male child, therefore, she executed a sale deed in favour of the applicants, who are the sons of sister of Khushmudi. Subsequently the daughter of the vendor Khushmudi filed a Civil Suit No. 11 of 1989 against the applicants for cancellation of the sale deed. The suit was contested by the applicants. The trial court decreed the suit vide judgment and decree dated 22.8.1998. The applicants filed Civil Appeal No. 176 of 1998 in the court of District Judge, Ghaziabad. The memo of appeal is annexed as Annexure-1 to the affidavit. Annexure-2 is the stay order passed in the first appeal against the original decree in civil suit No. 11 of 1989. During the pendency of this application in this Court, the first appeal was allowed and now the second appeal is pending in this Court. The criminal proceedings were initiated under Section 156(3) Cr.P.C. after the suit was decreed by the trial court and during the pendency of the appeal. On the basis of aforesaid application, a First Information Report was registered at case Crime No. 16 of 1998, under Sections 420, 467, 471 I.P.C., Police Station Garhmukteshwar, District Ghaziabad. The arrest of the applicants was stayed by this Court in Criminal Misc. Writ Petition No. 5091 of 1999 on 16.9.1999, This application was filed after the charge sheet was submitted and this Court stayed further proceedings Counter and rejoinder affidavits have been exchanged and it has come up for final hearing today before this Court.
(3.) I have heard learned counsel for respective parties. Sri Ravindra Nath Rai, Advocate has cited a decision of the Apex Court in he case of Suresh v. Mahadevappa Shivappa Danannava and Anr., J.T. 2005(2) S.C., 462 It has been argued on the basis of the aforesaid decision that the matter, which came up before the Apex Court, was regarding an application filed under Section 156(3) Cr.P.C. for registering a case. The basis of the allegation was an agreement to sale which was the subject matter of civil suit and the Apex Court ailed that since the nature of the allegations in the complaint was civil in nature and the learned Magistrate failed to apply his mind by summoning the accused which was confirmed by the High Court, and was set aside by the Hon'ble Supreme Court in the said judgment.;