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TMI Blog2020 (7) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... gar pending in the court of I-Additional Chief Metropolitan Magistrate, Kanpur Nagar. 6. It is pertinent to mention here that by virtue of Court's order dated 22.01.2016 passed by coordinate Bench of this Court, further proceedings of the instant case were stayed and notices were issued to opposite party no. 2. FACTS OF THE CASE 7. One Munni Devi resident of Kolkata is lease holder of plot no. 1342, Block -W-II, Phase Juhi Kala, Damodar Nagar, Kanpur Nagar admeasuring are 387 Square yards (herein after referred to as 'dispute land'). This disputed plot was a lease hold property of Kanpur Development Authority vide lease deed dated 18.01.1978 for a period of 99 years, as she as resident of Kolkata, due to some financial crunch, she had to enter into an agreement to sell the dispute property on 27.10.2010 with one Ms. Mamta Gupta (Applicant no. 2). The covenants of the aforesaid agreements to sell stood as under: (a) Total amount of sale consideration is 25 lakhs, out of which she acknowledged that she received five post dated cheques of different dates for an amount of Rs. 2 Lakhs (the detail of the aforesaid cheques were quoted on the foot of the instrument. (b) Ms. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for applicant that mere filing of the above suit with above prayer clearly establishes and admits that the actual physical possession of "disputed property" was lying with the applicants. 12.Meanwhile, during pendency of suit the original lessee, Munni Devi came to contact with a rank stranger, namely; Kaptan Singh, s/o late Dashrath Singh r/o W-Block , Keshar Nagar, P.S. Naubasta, Kanpur Nagar (the informant of present FIR) and alleged "Power of Attorney Holder" of Mrs. Munni Devi, who has lodged the present FIR of Case Crime No. 645 of 2015 through an application filed an application under section 156(3) Cr.P.C. on 15.09.2015, under sections 147, 148, 149, 406, 329 and 386 IPC against Ms. Mamta Gupta, Radhey Shyam Gupta and three unknown persons. In the aforesaid FIR, opposite party no. 2 Kaptan Singh projected himself as "Power of Attorney Holder" of Mrs. Munni Devi. Browsing of the FIR indicates that opposite party no. 2 came out of blue in the month of August, 2015. The aforesaid FIR spells out the entire story with addition that out of five cheques, only one cheque of Rs. 2.00 Lakhs was got encashed but future of rest of the cheques were not known, Ms. Mamta Gupta got dispa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit vehemently refuted the allegations made by the applicants in the application filed under section 482 Cr.P.C. while filing counter affidavit, sworn by opposite party no. 2- Kaptan Singh, wherein she has categorically admitted that there was an "agreement to sell" between the parties on 27.10.2010 but has seriously disputed the veracity of Annexure No. 3 (subsequent drawing notarized affidavit), dated 27.10.2010. It is also alleged that out of five cheques, only one cheque was encashed and rest of the cheques were received unpaid and no legal action has ever initiated by Mrs. Munni Devi for this default. It has also been brought on record that on account of forged notarized affidavit, dated 27.10.2010, opposite party no. 2- Kaptan Singh lodged yet another FIR against four named accused persons, including Ms. Mamta Gupta (applicant no. 2) and the investigation of the case is still pending. She also disputed that any construction was raised by Ms. Mamta Gupta (applicant no. 2). It is also alleged that it is blatant attempt on the part of applicants to grab the disputed property, without paying the agreed sale consideration or without having any legal right or authority of the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. 20.The jurisdiction of 482 Cr.P.C., is required to examine whether the allegations in the complaint constitute the ingredients, necessary for the alleged offence, under the Penal Code. If the aforementioned averments are taken to be true on its face value, it do not constitute the ingredients necessary for the offence. The criminal proceedings can be quashed for the allegations made in the complaint do not disclose commission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where ther is an express legal bar engrafted in any of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/o where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner entrusted with property'. So, it extends to entrustments of all kinds-whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. "The term "entrusted" found in a 405, IPC governs not only the words "with the property" immediately following it but also the words "or with any dominion over the property" (c) Property: The definition in a 405 does not restrict the property to movables or immovable alone. In R K Dalmia vs Delhi Administration, the Supreme Court held that the word 'property' is used in the Code in a much wider sense than the expression 'movable property'. There is no good reason to restrict the meaning of the word 'property' to movable property only, when it is used without any qualification in Section 405 IPC. Whether the offence defined in a particular section of IPC can be committed in respect of any particular kind of property, will depend not on the interpretation of the word 'property' but on the fact whether that particular kind of property can be subject to the acts covered by that section. (d) Misappropriation: Dishonest misappropriations the essence of this section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half. Essentially, the dispute between the parties is a civil dispute. ...." 28.Interesting in the instant case, the contesting parties have filed their civil cases bearing Original Suit No. 1553 of 2015 (Munni Devi v. Mamta Gupta) with a prayer for mandatory injunction against the defendant (Ms. Mamta Gupta) to get the premises in dispute vacated, whereas Ms. Mamta Gupta (applicant no. 2)/plaintiff filed Civil Suit No. 2077 of 2015 in the court of the Civil Judge (Senior Division), Kanpur Nagar with a prayer for permanent injunction against the defendant not of dispossess her possession over the plot in dispute wbereby vide order dated 06.10.2015, the court of the Civil Judge (Senior Division), Kanpur Nagar granted temporary injunction in favour of Ms. Mamta Gupta (applicant no. 2). Aforesaid both the cases are still pending for adjudication in one and the same court I..e. Civil Judge (Senior Division), Kanpur Nagar and it is borne out from the record that written statements have been filed in both the cases and the court is seized with mater. Record also reveals that in both the proceedings, two different stories have been woven. In paragraph 2 of the Original Suit No. 2077 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sufia Safa whereas she claims that document annexure 3 (joint notoriazed), dated 27.10.2010 is forged one, at present juncture. 33.Hence, thrashing the entire material on record, where the parties have entered into a contract according to their own wisdom and advanced certain amount of money, thereafter the applicants are in possession of the disputed property. Visualizing facts and evidence in the matter, the court of Civil Judge (Senior Division), Kanpur Nagar passed interim injunction in favour of Ms. Mamta Gupta (applicant no. 2) in Original Suit No. 2077 of 2015 (Mamta Gupta v. Munni Devi) and at present the competent civil courts are seized with the matter, therefore, engaging a stranger viz; Kaptan Singh and initiating criminal prosecution under his aegis is nothing but twisting of arms of the applicants. Needless to mention here that for the sake of argument if it is assumed that all the covenants of the agreement to sell have not been complied with even then the fact remains that five post dated cheques were handed over to Ms. Munni Devi and the applicants are enjoying the state over the disputed property. 34.The 7th sub clause of Bhajan Lal's case (supra) establis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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