The main legal point established in the judgment is that the rejection of an application under Section 156(3) Cr.P.C. indicates the absence of a cognizable offence, and the subjudice nature of the land title negates the existence of fraud. The Court also emphasized that a second criminal proceeding on the same facts is not maintainable.

JUDGMENT :

Neeraj Tiwari, J.

1. Heard Sri Ranvijay Chaubey, Advocate holding brief of Sri Anurag Kumar Mishra, learned counsel for the applicants, learned A.G.A. for the State and Sri Vivek Kumar Singh, learned counsel for the opposite party no.2.

2. The present application under section 482 Cr.P.C. has been filed for quashing the charge sheet as well as entire proceedings in Criminal Case No.2264 of 2008 (State Vs. Bhule) arising out of the Case Crime No.1172 of 2007, under Sections 420, 467, 468 and 471 IPC, Police Station Dadri, District Gautam Budh Nagar.

3. Learned counsel for the applicants submitted that with regard to ownership of land in dispute, one Civil Misc. Writ Petition No.32629 of 2003 is pending before this Court, in which Court has passed order of status quo. He further submitted that the title of land is still not decided and he has sold out his share of land to one Raj Dhari Maurya son of Muneshwar Maurya. He further submitted that at this stage, the opposite party no.2 has filed an application under Section 156(3) Cr.P.C. for lodging an FIR against the applicants. The said application was ultimately rejected by Ist Additional Chief Judicial Magistrate, Gautam Budh Nagar vide order dated 04.12.2006 on the ground that even if the land was sold in violation of order of High Court, High Court may itself take action in accordance with law and prima facie no cognizable offence is made out.

4. He further submitted that after dismissal of said application for the very same cause of action, opposite party no.2 has lodged an FIR dated 17.11.2007, under Sections 420, 467, 468, 471 IPC, Police Station-Dadri, District-Gautam Budh Nagar, in which charge sheet was submitted and summoning order dated 27.2.2008 has been passed. He placed reliance upon Section 362 Cr.P.C. and in light of that submitted that once the Magistrate had rejected the application filed by opposite party no.2, no summoning order can be passed again by the Magistrate in another charge sheet which was based on the same facts.

5. In support of his contention, he has placed reliance upon the judgment of the Apex Court in the cases of Lalta and others Vs. State of U.P. and others reported in (1969) 2 SCR 526 and Amritlal Ratilal Mehta and Another Vs. State of Gujarat reported in (1980) 1 Supreme Court Cases 121.

6. He further submitted that in all eventuality even after executing the sale deed, no case of forgery is made out against the applicants for the reason that as on date dispute of title has not been decided and the matter is pending before this Court.

7. He further submitted that for cancellation of sale deed executed by applicant, the opposite party no.2 has also filed Suit No.257 of 2006 for cancellation of sale deed, which is still pending. In support of his contention, learned counsel for the applicants has placed reliance upon the judgment of Apex Court in the cases of Mohammed Ibrahim Vs. State of Bihar reported in (2009) 8 Supreme Court Cases 751 decided 4th September, 2009 and Devendra Vs. State of U.P. reported in (2009) Supreme Court Cases 495 decided on 6th May, 2009 and submitted that the Apex Court has clearly held that when a document is executed by a person claiming to be owner of the property and document executed is not the false document, no case of fraud is made out.

8. Sri Vivek Kumar Singh, learned counsel for the opposite party no.2 has confronted the argument raised by the learned counsel for the applicants and submitted that though the application under Section 156(3) Cr.P.C. was rejected by the Magistrate vide order dated 04.12.2006, but after lodging the FIR, the Magistrate has passed summoning order with full application of mind.

9. He further submitted that until decision is not given by the High Court and title is disputed, any instrument of transfer of property amounts to fraud, therefore, the Court has rightly proceeded for passing the summoning order. In support of his case, he has placed reliance upon the judgment of Apex C