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2020 Supreme(All) 1006
IN THE HIGH COURT OF ALLAHABAD
VIPIN CHANDRA DIXIT, J.
Ashok Kumar Tyagi and Another – Appellants
Versus
State of U.P. and Another – Respondents
Criminal Revision No. 530 of 2014
Decided On : 08-12-2020
Advocate Appeared:
For the Appellant : S.S. Shukla.
For the Respondent: V.K. Agnihotry.
Point of law: It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [M.S. Sheriff vs. State of Madras, AIR 1954 SC 397, Iqbal Singh Marwah vs. Meenakshi Marwah, (2005) 4 SCC 370 and Institute of Chartered Accountants of India vs. Assn. of Chartered Certified Accountants, (2005) 12 SCC 226
Headnote:
Penal Code, 1860 – Sections 420, 467, 468, 471 – Code of Criminal Procedure, 1973 – Section 190 – Misappropriation of Property – Cancellation of power of attorney – Jurisdiction – Criminal revision has been filed against the order passed by Additional Chief Judicial Magistrate, Court, Ghaziabad in Criminal Case No. 373 of 2010 (Baleshwar Dayal vs. Ashok and Others), under Sections 420, 467, 468, 471 I.P.C. P.S. Kavi Nagar, District Ghaziabad, by which final report was rejected and the revisionist no. 1 Ashok Kumar Tyagi, revisionist no. 2 Smt. Reena Tyagi and Ram Nath Tyagi were summoned.
Finding of the court:
Magistrate is not bound to the final report submitted by Investigating Officer. – The Magistrate can have his own opinion and if after prima-facie satisfaction he finds that there are sufficient material and evidence collected by the Investigating Officer during investigation, he can reject the final report and can issue process against the accused persons. – The order passed by the learned Magistrate clearly indicates that he carefully examined the material and evidence collected during investigation which are part of the case diary and after prima-facie satisfaction had rejected the final report and taken cognizance under Section 190(1)(b) Cr.P.C. and as such there is no illegality or irregularity committed by learned Magistrate while passing the order – Next submission of learned counsel for the revisionists is that the dispute is of civil nature and civil suit is still pending for cancellation of sale deed and as such criminal case can not proceed and the court below has exceeded its jurisdiction to summon the revisionists in a criminal case. – It is well settled law settled by the Hon'ble Apex Court in the case of P. Swaroopa Rani vs. M. Hari Narayana, 2008 (5) SCC 765, that civil suit and criminal case can proceed simultaneously – There is no illegality or irregularity in the order passed by learned Magistrate by which the final report was rejected and the revisionists were summoned to face the trial. – The revisionists have thus failed to point out any infirmity, illegality, irregularity, impropriety or incorrectness in the order and the present criminal revision lacks merits and deserves to be dismissed.
Result: – Criminal Revision Dismissed
JUDGMENT :
VIPIN CHANDRA DIXIT, J.
1. This criminal revision has been filed against the order dated 13.01.2014 passed by Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad in Criminal Case No. 373 of 2010 (Baleshwar Dayal vs. Ashok and Others), under Sections 420, 467, 468, 471 I.P.C. P.S. Kavi Nagar, District Ghaziabad, by which final report no. 439 of 2011 dated 29.6.2011 was rejected and the revisionist no. 1 Ashok Kumar Tyagi, revisionist no. 2 Smt. Reena Tyagi and Ram Nath Tyagi were summoned.
2. The brief facts of the case are that the opposite party no. 2 Baleshwar Dayal Tyagi is residing in Canada for last 32 years having nationality of Canada. The opposite party no. 2 had purchased a plot on 28.6.1991 bearing no. R-9/4 area 1266.66 square yard situated in Raj Nagar Colony, Ghaziabad. Since the opposite party no. 2 was residing at Canada, he executed a power of attorney and will deed on 1.1.1991 in favour of revisionist no. 1, who is brother-in-law (Sala) of opposite party no. 2, to look after his property. Since the revisionist no. 1 is close relative of opposite party no. 2 as such the opposite party no. 2 had full faith on him but in the year 2007 opposite party no. 2 knew that revisionist no. 1 is going to misappropriate his property and as such he cancelled the power of attorney as well as the will deed on 6.3.2007 which was earlier executed in favour of revisionist no. 1. The information regarding cancellation of power of attorney and will deed was sent on 16.3.2007 through U.P.C. as well as by registered post and revisionist no. 1 was also informed on telephone by the opposite party no. 2. Opposite party no. 2 had also informed to the Sub Registrar, Ghaziabad as well as Secretary, Ghaziabad Development Authority on 19.3.2007 to the effect that he had already cancelled the power of attorney which was executed in favour of revisionist no. 1 and now revisionist no. 1 has no authority to sell out his property through power of attorney. In spite of cancellation of power of attorney the revisionist no. 1 executed a sale deed in favour of M/s Karb Constructions Pvt. Ltd. on 20.3.2007 in which Ram Nath Tyagi, father-in-law of revisionist no. 1 was the director. The opposite party no. 2 had lodged a F.I.R. against revisionist no. 1 Ashok Kumar Tyagi as well as against Ram Nath Tyagi (father-in-law of the revisionist no. 1) on 31.1.2008 and the case was registered as Case Crime No. 96 of 2008, under Sections 467, 468, 471, 420 I.P.C. in P.S. Kavi Nagar, District Ghaziabad.
3. During investigation the opposite party no. 2 alleged that his bank account was fraudulently re-opened by the revisionist no. 2 who is wife of revisionist no. 1 and as such the revisionist no. 2 was also implicated as accused in the aforesaid case. The Investigating Officer after investigating the matter had submitted the final report on 30.5.2009 which was rejected by the court below on the objections of opposite party no. 2 and direction was issued for re-investigation. The Investigating Officer again had submitted the final report on 29.6.2011 on the ground that no offence was found against the accused persons and disputes between the parties are of civil nature and already a civil suit being O.S. No. 162 of 2008 is pending between the parties. Aggrieved with the final report dated 29.6.2011 the opposite party no. 2 had filed protest petition on 18.1.2012 stating therein that power of attorney was cancelled much prior to execution of sale deed and the accused persons have committed fraud to misappropriate the property of the opposite party no. 2. There are ample evidence against the accused persons and they are guilty to commit offence under Sections 467, 468, 471, 420, 465, 466 I.P.C. The learned Magistrate vide order dated 13.1.2014 had accepted the protest petition and the final report no. 439 of 2011 dated 29.6.2011 was rejected and had taken cognizance under Section 190(1)(b) of Cr.P.C. and summoned the accused persons Ashok Kumar Tyagi
