SHIV NATH YADAV Vs. STATE OF U.P.

JUDGEMENT

(1.) This application u/s 482 CrPC has been filed with the prayer to quash the entire proceedings of criminal case no. 2458 of 2016, arising out of case crime no. 500 of 2015, under Sections 419, 420, 467, 468, 471 IPC, P.S. Cantt., District, Varanasi pending before the Chief Judicial Magistrate, Varanasi and further to stay further proceedings of the aforesaid case.

(2.) Heard Shri I.K. Chaturvedi, learned Senior Counsel assisted by S/Shri Gulab Chandra and D.K. Tiwari, learned counsel for the applicants, Shri O.P. Singh, learned Senior Counsel assisted by Shri D.K. Singh, learned counsel for the opposite party no.2 and the learned AGA appearing for the State.

(3.) It is submitted by the learned Senior Counsel appearing for applicants that order taking cognizance on the charge sheet is illegal and without application of judicial mind. Offences levelled against the applicants in the present matter are not attracted. In fact initially an agreement to sell was entered into between the parties. Thereafter, sale-deed was executed in the name of Gayatri Devi, wife of Lalji (opposite party no.2) and Parvati Devi, wife of Shiv Nath (applicant no.1). During consolidation, mutation order was also passed. An application was moved on behalf of applicants side to change the address shown in the mutation order, which was allowed. Thereafter at several stages proceedings of various nature were initiated. One writ petition is still pending before this Court and matter is subjudice. F.I.R. was lodged in the matter colouring civil dispute into criminal dispute. It is also submitted that property was purchased in the name of wife of opposite party no.2 and wife of applicant no.1. Since lady belonging to family of opposite party no.2 is also known as 'Parvati Devi' opposite party no.2 challenged the order passed on the application moved by applicants side for changing the address in revenue record and also one Titimma Dastavez was executed in connivance with the opposite party no.2 changing the name of Parvati as Shiv Nath @ Yogendra. Referring to documents annexed with this application and other documents it is further submitted that Shiv Nath and Yogendra are two different persons. Opposite party no.2 only with a view to create pressure and harass the applicants committed fraud. One application was moved to the District Magistrate concerned which was enquired into and was found that Shiv Nath and Yogendra are two different persons. F.I.R. was also lodged to this effect on the basis of enquiry conducted on the direction of District Magistrate concerned. Thus, the allegations levelled in the F.I.R. are also false. The Investigating Officer has not investigated the matter properly and did not collect the genuine documents, instead, submitted charge sheet only on the basis of oral version of opposite party no.2. It is also submitted that initially opposite party no.2 and applicant no.1 both were living together in a house and therefore address shown in the said sale deed was common. No prima facie case is made out. It is purely a civil nature dispute. Efficacious remedy is in the pending civil litigation. Continuation of proceeding of aforesaid criminal case is nothing but an abuse of process of law. In support of his submissions, learned counsel for the applicants placed reliance on the decision of Apex Court in Vineet Kumar and others vs. State of U.P. And another, 2017(5) ADJ 438 (SC) and a decision of this Court in Suresh Chandra Gupta vs. State of U.P. And another, 2016 (2) ADJ 664.