The Allahabad High Court while quashing the charge-sheet dated 28.8.2016 and summoning order dated 28.9.2016 has said that an agreement to sell does not create any right or title in favour of the intended buyer.
A Single Bench of Justice Siddharth passed this order while hearing an application under section 482 filed by Ajit Kumar Gupta.
The application under Section 482 Cr.P.C has been filed praying for quashing of the supplementary charge-sheet dated 28.8.2016 and summoning order dated 28.9.2016 in Case under Sections 420, 467, 468, 471 IPC, Police Station Juhi and District Kanpur Nagar alongwith entire proceedings of the case.
An FIR was lodged by opposite party no 2 on 02.6.2014 before the police station alleging that she is living in the U.S. for the last 11 years. The applicant, Ajit Kumar Gupta and co-accused, Narendra Kumar Singh and Kanhaiya Gupta, have occupied her house situated in Anandpuri, Transport Nagar, Kanpur, with the help of gangsters.
It was further alleged that accused persons have fabricated documents to justify their illegal occupation. Her mother never signed any document in their favour and her signatures have been digitally created. The aforesaid FIR was registered after a letter was sent to the Chief Minister of the State by the opposite party no 2 from the United State of America.
The Counsel for the applicant submitted that after investigation, a charge sheet dated 27.5.2016 was submitted by the police only against co-accused, Narendra Kumar Singh and the applicant was exonerated. At the behest of co-accused, further investigation was conducted by the police and supplementary charge sheet dated 28.8.2016 was filed before the Additional Chief Metropolitan Magistrate, Additional Judge, Kanpur Nagar, who took cognizance of the same on 28.9.2016 and summoned the applicant.
In the disputed house, co-accused, Narendra Kumar Singh, is in possession on the basis of an agreement to sell dated 31.5.2004 executed by mother of opposite party no 2. The name of the applicant is mentioned in the agreement in block letters without any signature, purportedly as a witness of the agreement. Civil dispute is pending between the mother of the opposite party no 2 and co-accused, Narendra Kumar Singh. In the supplementary charge sheet, the applicant has been chargesheeted solely on the basis of the statement of co-accused, Narendra Kumar Singh and supplementary charge sheet was submitted against him. The court below has summoned the applicant on its basis.
Counsel for the applicant has submitted that even if it is assumed that the applicant signed the disputed agreement to sell as a witness, even then it is unregistered document written on stamp of Rs 100 and no title of the property has passed on its basis in favour of the applicant or any of the co-accused. The applicant claims that he has no criminal history.
Counsel for the applicant said that further investigation in the case was done without any order of Magistrate and supplementary charge sheet was illegally submitted against the applicant. He has pointed out to the order dated 12.1.2023 passed by the Court wherein a report was called from the Magistrate concerned as to whether any direction for further investigation was given by the court or not.
The Chief Metropolitan Magistrate, Kanpur Nagar, has sent a report dated 15.4.2023 informing that there is no order found on the record of the case directing further investigation in this case by the Investigating Officer.
Counsel for the applicant has submitted that filing of supplementary charge-sheet against the applicant on the basis of unauthorized further investigation is bad in law.
The AGA has vehemently opposed the submissions made by the counsel for the applicant along with opposite party no 2.
Counsel for opposite party no 2 has submitted that no permission is required for further investigation from the Metropolitan Magistrate by the police. He has submitted that the police has unfettered power of investigation and such investigation can continue even after the charge-sheet has been filed under Section 173 (2) Cr.P.C and cognizance has been taken thereon by the Magistrate.
The Court found that in the case, the first question required to be decided is (I) whether the action of the Investigating Officer of proceeding with further investigation and filing supplementary charge-sheet after once submitting a charge-sheet against co-accused is permissible in law or not. The second question, which is required to be decided is (ii) whether a mere signatory to an agreement to sell can be held liable for the same offence as allegedly committed by the beneficiary of the agreement to sell, the co accused in the case.
In view of the above consideration, the first question raised by the counsel for the applicant is answered in negative and held that there was no fault on the part of the Investigating Officer to conduct further investigation and file supplementary charge-sheet against the applicant.
The Court further found that a perusal of Section 54 of the Transfer of Property Act, 1882, clearly proves that a contract for the sale of immovable property is only a contract that sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Therefore, it is clear that an agreement to sell does not create any right or title in favour of the intended buyer. It is only a document creating the right to get another document of sale from the seller on fulfilment of terms and conditions specified therein. On the strength of such an agreement, a buyer does not become the owner of the property. The ownership remains with the seller. It will be transferred to the buyer only on the execution of the sale deed by the seller. The buyer obtains only the right to get the sale deed executed in his favour.
Admittedly, the applicant is neither the seller nor the buyer of the property in dispute. Co-accused, Narendra Kumar Singh, is the intended purchaser of the property and the applicant is only alleged to be the witness to the agreement to sell allegedly executed by mother of opposite party no 2 in favour of co-accused, Narendra Kumar Singh. A witness of an agreement to sell only testifies to due execution of the document before him by the seller and buyer.
The Court also found that the attesting witness of an agreement to sell or any other document cannot be criminally prosecuted unless there is allegation of conspiracy under Section 120-B IPC. The witness is not necessarily required to know what is contained in the document. He stands witness to due execution of the document before him. In the case, the applicant claims that only his name has been mentioned in block letters as attesting witness in the disputed agreement to sell. He has not signed the same. He had no interest in the property nor is he in possession of the same. It is the co-accused, who is in possession over the property in dispute and not the applicant. The applicant could have been held liable for the alleged offence only if it was found that he had some interest in the property in dispute and he attested the agreement to sell only to protect his interest. It is not the case here.
“Hence it is clear that no criminal liability can be attributed to the applicant for allegedly attesting an unregistered agreement to sell allegedly executed by mother of opposite party no 2 in favour of co-accused, Narendra Kumar Singh.
The Apex Court in the case of Bhajan Lal Vs State of Haryana (Supra), has clearly laid down the parameters where the proceedings against an accused can be quashed and this case comes within the same”, the Court observed while allowing the application.
The Court concluded that further investigation conducted against applicant is on the basis of statement of co-accused, Narendra Kumar Singh and submission of supplementary charge-sheet on its basis were in accordance with law, but no offence is made out against the applicant from the allegations of fact on record and the relevant law of execution of agreement to sell. Hence supplementary charge-sheet dated 28.8.2016 and summoning order dated 28.9.2016 are hereby quashed.
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