2025:UHC:5586 1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE SHRI JUSTICE ALOK MAHRA Criminal Misc. Application No. 723 of 2015 1st July, 2025 Mahendra Kumar Mamgain and others -- Applicants Versus Sunil Kumar Gupta --Respondent ---------------------------------------------------------------------- Presence:- Mr. Avidit Nauliyal, learned counsel holding brief of Ms. Prabha Naithani, learned counsel for the applicants. Mr. S.K. Jain, learned Senior Counsel assisted by Mr. Siddhartha Jain, learned counsel for the respondent. ---------------------------------------------------------------------- JUDGMENT By way of present application, moved under Section 482 of Cr.P.C., applicants seek to quash the entire proceedings of criminal complaint case no.2770 of 2014, ‘Sunil Kumar Vs. Mahendra Kumar Mamgain, U/s 120B and 420 of IPC, Police Station Nehru Colony, District Dehradun pending before the Judicial Magistrate IIIrd, Dehradun. 2. Facts in brief are that the respondent/ complaint submitted complaint before the Court of Judicial Magistrate IIIrd, Dehradun, wherein the respondent/complainant has submitted that applicants contacted the complainant and stated that their names are recorded in Class-9 (Varg-9) in revenue records on Khasra No.1 admeasuring 0.54 Acres, Mauza Aamwala Tarla Pargana, Parwadoon, District Dehradun and further submitted that the applicants have matured their rights to be declared as a Bhumidar with transferrable 2025:UHC:5586 2 rights and are persuading the legal proceedings as such; that, the applicants expressed urgent need of money to pursue the said legal proceedings and have persuaded the complainant to purchase their said piece of land, as land belonged to the complainant is surrounded by the piece of land of the applicants. Thereafter, the applicant entered into a registered agreement with the complainant and the complainant had paid a sum of ₹2000/- at the time of registration of the agreement before the Sub- Registrar, Dehradun; that, thereafter, the complainant has paid further ₹5000/- by way of cheque and ₹ 2000/- in cash, as full and final payment. The applicants have assured the complainant that they are trying to enter his name in the revenue records as Bhumidar with transferable rights in respect of the said piece of land and, as soon as it would be done, then sale deed will be executed in favour of the complainant. In the complaint, it is further alleged that, on 04.03.2013, some persons came on the said land with intention to make encroachment upon it. Thereafter, the complainant gave legal notice to the applicants. 3. It is submitted by learned counsel for the applicants that the applicants gave reply to the legal notice issued to them and, in their reply, the applicants have submitted that when registered agreement was entered, the complainant has paid only ₹5000/- and the applicants have already returned the double amount paid by the complainant to the applicants i.e. ₹10,000/-. He further submitted that the statement of the complainant was recorded under Section 200 of Cr.P.C., in which he reiterated the averments made in his complaint. Thereafter, learned Judicial Magistrate IIIrd, Dehradun vide its order dated 31.03.2015 took cognizance and 2025:UHC:5586 3 issued summons to the applicants under Sections 120B and 420 IPC. Feeling aggrieved, the applicants have approached this Court. 4. Learned counsel for the applicants would further submit that admittedly names of the applicants were recorded in Class -9 (Varg-9) in revenue records on Khasra No.1 admeasuring 0.54 Acres, Mauza Aamwala Tarla Pargana, Parwadoon, District Dehradun; that, an agreement to sell was entered between the applicants and the complainant, but since the land was not a Bhumidar land, therefore, no sale deed could have been executed; that, in the agreement to sale, it was categorically mentioned that the applicants are persuading the legal procedure for getting them declared as Bhumidar of the said land and whenever they would get the status of the Bhumidar with transferable rights then they would intimate the complainant within three months and they will get executed the sale deed, therefore, on this basis, they have not cheated the complainant. 5. Learned counsel for the applicants would further submit that learned Judicial Magistrate took the cognizance in the matter, without application of mind, in the mechanical manner. 6. Per contra, learned Senior Counsel for the respondent would submit that, after executing the agreement to sell, the applicants did not pursue before the Revenue Court for getting them declared as Bhumidar with transferable rights, therefore, offence under Sections 420 and 120B of the IPC were clearly made out against the applicants. 2025:UHC:5586 4 7. Heard learned counsel for the parties and perused the record. A bare perusal of the complaint would reveal that ingredients contained under Section 420 of IPC are not attracted in the instant case, as the applicants were recorded as Class -9 tenure holders and have no right to execute the sale deed of the said land. Therefore, there was no dishonest intention on the part of the applicants at the time when the agreement to sell was executed and the complainant was fully aware of the fact that sale deed could be executed only after the applicants would be declared Bhumidar with transferable rights. Beside this, the agreement to sell was an unregistered agreement and based on future legal contingencies, which would need not be performed, if the contingency does not occur, and parties are not to be liable for breach of it. 8. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegation, if proved, would constitute an offence, therefore, the Magistrate is bound to consider the question as to whether the same discloses the commission of offence and is required to form such an opinion in this respect. 9. In the case of Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and Others reported in (1998) 5 SCC 749, the Hon’ble Apex Court has discussed the role of the Magistrate, while issuing the summoning order in paragraph No.28 of the judgment, which is extracted below:- “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course, it is not that the complainant has 2025:UHC:5586 5 to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 10. In view of the law laid down by the Hon’ble Apex Court in Pepsi Foods Ltd. (supra) case and on the basis of the observations made in preceding paragraph of this judgment, this Court has no hesitation in quashing the entire proceedings of the aforesaid criminal complaint case. 11. Accordingly, the present criminal misc. application filed U/s 482 Cr.P.C. is allowed and the entire proceedings of criminal complaint case no.2770 of 2014, pending in the court of Judicial Magistrate IIIrd, Dehradun is hereby quashed, qua the applicants. (ALOK MAHRA, J.) Dated: 01.07.2025 BS BALWANT SINGH Digitally signed by BALWANT SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=fbbd191c8bdb8b16e8ca7937deaf72a17c02fe2ea cbf28cdf4ba7ce8640c5820, postalCode=263001, st=UTTARAKHAND, serialNumber=04E141DF4614F9A4D5F48346EB553DE518 5F418755DC00A7A13C14A680C3FA90, cn=BALWANT SINGH Date: 2025.07.04 16:25:35 +05'30'