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2007 DIGILAW 1581 (PAT)

Sipahi Rawat v. State Of Bihar

2007-09-26

MIHIR KUMAR JHA

body2007
Judgment Mihir Kumar Jha, J. 1. The petitioner is aggrieved by an order dated 22.7.2005, passed in Complaint Case No. 1872 of 2003, Trial No. 1741 of 2005, whereby the Court below has issued summons to the accused persons including the petitioner for facing trial for the offence under Sec. 417 of the Indian Penal Code (IPC) . The petitioner is further aggrieved by the order of the Revisional Court dated 7.8.2005, passed in Cr. Rev. No. 352 of 2005/17 of 2005, affirming the order of the court below, dated 22.7.2005. 2. In this case notices were issued to the opposite party No. 2, the complainant, by an order, dated 5.1.2007 and further proceedings in the Complaint case had been stayed. Despite service of notice on the Opposite Party No. 2, no one has appeared on his behalf. 3. I have heard the learned Counsel for the parties at length. From the materials on record, it is apparent that there is an allegation of cheating against the petitioner and other persons. The case of the opposite party No. 2 is that he owed money to petitioner No. 1 and when he was not in a position to pay that amount, he had offered to execute a deed of mortgage in favour of petitioner No. 1. The opposite party No. 2 claimed that in fact he had executed a deed of mortgage in the Registry office on 20.10.1994 but after a long time, when he could obtain the certified copy of the document, he found that actually a deed of gift in place of deed of mortgage came to be executed by him. Consequently, opposite party No. 2, after he got knowledge of this cheating committed by petitioner No. 1 in league with the deed writer and others, who are accused Nos. 2, 3, and 4 in the complaint petition, had filed a compliant on 22.9.2003 before the Chief Judicial Magistrate, who, by order dated 23.9.2003 finding that there appears to be a prima facie case, entrusted the inquiry to the Judicial Magistrate who after looking into the allegation in the petition of complaint as also examining the witnesses, by his order dated 22.7.2005 had issued summons to the petitioner and others for facing trial under Sec. 417 IPC. The petitioners had thereafter assailed the said order in a revision application which came to be dismissed by the revisional court by an order dated 7.8.2006. 4. Learned Counsel for the petitioner while raising a plea that the impugned order was hit under Sec. 468 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), has submitted that the offence was admittedly committed on 20.10.1994 but the order taking cognizance was passed on 22.7.2005. He had also submitted that the maximum punishment under Sec. 417 IPC being one year imprisonment or fine or both, the impugned order passed after more than 10 years of the date of occurrence cannot be sustained in terms of Sec. 468 of the Code. I am afraid, I cannot accept this submission because Sec. 468 of the Code is hedged by the provisions of Sec. 469 of the Code providing inter alia that the period of limitation in relation to an offence shall commence either on the date of the offence or where the commission of the offence was not known to the person aggrieved by the offence or to any Police Officer, the first day on which such offence comes to the knowledge of such person or to any police officer whichever is earlier. Now in the complaint petition there is a clear averment that the complainant opposite party No. 2 came to realize and know of the cheating committed by the petitioner and others only on 2.7.2003 because he had always remained under the impression that what he had executed on 20.10.1994 was a deed of mortgage which ultimately turned out to be a deed of gift when he had obtained a copy thereof in the year 2003. According to the complainant, the offence of cheating committed on 20.10.1994 was not known to him from 20.10.1994 to 2.7.2003 and only when this position became clear to him, he had filed the petition of complaint on 22.9.2003 and the Chief Judicial Magistrate having applied his mind had sent the matter for further inquiry to the magistrate who had issued summons to the petitioner and others on 22.7.2005. Consequently, I do not find any merit in the aforesaid plea of the petitioner and the same is hereby rejected. 5. Consequently, I do not find any merit in the aforesaid plea of the petitioner and the same is hereby rejected. 5. The learned Counsel next contended that if the solemn affirmation of the complainant is examined and particularly the question put by the court is taken into consideration, it would become clear that the complainant opposite party No. 2 had admitted that his thumb impression was obtained on the same day after explaining the contents of the documents. On the basis of these statements the counsel had contended that opposite party No. 2 had full knowledge that he had executed a deed of gift and, therefore, the period of limitation will run from 20.10.1994 itself, i.e., the date of execution of such deed. I am afraid, I will not be in a position to accept this submission of the counsel for the petitioner because what has been stated by opposite party No. 2 is that one Hisamuddin Mian, who used to sell the stamp paper for registration, had obtained his thumb impression on the alleged document of deed of gift after reading its contents to him. The statement of the complainant opposite party No. 2 cannot be read to mean that he had either knowledge or had accepted that he had executed a deed of gift and not a deed of mortgage. 6. The counsel thereafter and brought to my notice that for this very transaction, a Civil Suit has been filed by the opposite party No. 2 being Civil Suit No. 263 of 2003 which is pending in the Court of Munsif, Gopalganj, with a prayer to cancel the deed of gift, dated 20.10.1994. I am afraid, mainly, because a civil suit is also pending that will not change the colour or will take away the ingredients of the offence committed by the petitioner. There may be a case where on the same set of allegations there can be a criminal prosecution as also a civil suit. That by itself would not mean that the complaint case or the order taking cognizance should be quashed on that ground alone. 7. What has really not been explained by the petitioner is as to why the opposite party No. 2 will execute the deed of gift in favour of the money lender petitioner No. 1? That by itself would not mean that the complaint case or the order taking cognizance should be quashed on that ground alone. 7. What has really not been explained by the petitioner is as to why the opposite party No. 2 will execute the deed of gift in favour of the money lender petitioner No. 1? It is not the case of petitioner No. l that there was any understanding between him and the opposite party No. 2 that when opposite party No. 2 will not return money he will execute a deed of gift. On the other hand the opposite party No. 2 has stated that as he was not in a position to return the money, he had executed the deed of mortgage which is quite understanding. In that view of the matter, the whole story of the petitioner that there was possibility of the deed of gift being executed by opposite party No. 2 in his favour is absolutely unbelievable and, therefore, it cannot be also said that the complaint petition even lacks bona fide. 8. Consequently, having examined the impugned orders from all angles, I find that there is no infirmity in them. In the result, this application is dismissed.