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2007 DIGILAW 387 (PAT)

Surgi Devi v. State Of Bihar

2007-02-21

SHEEMA ALI KHAN

body2007
Judgment 1. Heard learned counsel for the parties. 2. The entire dispute giving rise to the filing of the complaint case no. 2169(C) of 2003 by the complainant fvlurli Dhar Pandey centres around execution of a sale deed by one Kharagdhari Narayan in favour of M/s Suman Sahkari Grih Nirman Samiti Ltd. (hereinafter referred to as the Samiti) through its Director. The sale deed is with respect to the land pertaining to plot nos. 104, 105, 108 and 87 in Mauza Khemani Chak, district Patna. The total land measures 5 bighas 10 1/2 khatha and a sum of Rs. 1 lac was paid to Kharagdhari. By the aforesaid sale deed the possession of the land was handed over to the Samiti. 3. Kharagdhari had two sons namely, Ram Nareshwar Prasad and Devi Lal Mahto. Kharagdhari died leaving behind one son Ram Nareshwar Prasad. His second son Devi Lal Mahto predeceased his father and left behind his wife Surgi Devi who is accused-petitioner no. 1 in this case and son Ram Chandeshwar Prasad, who is petitioner no. 2, in this case. Petitioner no. 3 Yamuna Prasad is the attesting witnesses to the said registered sale deed. 4. It is the case of the opposite party no. 2 that Ram Nareshwar Prasad, son of Kharagdhari, received Rs. 16,22,500.00 and Ram Chandeshwar Prasad received Rs. 11,25,725.00 as consideration amount against the said land and they executed a Izabnama on 13.3.1999 and 26.12.2000 respectively in favour of the said Samiti. Surgi Devi (petitioner no. 1) is said to have also received money through cheque in lieu of the aforesaid land. The case of opposite party no. 2 is that they came in possession of the said land and allotted the plots to themembers of the Samiti. On 3.5.2003 and 16.5.2003 it is alleged when the members of the Samiti went to demarcate their lands, then Ram Chandeshwar Prasad and other persons armed with pistol and lathi started creating nuisance and threatened the complainant Murlidhar Pandey and demanded a rangdari of Rs. 1 lac for which a, complaint case was filed numbered as 1125(C) of 2003 under sections 386, 307/34 of the Indian Penal Code and 27 of the Arms Act. It is also alleged that accused persons of this case demolished the pillars constructed by the members of the Samiti and tried to capture the lands. 1 lac for which a, complaint case was filed numbered as 1125(C) of 2003 under sections 386, 307/34 of the Indian Penal Code and 27 of the Arms Act. It is also alleged that accused persons of this case demolished the pillars constructed by the members of the Samiti and tried to capture the lands. It may be mentioned here that the complaint case was sent for investigation under sec. 156(3) of the Code of Criminal Procedure to the Phulwarisharif, Gourichawk police station and was registered as Gaurichawk RS. case no. 204 of 2003 dated 7.6.2003. 5. Surgi Devi, petitioner no. 1 and petitioner no. 2 filed a Title Suit numbered as Title Suit No. 362 of. 2003 in the Court of Sub-Judge with respect to the disputed land for a declaration that the sale deed executed on 13.3.1992 by late Kharagdhari is illegal, unlawful, fraudulent, manufactured and void. 6. In this background the present complaint case no. 2196(C) of 2003 has been filed by Murlidhar Pandey, opposite party no. 2 The aforesaid document i.e. the sale deed, Izabnama, F.I.R. and cheques paid to Surgi Devi have all been annexed along with the complaint petition and forms part of the complaint. In the complaint petition after stating all these facts opposite party no. 2 has alleged that the accused persons in conspiracy with each other had received Rs. 30,97,775/-" from the complainant, who is Director of the Samiti for which several deeds in favour of the complainant had been executed but they are now creating nuisance in order to take possession of the land with the intention to grab the said amount and have thus committed offence under sections 406, 420 and 120 of the Indian Penal Code. On the basis of this complaint cognizance has been taken by the Judicial Magistrate under sections 406 and 420 of the Indian Penal Code against the petitioners which is under challenge in this application. 7. Mr. Sinha, senior advocate appearing on behalf of the petitioners has submitted that no offence is made out under sections 406 and 420 of the Indian Penal Code on the facts stated in the complaint petition and thus the order of cognizance is liable to be quashed. 7. Mr. Sinha, senior advocate appearing on behalf of the petitioners has submitted that no offence is made out under sections 406 and 420 of the Indian Penal Code on the facts stated in the complaint petition and thus the order of cognizance is liable to be quashed. It has been submitted on behalf of the petitioners that on the basis of all the documents filed by the complainant and their pleadings in the document it is quite clear that he (complainant) is in possession of the land in question and he has already paid the consideration amount to the petitioners and the predecessor in interest, and as such, the allegation that the petitioners are trying to misappropriate the property for their own use is absolutely a false allegation. On the basis of their own documents the complainant has asserted that he is in possession of the land in question and therefore, the!;? can be no occasion for the petitioners to commit an offence which amounts to a criminal breach of trust. 8. The essential ingredients for committing criminal beach of trust are (i) the accused must have been entrusted with the property or with dominion over the property, (ii) the accused must have misappropriated or converted to his own use, that property, or used or disposed of the property in violation of any direction of law prescribing the mode in which the trust is to be discharged, or (iii) used or disposed of the property in violation of any legal contact expressed or implied (which he has made), (iv) willfully suffered any other person to do so, (v) such misappropriation or user or disposal must be dishonest or such sufferance must be willful. 9. In the present case the fact reveals that the complainant at no stage has asserted that the petitioners were in possession or had been entrusted with the property and this could be apparent from their own documents. At paragraph-2 of the recital of the sale deed of 1992 it has been stated that ".....whatsoever hereby conveys the property fully described in column 5 of this document to the vendee and put the vendee in possession thereof and the vendees shall have all rights and claims in the land conveyed which vendor enjoyed thus far". At paragraph-2 of the recital of the sale deed of 1992 it has been stated that ".....whatsoever hereby conveys the property fully described in column 5 of this document to the vendee and put the vendee in possession thereof and the vendees shall have all rights and claims in the land conveyed which vendor enjoyed thus far". Apart from this document in the complaint petition/F.I.R. lodged earlier it has been asserted that the allotted members of the Samiti had demarcated their plots and when the complainant i.e. Murl-idhar Pandey went on the plot of land on 16.5.2003, the petitioners have allegedly attacked them and tried to create nuisance. Thus, from the own averment of the complainant it is apparent that no case of entrustment has at all been made out with respect to the property and in fact it is the case of the complainant that they are in possession of the said land. 10. Sec. 405 of the Indian Penal Code consists of two parts. The first part consists of misappropriation or conversion of the property and the second part consists of dishonestly disposing of the property in violation of-any law or legal contract or the allegation made out in the complaint petition itself. The two main ingredients which would constitute an offence under sec. 405 are missing in the complaint petition and therefore, it cannot be said that the petitioners have committed an offence under section. 405 of the Indian Penal Code which is punishable under sec. 406 of the Indian Penal Code. 11. I may state here that the case of the petitioners is that there was an agreement of sale of 10 1/2 khatas of land in question @ Rs. 25,000.00 per khatha in the year 1990 with Kharagdhari. In 1992 a sale deed was executed by the opposite party no. 2 which the petitioners claim to be a forged document. Their further assertion is that there was no necessity to have executed the Izabnama if the sale deed was a genuine document and the land had already been transferred after paying consideration to the predecessor in interest of the petitioners. 2 which the petitioners claim to be a forged document. Their further assertion is that there was no necessity to have executed the Izabnama if the sale deed was a genuine document and the land had already been transferred after paying consideration to the predecessor in interest of the petitioners. Whatever may be the case of the petitioners with respect to the genuineness or otherwise of the sale deed and other documents, it would not be proper for this Court to make any comment regarding the merit of the case of the parties, as the sale deed is already under challenge before a competent civil court. 12. Coming to the allegation under sec. 420 of the Indian Penal Code, the case of the opposite party no. 2 in the complaint petition is that the petitioners received money in lieu of the property in question and having received the consideration they are now disturbing, the possession of the opposite party no. 2 and thereby are liable to be convicted for offence under sec. 420 of the Indian Penal Code. The three main ingredients of cheating involves (a) deceiving any person, (b) fraudulently or dishonestly inducing the person so deceived to deliver any property to any person, or (c) to consent that any person shall retain any property. 13. Sec. 415 of the Indian Penal Code defines cheating. This section deals w.ith cases of cheating whereby the deceived person is dishonestly induced; (1) to deliver any property to any person to make alter or destroy; (2) the whole or any part of valuable security; (3) anything which is signed or sealed and which is capable of being converted into a valuable security. 14. To make out an offence under sec. 420 of the Indian Penal Code it must be established that not only was the complainant cheated by the petitioners, but also that by committing certain acts he was dishonestly induced to deliver or part with any property or do any act mentioned in the section. 15. In the present case, the allegation under sec. 420 of the Indian Penal Code cannot be made out for the simple reason that there is no allegation that the complainant has been dishonestly induced to deliver any property to the petitioners. In fact, on the contrary it is the case of the opposite party no. 15. In the present case, the allegation under sec. 420 of the Indian Penal Code cannot be made out for the simple reason that there is no allegation that the complainant has been dishonestly induced to deliver any property to the petitioners. In fact, on the contrary it is the case of the opposite party no. 2 that he was in possession of the land in question. 16. On behalf of the opposite party no. 2 it has been contended that if any part of the complaint petition makes, out an offence under the Indian Penal Code, the court below should take cognizance for that offence. While making this submission Mrs. Prakash has laid emphasis on paragraph-13 of the complaint petition which reads as follows:- "That on 23.9.03 complainant went on the said land where the accused persons came and pushed him on the ground and threatened that if he will come again on the said land he may be killed." 17. The submission made on behalf of the opposite party no. 2 is unacceptable for the reason that the statement made at paragraph-13 appears to be vague and the opposite party no. 2 has also not been able to support this part of the allegation in context with the rest of the statement made in the complaint petition. At the most if paragraph-13 is said to be the basis of the complaint, it would not by itself constitute an offence. There must be something more than the bald statement that the accused persons abused the complainant threatening to kill him. In any event, on similar allegation there is a substantive case pending. Moreover, the complaint petition at paragraph-15 reads as follows: "That the accused persons in conspiracy with each other had received Rs. 30,97,775/- from the complainants Suman Sahkari Grih Nirman Samiti and executed the several deeds in favour of the complainants Sahkari Grih Nirman Samiti in connection with the said land but they are creating nuisance to take the possessions of the land with the intention to grab the said amount of the complainants Sahkari Samiti thus committed an offence u/s. 406, 420 and 120B of the Indian Penal Code." 18. Moreover the court below after perusing the complaint petition and the statement of the witnesses has not found that the petitioners are liable for offence as mentioned in paragraph-13 of the complaint petition and therefore the submissions on behalf of the opposite party no. 2 stands rejected. 19. It has also been contended that the complaint petition would disclose that the petitioners have committed an offence under sections 406 and 420 of the Indian Penal Code. 20. I have already discussed in detail the allegations contained in the complaint petition and the ingredients which would constitute an offence under sections 406 and 420 of the Indian Penal Code and have come to the conclusion that in the facts of this case the allegations do not make out a prima facie case which would constitute an offence under sections 420 and 120B of the Indian Penal Code. 21. For the reasons mentioned aforesaid, I quash the order of cognizance dated 10.12.2003 passed by the Judicial Magistrate, 1st Class, in complaint case no. 2169(C) of 2003.