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2008 DIGILAW 598 (PAT)

Rabindra Kharwar v. State Of Bihar

2008-04-11

ABHIJIT SINHA

body2008
Judgment 1. By the Court.The petitioners who along with another have been impleaded as accused in Complaint Case No. 353 of 2006 have prayed for the quashing of the order dated 22.9.2006 passed therein by Sri R.K. Tripathi, Judicial Magistrate, First Class, Bhabhua, whereby he has taken cognizance of offences under Sections 420, 323, 341, 504 and 467, IPC, after examining three witnesses. 2. Briefly stated, the prosecution case is that the complainant and his brothers executed sale deeds in 1999 in favour of Late Brij Mohan Kharwar, the father of the petitioners, in respect of 4 decimals of land appertaining to Khata No. 176, Plot No. 941, for Rs. 40,000/- and the accused assured to pay the consideration money at the time of issuance of the sale receipt. However, the consideration money allegedly was not paid by the purchaser and even after his death the accused persons did not pay the consideration money. It is alleged that on 25.4.2006 when the complainant went to the house of the accused and demanded the consideration money, they assaulted him with fists and slaps and accused Nos. 1 and 2 snatched Rs. 300/- as also a wrist watch and when the complainant raised hulla, petitioner No. 2 opened fire threatening him with dire consequences if he demanded the consideration money. It is also alleged that the accused persons having duped the complainant got their names mutated on the basis of the certified copy of the sale deeds. 3. After considering the materials coming forth at the inquiry under Section 202, Cr PC the learned Magistrate took cognizance only against these four petitioners and their mother was left free. 4. It has been submitted on behalf of the petitioners that it would be clear from the complaint petition that the allegations levelled against the petitioners were imaginary and misconceived being based on false and concocted facts and that the same had been filed only with a view to grab the lands which were in the possession of the accused persons. It has further been submitted that the complainant and his brother had executed sale deeds Nos. It has further been submitted that the complainant and his brother had executed sale deeds Nos. 6023 of 1999 and 6024 of 1999 on 4.6.1999 in favour of the father and mother of the petitioners after receiving the consideration amount in full and after execution of the sale deeds the aforesaid lands were mutated in favour of the petitioners father and mother and accordingly the revenue of the aforesaid lands were being paid by the petitioners. It was further sought to be submitted that although the deeds were executed in the year 1999, it was curious that the complainant demanded the consideration amount after eight years and put pressure by filing coneocted complaint on 26.4.2006 without explaining the cause for delay. The learned counsel for the petitioners sought to question the bona fides of the complainant regard being had to the fact that the sale deed was executed without the consideration money being paid and after the death of the original purchaser, the father of the petitioners, in the year 2002, the complainant had raised a demand for payment of consideration money after four years. The learned counsel further sought to submit that even if the complainants allegation is correct then he ought to have moved the competent Civil Courts to set aside the sale deed which he had not done. It was further sought to be submitted that from the averments in the complaint petition and the materials cropping up in course of the inquiry no offence either under Sections 420 or 467, IPC can be said to have been made out against the petitioners. 5. On the other hand, the learned counsel for O.P. No. 2 sought to submit that it is not only the question as to whether the consideration money had been paid or not. According to him what is in issue is that on 25.4.2006 when the complainant went to demand the consideration money he was assaulted with fists and slaps by the accused persons who also snatched Rs. 300/-as also a wrist watch and, in fact, petitioner No. 2 had also opened fire and had also advanced threats of killing the complainant which amounted to criminal liability. 6. 300/-as also a wrist watch and, in fact, petitioner No. 2 had also opened fire and had also advanced threats of killing the complainant which amounted to criminal liability. 6. The deposition of the witnesses at the inquiry is not available before me but it appears from the impugned order that the learned Magistrate after examining the materials available on record including the statement of the complainant on S.A. and the deposition of the witnesses came to the conclusion that a prima facie case against all the four petitioners had been made out. 7. According to the complainant, the sale deeds were executed in the year 1999 and as he had not been paid the consideration money till April, 2006, he had gone to demand the same from the petitioners. It is strange that the complainant took no steps for almost 8 years in attempting to recover the consideration money and even in his statement on S.A. he does not state the reasons for such prolonged delay. The allegations as made out from their very face value appear to be concocted and frivolous which cannot be accepted by a person. That apart no person would execute or get registered a sale deed without receiving the consideration money. In effect, the allegations of assault with fists and slaps and threats by firing in the air appear to have been manufactured with ulterior motive and the prosecution of the petitioners in the facts and the circumstances of the case and the high improbability of the prosecution story would amount to an abuse of the process of the Court. 8. In the result, the impugned order taking cognizance is hereby quashed and the application is allowed.