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2008 DIGILAW 720 (JHR)

Md. Yaseen v. State of Jharkhand

2008-07-14

DILIP KUMAR SINHA

body2008
JUDGMENT D.K. Sinha, J. 1. The petitioners have invoked the inherent jurisdiction of this Court under Section 482, CrPC for quashment of the order dated 4th January. 2003 passed by the Judicial Magistrate, Hazaribagh whereby and whereunder having been found a prima facie case after enquiry under Section 202, CrPC, directed the petitioners and co-accused to stand charge for the offence under Sections 420/465/149, Indian Penal Code. The Opposite Party No. 2 complainant in his complaint against the petitioner and four other persons alleged, inter alia, that land of Khata No. 41, Plot No. 544 measuring area of 4 decimal belonged to his father Habib Mian. Habib Mian had three sons viz. the complainant Abdul Rasid, Md. Afjal and one Niyamat Mian. Niyamat died leaving behind his legal heirs and in that manner all the three sons of Habib Mian had equal shares in 4 decimals of land to the extent of about 1.3 decimals each. On 7.6.2002 the complainant came to learn that his full brother accused No. 1 Afjal with the aid of the petitioners herein and others transferred 6 decimals of land in Plot No. 544 beyond his share by executing sale deed in favour of the accused No. 6 Shakila Khatoon though he had no right and title over the entire land sold by him and in that manner he committed cheating with co-accused in prosecution of common object. 2. According to the learned Counsel, the petitioners are not the executants of the sale deeds rather, the attesting witnesses on the instrument of transfer. There was no allegation as such in the complaint against them so as to attract offences against the petitioners punishable under Sections 420/465/149, IPC. In the given circumstances as depicted in the complaint the attesting witnesses of the sale deed cannot be saddled with the criminal liability of committing the offence of cheating as both had simply attested the execution and identified the vendor and vendee irrespective of contents recitals of the sale deed. 3. Learned Counsel further submitted that the co-accused Md. Junaid who was the deed writer of the sale deed in question had preferred a petition under Section 482, Cr PC vide Cr M.P. No. 752 of 2003 and his criminal prosecution was quashed by this Court on 1.4.2004. 3. Learned Counsel further submitted that the co-accused Md. Junaid who was the deed writer of the sale deed in question had preferred a petition under Section 482, Cr PC vide Cr M.P. No. 752 of 2003 and his criminal prosecution was quashed by this Court on 1.4.2004. The defence of the petitioners stood on the similar footing being not at all concerned either with the vendor or with the vendee or with the land in question. 4. Finally, it was submitted that the allegation whatever was made out in the Complaint Petition reflected the dispute purely of a civil nature and therefore, the criminal prosecution of the petitioners would amount to miscarriage of justice and the processes issued against them would be the misuse of the process of the Court. On the point of law as well, the learned Counsel submitted that no ingredient for the offence either under Section 420 or 465 was made out against any of the petitioners and their criminal prosecution, therefore, was liable to be quashed. Section 420 deals with cheating and dishonestly inducing delivery of property which speaks: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 5. Section 465 prescribes punishment for forgery. The word forgery is defined under Section 465, IPC which speaks: Whoever makes any false documents or false electronic record or part of a document of electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 6. The learned Counsel pointed out that it was not the allegation that any false document was created by the petitioners or they had committed forgery or cheating in any manner except that they were the attesting witnesses who identified the vendor and vendee irrespective of the share of the vendor in the property. 6. The learned Counsel pointed out that it was not the allegation that any false document was created by the petitioners or they had committed forgery or cheating in any manner except that they were the attesting witnesses who identified the vendor and vendee irrespective of the share of the vendor in the property. 7. The Apex Court in Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr. reported in 2000 (2) ECC 634 : (2000) 4 SCC 168 , observed that to hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. It was not the case that the accused Shakila alleged against the petitioners that they induced her to purchase the land from the principal accused vendor. The complainant failed to show that the petitioners had fraudulent and dishonest intention who attested the instrument with vested interest to show their mala fides. Similarly, there was no allegation against them having made willful misrepresentation and the main allegation was against the principal accused Md. Afjal that he executed sale deed of 6 decimals of land to the accused Bibi Shakila Khatoon beyond his share. 8. I do not find material in the complaint that the vendee Shakila Khatoon took the possession or she came on possession of the land after she purchased. In the circumstances, I am of the firm view that the petitioners who were the attesting witnesses of the instrument cannot be held criminally liable for the alleged offence under Sections 420/465/149, IPC. 9. This petition is allowed and their criminal prosecution is quashed in the complaint case No. 512 of 2002 pending before Shri Manish Ranjan, Judicial Magistrate, 1st Class, Hazaribagh in T.R. No. 739 of 2003 or his successor. Petition allowed.