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2009 DIGILAW 1054 (JHR)

Nirmal Kedia v. State of Jharkhand

2009-07-29

PRASHANT KUMAR

body2009
Judgment In this application petitioner prayed for quashing the order dated 1.3.2005, whereby and whereunder the learned Additional Chief Judicial Magistrate, Rajmahal took cognizance under section 120B, 420, 467 and 468 of the IPC in P.C.R. Case No. 249 of 2004. The petitioner further prayed for quashing of entire subsequent proceeding in the aforesaid case. 2. It is alleged that the O.P. No. 2 and his brothers had purchased some lands (details of which given in the complaint petition) from one Baijnath Kedia through different sale deeds. It is further alleged that on 16.01.1978 said lands were given to Baijnath Kedia on lease for constructing washing plant of Karnpura Mining Corporation. It is further stated that later on as per the Will of Baijnath Kedia the said Karnpura Mining Corporation came in the share of petitioner no. 2 and petitioner no. 1 made attorney of the properties of petitioner no. 2. It is stated that petitioner no. 1 and 2 have knowledge regarding the properties and lands of complainant (O.P. No. 2). It is further alleged that in the year 2004, all the accused persons hatched a conspiracy to grab the land of O.P. No. 2 and his brothers and in pursuance of aforesaid conspiracy a deed of sale bearing sale deed no. 2080 dated 10.6.2004 executed by the petitioner no. 1 and 2 in favour of other accused persons named in the complaint petition. It is alleged that in the said sale deed the lands of complainant (O.P. No. 2) also included though the petitioners have no power to sale the aforesaid lands. It is further alleged that the complainant (O.P. No. 2) had requested the petitioners to amend the aforesaid sale deed by deleting his lands but the petitioners did not give any heed to his request, therefore the present complaint has been filed. 3. It appears that after inquiry learned Additional Chief Judicial Magistrate, Rajmahal come to the conclusion that prima facie offences under section 420, 467 and 468 read with section 120B of the IPC made out. Accordingly, he ordered for issuance of summons against the accused persons including the petitioners. 4. It is submitted on behalf of the petitioners that in the complaint petition, O.P. No. 2 has admitted that in the will executed by Baijnath Kedia, the entire property belonging to the Karnapura Mining Corporation allocated in the share of petitioner no. Accordingly, he ordered for issuance of summons against the accused persons including the petitioners. 4. It is submitted on behalf of the petitioners that in the complaint petition, O.P. No. 2 has admitted that in the will executed by Baijnath Kedia, the entire property belonging to the Karnapura Mining Corporation allocated in the share of petitioner no. 2 of which petitioner no. 1 is the attorney. It is submitted that on the basis of aforesaid will the Hon’ble Calcutta High Court had issued a probate and in that probate, entire land of Karnapura Mining Corporation had come in the share of petitioner no. 2. Under the said circumstance petitioner no. 2 is the owner of the said land. It is submitted that in that view of the matter, the petitioners have absolute right title and interest over the said land and in that capacity they have power to sale it to any body. It is further submitted that in any view of the matter the allegation made by the complainant-opposite party is required to be adjudicated by a civil court of competent jurisdiction on the basis of evidence both oral and documentary adduced by the party. It is submitted that the criminal court have no jurisdiction to decide the right, title and interest of the party in connection with land. Accordingly, it is submitted that the initiation of criminal proceeding by learned court below on the basis of complaint petition filed by O.P. No. 2 is an abuse of the process of court. 5. On the other hand, learned counsel for the opposite party submits that petitioners had knowingly included the lands of O.P. No. 2 in the sale deed, therefore, they have created a false document to show their title, thus committed forgery, as defined under section 463 of the IPC. It is submitted that since the aforesaid forgery committed with a view to cheat O.P. No. 2 by hatching a conspiracy, therefore, offences under section 120B , 420, 467 and 468 of the IPC made out. Thus, there is no illegality in the order of court below. 6. Having heard the submission, I have gone through the record of the case. Thus, there is no illegality in the order of court below. 6. Having heard the submission, I have gone through the record of the case. From the allegations made in the complaint petition, I find that the opposite party had claimed that some of the lands sold by the petitioners in favour of said accused persons is owned by O.P. No. 2 and his brothers. It is also stated in the complaint petition that in the year 1978 said lands were leased out in favour of father of petitioner no. 1 for construction of Washing Plant. It is also admitted by complaint-O.P. No. 2 in the complaint petition that the father of petitioner no. 1, namely, Baijnath Kedia had executed a will and in the said will entire properties belonging to Karnapura Mining Corporation allocated in the share of petitioner no. 2 and petitioner no. 1 has been made attorney of those properties. Under the aforesaid circumstance, whether the lands enumerated in the complaint petition is owned by the complainant-opposite party and the same was leased out in the year 1978 in favour of Baijnath Kedia is required to be adjudicated by a civil court of competent jurisdiction after going through the evidence, both oral and documentary, adduced by the party. In the instant case, both the parties claim themselves to be the owner of the lands, which were sold to other accused persons. 7. From perusal of supplementary affidavit, I find that O.P. No. 2 had filed a civil suit bearing Title Suit No. 44 of 2007 in the court of Subordinate Judge-I at Rajmahal praying therein to declare his right, title and interest in the lands on adjudication that the sale deed bearing no. 2080 dated 10.6.2004 is void ab-initio and not binding on O.P. No. 2. In that circumstance, since the title suit also pending with regard to the same set of lands, in my view, the initiation of criminal proceeding is not warranted. 8. In a similar circumstances it has been held by their Lordships of Supreme Court in Inder Mohan Goswami and another Vs. State of Uttranchal and others reported in AIR 2008(SC)251 that : The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. State of Uttranchal and others reported in AIR 2008(SC)251 that : The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. The dispute in question is purely of civil nature and respondent No. 3 has already instituted a civil suit in the court of Civil Judge. In the facts and circumstances of this case; initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the court. Thus, the instant case is squarely covered by the law laid down by their Lordships of Supreme Court in the aforesaid decision and in that view of the matter the initiation of proceeding against the petitioners by learned Additional Chief Judicial Magistrate, Rajmahal is an abuse of the process of court, therefore, the same cannot be sustained. 9. In the result, this application is allowed. The impugned order dated 1.3.2005 passed in P.C.R. No. 249 of 2004 and subsequent proceeding initiated on the basis of aforesaid order is hereby quashed.