Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 42 (JHR)

Manisha Jaiswal v. State of Jharkhand

2009-01-09

N.N.TIWARI

body2009
Order In both the said petitions common prayer has been made for quashing the order taking cognizance dated 18.1.2005 of the offences under Sections 420, 406, 384, 120B of the Indian Penal Code against the petitioners in G.R. No. 219/ 2003, passed by learned Judicial Magistrate, 1st Class, Khunti. 2. By the impugned order the cognizance of the said offences has been taken against Sanjay Kumar and Birendra Kumar Jaiswal (petitioners in Cr. M.P. No. 752 of 2005) and against Manisha Jaiswal (petitioner in Cr. M.P. No. 674 of 2005). 3. The informant Naresh Bhagat lodged an F.I.R. with the Khunti Police alleging that Birendra Kumar Jaiswal had got transferred 511/2 decimals of land comprising Plot Nos. 538 and 539 by virtue of two registered sale deeds for a consideration of Rs. Four lakhs, one dated 30.9.2002 executed in the name of Birendra Kumar Jaiswal in respect of 111/2 decimals of land of Plot No. 539 and another executed and registered in the name of his wife Manisha Jaiswal with respect to 40 decimals of land of Plot No. 538. At the time of execution and registration of sale deed no consideration amount was paid. Later on a cheque was issued for Rs. Two lakhs on 13.11.2002, but when the informant went to encash the cheque in the bank Birendra Kumar Jaiswal went there and forcibly snatched away the cheque saying that he will issue another cheque, as there was no amount in the said account. The accused persons thereafter did not turn up and make payment in spite of repeated demand made by the informant. On the said statement the Police registered a case under Sections 420, 405, 386 and 384 of the Indian Penal Code. 4. The case was investigated into and the Police, on conclusion, submitted charge-sheet under Sections 420, 406, 384 and 120B of the Indian Penal Code against three persons namely Birendra Kumar Jaiswal, Sanjay Kumar Jaiswal (petitioners in Cr. M.P. No. 752/2005) and Manisha Jaiswal (petitioner in Cr. M.P. No. 674/ 2005). Learned Judicial Magistrate, 1st Class, Khunti thereafter took cognizance of the offences under Sections 420, 406, 384 and 120B of the Indian Penal Code against all the aforesaid accused persons. 5. M.P. No. 752/2005) and Manisha Jaiswal (petitioner in Cr. M.P. No. 674/ 2005). Learned Judicial Magistrate, 1st Class, Khunti thereafter took cognizance of the offences under Sections 420, 406, 384 and 120B of the Indian Penal Code against all the aforesaid accused persons. 5. In this petition the petitioners have challenged the said order taking cognizance and entire criminal proceeding against them on the following grounds:- (i) The sale transaction between the parties was pursuant to an agreement. (ii) The allegation is of non-payment of the consideration amount as agreed upon by the terms of agreement. (iii) The said allegations even if taken at the face value give rise to a cause of action for a civil suit. No penal offence is constituted. (iv) The order taking cognizance and the criminal proceeding as such is illegal and an abuse of the process of the Court. 6. Notice was issued to the informant (O.P. NO.2) in both the cases, who has appeared through learned counsel Mr. Anil Kumar. 7. I have heard the parties and considered the facts and materials on record. On perusal of the F.I.R., I find that the allegation of forcibly snatching away the cheque from the informant which was issued for payment towards consideration amount is only against Birendra Kumar Jaiswal. The another allegation of wrongly putting Rs. Four lakhs as consideration amount in the agreement paper is also against Birendra Kumar Jaiswal. 8. Though one of the sale deeds is executed in favour of Manisha Jaiswal, the allegation of non-payment of consideration amount for the said transaction does not constitute a criminal offence. The said allegation gives rise to a civil cause of action. I, therefore, find no sufficient ground for taking cognizance of the aforesaid offences against her. There is no allegation in the F.I.R. constituting the aforesaid offences against Sanjay Kumar as well. Even in the F.I.R. the informant had sought for criminal action only against Birendra Kumar Jaiswal. The Po/ice, however, included the names of Sanjay Kumar Jaiswal and Manisha Jaiswal in the charge-sheet. There is no sufficient material for taking cognizance for the said offences against Sanjay Kumar and Manisha Jaiswal. Even if the entire allegation levelled in the F.I.R. is taken at its face value, no penal offence is constituted against them. The Po/ice, however, included the names of Sanjay Kumar Jaiswal and Manisha Jaiswal in the charge-sheet. There is no sufficient material for taking cognizance for the said offences against Sanjay Kumar and Manisha Jaiswal. Even if the entire allegation levelled in the F.I.R. is taken at its face value, no penal offence is constituted against them. I, therefore, find no legal ground to support the order taking cognizance for the aforesaid offences against the said two petitioners. The order taking cognizance against them, as also the entire criminal proceeding is, thus, wholly without any basis and is an abuse of the process of the court. 9. However as against Birendra Kumar Jaiswal there are allegations constituting the offences for which the learned Magistrate has taken cognizance against him. In view of the nature of allegation and material collected on record, order of cognizance of the said offences taken against him cannot be held to be unjustified. Only because there was an agreement and the facts give rise to a cause of action for civil remedy, the order taking cognizance as well as criminal proceeding against him cannot be said to be bad and illegal. 10. In view of the above discussion and consideration, order taking cognizance for the aforesaid offences against Sanjay Kumar and Manisha Jaiswal is quashed, without interfering with the impugned order, so far as Birendra Kumar Jaiswal is concerned. 11 Accordingly Cr. M.P. No. 752 of 2005 is allowed only with respect to Sanjay Kumar and is dismissed with respect to Birendra Kumar Jaiswal. Cr. M.P. No. 674 of 2005 filed by Manisha Jaiswal stands allowed.