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2009 DIGILAW 729 (PAT)

Kamta Prasad v. State Of Bihar

2009-05-05

ABHIJIT SINHA

body2009
JUDGEMENT 1. This application by two of the six persons arrayed as accused in Complaint Case No. 265 of 2006 is for the quashing of the order dated 8.5.2006 passed therein by Sri D.S. Srivastava, Judicial Magistrate, First Class, Gaya, whereby he has taken cognizance against all the accused including the petitioners under Sections 420 and 120B I.P.C. and has also summoned them. 2. One Nawal Kishore Singh, impleaded herein as O.P. No. 2, filed the aforesaid complaint alleging inter alia that he is married to one Savitri Devi who happens to be the only child of Keshwar Mahto and after the death of Keshwar Mahto, all his movable and immovable property devolved upon Savitri Devi being the only legal heir of Keshwar Mahto and the said property was being taken care of by her sons and complainant who is her husband. It is said that the said ancestral lands were mutated in favour of Savitri Devi and her three sons and rent having been paid rent receipts were issued. It is said that on 2.9.2005, Kamta Prasad Singh and Satendra Singh, the brothers of the complainant by means of registered sale deed sold 25 decimals and 13 decimals of land respectively appertaining to khata no. 78 (new) and plot no. 1372 (new) and 3103 (new) to accused Kishundeo Yadav and the deed was registered and accused Dharmendra Kumar, the son of Kamta Prasad Singh and Jitendra Kumar, figured as witnesses thereupon and the sale deed was scripted by accused Birendra Kumar. It is alleged that earlier also the petitioners had sold the land of complainant illegally for which Complaint Case No. 1100 of 2005 had been filed. It is further alleged that when the complainant received information regarding the aforesaid illegal acts of the petitioners then he came to file the instant complaint case on 21.2.2006. 3. The procedure under Section 202 Cr.P.C. was adopted wherein apart from the statement of the complainant on S.A., 4 other witnesses, named in the complaint petition, were examined under Section 202 Cr.P.C. and on the materials available on record cognizance as aforesaid was taken. 4. It was submitted that the petitioners are innocent and have been falsely implicated in this case based on concocted facts. 4. It was submitted that the petitioners are innocent and have been falsely implicated in this case based on concocted facts. In this connection, it was sought to be submitted that the photographs of vendors and vendees are pasted in the sale deed and, therefore, the question of false impersonation does not arise. It was also submitted that from perusal of khata no. 78, it is apparently clear that both the petitioners have got share of 8 Ansh whereas Keshwar Mahto, the father-in-law of the complainant has got a share of 3 Ansh. It would also appear from khatiyan that the area of plot no. 1372 is 50 decimals and the area of plot no. 2103 is 26 decimals and according to the complaint petition areas sold by the petitioners is to the extent of 1/2 of the area in both the plot. It was also submitted that even if the allegations made in the complaint petition are accepted at their face value, it can safely be submitted that the petitioners have sold some of their own property as both of them have a share to the extent of 8 Ansh. The further submission is that as a matter of fact, Savitri Devi, had herself sold 11 decimals of land appertaining to plot no. 1283 and khata no. 78 vide sale deed on 26.7.2005 to Balchand Yadav and also sold 31 decimals of land appertaining to plot no. 2622 and plot no. 2576 to one Rajbali Prajapati for which Title Suit No. 33 of 2004 was pending before the Munsif-lll, Gaya. 5. It was finally submitted that if the entire case as made out in the complaint petition is accepted at its face value then it is clearly apparent that the dispute in question is purely civil in nature and as such the petitioners are not liable for criminal prosecution and any criminal prosecution in the face of allegations made would amount to an abuse of the process of the court. It was submitted that there was absolutely no material on the record to indicate any false impersonation or dishonest inducement or delivery of any property or conspiracy. 6. The learned counsel for opposite party no. It was submitted that there was absolutely no material on the record to indicate any false impersonation or dishonest inducement or delivery of any property or conspiracy. 6. The learned counsel for opposite party no. 2 opposing the submissions advanced by the learned counsel for the petitioners submitted that the petitioners, in fact, are not entitled to any share as the share in the property had not been decided and that khatiyan provided by the petitioners which is Annexure-2 before this Court had not been annexed with the petition of complaint. It was also submitted that from the acts of the petitioners herein, a case under Section 420 I.P.C. had been made out and no fault could be found in the impugned order of the learned Magistrate. 7. For an offence under Section 420 I.P.C not only cheating simplicitor but also dishonest inducement to a person sought to be deceived to deliver any property etc. are required to be proved. Section 420 I.P.C. suggests as a consequence of deception the deceived person is, inter alia, to deliver a property to the delinquent. The suggestion conveys the import and implication of the change of hands of the property or its transfer from one taken to the other directly or indirectly. 8. In the instant case, an allegation of cheating by means of impersonation has been alleged but unless such impersonation is proved the factum of cheating does not arise. Whether impersonation to cheat had actually taken place can only be decided in the title suit and until such a decision is taken by a court of competent civil jurisdiction the allegation of impersonation for purposes of cheating remains unestablished and as long as such impersonation or cheating is not proved, the petitioners cannot be made liable for the offence of cheating or even Section 120B I.P.C. 9. Due regard being had to the discussions made above, criminal liability on the petitioners at present does not arise and accordingly their criminal prosecution in the facts and the circumstances of the case would amount to an abuse of the process of the court. The dispute in issue herein though having the trappings of an offence, to my mind, is a matter of purely civil dispute which is required to be dealt with by a competent court of civil jurisdiction. 10. The dispute in issue herein though having the trappings of an offence, to my mind, is a matter of purely civil dispute which is required to be dealt with by a competent court of civil jurisdiction. 10. In the result, the application succeeds and the impugned order, so far as the petitioners are concerned, is hereby quashed.