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2010 DIGILAW 2471 (PAT)

Jang Bahadur Ram Sukhdeo Das v. State Of Bihar

2010-11-10

RAKESH KUMAR

body2010
JUDGEMENT RAKESH KUMAR, J. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 16.1.2007 passed by Shri R.C. Malviya, Judicial Magistrate, Bettiah West Champaran in Complaint case N0.2593-C of 2005, Trial No.2261 of 2007. By the impugned order, learned Magistrate has taken cognizance of offence under Sections 406 and 420 of the Indian Penal Code. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Bettiah, West Champaran, which was numbered as Complaint Case No.2593-C of 2005 against the sole petitioner with an allegation that the petitioner had committed offence under Sections 420, 406, 467, 471 of the Indian Penal Code. It was alleged in the complaint petition that in the year 1990, the complainant along with the petitioner had jointly applied for settlement of land pertaining to Khata No.2, Khesra No.4749/ 38 and Khata No.2, Khesra No.4749/54 for total area of 67 decimals. It was alleged in the complaint petition that for the purpose of settlement of land, Rs.30,000/- amount was required to be deposited and the complainant, being illiterate, had given Rs.15,000/- to the petitioner for settling the land in the joint name. It was alleged in the complaint petition that the petitioner had cheated the complainant and instead of getting the land settled in joint name, the petitioner got the land in question settled vide Settlement Proposal No.35 of 1990-91. It was further alleged that on 20.7.2005, the complainant came to know that the petitioner had got fabricated settlement order in his favour and as such he approached the petitioner. However, the complainant was abused and it was told by the petitioner that even Rs.15,000/- will not be refunded to the complainant. It was alleged that the complainant was also assaulted and abused by the petitioner. After filing the complaint petition, enquiry was conducted and the learned Magistrate, by the impugned order i.e. order dated 16.1.2007, has taken cognizance of offence under Sections 406 and 420 of the Indian Penal code. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition, which was aornitted on 3.12.2008. At the time of admission, the opposite party no.2 had already appeared through his counsel. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition, which was aornitted on 3.12.2008. At the time of admission, the opposite party no.2 had already appeared through his counsel. However, no stay order was passed in favour of the petitioner. It has been intimated by Shri Sanjay Kumar No.7, who is appearing on behalf of opposite party no.2 that during the pendency of the present petition, after the order of cognizance, subsequent development had taken place and number of witnesses have been examined before charge. 4. Shri Sanjeev Kumar No.1, learned counsel appearing on behalf of the petitioner, while challenging the impugned order, submits that even in the complaint petition, it was alleged by the complainant that he had made payment of Rs.15,000/- in the year 1990 and the land was settled in favour of the petitioner in the year 1990 itself. Learned counsel for the petitioner has also referred to Annexure-2 to the petition, which is a copy of the order of settlement of the land in favour of the petitioner. While referring to Annexure-2, learned counsel has pointed out that even in the settlement proceeding, the complainant had filed a petition for settling half portion of the said land in his favour. Accordingly, it was submitted that the complainant right from the very beginning was well aware regarding settlement proceeding and thereafter, he did not take any steps and only in the year 2005 without any cogent reason, has filed the present complaint petition. It was submitted that the present complaint petition was not filed fairly, but was filed with some oblique motive. Learned counsel for the petitioner has also submitted that in respect to the settlement of the land in question, other proceedings are still pending in between the parties. It was submitted by learned counsel for the petitioner that despite the fact that settlement order was passed in the year 1990, the complainant did not take any step to get the said settlement cancelled and only with a view to put a pressure on the petitioner to alienate his right from half portion of the settled Jand, the present petition was filed by the complainant. Accordingly, it has been prayed to set aside the impugned order. 5. Learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. Accordingly, it has been prayed to set aside the impugned order. 5. Learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. Learned counsel has referred to several paragraphs of the counter affidavit as well as annexures, which have been brought on record by filing counter affidavit. Learned counsel for opposite party no.2 submits that the complainant came to know about the said settlement only in the year 2005, when the petitioner tried to take possession of the land in question. Thereafter, dispute arose between the parties and subsequently, a Panchayati was held and by the Panchayat, a decision was taken in which it was decided to give some share to the complainant in the land in question. Since the petitioner disowned the decision of the Panchayati, the opposite party no.2 was constrained to file the present complaint petition. It was submitted that after the Panchayati was held, the complainant was examined on S.A. as well as witnesses had supported the averment made in the complaint petition. The witnesses have categorically stated that payment of Rs. 15,000/- was made in their presence. Learned counsel appearing on behalf of opposite party no.2 has further submitted that time without number, it has been held that this Court may refrain from interfering with the initial stage of a criminal proceeding. It was submitted that the petitioner has come against the order of cognizance and as such it would not be advisable to interfere with this order. It was submitted that whatever plea has been taken by the petitioner can be taken at appropriate stage i.e. at the stage of charge. Accordingly, it has been prayed to reject the present petition. 6. I have also heard Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, who has supported the stand taken by learned counsel for opposite party no.2. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In the complaint petition, which was filed in the year 2005, it was disclosed that Rs. 15,000/ was paid to the petitioner in the year 1990 for the purpose of taking half portion of the proposed land, which was going to be settled. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In the complaint petition, which was filed in the year 2005, it was disclosed that Rs. 15,000/ was paid to the petitioner in the year 1990 for the purpose of taking half portion of the proposed land, which was going to be settled. From the complaint, it appears that the complainant had made subsequent averment that he had authorized the petitioner to pursue the matter for the purpose of settlement of land in the joint name of petitioner and complainant. On perusal of Annexure-2, which is the order sheet in relation to the settlement proceeding, it appears that the complainant himself had also filed a petition for granting half share of the land in question. This fact has not been disputed by learned counsel for the opposite party no.2. However, it has been submitted by learned counsel for opposite party no.2 that the order itself give some contradictory fact. At one stage, it was recorded in the order sheet that report of service of notice was not received. It was noticed in the said order that the complainant had filed a petition, but at subsequent stage, it has been recorded that no objection was raised by either of the parties. It has been submitted that the petitioner had got the order in his favour by committing fraud. 8. Fact remains that the complainant had already participated in.the settlement proceeding by filing a petition. If the complainant had already participated in the proceeding, it is difficult to comprehend as to how after lapse of about 15 years, he came to know for the first time regarding the settlement of the land in question. On perusal of the Annexure-A to the counter affidavit, it further appears that despite the fact that the decision was taken in a Panchayati, but in the said proceeding, the complainant had not at all whispered regarding payment of Rs.15,000/-. In the present complaint, only allegation, which has been noticed by the learned Magistrate, while taking cognizance of the offence, is that the complainant was cheated by the petitioner in taking Rs.15,000/- from him on false representation. It further appears that after the Panchayati was held, the witnesses were examined and they supported the complaint of the complainant regarding payment of Rs.15,000/-. It further appears that after the Panchayati was held, the witnesses were examined and they supported the complaint of the complainant regarding payment of Rs.15,000/-. It further appears from Annexure-A to the counter affidavit that dispute in relation to the land in question in between the parties was going on since long. 9. In view of the facts and circumstances of the present case, it appears that only with a view to get possession over the land in question, the present complaint was filed by the opposite party no.2. The court is of the opinion that the present complaint was filed maliciously, which requires to be interfered with by this Court. In ordinary course, this Court is not required to interfere with the order of cognizance, but in the peculiar facts and circumstances of the present case, the court is satisfied that it is a fit case for exercising inherent jurisdiction in favour of the petitioner. 10. Accordingly, the impugned order i.e. order dated 16.1.2007 passed by the Judicial Magistrate, Bettiah, West Champaran in Complaint Case No.2593-C of 2005, Trial No.2261 of 2007 is hereby set aside and petition stands allowed.