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2010 DIGILAW 879 (PAT)

Jamuna Chaudhry v. State Of Bihar

2010-04-21

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Two petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 31.3.1999 passed in complaint Case No.1702 of 1998/tr. No.813 of 1999 by Judicial magistrate, Gopalganj. By the said order the learned Magistrate has taken cognizance for the offences under sections 420, 406, 467, 468 and 120b of the Indian Penal Code. 2. Short fact of the case is that the petitioners had sold a piece of land to the complainant appertaining to Khata no.535 plot no.483 for an amount of Rs.5,000/-. After completion of sale, the complainant came in possession over the land in question. However, about fifteen days prior to the filing of the complaint petition the accused persons intimated the complainant that the said land was not transferred to him and he was asked to vacate the land question. Thereafter, on enquiry the complainant learnt that he was cheated by the accused persons and Rs.5,000/-was defrauded by the accused persons by way of transferring the land of some other persons appertaining to Khata No.435, plot no.478 measuring 11 Dhurs. After noticing that the complainant was cheated by both the accused persons, a complaint was filed by the complainant bearing Complaint Case No.1702 of 1998 in the court of Chief Judicial Magistrate, Gopalganj. In support of complaint petition the complainant examined two witnesses and also some documents were adduced before the court and after being satisfied with the materials available on the record, by order dated 31.3.1999 the learned Magistrate has taken cognizance of the offences as mentioned above. 3. Mr. Raghav Prasad Singh, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the order of cognizance is bad in law in view of the provisions contained in section 468 of the Code of criminal Procedure. He submits that in this case if for the time being, it is assumed that fraud was committed, the said fraud was committed in the year 1989. After lapse of about nine years from the date of occurrence, the learned Magistrate was not authorized to take cognizance for the offences as alleged by the complainant. He submits that in this case if for the time being, it is assumed that fraud was committed, the said fraud was committed in the year 1989. After lapse of about nine years from the date of occurrence, the learned Magistrate was not authorized to take cognizance for the offences as alleged by the complainant. Learned counsel for the petitioners has further challenged the order of cognizance on the ground that the dispute appears to be purely civil in nature and for that very dispute the complainant may not be allowed to use criminal court. On the aforesaid two grounds learned counsel for the petitioners has prayed for quashing of the order of cognizance. 4. Mr. Satish Chandra Mishra appears on behalf of opposite party no.2. He submits that so far as question raised by the learned counsel for the petitioners that in a case of civil dispute no criminal proceeding should be allowed is concerned, he submits that recently Honble the Supreme Court in a case reported in 2009 (8) SCC 751 (Mohammed Ibrahim and Ors. Vs. State of Bihar and Anr.) has held that even in such cases both the proceedings can be allowed to proceed and criminal proceeding is not barred. Learned counsel appearing on behalf of opposite party no.2 has also while replying the question put by the learned counsel for the petitioners that the order of cognizance was barred under section 468 of the Code of Criminal Procedure, submits that period of limitation is to be considered from the date of knowledge. He submits that it is true that the fraud was committed in the year 1989 but the complainant came to know only fifteen days prior to filing of the complaint petition when he was tried to be ousted by the accused persons from the land in question. Only thereafter, he got the matter enquired and he came to know that fraud was committed by the petitioners. 5. Learned counsel for the petitioners also submits that in any event no offence is made out against petitioner no.2. He submits that allegation was made against petitioner no.1 that he executed the forged sale deed. There is nothing against petitioner no.2. 6. Besides hearing learned counsel for both the parties I have also examined the materials available on the record as well as the impugned order of cognizance. He submits that allegation was made against petitioner no.1 that he executed the forged sale deed. There is nothing against petitioner no.2. 6. Besides hearing learned counsel for both the parties I have also examined the materials available on the record as well as the impugned order of cognizance. In the complainant petition besides making allegation of cheating/fraud, allegation of conspiracy was also made with each other. The two accused persons i. e. the petitioners had committed the offence as alleged in the present case. In view of allegation of conspiracy, at this stage, it would be difficult to record any finding that petitioner no.2 has committed no offence in the present case. So far as question of cognizance being barred by limitation is concerned, I am of the view that as per assertion made in paragraph 5 of the complaint petition the limitation in the present case is not application. In paragraph-5 of the complaint petition, the complainant has specifically asserted that fifteen days prior to the lodging of the complaint case, he was asked by the petitioners to vacate the land in question and thereafter he conducted an enquiry and came to know regarding commission of offence by the petitioners. Accordingly, question of limitation will not come in the way of taking cognizance in the facts and circumstances of the present case. So far as argument advanced by the learned counsel for the petitioners that it is purely a dispute of civil nature, I am of the view that commission of fraud or cheating cannot be considered as civil dispute. As such, the present criminal proceeding cannot be throttled on that ground. In view of the facts and circumstances mentioned hereinabove, I am of the opinion that there is no defect in the order of cognizance. 7. There is no merit in the petition. The petition stands rejected. 8. In this case while issuing notice to opposite party no.2 by order dated 23.9.1999 this court had directed that in the meantime, operation of the order dated 31.3.1999 in Complaint case No. C-1702 of 1998/enquiry No.158 of 1998/tr. No.813 of 1999, pending in the court of Judicial Magistrate, Gopalganj, shall remain stayed. Subsequently, by order dated 4.12.2000 this petition was admitted for hearing and it was directed that during the pendency of this application, interim order dated 23.9.1999 shall continue. No.813 of 1999, pending in the court of Judicial Magistrate, Gopalganj, shall remain stayed. Subsequently, by order dated 4.12.2000 this petition was admitted for hearing and it was directed that during the pendency of this application, interim order dated 23.9.1999 shall continue. In view of rejection of the present petition, interim order of stay stands automatically vacated. 9. Let a copy of this order be sent to the court below forthwith. 10. It is made clear that the order has been passed by this court only on the question of cognizance and if any petition is filed at an appropriate stage, the court below without being prejudiced by this order may pass order in accordance with law. 11. In this case earlier, lower court records were called for and the same was received and lying along with the records of the present case. The office is directed to remit back the lower court records to the court below forthwith.