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2012 DIGILAW 1341 (PAT)

Ashfaq Ahmad Khan v. State of Bihar

2012-09-20

SHIVAJI PANDEY

body2012
ORAL ORDER Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for opposite party no.2. 2. This application has been filed for quashing the order dated 23.7.2010 passed in C.R. No. 84 of 2009, arising out of Samastipur P.S. Case No.447 of 2005 by which he has taken cognizance against the petitioners under sections 420 and 468 of the Indian Penal Code. 3. From the First Information Report/complaint petition it appears that the complainant-cum-informant Jubeda Khatoon, wife of Md. Sahin has made an allegation that her husband had transferred the land bearing Kheshra Nos.3201 and 3202, area 12 Dhurs attached with Khaprapose house by registered deed dated 30.8.2000 by way of Den Mehar and she was continuing in possession from the date of execution of the registered deed. It has been alleged that the petitioners who are accused had greedy eyes over the property always wanted to usurp the same. In this connection on 25.9.2000 accused nos. 1 to 4 with the help of accused nos. 5 to 9 created a forged Panchnama giving bribe to one Sheo Shankar Mahto and got mutation of the land. 4. On her complaint, the Sub Divisional Magistrate, Samastipur enquired into the matter and found that forged document was created by the accused persons and wrongly got mutation of the land and recommended for taking action against them. It has been further alleged that the document dated 30.8.2000 was/is completely a forged and fabricated document and this had been created with an intention to deprive her from the valuable property. A case was registered as Complaint Case No.883 of 2005 and the Magistrate in exercise of power under 156(3) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) sent the matter to the police for institution and investigation of the case. The case was registered as Samastipur P.S. Case No. 447 of 2005 under sections 467, 468, 471 and 420/34 of the Indian Penal Code. 5. The police after investigation found the case to be false and accordingly submitted final form vide Final Form No. 160 of 2007 dated 30.6.2007. While the investigation was pending the complainant/informant filed a protest petition on 10.5.2006 in the court of the Chief Judicial Magistrate, Samastipur in connection with Samastipur P.S. Case No.447 of 2005. 5. The police after investigation found the case to be false and accordingly submitted final form vide Final Form No. 160 of 2007 dated 30.6.2007. While the investigation was pending the complainant/informant filed a protest petition on 10.5.2006 in the court of the Chief Judicial Magistrate, Samastipur in connection with Samastipur P.S. Case No.447 of 2005. The protest petition was treated as complaint petition and after enquiry took cognizance under sections 420 and 468 of the Indian Penal Code. 6. It has been brought to the notice of this Court that these petitioners had moved before this Court in anticipatory bail vide Cr. Misc. No. 44644 of 2010, this Court rejected the anticipatory bail vide order dated 19.4.2011 did not treat the case of civil dispute. After refusal of anticipatory bail, the petitioners filed the present quashing application on 1.7.2011 and this Court vide order dated 16.8.2001 stayed the proceedings of the court below. 7. Learned counsel for the petitioners submits that from the nature of allegation that has been made in the complaint petition it is primarily a civil dispute and by creating a camouflage, the present case has been filed giving label of criminal offence which is impermissible. He further submits that the petitioners are basically challenging the mutation that has been done on the basis of the Panchnama asserting the Panchnama to be illegal on the ground that Panchnama could not have been created in repugnant to registered deed. The counsel for the petitioner has submitted that getting of the order of mutation on the basis of Panchnama branding it to be fraudulent one cannot constitute criminal offence as there is no claim that parties to Panchnama have been impersonated nor there is claim that signature appearing in Panchnama are tampered or manufactured and claimed that the present case is completely covered by judgment reported Md. Ibrahim and others Vs. State of Bihar and another, reported in 2009(4) P.L.J.R. 99 SC. 8. Learned counsel for opposite party no.2 has submitted that petitioners have suppressed the fact of moving this Court in anticipatory bail which was rejected by this Court and as such petitioners are first required to appear before the court and take step for their bail. State of Bihar and another, reported in 2009(4) P.L.J.R. 99 SC. 8. Learned counsel for opposite party no.2 has submitted that petitioners have suppressed the fact of moving this Court in anticipatory bail which was rejected by this Court and as such petitioners are first required to appear before the court and take step for their bail. A person who is flouting the order as their bail was rejected by this Court, the present application under section 482 of the Code of Criminal Procedure is not maintainable as it will amount to premium to law breaker. In support his contention he has relied on the judgment in the case of Dinesh Choudhary Vs. The State of Bihar, reported in 2011 (1) P.L.J.R. 325 and in the case of Sk. Murshidul Islam Vs. State of West Bengal and Anr. reported in 1997 Cri. L.J. 1757. He has also submitted that there is an allegation of creating of forged documents which is a criminal act on the part of the accused persons. He has further argued that this Court while rejecting anticipatory bail had found the case was not of civil dispute rather it was a criminal case and that was the reason for rejection of the anticipatory bail. 9. Having considered the rival contentions of learned counsel for the parties before going to the merit of the case it is desirable to first consider the objection of opposite party no.2 about the propriety of filing of the present case in view of the fact that anticipatory bail filed by the petitioners was rejected. It appears from the record that anticipatory bail of the petitioners was rejected on 10.4.2011. The petitioners filed the present quashing application on 1.7.2011 and this Court has granted stay on 16.8.2011. The judgment cited by learned counsel for opposite party no.2 in the case of Dinesh Choudhary (supra) is not applicable as in that case Court has rejected the application under section 482 of the Code holding that inherent power under section 482 of the Code is intended to prevent the abuse of the process of the court and to secure the ends of justice but such power cannot be invoked to the rescue of a person who himself violated the law. The judgment as aforesaid has been decided stated above in quite different facts and situation as in the case of Dinesh Choudhary (supra) invoked inherent power was declared as absconder in that circumstances this Court held that he could not have bypassed the course of justice. In that circumstance the court has held that being an absconder he himself has abused the process of the court, could not be allowed to challenge the proceeding. The principle basically has been decided that a person who is seeking relief under inherent jurisdiction of this Court should come with clean hand and the person who himself abused the process of the court did not have right to claim relief under inherent jurisdiction. 10. In the present case the petitioners have not been declared as absconder. The fact is that after rejection of the anticipatory bail they instantly moved this Court for quashing of the proceeding claiming the proceeding being an abuse of process of court and this Court has stayed the impugned order. This Court finds that the judgment in the case of Dinesh Choudhary (supra) is not applicable to the fact of this case. 11. Another judgment of Calcutta High Court relied on by opposite party no.2 in the case of Sk. Murshidul Islam (supra) where the Court ultimately found that it is not a civil dispute and accordingly the Court has rejected the application filed under section 482 of the Code. The Court has specifically held as follows:- “However since on merit also we find that this is not a fit case for quashing the FIR or investigation inasmuch as it cannot be said that the FIR does not prima facie disclose any cognizable offence, it is not necessary for us now to recall the interim order because the interim order itself will automatically come to an end with the rejection of the application for quashing the proceeding.” 12. So in the aforesaid judgment the Calcutta High Court found, facts mentioned in the First Information Report prima facie constituted cognizable offence and the Court refused to exercise the inherent power under section 482 of the Code and as such the objection that has been raised by learned counsel for opposite party no.2 cannot be accepted in the present facts and circumstances of this case. 13. 13. Let us examine, facts mentioned in the First Information Report does constitute a criminal offence or a civil dispute. From the facts mentioned in the complaint petition it appears that the land was transferred as Den Mehar to the complainant by her husband and there is an allegation that accused no. 1 to 4 has manufactured Panchnama with the aid and assistance of accused nos. 5 to 9 and on the basis of the said Panchnama after influencing accused no.9 got the land and house of complainant mutated in the name of accused nos. 1 to 4. These are basic facts that have been mentioned in the complaint petition. 14. The Hon’ble Supreme Court in the recent judgment in the case of Indian Oil Corporation Vs. NEPC India Ltd. And others, reported in (2006)6 SCC 736 has held that a complaint can be quashed where the allegations made in the complaint, even it they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused, will be an abuse of process of court but facts constitute a criminal offence as well as a civil wrong the criminal proceeding will continue. The Court has gone to that extent even if the person has also filed a civil case that will not deprive the person to file a criminal case. The Hon’ble Supreme Court in paragraph 13 of the judgment has observed that if a dispute is essentially of a civil nature, has been given a cloak of criminal offence the proceeding is an abuse of process of court. Criminal proceedings are not a short cut of other remedies available in law. The Hon’ble Supreme Court has also held that there is a growing tendency in business circles to convert purely civil disputes into criminal case obviously on account of a prevalent impression that civil law remedies consumes enormous time and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriage/families. The Court has also opined that there is also an impression that if a person could somehow be entangled in a criminal prosecution, there is likelihood of imminent settlement. 15. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriage/families. The Court has also opined that there is also an impression that if a person could somehow be entangled in a criminal prosecution, there is likelihood of imminent settlement. 15. By and large the facts of this case is covered by the judgment of the Hon’ble Supreme Court in the case of Md. Ibrahim (supra). In that case the property was sold and a complaint case was filed that the person who sold the property did not have a right to sale the same. In this case also, dispute arose on account of mutation order claiming that mutation could not haven been effected in derogation of registered deed of transfer made by her husband. The Court has come to conclusion that it is by and large a civil dispute. It is relevant to quote the following portion of the said Judgment:- “10. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories:- 10.1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 10.2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 10.3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration. 11. In short, a person is said to have made a ‘false document’, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered on tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. 12. 11. In short, a person is said to have made a ‘false document’, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered on tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. 12. The sale deed executed by first appellant, clearly and obviously do not fall under the second and third categories of ‘false documents’. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant’s land (and that accused 2 to 5 as the purchaser, witness scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner, to execute the deed on owner’s behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even through he knows that it is not his property. But to fall under first category of ‘false documents’. It is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor section 471 of the Code are attracted. Section 420 IPC 13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of “cheating” are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived: (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part of a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).” 16. In this case also the claim made by the complainant that the land which is subject matter of Panchnama was transferred to her by her husband and the person who has got the mutation of the land in his favour is also a family member but it has been claimed a wrong Panchnama could not divest her from her right, title and possession over the property when the property itself was given her as Den Mehar and had/has been in possession of the property. In view of the judgment of Hon’ble Supreme Court it is primarily a civil dispute and it has been given a cloak of criminal case and it would be better course for the complainant to file civil case for the appropriate relief. 17. In this view of the matter this Court finds that the order dated 23.7.2010 passed in C.R. No.84 of 2009, arising out of Samastipur P.S. case No.447 of 2005 is not sustainable in law and accordingly the same is quashed. Opposite party no.2, if so advised, for redressal of her grievance can file a proper case before the appropriate court of competent jurisdiction. Any observation made hereinabove will not have any bearing on merit or any way affect any party if any case is filed before the competent civil court. 18. With the aforesaid observations this application is allowed.