ORDER 1. In this case, petitioners are challenging the order of cognizance dated 4th April 2011 for offence under sections 420, 465, 471/34 of the Indian Penal Code arising from Complaint Case No. C-2740/2009 pending before the Judicial Magistrate 1st class, Siwan. 2. Ajay Kr. Chatterjee is eldest son of late Kali Pada Chatterjee whereas petitioners No. 1 to 4 are sons and daughter and petitioner No. 5 is wife of Kali Pada Chatterjee. Petitioner Nos. 6 to 9 are purchaser of disputed land. Petitioner No. 12 is deed writer and petitioner Nos. 10 and 11 are conspirator of execution of deed. 3. The complainant is Constituted Attorney of Ajay Kr. Chatterjee @ Ajay Kr. Upadhayay on 17.6.2009. On the strength of being a power of attorney-holder, filed the complaint case vide Complaint Case No.2740/2009. In the complaint petition it has been alleged that the land in dispute appertaining to plot No. 476 area measuring 12 kathas 09 dhurs were acquired by the father of Ajay Kr. Chatterjee in the year 1931 and his father, namely, Late Kali Pada Chatterjee had gifted the said property to Ajay Kr. Chatterjee in the year 1972 and Ajay Kr. Chatterjee had given Power of Attorney to sell the land aforesaid on his behalf. It has been alleged, as the disputed property was of Ajay Kr. Chatterjee @ Ajay Kr. Upadhayay but petitioner Nos. 1 to 5 illegally sold the property by playing fraud and committing forgery in the record. 4. In this case, it is relevant that accused persons, namely, Abhay Kr. Chatterjee @ Abhay Kr. Upadhayay, Bijay Kr. Chatterjee @ Bijay Kr. Upadhayay, Anjan Chatterjee @ Anjan Kr. Upadhayay and Sanjay Kr. Chatterjee are the brothers and Sushma Chatterjee who is widow of late Kali Pada Chatterjee is the mother of Ajay Kr. Chatterjee whereas accused Raju Kumar, Satyendra Nath Choubey, Satish Kumar, Smt. Saroj Devi are the persons who purchased the property aforesaid. 5. The court below on the basis of statement of the complainant, that is, the power of attorney-holder and evidence of three witnesses took cognizance of the offence under sections 420, 465, 471/34 of the Indian Penal Code. After notice, the O.P. No. 2 has appeared to contest the case. 6. The counsel for the petitioner has basically raised the issue that the present complainant who is a Constituted Attorney of Ajay Kr. After notice, the O.P. No. 2 has appeared to contest the case. 6. The counsel for the petitioner has basically raised the issue that the present complainant who is a Constituted Attorney of Ajay Kr. Chatterjee has not been authorized in terms of the deed of attorney to file any case so much so, the criminal case against the petitioners. He has further stated that the criminal case could have been filed by the Principal i.e. Ajay Kr. Chatterjee as has been allegedly claimed, the land was gifted by his father and, as such, the gift in question itself was/is in dispute. He has further argued that unless the gift is properly proved or Ajay Kr. Chatterjee comes forward to explain the status of gift, as the same is in dispute, the power of attorney-holder cannot have knowledge about the creation of gift by his father in his favour. He has further submitted that a Title Suit No. 333/1990 was filed by the petitioner including the principal, namely, Ajay Kr. Chatterjee. @ Ajay Kr. Upadhayay, the present land itself was one of the subject-matters of title suit where in paragraph-6 of the plaint it has been specifically stated that plaintiff Nos. 1 to 5 are sons of Kali Pada Chatterjee whereas plaintiff No. 6 being her widow and they have succeeded the property jointly. It has been submitted that after the death of Kali Pada Chatterjee in the year 1983 all the plaintiffs had been in peaceful possession over the property including the disputed property of the present complainant case. 7. The counsel for the petitioner submits that in view of the positive statement made by Ajay Kr. Chatterjee along with the other brothers and mother where there is no whisper about the execution of deed of gift as has been claimed in the complaint petition is completely forged and fabricated document so much so that rent receipt has been issued by the State of Bihar in the joint name of brothers and mother after the death of Kali Padh Chatterjee. 8. The counsel for the petitioner submits that the deed of gift itself is under cloud in view of the statement made in the complaint petition and as such, the status of gift can only be decided in a properly constituted Civil Suit. 8. The counsel for the petitioner submits that the deed of gift itself is under cloud in view of the statement made in the complaint petition and as such, the status of gift can only be decided in a properly constituted Civil Suit. He has further submitted that it is, by and large, a civil dispute and wrongly criminal case has been filed. If Ajay Kr. Chatterjee is aggrieved by the execution of the sale deed, he could have filed the properly constituted suit and there could have been a proper adjudication on the status of the deed of gift which has been obtained from his father. 9. The counsel for the petitioner has further submitted that on reading of statements of deed of power of attorney it does not disclose any way that the present complainant was authorized to file the complaint petition rather it has only been authorized to file the application in case of a dispute. 10. The counsel for the opposite party submits that the facts mentioned in the complaint petition discloses offence committed by the petitioners, as the land was gifted in favour of Ajay Kr. Chatterjee and, as such, the present petitioners have illegally and maliciously sold the property of Ajay Kr. Chatterjee. 11. He has further stated that the deed of power of attorney specifically shows that in case of dispute the power to file criminal case has been conferred on the O.P. No. 2. He has further submitted that the sale deed itself is in dispute and from the deed it appears that Principal has authorised the Attorney-holder to take proper steps. 12. The counsel for the O.P. No. 2 submits that the court below has rightly taken cognizance and it does not require any interference. In the present case basic question has been raised, whether power of attorney-holder could file the present case on the strength of execution of deed of gift by Kali Pada Chatterjee in favour of son, namely, Ajay Kr. Chatterjee. 13. The issue with regard to creation of power of attorney basically has been dealt with in Order 3 Rule 1 & 2 of the Code of Civil Procedure. Chatterjee. 13. The issue with regard to creation of power of attorney basically has been dealt with in Order 3 Rule 1 & 2 of the Code of Civil Procedure. The issue as to what could be done by the attorney-holder has been considered by the Hon’ble Supreme Court in a case of Janki Vashdeo Bhojwani v. Indusing Bank Limited reported in (2005) 2 SCC 217 where the Hon’ble Supreme Court has considered the provision of Order- 3 Rule 1 & 2 CPC and held that holder of power of attorney to “act” on behalf of the principal confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts’ in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. It will be apt to quote para- 12 and 13 of aforesaid judgment, are as follows:- Para-12. In the context of the directions given by this Court, shifting the burden of proving on to the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Para-13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act on behalf of the principal. Para-13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some “acts in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined”. 14. There was a divergent view of the different High Courts but the Hon’ble Supreme Court has taken the aforesaid view and the same view has been reiterated in the case of Man Kaur v. Hartar Singh Sangha, reported in (2010) 10 SCC 512 where the similar question arose for consideration of power and the scope of attorney holder to “act” on behalf of the principal, where the Hon’ble Supreme Court has held, if the power of attorney holder has done any act or handled any transactions in pursuance of power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. It will be relevant to quote paragraph 18 of this judgment where the Hon’ble Supreme Court has summarized as to what attorney-holder could have done for his principal is as follows:- (a) An attorney-holder who has singed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders and dealt with the matter at different stages of the transaction, all the attorney-holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness” and willingness” fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness” and willingness”. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. 15. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. 15. In this case basically the complaint case has been filed where specifically stated that the land in question was given in gift to Ajay Kr. Chatterjee in the year 1972. The gift was given by his father in favour of Ajay Kr. Chatterjee who has executed the deed of gift and it cannot be knowledge of the attorney-holder who has been appointed by Ajay Kr. Chatterjee for the purpose of selling the land which has been claimed by him the gifted property. It is very much clear the gift was transactions in between the father and the son which can only be explained by Ajay Kr. Chatterjee not by the attorney-holder. The attorney-holder can only explain his conduct after the execution of the power of attorney. The nature of action he has taken in pursuance of the deed executed by his principal but certainly he cannot explain anything about the deed of gift which has been disputed by petitioners given by the father to his son. At the same time on reading of the power of attorney it appears that the power has been given to the present complainant (power of attorney holder) in case of dispute in connection of execution of sale deed, he would be able to take steps but does not disclose that he has authority to file a criminal case against the family members raising the plea of gift executed in favour of Ajay Kr. Chatterjee. 16. Undisputedly in the Title Suit No. 333/1990 it has been averred, that all the family members were in joint possession of the property after the death of the father and no where in the plaint any whisper has been made with regard to the execution of deed of gift in favour of only son, namely, Ajay Kr. Chatterjee who was the eldest son of the family. 17. In view of the aforesaid discussion, this Court is of the view that the status of deed of gift was/is in the personal knowledge of Ajay Kr. Chatterjee who could only explain and it is sure, his attorney cannot explain about the deed of power of attorney. Ajay Kr. Chatterjee who was the eldest son of the family. 17. In view of the aforesaid discussion, this Court is of the view that the status of deed of gift was/is in the personal knowledge of Ajay Kr. Chatterjee who could only explain and it is sure, his attorney cannot explain about the deed of power of attorney. Ajay Kr. Chatterjee, neither he is a complainant nor he is a witness and as such, the order of cognizance on the basis of statement of complainant cannot be approved. 18. The complaint filed by his attorney is not sustainable as a whole case moving around on the existence of deed of gift. 19. In view of the aforesaid judgment, this Court is of the view that the present attorney-holder has wrongly filed the complaint petition so much so that the land which has been claimed by him as a deed of gift cannot be a matter of criminal case because status of gift can only be tested in the properly constituted civil suit. Even presuming the present petitioners No. 1 to 5 have no right over the property but they have sold the same that can be a matter of civil dispute, as the statement made in complaint petition as well as surrounding circumstances shows that only the cause for the present case is the execution of sale deed by the other family members. Unless the deed of gift is declared to be valid or unless he gets an order by the court of competent jurisdiction about the status of deed of gift, which has been denied by the other family members, cannot be decided in a criminal case and it cannot lead to inference of commission of criminal offence, basically it is a civil dispute between the parties. 20. This view is fortified from the judgment reported in 2009 (4) PLJR 99 (Md. Ibrahim v. State of Bihar) where the Hon’ble Supreme Court has considered the scope of different Sections of the Indian Penal Code and held that the sale deed is executed conveying a proper deed claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. But in this case the complaint is not by the purchaser. On the other hand, the purchasers are made co-accused brothers have been arrayed as accused claiming share over the property cannot be subject-matter of criminal offence. It will be relevant to quote paragraph 14 of the said judgment. Para-14. When a sale deed is executed conveying a proper deed claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reasons of being the witness, scribe the stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419, or 420 of the Code. 21. In this view of the matter, the order of cognizance dated 4.4.2011 passed by Judicial Magistrate 1st class, Siwan arising from Complaint Case No. C-2740-2009 cannot be held to be proper and the same is set aside and subsequent proceeding is also quashed. 22. Accordingly, this petition is allowed.