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2012 DIGILAW 337 (PAT)

Harendra Mahto v. State of Bihar

2012-02-27

RAJENDRA KUMAR MISHRA

body2012
RAJENDRA KUMAR MISHRA, J.:–The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 08.11.2000, passed in Complaint Case No. 611-C of 1999 by the Court of Sri H.P. Tripathy, Judicial Magistrate, 1st Class, West Champaran at Bettiah, summoning the accused-petitioners, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Sections 418, 419, 420, 466, 467, 468, 471, 474 and 120-B of the Indian Penal Code. 2. In brief, the case is that opposite party no. 2, Kishori Mahto (since deceased), filed the complaint petition in the Court of the Chief Judicial Magistrate, West Champaran at Bettiah, alleging therein that accused petitioner no. 1, Harendra Mahto, who is his nephew is separated to him and has no concerned to his property. He used to cultivate his land separately and has sold his land to Baristar Rao. The complainant-opposite party no. 2 further alleged that he came to know that his nephew, accused-petitioner no. 1, Harendra Mahto has filed the Title Suit No. 63 of 1992, pending in the Court of Sub-Judge- IV, Bettiah, using forged gift deed dated 27.09.1988 regarding his land detailed in Schedule-I, in which accused-petitioner no. 2, Akhileshwar Dubey, is the identifier and accused-petitioner no. 3, Bipin Shukla, is the witness. In fact, he had no occasion to execute the alleged gift deed in favour of accused-petitioner No. 1 regarding his land and he never went to Registry Office for execution of the alleged gift deed, rather the accused-petitioner no. 1, Harendra Mahto putting a fake person on his place, has got executed the gift deed and on that very basis he has filed the title suit, while on complaint, his nephew, accused-petitioner no. 1, Harendra Mahto accepted his guilt and assured to execute the ‘Wazidava’ regarding land of forged gift deed, but, later on he started to avoid. As such, the accused-petitioners committed the forgery by preparing the forged gift deed and cheated him. 3. Learned counsel appearing on behalf of petitioner made submission that when accused-petitioner no. 1, Harendra Mahto came to know about the execution of sale deed by the opposite party no. As such, the accused-petitioners committed the forgery by preparing the forged gift deed and cheated him. 3. Learned counsel appearing on behalf of petitioner made submission that when accused-petitioner no. 1, Harendra Mahto came to know about the execution of sale deed by the opposite party no. 2, Kishori Mahto (since deceased) regarding the land which had already been gifted to him through registered gift deed dated 27.09.1988, he filed the Title Suit No. 63 of 1992 against Baristar Rao and opposite party no. 2, Kishori Mahto (since deceased). Baristar Mahto and Kishore Mahto (since deceased) as defendants appeared before the Court on 18.11.1992 and sought time to file the written statement and, accordingly, on 27.04.1993, both filed the written statement in the Court, which would appear from Annexure-3, the order-sheets of Title Suit No. 63 of 1992, which is still pending for decision. Later on, with oblique motive and to put undue pressure, the opposite party no. 2 has filed the present Complaint Case No. 611-C of 2001 on 18.09.1999, against the petitioners maliciously only to give undue pressure. 4. On perusal of the complaint petition, it appears that the allegation of complaint-opposite party no. 2 is about to get executed the gift deed regarding his land in false impersonation on 27.09.1988 by accused-petitioner no. 1, Harendra Mahto, in which the accused-petitioner no. 2, Akhileshwar Dubey and accused-petitioner no. 3, Bipin Shukla respectively are said to be identifier and witness. As such, the dispute appears to be of pure civil in nature. Annexure-2 to the supplementary affidavit shows that accused- petitioner no. 1, Harendra Mahto, has filed the Title Suit No. 63 of 1992 against Baristar Rao and opposite party no.2, Kishori Mahto (since deceased) claiming the land as sold by opposite party no. 2, Kishori Mahto (since deceased) in favour of Baristar Rao on the basis of the gift deed alleged to be executed by opposite party no.2 in his favour. The Annexure-3 to the supplementary affidavit also shows that on 18.11.1992, the opposite party no. 2, Kishori Mahto (since deceased) and Baristar Rao, who are defendants in the said title suit have appeared before the Court and later on 27.04.1993, have also filed the written statement and after seven years, opposite party no. 2 has filed present Complaint Case No. 611-C of 1999 against accused-petitioners. 5. 2, Kishori Mahto (since deceased) and Baristar Rao, who are defendants in the said title suit have appeared before the Court and later on 27.04.1993, have also filed the written statement and after seven years, opposite party no. 2 has filed present Complaint Case No. 611-C of 1999 against accused-petitioners. 5. Under the aforesaid facts and circumstances, initiation of the criminal proceeding on the basis of the complaint case of opposite party no. 2 through the impugned order dated 08.11.2000, appears to be abuse of the process of the Court. 6. Under the aforesaid facts and circumstances, the impugned order dated 08.11.2000, passed in Complaint Case No. 611-C of 1999, summoning the accused-petitioners under Sections 418, 419, 420, 466, 467, 468, 471, 474 and 120-B of the Indian Penal Code is hereby quashed and this application is allowed.