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2012 DIGILAW 757 (PAT)

Ali Hussain Mian @ Ali Hussain v. State of Bihar

2012-05-09

ASHWANI KUMAR SINGH

body2012
JUDGMENT (ORAL) A.K. SINGH, J.:- Heard Mr. Basant Kumar Singh, learned counsel appearing for the petitioners and Mr. Matloob Rab, learned A.P.P. on behalf of the State. Though, notices were served upon opposite party no. 2, the process server reported that he has already died. 2. The petitioners have challenged the order dated 5.4.2006 passed in Complaint Case No. 2065 of 2004 corresponding to Trial No. 1938 of 2006 whereby and whereunder Sri Vipul Sinha, the learned Judicial Magistrate, Ist Class, Gopalganj directed for issuance of summons against the petitioners finding a prima facie case to be made out under Sections 467, 468, 471, 420 and 323 of the Indian Penal Code. 3. The complainant filed the aforesaid case alleging therein that plot no. 1778 and plot no. 998 belonged to the complainant and the complainant executed a deed of gift in respect to the aforesaid pieces of land in favour of his daughter namely Bibi Hazara Khatoon on 5.3.2004. Bibi Hazara Khatoon came in possession of the land after execution of the deed of gift. He further alleges that the accused persons took him to Gopalganj and offered him alcohol and, thereafter, took him to a scribe who scribed a sale deed with respect to the pieces of land which had already been transferred to his daughter by way of gift. The signature of complainant was taken on several papers and, thereafter, they got a registered sale deed executed with respect to the aforesaid land showing a consideration of Rs. 35,000/-. 4. The complainant thus, alleges that the registered sale deed was got executed fraudulently in favour of petitioner no. 2. Petitioner no. 1 is said to be an accomplice of petitioner no. 2 whereas petitioner no. 3 is alleged to have witnessed the sale deed. The complainant, thereafter, requested petitioner no. 2 to relinquish his claim over the land but he refused to do so and, thus, a complaint case was filed in the court of learned Chief Judicial Magistrate, Gopalganj. 5. After institution of the complaint case, the complainant was examined on oath and apart from the complainant, two other witnesses were also examined. The complainant, thereafter, requested petitioner no. 2 to relinquish his claim over the land but he refused to do so and, thus, a complaint case was filed in the court of learned Chief Judicial Magistrate, Gopalganj. 5. After institution of the complaint case, the complainant was examined on oath and apart from the complainant, two other witnesses were also examined. In course of inquiry under Section 202 of the Code of Criminal Procedure, the learned Magistrate after examining the complainant on oath and after examining the inquiry witnesses, by the impugned order dated 5.4.2006 found a prima facie case to be made out under Section 467, 468, 471, 420 and 323 of the Indian Penal Code and summoned the petitioners and one another. 6. It has been submitted on behalf of the petitioners that the order taking cognizance is bad in the eye of law and allowing the prosecution to continue would be an abuse of the process of court. The complainant Sadik Mian and the petitioner no. 2 Sahmad Mian are full brothers. The complainant has executed a Mahadanama on 11.6.2003 in favour of petitioner no. 2 Sahmad Mian with respect to the pieces of land in question for a consideration of Rs. 35,000/-. After execution of Mahadanama dated 11.6.2003, Rs. 24,000/- was paid to the complainant as earnest money with an assurance that the remaining amount would be paid at the time of execution of the final sale deed. A photo copy of the Mahadanama deed has been brought on record and marked as Annexure-2 to the petition. 7. It has further been argued that after the execution of the Mahadanama deed dated 11.6.2003 requisite stamps were purchased for execution of the sale deed and finally after receiving the remaining consideration amount of Rs. 11,000/- the sale deed in question was executed by the complainant in favour of petitioner no. 2 on 6.9.2004. 8. Learned counsel further submits that as a matter of fact the complainant has played fraud upon him. He had never disclosed him regarding execution of deed of gift dated 5.3.2004 in favour of his daughter namely Bibi Hazara Khatoon. When the petitioner no. 2 on 6.9.2004. 8. Learned counsel further submits that as a matter of fact the complainant has played fraud upon him. He had never disclosed him regarding execution of deed of gift dated 5.3.2004 in favour of his daughter namely Bibi Hazara Khatoon. When the petitioner no. 2 came to know regarding the fraud played upon him, he filed a title suit, being Title Suit No. 302/2006 in the court of Sub-Judge, Gopalganj for declaration of his title and further for a declaration that the deed of gift dated 5.3.2004 executed by the complainant in favour of his daughter is without jurisdiction. Advancing his argument, he further submits that the sale deed executed by the complainant was for consideration and no mis-representation or fraud was ever played upon him. 9. On the other hand, learned counsel appearing on behalf of the State submits that the allegation made in the complaint constitutes a cognizable offence. The learned Magistrate, Gopalganj, upon examination of witnesses found a prima facie case to be made out. There is no illegality in the order summoning the petitioners to face trial. 10. Having heard the parties at length, I find that there is no allegation that some body else personated for the complainant while executing the sale deed. To the contrary, the complainant admits that his signatures and thumb impression were taken on several papers and while under influence of liquor, he executed sale deed in favour of petitioner no. 2. It is also admitted that other accused persons either identified the signature of the complainant or became witness to the execution of sale deed. The complainant has not alleged execution of sale deed by setting up any fictitious person or by forging his signature or thumb impression. The legal effect of a validly executed and registered sale deed has by now been well-settled. The registered deed is presumed to have been validly executed with all its legal consequences. The Apex Court in case of Prem Singh and Others vs. Birbal and others, since reported in (2006) 5 S.C.C. 353 while dealing with the legal effect of validly executed registered sale deed has held as under:- “……………………….. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The Apex Court in case of Prem Singh and Others vs. Birbal and others, since reported in (2006) 5 S.C.C. 353 while dealing with the legal effect of validly executed registered sale deed has held as under:- “……………………….. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption ……………………………………” 11. There is no dispute in proposition of law that in an appropriate case both criminal case and civil suit may lie. However, in the present case, the reading of complaint in its totality shows that it is out an out a civil dispute and the ingredients of criminal offence are totally unwarranted. No case was made out for the offences under which the learned Magistrate has taken cognizance of the offence. 12. Apparently, the complaint seems to have been filed with oblique motive. In the circumstances, allowing the prosecution to continue would certainly be an abuse of the process of Court. 13. Taking into consideration the aforesaid facts, the impugned order dated 5.4.2006 passed in Complaint Case No. 2065 of 2004 corresponding to Trial No. 1938 of 2006 by Sri Vipul Sinha, the learned Judicial Magistrate-Ist Class, Gopalganj is set aside. 14. In the result, the application stands allowed. Application allowed.