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2015 DIGILAW 1277 (GAU)

Lal Deo Sah v. State of Arunachal Pradesh

2015-10-01

RUMI KUMARI PHUKAN

body2015
JUDGMENT AND ORDER : Rumi Kumari Phukan, J. This petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred by the petitioners challenging the impugned order dated 15.11.2014 passed by the learned Chief Judicial Magistrate, Yupia in Complaint Case No. 41/2014 whereby cognisance has been taken against the petitioners under Sections 420/34 IPC as well as for quashing the complaint case No. 41/2014 pending before the learned Chief Judicial Magistrate, Yupia, Papum Pare District, Arunachal Pradesh. 2. The contentions made by the petitioners are that they never involved in any criminal offence and at present a complaint case was filed against them is totally false and fabricated one on the ground with a view to harass the petitioners and to make undue gain for a plot of land purchase by the petitioners and in respect of which, civil litigation are pending between the parties. 3. It has been stated that by the criminal proceeding the respondent/complainant has abused the process of the court. Narrating the fact beyond the case, it has been submitted that one Late Bhagan Prasad Choudhury of Bora Chakia, Purbi Champaran, Bihar had three sons, namely, Krishna Prasad Choudhury, Murari Lal Choudhury and Ram Avatar Choudhury and after the death of Bhagan Prasad Choudhury, his legal heirs divided the total ancestral land amongst themselves and mutated their names against their respective share of land. The Complainant's father Late Ram Udar Pandey has purchased 10 kathas 3 Dhur of land on 10.04.2006 from Late Krishna Prasad Choudhury. The petitioner No. 1 along with his family member, on the other hand, purchased 7 Kathas 5 Dhur land vide registered Sale deed dated 03.02.2009, which has been registered on 07.02.2009 from Diraj Kumar Choudhury, the son of Late Murari Lai Choudhury. 4. I have heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioners. Also heard Mr. K. Tado, learned Public Prosecutor for the State of Arunachal Pradesh/respondent No. 1 and Mr. K. Tama, learned counsel appearing on behalf of the Complainant/respondent No. 2. 5. 4. I have heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioners. Also heard Mr. K. Tado, learned Public Prosecutor for the State of Arunachal Pradesh/respondent No. 1 and Mr. K. Tama, learned counsel appearing on behalf of the Complainant/respondent No. 2. 5. The learned senior counsel for the petitioners submitted that during his life time, the father of the complainant Ram Udar Pandey along with his mother filed a preemption case being Pre-Emption Case No. 3/09-10 before the Court of Land Reforms Deputy Collector, Chakia, East Champaran misrepresenting the fact that they are Raiyat of redemption claimed land and that his land is situated in the northern boundary of the land in question, which is situated in the southern side of the land of the petitioners. Subsequently, the mother and father of the complainant deposited the amount of sale consideration mentioned in the sale deed before the said Court and vide order dated 13.12.2010, the Court allowed preemption suit in favour of the father and mother of the complainant. Thereafter, it was stated that the northern boundary of the land mentioned in the sale deed of the petitioners is wrong. 6. Being aggrieved with the order dated 13.12.2010 in Pre-emption Case No.3/09-10, the petitioners filed an appeal being Preemption Appeal No. 12/2010-11 before the said Court challenging the aforesaid order. In the said appeal, complainant has been arrayed as party respondent. By the order dated 13.12.2010, the Court of Collector, Chakia, East Champaran, Bihar, passed the stay order in the said pre-emption Case No. 3/09-10. The Pre-emption Appeal was admitted on 05.01.2011 and is still pending before the said Court for final disposal. 7. The learned senior counsel further submitted that during the pendency of the Preemption Appeal in the Court of Collector, Chakia, East Champaran, Bihar, the respondent/complainant suddenly filed a Complaint Case before the learned Chief Judicial Magistrate, Yupia, Papum Pare District, Arunachal Pradesh, which was registered as Complaint Case No. 41/2014, against the petitioners alleging inter alia that petitioners requested to pay an additional amount of Rs. 10.00 lakhs for the mutation of their land measuring 7 Kathas 5 Dhur in favour of the Complainant on the pretext of believing the promise of the petitioners that after making payment the appeal would be withdrawn and the land measuring 7 Kathas 5 Dhur would be transferred into the name of the complainant. 10.00 lakhs for the mutation of their land measuring 7 Kathas 5 Dhur in favour of the Complainant on the pretext of believing the promise of the petitioners that after making payment the appeal would be withdrawn and the land measuring 7 Kathas 5 Dhur would be transferred into the name of the complainant. In this context, the complainant invited the petitioners for negotiation and accordingly temporary ILP was obtained and both the petitioners arrived at Itanagar on 29-08-2014 and thereafter negotiation of the amount for the said land was fixed at Rs.6.00 lakhs, which was paid in cash to the petitioners in cash in presence of the witness. The petitioners after negotiation left for Guwahati on the next day but even after competition of 15 days the mutation was not done. 8. It is further alleged by the respondent/complainant that due to failure on the part of the petitioners to mutate the land in favour of the complainant as agreed upon and due to failure to repay the amount to which they took for the purpose, the complainant lodged a complaint on the allegation of cheating by way of deception before the Court of Chief Judicial Magistrate at Yupia, Papum Pare District, Arunachal Pradesh wherein they have annexed the copy of two Inner line Permits purportedly issued to both the petitioners for coming to Itanagar and the copy of legal notice given to the petitioners. 9. According to petitioners, neither they travelled to Naharlagun by obtaining Inner Line Permit nor they have taken any money from the complainant/respondent, the allegation made by the complainant is false and fabricated one. Similarly, the allegation of taking money by the petitioners has been made only to pressurise the petitioners to settle the civil case pending before the Court in the State of Bihar whereas; there is no any payment receipt as such, as proof of giving the amount of Rs. 6.00 lakhs by the complainant to the petitioners, so annexed by the complainant in the petition. The whole episode raised by the complainant cast serious doubt to prove veracity of the allegation. Thus, it has been stated that there being no prima facie case against the petitioners to take cognisance at the court below and as such the complaint case so filed by the complainant/respondent as well as the impugned order dated 15.11.2014 are liable to be quashed and set aside. 10. Thus, it has been stated that there being no prima facie case against the petitioners to take cognisance at the court below and as such the complaint case so filed by the complainant/respondent as well as the impugned order dated 15.11.2014 are liable to be quashed and set aside. 10. In response to the notice, the respondent No. 2 i.e. complainant has filed an affidavit-in-opposition, wherein, he categorically replied against the averments made by the petitioners. Admitting about the civil case pending between the parties as has been stated by the petitioners, it has been submitted that after long pendency of the aforesaid appeal being filed by the petitioners, the complainant was informed by his relatives that the petitioners are willing to negotiate the case and they are ready to mutate their land if some additional payment as the cost of negotiation and litigation is paid to them on good faith to avoid prolong litigation, which is pending since 2011, the complainant has accepted their proposal. 11. It is further stated in the affidavit-in-opposition of the respondent No. 2 that the petitioners arrived in the morning at Gumto Check Gate on 28.08.2014, but they were not allowed to enter in the territory of Arunachal Pradesh as they have not obtained the Inner Line permit. However, the complainant, on their request, requested a local known person, namely, Kamter Kena to obtain provisional Inner line permit for both the petitioners. It is further stated by the complainant that in the absence of Inner line permit, the petitioner s left for North Lakhimpur to stay for the night and after obtaining Inner line permit, they came Naharlagun in the shop of the complainant on next morning i.e. 29.08.2014 through Gumto Check Gate. Thereafter, after long discussions, they were ready to accept Rs. 6.00 lakhs as the cost of mutation and for withdrawal of the appeal filed against the order dated 13.12.2010. According to respondent/complainant, in the absence of not having cash, he sent one of his staff namely Amit Kumar to encase the cheque of SBI, Naharlagun bearing No. 027857 amounting to Rs. 6,00,000/- arid after encashment from the Bank, the said amount was paid to the petitioners on good faith believing that they have to reach early mutation/sale deed of the land, in question, would be done within a week to 10 days. 12. 6,00,000/- arid after encashment from the Bank, the said amount was paid to the petitioners on good faith believing that they have to reach early mutation/sale deed of the land, in question, would be done within a week to 10 days. 12. According to the respondent/complainant, when the petitioners did not acted upon for mutation/sale deed, he sent his brother Shri Rakesh Pandey to inquire about the matter but his brother informed him that petitioners are denying to have received any money from the complainant/respondent and not to speak of visiting Naharlagun for mala fide intention, he repeatedly requested to fulfil for executing the sale deed and also not responded to the legal notice sent to them. Finding no alternative, the respondent/ complainant has filed a complaint case before the Chief Judicial Magistrate, Yupia, Papum Pare District, Arunachal Pradesh, which was registered as Complaint Case No. 41/2014. The learned Court below has taken cognisance after examination of the evidence of the respondent/complainant as well as his witnesses. 13. It has also been submitted that pending civil case of Pre-emption is a complete separate case, which is purely civil in nature. However, taking advantage of the pending of appeal/civil case, the petitioners have induced the complainant to pay them a sum of Rs. 6.00 lakhs. But, according to petitioners, they have denied to have received any amount from the complainant and they have also denied that they never visited to Naharlagun, the complainant, thus, could gather the mala fide intention on the petitioners and promptly issued the legal notice dated 20.09.2014 to harass or to put pressure upon the petitioners to concede them to give up the land in favour of the complainant. 14. The respondent/complainant has further stated that the petitioners are tying to invoke the inherent power of the High Court as a weapon to stifle a legitimate prosecution being launched by the complainant before the Competent Court, which is a clear intention to delay and prolong the trial, had any merit and substance in their averments and allegations as stated in the criminal petition. According to the respondent/complainant, it is not a fit case to invoke the provision of 482 Cr.P.C. as has been challenged by the petitioners and the same is liable to be dismissed. 15. During the course of hearing, Mr. According to the respondent/complainant, it is not a fit case to invoke the provision of 482 Cr.P.C. as has been challenged by the petitioners and the same is liable to be dismissed. 15. During the course of hearing, Mr. K. Tado, learned Public Prosecutor has submitted that order of issuing summons and taking cognisance is an interlocutory order under Section 397(2) of the Code of Criminal procedure, so the same is not liable to be interfered with or be quashed as prayed for by the petitioners. 16. I have considered the rival contentions of both the parties. The thrust of arguments of the learned counsel for the petitioners is that in view of the civil case pending between the parties at Bihar, the present transaction as alleged by the respondent/complainant is a false and concocted and the complaint has been filed by the complainant with a view to pressurised them to settled the civil dispute. Alternatively, it has also been argued that even if any such payment is made, then it will be a dispute of civil nature because the payment was given with a promised to fulfil the condition i.e. the withdrawal of civil case as well as the mutation of the land, in question. Any violation of such condition would amount to violation of contract and no criminality can be attributed to the petitioners. The case lodged by the respondent/complainant is stated to be false and fabricated and the cognisance so taken by the court is also challenged to be beyond the jurisdiction. 17. In support of the contention made by the learned counsel for the petitioners, he has relied upon the cases of Devendra & Ors. v. State of U.P. & Anr., reported in (2009) 7 SCC 495 and Sardar Trilok Sing & Ors. v. Satya Deo Tripat hi, reported in (1979) 4 SCC 396 and basing upon the observations of the Apex Court, it has been argued that while taking cognisance, the Magistrate is to apply his mind to contents of allegation and while there is no misrepresentation from the very beginning on the part of the accused petitioner, the offence of cheating is not made out and consequently taking of cognisance is bad in law. 18. 18. It has been assailed that there was no such misrepresentation on the part of the petitioners even if there was any sorts of transaction so as to allege the petitioner with a charge of cheating. The case was civil dispute in nature between the parties and for any deviation to fulfil the promise may raise civil liability not the criminal liability. 19. I have gone through the case laws so relied upon by Mr. K.K. Mahatna, learned counsel for the petitioners, but it is to be noted that the fact and circumstances so enumerated in the said case laws is totally different in the present case in hand. On the other hand, the learned counsel for the respondent/complainant, Mr. K. Tama, in support of his contention that pendency of civil dispute will not absolve the petitioners from the criminal liability, has placed the reliance upon the decisions of the Apex Court in the cases of Ravindra Kumar Madhanlal Goenka & Anr. v. Rugmini Ram Raghav Spinners P. Ltd., reported in (2009) 11 SCC 529 and B. Jagdish & Anr. v. State of A.P. & Anr., reported in (2009) 1 SCC 681 . 20. It has been also pointed out by the petitioners that some documents have been falsely made out by the respondent/complainant but same cannot be disputed at this stage and the same can be only tested in due course of evidence. At the time of cognisance, the accused cannot be permitted to use the material which would be available to him only as a defence. In the case of Ravindra Kumar Madhanlal Goenka (supra), the materials brought on record by the complainant even if given face value and taken to be correct in their entirety cannot be said as disclosing no offence. 21. Further the civil liability and the criminal liability are distinct each other. There are large numbers of cases where criminal liability and civil liability can run side by side. These two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not however, affect the civil remedies at all for suing the wrongdoer and it is an anathema to support that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. 22. In the given background of the case, there is civil dispute pending between the parties and according to the respondent/complainant, the complainant has given the money with a view to settle the dispute whereas petitioners have demoed to have taken any money from the complainant/respondent. This subsequent conduct of the petitioners suggesting the fact that he never intended to fulfil his promise, then they took money deceitfully as has been alleged by the complainant/respondent. The learned court below has examined the complainant as well as other witnesses prior to taking the cognisance of offence and also perused the documents so filed before the court and at this juncture, the court cannot go into the falsity or genuineness of the documents until and unless the same is disproved by the either side. There appears no any illegality while taking cognisance by the learned Magistrate. 23. The scope of power under Section 482 Cr.P.C. has been explained in a series of decisions by the Apex Court in the case of State of Haryana v. Bhajan Lai, reported in 1992 Crl.LJ 527 wherein the guidelines have been issued as to under which circumstances, the FIR/Complaint can be quashed. As has been observed in (2009) 11 SCC 529 , the order of Magistrate issuing the process against the accused can be quoted in the following circumstances: "(i) A complaint can be quashed where the allegations made in the complaint, even if 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. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as hen the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence." 24. Having regard to the above principles, if we examine the complaint so filed in the given case, it will reveal that no such of circumstances as has been mentioned above. The complaint has to be examined as a whole but without examining the merits of allegations, neither a detailed inquiry nor a meticulous/analysis of the material or assessment of the reliability or genuineness of allegations in the complaint, is warranted while examining the prayer for quashing of a complaint. Now in the instance case, the petitioners have challenged the genuineness of the documents like money receipt, ILP and authenticity of the statement of the complainant/respondent and his witnesses but the same can be tested only in the course of trial not by way of raising the allegations. 25. The quashing of the complaint is warranted only where the complaint is so bereft of reason, the basic facts which are absolutely necessary for making out the offence. 25. The quashing of the complaint is warranted only where the complaint is so bereft of reason, the basic facts which are absolutely necessary for making out the offence. After going through the LCR, it is also found that the court has duly examined the complainant and his witnesses, document, in support of the case, which discloses a prima facie criminal offence and the cognisance, has been taken under Section 420 IPC. 26. Considering the entire facts of the present case, I am of the considered opinion that the matter in hand is not one of those extreme cases where criminal prosecution can be quashed by the court at the very threshold. The defence case (petitioners herein) is to be considered at the latter stage for which they will get ample opportunity to raise all the issues herein. 27. In view of the above, I find no reason to interfere with the criminal proceeding and accordingly, this Criminal Petition stands rejected and dismissed. 28. Send down the LCR to the learned court below along with a copy of this judgment and order.