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2019 DIGILAW 430 (JHR)

Arjun Singh v. State of Jharkhand

2019-02-13

RAJESH SHANKAR

body2019
JUDGMENT : RAJESH SHANKAR, J. 1. The present petition has been filed for quashing the order dated 04.07.2013 passed by the Judicial Magistrate, 1st Class at Chatra in Complaint Case No. 401 of 2008 whereby cognizance of the offences for Sections 420/467/468/471/506/504 and 120-B of IPC has been taken against the petitioners. Further prayer has been made for quashing the order dated 25.02.2014 passed by the learned Sessions Judge at Chatra whereby the revision filed by the petitioners being Cr. Revision No. 51 of 2013 has been dismissed. 2. The factual background of the case is that Complaint Case No. 401 of 2008 was filed by the complainant-O.P. No. 2 under Sections 420/467/468/469/471/506/504/120B of IPC alleging inter-alia that the ancestor of the complainant namely Prabhu Dayal Lal had purchased one anna share of the land from the landowner Basudeo Singh situated at Village-Pandari Kala by virtue of two registered sale deeds. Since the date of purchase, the ancestors of the complainant and after their death, the complainant has been in possession of the said land and paying rent of the same to the State Government. The petitioners along with others conspired and a deed of power of attorney of the said land was executed by the petitioner No. 1 in favour of the petitioner No. 2 wherein the petitioner No. 3 identified the executant-the petitioner No. 1. The petitioners agreed to sell the said land to other persons. When the complainant came to know about execution of the power of attorney, he sent Advocate’s notice to the petitioners, but no reply was given by them. The Judicial Magistrate, 1st Class, Chatra vide order dated 04.07.2013, took cognizance of the offences and directed to issue summons against the petitioners. Aggrieved by the order dated 04.07.2013, the petitioners filed revision being Cr. Revision No. 51 of 2013, which was dismissed on 25.02.2014 by the learned Sessions Judge, Chatra. 3. Learned counsel for the petitioners submits that on perusal of the complaint, the S.A. of the complainant and the statements of the enquiry witnesses, it would transpire that no criminal offence is made out against the petitioners. The petitioner No. 1 had executed the power of attorney in favour of the petitioner No. 2 with respect to his ancestral property and as such it does not constitute a prima-facie case for the offences under Sections 420/467/468/471/506/504 and 120-B of IPC against the petitioners. The petitioner No. 1 had executed the power of attorney in favour of the petitioner No. 2 with respect to his ancestral property and as such it does not constitute a prima-facie case for the offences under Sections 420/467/468/471/506/504 and 120-B of IPC against the petitioners. Even the allegation against the petitioner No. 3 that he had identified the petitioner No. 1 in the power of attorney, does not constitute a prima-facie case against him under the alleged offences of IPC, as he had not identified any wrong person. It is further submitted that the present matter purely involves a civil dispute for which no criminal liability can be fastened against the petitioners. 4. In support of the argument, learned counsel for the petitioners puts reliance on the following judgments:- (i) Mohammad Ibrahim and Others vs. State of Bihar and Another, (2009) 8 SCC 751 (ii) Deo Kumar Paswan @ Deo Kumar Singh vs. State of Jharkhand, 2018 (1) JLJR 326 (iii) Rajendra Prasad Gupta and Others vs. State of Jharkhand, 2014 (1) JLJR 159 5. Per-contra, learned counsel for the O.P. No. 2 submits that Basudeo Singh got one anna share in the said property according to the final decree of partition in P.S. Suit No. 9 of 1923. He sold his entire share to Munshi Prabhu Dayal Lal (the great grandfather of the complainant). The land was also mutated in his name and he paid the rent to the State Government till his death and thereafter his legal heir i.e. the complainant came in possession of the said land. Though the petitioner No. 1 has no concern with the said land, yet by playing fraud and falsely claiming to be the legal heir of Basudeo Singh, has executed the power of attorney in favour of the petitioner No. 2 namely Ran Vijay Singh and the executant was identified by the petitioner No. 3. 6. Learned counsel for the O.P. No. 2, in support of his submission, puts reliance on the following judgments:- (i) Sanjay Kumar Agarwal vs. State of Jharkhand and Another, 2009 (1) JLJR 351 (ii) Ganga Dhar Kalita vs. State of Assam and Others, (2015) 9 SCC 647 7. Heard learned counsel for the parties and perused the relevant materials available on record. Heard learned counsel for the parties and perused the relevant materials available on record. The thrust of the argument of learned counsel for the petitioners is that the petitioner No. 1 being the legal heir of Basudeo Singh, has executed the power of attorney in favour of the petitioner No. 2 in which the petitioner No. 3 has been the identifier and as such no offence under the alleged Sections of IPC is attracted against them. On the contrary, the specific stand of the complainant (O.P. No. 2) is that the said property had been purchased by the ancestors of the complainant and he is still in possession of the same. The said fact has not been specifically denied by the petitioners. 8. The learned Sessions Judge, Chatra has prima-facie observed that general power of attorney has been executed despite knowing the factum of existence of sale deed in favour of the complainant for the purpose of cheating in order to dupe and grab the property of the complainant. 9. I have perused the judgment of the Hon’ble Supreme Court rendered in the case of Mohd. Ibrahim (Supra). In the said case, a complaint was filed alleging that the accused No. 1 of the said case sold a property to the accused No. 2 which was actually belonging to the complainant of the said case and rest of the accused persons were the witnesses in the sale deed. The Magistrate took cognizance for the offences under Sections 323, 341, 420, 467, 471 & 504 of IPC. The Hon’ble Apex Court while adjudicating the case, framed a question of law as to whether even if the averments made in the complaint are assumed to be true, the same make out the ingredients of Sections 467 & 471 of IPC and has held as under:- “16. 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 authorised 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. 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 though 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. 17. 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 authorised 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.” 10. Their Lordships further examined the issue as to whether the ingredients of an offence of cheating are made out in such a situation and have held as under:- “20. When a sale deed is executed conveying a property 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. 21. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. 21. 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 reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.” 11. Learned counsel for the petitioners also puts reliance on two judgments of this Court rendered in the case of Rajendra Prasad (Supra) and Deo Kumar Paswan (Supra) wherein after relying on the judgment of Mohd. Ibrahim (Supra), it has been held that when the land sold to the complainant by the ancestor of the accused was again sold by the accused to some other persons claiming to be the owner of the same, it cannot be said to be a false document in terms with Section 464 of IPC and therefore the question of committing offence under Sections 467 & 468 does not arise. 12. In the present case also, the fact situation is almost the same wherein the allegation as projected in the complaint petition is that in connivance with each other, the petitioner No. 1 claiming himself to be the grandson of the vendor of the ancestor of the complainant namely Basudeo Singh, executed the general Power of Attorney in favour of the petitioner No. 2 wherein the petitioner No. 3 stood as an identifier of the petitioner No. 1. It is not the case of the complainant that the petitioner No. 1 impersonated himself as the owner of the land or claimed that he was authorized by the owner to do so. Thus, I am of the view that the ratio laid down in the case of Mohd. Ibrahim (Supra) would squarely be applicable to the facts of the present case. 13. So far as the judgment relied upon by the learned counsel for the O.P. No. 2 is concerned, this Court has no doubt with the proposition laid down by the Hon’ble Supreme Court that the FIR cannot be quashed simply for the reason that a civil suit is pending in the matter. However, in the present case, even if the allegation levelled against the petitioners is taken to be true, no case under the alleged offences of IPC is made out against them. 14. The Hon’ble Supreme Court in the case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335 has held as under:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or 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 a case against the accused. (1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 15. In view of the discussions made herein above, the impugned order of cognizance dated 04.07.2013 passed by the Judicial Magistrate, 1st Class at Chatra in connection with Complaint Case No. 401 of 2008 as also the impugned order dated 25.02.2014 passed by the learned Sessions Judge at Chatra in Cr. Revision No. 51 of 2013 are hereby quashed and set aside. 16. The present petition is accordingly allowed. 17. Consequently, I.A. No. 1302/2018 also stands disposed of.