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2023 DIGILAW 175 (ORI)

Rushi Behera v. State of Odisha

2023-02-28

R.K.PATTANAIK

body2023
JUDGMENT 1. The petitioners have challenged the impugned order dated 22nd December, 2013 under Annexure-2 passed in G.R. Case No.923 of 2010 by the learned J.M.F.C., Keonjhar, whereby, cognizance of the offences under Sections 419, 465, 471, 420 and 468 IPC has been taken as against them on the grounds inter alia that the same is bad in law and hence, therefore, liable to be interferred with and quashed in the interest of justice. 2. An FIR was lodged by the informant alleging mischief and fraud against the petitioners for having managed to obtain sale deeds in 1997 and 2008 which is by perpetrating impersonation purportedly executed by the recorded owner. The details of the allegations are described in the FIR as at Annexure-1. Consequent upon the report being lodged, Nayakote P.S. Case No.27 of 2010 was registered and the petitioners were finally chargesheeted in the year 2012 leading to the passing of the impugned order under Annexure-2. 3. Heard Mr. Acharya, learned counsel for the petitioners and Mr. Praharaj, learned counsel for the State-opposite party. 4. According to the petitioners, there has been no impersonation in the transaction of the year 2008 as has been alleged by the informant since petitioner No.1 is the vendee having purchased the land from the recorded owner. The other property was also purchased by petitioner No.1 in 1997, which according to the petitioners, was again sold to an outsider. The petitioners contend that petitioner No.1 is the owner of the lands in question and while effecting the transactions, no fraud or manipulation was employed but with false allegations, the report under Annexure-1 was lodged. Mr. Acharya, learned counsel for the petitioners submits that the dispute is civil in nature and that apart, the title of petitioner No.1 vis-a-vis the lands purchased under the alleged sale deeds has been confirmed by a decree of the civil court in C.S. No.120 of 2008 vide judgment dated 5th January, 2018 of the learned Senior Civil Judge, Keonjhar. The other suit in C.S. No. 168 of 2010 instituted by the subsequent transferee was initially stayed under Section 10 CPC and was finally disposed of by the civil court's order dated 1st July, 2018 with the rejection of the plaint in terms of Order 7 Rule 11 CPC. Hence, according to Mr. The other suit in C.S. No. 168 of 2010 instituted by the subsequent transferee was initially stayed under Section 10 CPC and was finally disposed of by the civil court's order dated 1st July, 2018 with the rejection of the plaint in terms of Order 7 Rule 11 CPC. Hence, according to Mr. Acharya, the fraud which is alleged against the petitioners by the informant was not established, whereas, the title in respect of the lands under the sale deeds of 1997 and 2008 stood confirmed by a civil court's decree. Therefore, it is contended that the criminal proceeding against the petitioners in connection with G.R. Case No.923 of 2010 pending in the file of the learned court below corresponding to Nayakote P.S. Case No.27 of 2010 should be quashed in exercise of the Court's inherent jurisdiction. 5. Mr. Praharaj, learned counsel for the State submits that the petitioners have been chargesheeted for the alleged offences after having evidence collected during investigation and it cannot therefore be said that the impugned order under Annexure-2 is not sustainable in law. The allegation against the petitioners is that petitioner No.2 impersonated herself as the recorded owner and in connivance with petitioner No.1 husband managed to get the sale deed of 2008 executed and hence, according to Mr.Praharaj, when both of them have been chargesheeted, it would not be justified to accept the defence and terminate the criminal proceeding at the threshold. 6. Mr. Acharya, learned counsel for the petitioners submits that the fraud so alleged by the informant has been disbelieved by the civil court in C.S. No.120 of 2008 accepting the genuineness of the alleged transactions and ownership in respect of the properties held by petitioner No.1. A copy of the judgment in C.S. No.120 of 2008 is produced by Mr. Acharya along with the order of the learned Senior Civil Judge, Keonjhar dated 31st July, 2018 in C.S. No.168 of 2010, whereby, the plaint was rejected. By heavily relying upon the civil court's decree, Mr. Acharya, learned counsel for the petitioners submits that nothing more is left for the criminal trial since both the transactions have been found and declared genuine which entirely demolished the allegation of fraud and impersonation. 7. The purchase of the land in 1997 is said to have been mutated in the name of petitioner No.1. Acharya, learned counsel for the petitioners submits that nothing more is left for the criminal trial since both the transactions have been found and declared genuine which entirely demolished the allegation of fraud and impersonation. 7. The purchase of the land in 1997 is said to have been mutated in the name of petitioner No.1. With regard to the sale deed of the year 2008, impersonation is alleged by the informant. It is also alleged that the land which is said to have been sold in 1997 was cancelled by the recorded owner which was well within the knowledge of petitioner No.1 as he was informed but later on, mutation was managed illegally. As to the sale deed of 2008, according to the informant, the same has been a product of fraud. It is claimed that the recorded owner transferred and sold the land to a third party for consideration and on account of legal necessity. In response to the above, it is contended that the informant and others never alleged any such fraud against petitioner No.1 before the civil court in C.S. No.120 of 2008 and while stating so, a copy of the WS as at Annexure-4 filed therein by them has been referred to. As to the defence in the said suit is concerned, it was with regard to the lands sold and disposed of in the year 1997 and 2008. As to the former transaction, it is being claimed that the sale deed was cancelled by the recorded owner, whereas, about the latter, the same was allegedly snatched away by perpetrating fraud. The subsequent transferee of the land claimed to have been purchased by the petitioners instituted the suit in C.S. No.168 of 2010 which was disposed of rejecting the plaint later to the decree passed in C.S. No.120 of 2008. 8. The Court finds that the civil court reached at a conclusion in favour of the petitioners vis-a-vis the scheduled properties which includes the transaction of year 2008, however, observed that there was mismatching of the photographs and LTI of the recorded owner on a comparison of the competing sale deeds. 8. The Court finds that the civil court reached at a conclusion in favour of the petitioners vis-a-vis the scheduled properties which includes the transaction of year 2008, however, observed that there was mismatching of the photographs and LTI of the recorded owner on a comparison of the competing sale deeds. In fact, such was the observation of the learned civil court, on a bare perusal of the alleged deeds, which are in relation to the transactions having taken place between the petitioners and the original owner on the one hand and by the latter with the subsequent purchaser, who instituted the suit in C.S. No.168 of 2010. The learned civil court observed that except the mismatching of the photographs and the LTI on the alleged documents, the defendants, such as, the legal heirs of the recorded owner did not raise any other objection to dispute or challenge the execution and registration of sale deed, even though on a naked eye, the photographs of the vendor therein looked different. It has been further observed by the civil court that the defendants did not file any admitted photograph of the recorded owner while challenging the transactions in question and concluded that even the vendor had been noticed in the mutation proceedings and there was no objection raised by her or any other person on her behalf having interest over the subject as a result of which mutation RORs were issued in favour of the petitioners. It is interesting to notice that the civil court also realized that manipulation of the photographs of the vendor in both the sale deeds cannot be ruled out. Such a manifestation is quite unusual but somehow the civil court decreed the suit in favour of the petitioners. The Court is not to be entirely persuaded to hold the view in support of the petitioners which would depend on the material evidence submitted along with the chargesheet considering such observation by the civil court. The Court has not gone through the chargesheet nor did the petitioners cite any discrepant evidence furnished therewith to show that they could not have been roped in. It was for the petitioners to point out the disturbing element on record to raise any doubt or create a dent in the correctness of the conclusion in the chargesheet. The Court has not gone through the chargesheet nor did the petitioners cite any discrepant evidence furnished therewith to show that they could not have been roped in. It was for the petitioners to point out the disturbing element on record to raise any doubt or create a dent in the correctness of the conclusion in the chargesheet. Merely to repose faith on the strength of a civil court decree though in favour of the petitioners with an observation that the manipulation failed to be convincingly established which could possibly be handiwork of the parties involved appears to be a statement in distrust would not be just and proper. The dispute has emanated from a civil dispute but if any mischief is alleged to be committed in execution of the sale deeds, a criminal action may follow suit, which in the present case, is to be examined during and in course of enquiry and trial unless the petitioners are discharged. The conclusion would hence be to leave the decision for consideration of the learned court below with the liberty for the petitioners to seek for discharge which shall have to be examined and appreciated on the basis of the materials on record without being influenced by any of the observations of the Court made herein above. 9. Accordingly, it is ordered. 10. In the result, the CRLMC stands disposed of subject to liberty allowed in favour of the petitioners.