NANDA TIWARY @ HEMENDRA KUMAR TIWARY@ HEMENDRA KR.TRIPATHY v. THE STATE OF BIHAR

One Sri Kant Prasad filed the aforesaid complaint in the court of the learned Chief Judicial Magistrate, West Champaran at Bettiah on 24.4.2007 in respect of an occurrence which allegedly took place on 11.4.2007 for the alleged commission of offences under Sections 420,120B, 466,467, 468 I.P.C. at the hands of the four arrayed accused. It has been alleged that the accused persons in collusion and in conspiracy with each other made some one to impersonate as the complainant and got executed a deed with respect - 2 - to the lands of the complainant and witness no.1, Parma Prasad which had been purchased in the year 1940. It is said that when the complainant had come to Sikarpur Registry Office on 16.4.2007, he came to know of the alleged fraud and obtained the certified copy thereof. It transpired therefrom that an area of 0.04.03 of land, appertaining to Khata no.161, Khesra no.310, belonging to Parma Prasad and the complainant in conspiracy with and preparation of fabricated document and making Sukat Mahto accused no.1 impersonate as the complainant and on the basis of identification by accused nos. 3 and 4 had got executed a sale deed in favour of the petitioner. It has been submitted by the learned counsel for the petitioner that he is innocent and has committed no offence and has been falsely implicated in this concocted case by the informant. According to the petitioner, the actual fact is that the disputed land belonged to one Mangal Mahto, resident of village Bhasurari, who has a son from his wife Kuadari by name of Sukat Mahto. It is said that the said Managal Mahto died in the year 1925-26 leaving behind his widow, Kuadari and Sukat as his only heir and at the time of death of Mangal Mahto was aged about 6 months. It is further said that since Sukat Mahto was a minor at the relevant time, the lands of Mangal Mahto came to be recorded in the name of Most. Kuadari and she started paying rent for which rent receipts were granted in her name. It is further said that after sometime Kuadari married one Pratap Mahto of Village-Pokharia and minor Sukat also - 3 - started living with them. On attaining majority, the name of Sukat was recorded in the voters list, wherein the father’s name of Sukat was shown as Pratap Mahto. It is submitted that on Kuadari marrying Pratap Mahto, she lost interest in the property left by Mangal Mahto , her first husband and Sukat Mahto became the sole heir of all the properties of Mangal Mahto and inherited the same. It was Sukat Mahto who had sold the disputed lands after taking consideration of Rs.62, 000/- and had executed a sale deed in favour of the petitioner. It is further submitted that in the year 1940 one Ram Swaroop Sah of Village-Bhasurari purchased the said land from Pratap Mahto who was the step-father of Sukat Mahto and at that time Sukat had knowledge that Pratap Mahto had sold the same, although he had no title thereupon. It is also submitted that one Bishwanath Mahto S/O Late Pratap Mahto sworn an affidavit before the Executive Magistrate, Narkatiyaganj to the effect that Sukat Mahto was the son of Mangal Mahto and Most. Kuadari was his mother and at the time of death of Mangal Mahto , Sukat Mahto was only 506 months . It is further submitted that on

1.12.2003 and 8.1.2004. the petitioner , Nanda Tiwary @ Hemendra Kumar Tiwary @ Hemendra Kumar Tripathy purchased another plot of land in his favour in the name of Nanda Tiwary and on 29.7.2003 he swore an affidavit to the effect that Nanda Tiwary has alias name of Hemendra Kumar Tiwary @ Hemendra Kumar Tripathy and Jhuna Tiwary and this fact is well-known to the villagers. It has finally been submitted that in fact, fraud had been committed by the informant and - 4 - Parma Prasad, who have purchased the land from a person who has no title and interest over the same and it was to save their reek and they had hatched a plan to implicate the petitioner and other accused persons in a criminal case, so that by putting pressure on them, they could avoid landing in trouble. Although the complainant has appeared suo motu by filing Vakalatnama , no show cause/ counter affidavit has been filed on his behalf, but the learned counsel for the complainant sought to advance his submission in opposition to the submissions advanced by the learned counsel for the petitioner. It was sought to be submitted by the learned counsel for the complainant that a Title Suit No.172 of 2005 was already pending in respect of the land in question and the petitioner has suppressed this material fact and it is to be presumed that they had not approached this Court with clean hands. On this premise, it was sought to be submitted that criminal proceeding should not be quashed merely because of pendency of civil proceeding between the same parties, since nature and scope and standard of proof required in civil and criminal proceeding are distinct. Reliance for the proposition was sought to be place in the case of N.Krishnan Vrs. Vijay Singh reported in ( 2001) 8 SCC 645 and Kamladevi Agrawal Vrs.State of West Bengal , reported in (2002)1 SCC 555. Be that as it may, the submissions advanced by the learned counsel for the petitioner revolves round his defence and involves looking into facts and figure which does not fall within the ambit of Section 482 Cr.P.C. This can only be done and bonefide thereof can - 5 - only be judged in course of a full dressed trial by leading cogent evidence in support of the submissions. As observed in Kamladevi Agrawal’s case (Supra) whereas in civil proceeding, the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of “beyond reasonable doubt”. Their Lordships further observed that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the F.I.R., even if taken on their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of jurisdiction. Due regard being had to the discussions made in the foregoing paragraphs I find no apparent cause to interfere with the impugned order or the criminal proceedings arising therefrom. Accordingly, I find no merit in this application which is dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 20th February,2009 Nawal Kishore Singh/A.F.R.