Nasir Miyan son of Late Akbar Ali Miyan v. The State Of Bihar

Patna High Court Cr.Misc. No.26139 of 2011 (7) dt.26-11-2013 same, as Nasir Mian had transferred the house to him through a registered Gift Deed dated 28.10.2010. The complainant denied to vacate the same, upon which he was abused by the accused persons and the house of the complainant was ransacked. Subsequently, complainant inquired the Registry Office, Sherghati and came to know that petitioner no. 1, Nasir Mian, had executed a gift deed of the entire land in question, including the building, to petitioner no. 2 Md. Shamim and petitioner no. 3, Izhar Ahmad, is a witness to the gift deed. The complainant claimed the land, as the same was obtained by his maternal grand father late Akbar Ali and petitioner Nasir Mian was entitled to transfer only three decimals of land but he transferred six decimals of land as gift. The complainant was examined on solemn affirmation. Three enquiry witnesses were also examined in support of the accusation whereupon vide order dated 7.1.2011, it was directed for issuance of process on taking cognizance the offences punishable under Sections 323, 504 and 420 of the Indian Penal Code. The same is under challenge in the Patna High Court Cr.Misc. No.26139 of 2011 (7) dt.26-11-2013 present proceeding. It is submitted by the learned counsel for the petitioners, that petitioner no. 1, Nasir Mian, had a valid right, title and possession over the aforesaid property, which was acquired through a valid registered sale deed. The petitioner no. 2 happens to be the maternal grand son of petitioner no. 1, hence, in view of the services rendered by petitioner no. 2, petitioner no. 1 executed the deed of gift of six decimals of land situated at Mauza Bikuan Kala, Post – Maigra under Dumaria police station, being Khata no. 10 Plot No. 360 (old) in favour of petitioner no. 2 vide registered Gift Deed no. 6132 dated 28.10.2010. It is further submitted that the present case has been filed to put pressure upon O.P. No. 2. The gift deed contained in Annexure 2 reflects that it is a vacant land whereas the complainant claimed that the house was situated on the land in question. The complainant himself has admitted that petitioner no. 1 has right and title over three decimals of land. It is submitted by learned counsel for O.P. No. 2 that petitioner no. 1 transferred the share of the Patna High Court Cr.Misc. No.26139 of 2011 (7) dt.26-11-2013 complainant and thereby committed the offence of cheating and on finding prima facie case, the process has been directed to be issued. Considering the rival submission of the parties and from perusal of the complaint, it appears that the complainant has admitted in the complaint petition that petitioner no. 1 was entitled to transfer three decimals of land, which suggests that for the redressal of civil nature of dispute, the criminal forum has been chosen, which has been deprecated by the Apex Court in the case of Indian Oil Corporation Vs. NEPC India Limited and Ors, reported in (2006) 6 SCC 736, Paragraph 13 of which read as follows: Paragraph 13 - “While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri V. State of U.P. this Court observed: "It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other Patna High Court Cr.Misc. No.26139 of 2011 (7) dt.26-11-2013 remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." The Gift Deed was executed by petitioner no. 1 in favour of petitioner no. 2 on 28.10.2010 but the complaint was filed on 4.12.2010 and there is nothing on record to suggest that any effort was made by the complainant for cancellation of the Gift Deed dated

28.10.2010. Admittedly, the title of the land got transferred through a registered Gift Deed executed by petitioner no. 1 in favour of petitioner no. 2 and the Gift Deed suggests that the land in question is a vacant land which could be used for construction of residential house, hence, it is apparent that civil nature of dispute has been sought to be redressed through criminal forum and as such, no case under Sections 323, 504 and 420 of the Indian Penal Code is made out. Admittedly, the present case has been lodged in the background of title dispute. Hence, in considered opinion of this Court, allowing the present prosecution to continue will be an Patna High Court Cr.Misc. No.26139 of 2011 (7) dt.26-11-2013 abuse of the process of the court. Accordingly, to secure the ends of justice, the order taking cognizance dated 07.01.2011 including the entire prosecution of Complaint Case no. 667 of 2010 with regard to the petitioners is hereby quashed. Accordingly, this application stands allowed. Anil/- (Dinesh Kumar Singh, J)