====================================================== 1. Nawlesh Narayan Pathak 2. Manoj Kumar Pathak Both sons of Late Rishi v. Pupri, District-Sitamarhi
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17970 of 2011 ====================================================== 1. Nawlesh Narayan Pathak 2. Manoj Kumar Pathak Both sons of Late Rishi Chandra Pathak, R/o village-Hardia, PS-Pupri, District-Sitamarhi. .... .... Petitioner/s 1. The State Of Bihar 2. Manorma Devi W/o Sushil Jha, R/o village-Jhajhihat Tole, Haridia, PS- Versus Pupri, District-Sitamarhi. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Naresh Dikshit and Brij Bihari Tiwary, Advs. For the Opposite Party/s : Mr. Alok Kumar Jha and Sheo Kr. Prasad, Advs. For the State : Mr. Binod Kumar No. 3, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 4 24-01-2013 Heard learned counsel for the petitioners and learned counsel for the State. 2. In this case, petitioners are challenging the order dated 24th July 2010 passed in Complaint Case No. 90/2009, Trial No. 822 of 2011 whereby and whereunder the Judicial Magistrate 1st class, Pupri at Sitamarhi took cognizance for offence under sections 420 and 120B of the Indian Penal Code. 3. The brief fact of this case is that the complainant got an information, her devrani, namely, Rita Jha had executed the sale deed in favour of Manoj Kr. Pathak (petitioner No. 2) Deepak Kr. Pandit, Shyam Kishore Sah and Sunil Kr. Sah, giving description of the land and respective areas.
Facts
Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 2 4. It appears from the record, original land holder was Late Rameshwar Jha having two sons, namely, Shankar Dutta Jha and Krishna Dutta Jha. Shankar Dutta Jha has three sons, namely, Sushil Kr. Jha, Sudhir Kr. Jha and Sunil Kr. Jha. It has been alleged that the land in question was recorded in the joint name and a partition title suit has already been filed vide Partition Suit No. 17/2002 before the Subordinate Judge-I, Sitamarhi. It has been alleged that accused Krishna Dutta Jha in connivance with his daughter-in-law, Rita Jha entered into a conspiracy and sold the plot bearing No. 606 on 24th April 2007 and other plots on 3rd January 2008 to the person namely petitioner No. 2 and others, named in complaint petition. 5. It has been alleged, the lands were sold while the matter is subjudice before the appropriate court. 6. It has further been alleged that panchayati was held at the behest of well-wisher from both sides where punchs directed the accused to refund the money and return the land sold by them but the accused refused the same. In this way, the panchayati could not succeed and on failure the complainant approached the Officer Incharge of Pupri Police Station. When no action was taken, she lodged the present case. On the basis of statement on the solemn affirmation and evidence of other witnesses, the court Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 3 below took cognizance under sections mentioned herein above. 7. Counsel for the petitioners submits that petitioner No. 1 is witness of sale deed and petitioner No. 2 is the purchaser of some plot of land on payment of valid consideration amount to their vendor and for the same land, parties are litigating civil dispute, as claiming joint family properties and these petitioners cannot be held responsible for the act done by vendor, as petitioner No. 2 is bona fide purchaser. If the complainant/ O.P. No. 2 had any grievance, he could settle the dispute against vendor of the petitioners, as petitioners cannot be implicated in this case. He has further submitted the narration of fact mentioned in the complaint petition itself shows that it is a bona fide civil dispute between the parties and for resolving the same they filed Title Suit No. 17/2002 in which vendor of the complainant are parties to the suit and claiming the share in the property. 8. Counsel for the O.P. No. 2 has submitted that the petitioners have taken part of conspiracy hatched by their vendor and, of course, civil suit is pending but that does not mean, the criminal case can not be initiated or order of cognizance any way faulted. 9. Having considered the rival contention of the parties, the Hon’ble Supreme Court in the case of Indian Oil Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 4 Corporation v. NEPC India Ltd. (2006) 6 SCC 736 has held: “(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
Legal Reasoning
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. 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 when 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 Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 5 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. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 6 the allegations in the complaint disclose a criminal offence or not. 10. In another case i.e. in the case of Md. Ibrahim v. State of Bihar, 2009 (4) PLJR 99 the Hon’ble Supreme Court has passed the order in somewhat similar fact where the property was sold, allegation was made that the complainant was owner of the disputed property and the accused who had no connection with the said land and were not entitled thereto had executed the registered sale deed in favour of other accused persons and in that case vendor, vendee along with the witnesses were made as accused. The Court had taken cognizance under sections 467, 471, 420 and 504 of the Indian Penal Code and the Court found that it was basically a civil dispute even if the claim has been made that the person who sold the property had no authority to sell the same. The Court has held that only grievance that can be raised by the purchaser about the act of his vendor and if the complainant is aggrieved by the execution of sale deed, instead of filing the criminal case he should move before the civil court for proper relief. It will be relevant to quote paragraphs 13 and 14 of the said judgment are as follows:- Para-13 Let us now examine whether the ingredients of an offence of cheating are made out. Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 7 The essential ingredients of the offence of “cheating” are as follows: (i) deception of a person either by making a false of misleading representation or by dishonest concealment or by any other act or omission: (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived: (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything singed or sealed and which is capable of being converted into a valuable security). Para-14 When a sale deed is executed conveying a proper deed claiming ownership thereto, it may be Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 8 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. 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 reasons of being the witness, scribe the Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 9 stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419, or 420 of the Code. 11. The Court has ultimately found that even if the averment made in the complaint petition be taken to be true, it does not make out any offence and the Hon’ble Court quashed the criminal proceeding. In this case also this judgment is applicable as in the present case the complainant and the accused vendor belong to the same family and they have filed a title suit for their respective shares but while the matter is pending before the Trial court one of the co-sharers who is the vendor of the present petitioners sold the land in favour of the petitioners on valid consideration of money. There is no dispute in between the petitioner purchaser with complainant rather the complainant has made a claim that during the pendency of the civil suit with the connivance of these petitioners land has been sold, this is basically a civil dispute which cannot be termed as a criminal offence and it can only be decided in a civil suit which is pending. Petitioner No. 1 is witness of sale deed and petitioner No. 2 is purchaser, cannot be held responsible for the act done by his vendors of land Patna High Court Cr.Misc. No.17970 of 2011 (4) dt.24-01-2013 10 who are members of same family. The order of cognizance is quashed. It is well principle of law that the dispute between the parties in connection with land will be decided in a civil suit and it will be open to the O.P. No. 2 to raise grievance in connection with the present land as it is also a subject-matter of the title suit. 12. Accordingly, this petition is allowed. (Shivaji Pandey, J) Mahesh/-