Md. Shahabuddin @ Sahab Bahadur v. The State Of Bihar

1.7.1999 in favour of Smt. Kalo Devi, Balgovind Paswan and Batoran Paswan. Hence, Complaint Case no. 373 C of 2006 was Patna High Court Cr.Misc. No.44788 of 2010 (4) dt.01-11-2013 filed on 25.4.2006 against the purchasers, where the petitioner was not made accused. The said complaint was transferred under Section 156(3) Cr.P.C. to police and the police found the accusation false and submitted final form. The final form was accepted by the learned magistrate but in pursuance to the revisional order, the order of magistrate was set aside and the matter was remanded to the learned court below to pass a fresh order. Consequently, vide order dated 27.1.2010 process was directed to be issued after cognizance being taken for the offences punishable under Sections 420,467,468 and 471 IPC, which is under challenge in the present application. It is submitted by the learned counsel for the petitioner that the sale deed was executed by the complainant/informant himself with regard to his own land on 28.6.1999 and 1.7.1999 and as per the complaint petition, he came to know about this fact in the year 2000, when there was no occasion for the complainant to lodge the complaint on 25.4.2006, whereas the petitioner being own brother of the complainant/informant was not made accused in the complaint. More over, for the same cause of action, Title Suit no. 31 of 2006 was filed, which was dismissed ex parte on 2nd Patna High Court Cr.Misc. No.44788 of 2010 (4) dt.01-11-2013 August, 2008 by the learned Sub Judge, Biharsharif, Nalanda. The said order has been brought on record by way of supplementary affidavit, where it has been recorded that when complainant/informant came to know about the execution of sale deed in 2000, then there was no occasion for filing the suit in 2006, when the plaintiff did not get the signature /thumb impression of the executant on the sale deeds verified by the handwriting expert for proving the case of impersonation. More over, claim of O.P. No. 2 that the sale deed was executed by the petitioner when O.P. No. 2 was in Saudi Arabia has not been proved, as the learned Sub Judge found on verifying the passport, that the plaintiff complainant was in India at the relevant time and, above all, the application for quashing the order of issuance of process cum cognizance against the purchasers has been allowed vide Cr. Misc. No. 14863 of 2010. It is orally submitted by the learned counsel for the petitioner that the matter has not travelled beyond the cognizance level. The order dated 2.8.2008 passed in T.S. No. 31/2006 completely negates the prosecution case and such documents can be well considered in exercise of jurisdiction under Section 482 of Patna High Court Cr.Misc. No.44788 of 2010 (4) dt.01-11-2013 the Cr.P.C. in view of the ratio laid down in the case of Rukmini Narvekar Vs. Vijaya Satardekar and others reported in (2008) 14 Supreme Court Case 1. Hence, no offence under Sections 420,467,468 and 471 IPC is made out. Considering the submission of the petitioner, it appears that for redressal of civil nature of dispute, the criminal prosecution has been launched whereas such attempt of converting civil disputes into criminal proceedings has been deprecated by the Apex Court in a catena of decisions. The Apex Court has specifically held in the case of Indian Oil Corporation Vs. NEPC India Limited and ors. reported in (2006) 6 SCC 736, in paragraph 13 and 14, 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: Patna High Court Cr.Misc. No.44788 of 2010 (4) dt.01-11-2013 "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 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." Paragraph 14 – “While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.” the courts, taken by The malicious nature of prosecution case appears from the fact that the sale deed was executed in 1999, while the title suit and the complaint were filed in the year 2006. The Title Suit has already been dismissed as the learned Sub Judge came to a conclusive finding that the claim of the complainant/informant that he was abroad at the relevant time has been found false and moreover plaintiff/complainant failed Patna High Court Cr.Misc. No.44788 of 2010 (4) dt.01-11-2013 to prove the signature / thumb impression of the petitioner on the alleged sale deed as forged. Hence, in view of the discussions made above allowing the present proceeding to continue will be an abuse of the process of the court. Accordingly, order of cognizance dated 27.1.2010 passed by the learned C.J.M., Nalanda including the entire prosecution of Bihar P.S. Case no. 191 of 2007 with regard to the petitioner is hereby quashed. This application is, accordingly, allowed. Anil/- (Dinesh Kumar Singh, J)