Bauraha, P.S v. Laukaha, District
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.41938 of 2010 ====================================================== 1. Chunchun Jha S/O Late Bilat Jha R/O Village - Bauraha, Police Station - Laukaha, District - Madhubani .... .... Petitioner/s 1. The State Of Bihar, 2. Baidyanath Jha, son of late Niras Jha, resident of villge – Bauraha, P.S. Versus Laukaha, District - Madhubani .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Kripanand Jha, Advocate For the Opposite Party no. 2 :Mr. Purushottam Jha, Advocate For the State : Mr. Ganesh Pd. Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 5 12-11-2013 Heard learned counsel for the parties. The present application has been filed for quashing the order dated 28.6.2010 passed by the learned Additional District and Sessions Judge, Fast Track Court No. V, Madhubani in Cr. Revision no. 128 of 2004, whereby the order dated 29.1.2004 passed by the learned Judicial Magistrate Ist Class, Madhubani in Protest cum Complaint Case no. 539 of 2001 has been upheld, whereby the learned Magistrate dismissed the protest cum complaint petition under section 203 of the Code of Criminal Procedure. The petitioner filed Protest cum Complaint Case no. 539 of 2001 before the learned ACJM, Jhanjharpur which was ultimately registered as police case being Laukaha P.S. Case no. 104 of 1999 on 21.8.1999, when it was alleged that accused
Facts
Patna High Court Cr.Misc. No.41938 of 2010 (5) dt.12-11-2013 2/6 no. 1 Baidyanath Jha being son of accused no. 2 Mostt. Ghurani Devi and accused no. 3 Jai Narayan Mishra being the brother of accused Mostt. Ghurani Devi executed a gift deed in favour of the Government of Bihar for construction of Sanskrit school with regard to the land of the informant as well as of Mahanthi Mahto and Ram Pravesh Mahto with regard to Plot No. 4, Khata no. 100, area 4 kathas and Plot no. 12145, Khata no. 1285, area 8 kathas and also inserted the Plot no. 12144, area 16 katha 8 dhoors in the said gift deed and thereby cheated the informant and others. On conclusion of investigation, final form was submitted which was accepted by the learned Magistrate but the learned Magistrate subsequently proceeded on the basis of protest cum complaint. After examining the complainant on solemn affirmation and recording the statement of enquiry witnesses, the complaint was dismissed vide order dated 29.1.2004, on the ground that the letter of the Circle Officer, Khutauna dated 18.6.2003 (Annexure 2) and the statement of the witnesses involve serious question of civil dispute between the parties which required to be adjudicated upon by the Court of Civil jurisdiction. The said order of the learned Magistrate was challenged in Cr. Revision No. 128 of 2004 which was also dismissed by the learned Additional District and Sessions Patna High Court Cr.Misc. No.41938 of 2010 (5) dt.12-11-2013 3/6 Jude, FTC V, Madhubani vide order dated 28.6.2010 whereby the order of learned Magistrate has been affirmed, hence, both the orders are under challenge in the present proceeding. Learned counsel for the petitioner submits that the complaint unfolds prima facie accusations under Sections 409,420,447,468 and 120B of the Indian Penal Code and the learned court below has wrongly appreciated and considered the documents of the accused. It is further submitted that the records suggest that the petitioner appeared on several dates but the learned Additional District and Sessions Judge has wrongly recorded that both the parties are absent since 4.5.2006. It is submitted by the learned counsel for the O.P. No. 2 that the accusation was found false during investigation, upon which the final form was submitted and the same was accepted by the learned Court. The complainant was examined on solemn affirmation and the statement of two enquiry witnesses were also recorded and thereafter the learned Magistrate after calling for a report from the Circle Officer came to a conclusion that the case is purely of civil nature of dispute which can be decided by the competent Civil Court. After hearing learned counsel for the parties, it appears that the original complaint filed by the petitioner has not been brought on record. In the protest cum complaint Patna High Court Cr.Misc. No.41938 of 2010 (5) dt.12-11-2013 4/6 petition, which has been brought on record as Annexure 1 depicts that three persons have been arrayed in the accused column, namely, Baidyanath Jha, Mostt. Ghurani Devi and Jai Narayan Mishra but in the present petition only Baidya Nath Jha has been made O.P. No. 2. Hence, the present application is not maintainable on this score alone. From the perusal of the records, it appears that the gift deed executed in 1980 the complaint was filed for the first time after lapse of 19 years in 1999. The accusation was found false during investigation when final form was accepted. It further appears that the learned Magistrate dismissed the protest cum complaint after examining the complainant on solemn affirmation, recording the statement of two enquiry witnesses and calling for a report from the Circle Officer with regard to the land in question.
Legal Reasoning
(2013) 4 Supreme Court Cases 505 that there is no dispute with regard to the legal proposition that the case of breach of trust are both a civil wrong and criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence and in the present case the accusation suggests that it is predominantly a civil dispute. Considering the delayed lodging of the complaint, non making of other accused as Opposite party, Title Suit being Patna High Court Cr.Misc. No.41938 of 2010 (5) dt.12-11-2013 6/6 pending between the parties with regard to the same land from before and dismissal of the protest cum complaint case after examining the complainant on solemn affirmation and recording the statement of two enquiry witnesses, this Court finds no infirmity in the impugned order and accordingly, is not inclined to interfere in the matter. This application is, accordingly, dismissed. (Dinesh Kumar Singh, J) Anil/-
Arguments
The judgment relied upon by the learned counsel for the petitioner in the case of Narendra Rai Vs. The State of Bihar and others reported in 2013(2) PLJR 202 has no application in the present case as in the said case the complaint was dismissed at the threshold but in the instant case the complaint was dismissed after examination of the complainant and two enquiry witnesses. The other judgment relied upon by the petitioner is in the case of Sheo Pujan Yadav Vs. The State of Patna High Court Cr.Misc. No.41938 of 2010 (5) dt.12-11-2013 5/6 Bihar and others reported in 2009(2) PLJR 740 which deprecated relying on the documents of the defence but in the present case the court primarily relied on the examination of the complainant on solemn affirmation, enquiry witnesses and the report of the Circle Officer. The other judgment relied upon by the petitioner in the case of Trisuns Chemical Industry Vs. Rajesh Agrawal reported in (1999) 8 Supreme Court 686 is also not applicable which held that the complaint cannot be thwarted merely because civil proceedings are also maintainable. It has been held by the Apex Court in the case of GHCL Employees Stock Option Trust Vs. India Infolina Ltd.