1. Rajiv Ranjan Singh 2. Deo Rani Devi 3. Chandeshwar Singh 4. Baikunth Nath v. 1. The State of Jharkhand. 2. Saya Narayan Singh
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1386 of 2011 1. Rajiv Ranjan Singh 2. Deo Rani Devi 3. Chandeshwar Singh 4. Baikunth Nath Singh Versus 1. The State of Jharkhand. 2. Saya Narayan Singh -------- ..... … Petitioners ..... … Opposite Parties CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners ------ : : : : ------ 09/ 15.06.2023 Heard Mr. R.S. Mazumdar, learned senior counsel appearing Mr. R.S. Mazumdar, Sr. Advocate. Mr. Nishant Roy, Advocate. Mr. Azeemuddin, A.P.P. Mr. J.K. Upadhayay, Advocate. For the State For the O.P. No. 2 for the petitioners, Mr. Azeemuddin, learned A.P.P. for the State and Mr. J.K. Upadhayay, learned counsel appearing for the O.P. No. 2. 2. This petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 12.05.2011, by which, cognizance for the offence under Sections 467, 468 and 471 of the Indian Penal Code has been taken against the petitioners, in connection with C/1 Case No. 2008 of 2009, pending in the court of learned S.D.J.M., Jamshedpur. 3. The complaint case was lodged by the complainant / O.P. No. 2, who and the accused No. 1 are the cousin brother in their relation. The accused No. 1 is the son of uncle (Bade Pitaji) of the complaint. The common ancestral immoveable property situated at the native place of complainant and accused No. 1 in the State of Bihar, district-Rohtas, in Mouza-Tenduni, P.S.-Bikramganj, P.S. No. 500 recorded under khata No. 454, Plot No. 2265 measuring an area of 0.10 acres (more or less) and the same is bounded as follows:- North : Om Prakash Singh South : Plot No. 2266. East : Alakh Narayan Singh (sold by S/o Awdesh Singh) West : Plot No. 2262. This landed property has been illegally sold by the accused No.1 and other property is also lying at the aforesaid address of the complainant and his other relatives. After the death of the grand father and his brothers (brother of
Legal Reasoning
grandfather) of the parties, the father of the complainant and accused -2- No. 1 and their other brothers became the joint owners of the landed property situated at plot no.2265, khata no. 454 situated at village Bikramganj (Dharupur),P.S. Bikramganj, District-Rohtas, total measuring an area 0.57 acres and the complainant's father (Nand Kishore Singh) and his brothers namely Awadesh Singh, Sarju Singh, Shib Muni Singh and Janardan Singh since all are deceased). During the life time of the father of the Complainant and the father of the accused No.1 alongwith their other brothers have amicably partitioned their land total measuring an area of 0.57 acres total in five portions each were having measuring area about 0.10 acres (more or less)and all the five persons were enjoying the possession of the land peacefully and cultivation in their share of land. As per arrived the partitions between fathers of the complainant and accused no.1 and their other brothers (uncles), one of the uncle of the complainant and the accused Late Shive Muni Singh sold his portion of land on 30th day of August, 2000 and the son of Late Awdhesh Singh namely, Abhimanyu Singh and Kedar Singh were sold their respective shares of land on 2nd day of July, 2002 to the parties, which they had got after the amicable partition between all the five persons, who were the father and uncle of the accused and complainant. The share of the father of the complainant measuring an area 0.10 acres (more or less he got from partition from his other brothers and the father of the complainant was possessing and cultivating the said land during his life time peacefully. All of a sudden the father of the complainant late Nand Kishore Singh was learnt from some reliable sources that the accused no.1 with the collusion of other accused person executed a power of attorney dated 25.03.2009 in favour of the accused no.2 Rajiv Ranjan Singh and the said power of attorney was registered at the registry office, Jamshedpur, East Singhbhum, Jharkhand and in the said power of attorney the witnesses were are namely, Chandeshwar
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Singh and Smt. Deo Rani Devi and in the said power of attorney accused No. 1 had given the power of sale and other powers to the accused No.2. The accused no. 1 having no individual right, title and interest -3- over the said property which was exclusively owned and possessed by the father of the complainant but the accused No.1 mischievously, cunningly, tactfully knowingly and intentionally executed the registered power of attorney in favour of accused no.2 with the collusion and connivance of all the aforesaid accused persons and the accused no. 1 have got a huge amount from its subsequent purchaser, the accused no.5. It is worthwhile to mention here that all the accused person had full knowledge that the aforesaid land was not belongs to the accused no. 1, but even to the purpose of deprive the share of the father of the complainant, the accused no.5 in a pre-planned manner insisted by other accused persons, purchased the said land from the accused no.2 and it is also pertinent to mention here that after knowing the fact about the selling of the land fraudulently by the accused No.1, the father of the complainant asked to the accused no.1 regarding the fact, but in spite of clearing the matter, the accused no.1 misbehaved and talked in high temper which severely shocked and subsequently the father of the complainant was laying ill and after passing of just few days, the father of the complainant was expired on the 24.06.2009 due to the illegal act and high handedness being done by the accused persons, and the main reason behind the death of the father of the complainant was the illegally sold out the share of the land of the father of the complainant and misbehaved with him. It is also worthwhile to mention here that the accused no.1 are five brothers and their names are-1. Mahendra Kumar Singh, 2.Surendra Kumar Singh (Accused No.1), 3. Rajendra Kumar Singh, 4.Jogendra Kumar Singh, 4. Sidheshwar Kumar Singh. The other four brothers of the accused No.1 are filed a Title Partition Suit vide Title Patiion No. 326 of 2009 before the court of the Subjudge-1, at Sasaram, Rohtas, Bihar in respect of the portion of land which were amicably partitioned between their father and their uncles during their life time and they have stated in their petition suit that the power of attorney executed by the accused no.1 for the portion of aforesaid land which is in question, does not belongs to the accused no.1 having not any interest, title over it and the sale executed therein is liable for nullity. -4- On 29.07.2009 at about 6,30 a.m. to 7.00 a.m. the accused no. 1 came to the house of the complainant and then the complainant told to the accused no.1 to return back the aforesaid his share of land after cancellation of the sale deed dated 8th day of April, 2009 illegally in favour of accused no.5, then the accused no.1 had became furious and started abusing to the complainant and thereafter, the accused No.1 also assaulted the complainant by fist and blow and after raising hulla by the complainant the witness no.2 and 6, who were present at that time, anyhow saved to the complainant by the hands of accused no. 1. Further the accused No.1 also warned to the complainant that if the complainant will claim further of his share of land then he will get kidnap the complainant with the help of accused nos.2 and 5 because the accused no.2 and 5 are the influential and their connection having with some hard core criminals and thereafter, the complainant will kill by the said accused persons. After assault and listening the said version and to see the dangerous motive of the accused No.1 the complainant has become under very much fear and immediately rushed to Sitaramdera, Police Station, but the presenting police officer suggested the complaint to go before M. G. M. Hospital for treatment and to file case before the Hon'ble Court, thereafter the Complainant went to M. G. M. Hospital on 29.07.2009 and got his medical treatment by presenting doctor and therefore the complainant filed this complaint case before this court for justice and proper action against the accused persons. In view of the aforementioned facts and circumstances the accused persons are cheated the complainant and misappropriated the huge amount of the complainant for their own use and these facts of the accused persons are also amount to criminal breach of trust and assaultation, threatening to the life of the complainant. 4. Mr. Mazumdar, learned senior counsel appearing for the petitioners submits that earlier the learned court has taken the cognizance under Sections 323, 341 and 504 of the Indian Penal Code, however, the said order was challenged before the learned revisional court in Criminal Revision No. 08 of 2010, whereby the said cognizance order was remanded back by the learned revisional court to pass a fresh order and thereafter, the learned court has taken the cognizance under Sections 467, 468 and 471 of the Indian Penal code against these petitioners and others. -5- He submits that the accused No. 1 namely Surendra Kumar Singh has executed the Power of Attorney in favour of petitioner No. 1 and the petitioner Nos. 2 and 3 are the witnesses to the said Power of Attorney and the petitioner No. 4 is the purchaser of the land in question. He further submits that in this background so far as these petitioners are concerned, no case of manipulation with regard to documents are made out and the learned court has wrongly taken the cognizance under Sections 467, 468 and 471 of the Indian Penal code. 5. Learned senior counsel appearing for the petitioners further draws the attention of the court to the complaint petition particularly paras-7, 8 and 11 and submits that these facts are also appeared in the complaint petition. He further submits that the accused No. 1 has already filed a title suit for partition, being Title Partition No. 326 of 2009, pending in the court of learned Sub-Judge-I, at Sasaram, Rohtas, Bihar, which finds support from para-11 of the complaint petition. He also submits that the ingredients of Sections 467, 468 and 471 of the Indian Penal Code are not made out and to buttress his argument, he relied in the case of Md. Ibrahim & Ors. Versus State of Bihar & Anr., reported in (2009) 8 SCC 751, wherein the Hon’ble Supreme Court in paras-14 to 17 and 20 to 23 held as follows: “14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories: 1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a “false document”, if (i) he made or executed a document -6- claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses. 15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of “false documents”. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the the intention complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category. possession taking of of falsely claiming 16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But first category of “false documents”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. fall under to execution 17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted. such of 20. When a sale deed is executed conveying a -7- false property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a 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. 21. 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 reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. 22. 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. 23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under to make such the deed may not be able complaint.” thereby defrauds 6. On these grounds, learned senior counsel appearing for the petitioners submits that entire criminal proceedings so far as these -8- petitioners are concerned may kindly be quashed. 7. Mr. J.K. Upadhyay, learned counsel appearing for the O.P. No. 2 submits that the learned court has rightly taken the cognizance. He further submits that the cognizance order has been passed by the learned court after elaborately dealing with the facts and thereafter came to the conclusion that the case is made out against the petitioners. He further submits that the accused No. 1 and the O.P. No. 2 are relatives. 8. Mr. Azeemuddin, learned A.P.P. appearing for the State submits that the learned court has rightly taken the cognizance on the basis of complaint petition as well as the enquiry witnesses. 9. In view of the above submissions of the parties the court has gone through the materials available on record including the contents of the complaint petition. It is an admitted fact that Surendra Kumar Singh, accused No. 1 has executed the Power of Attorney in favour of petitioner No. 1 and petitioner Nos. 2 and 3 are the witnesses to the said Power of Attorney and the petitioner No. 4 is the purchaser. Further a title suit has already been filed by the accused No. 1, which has been disclosed in para- 11 of the complaint petition. Thus, in these backgrounds, prima facie the ingredients of Sections 467, 468 and 471 of the Indian Penal code are not made out in view of the discussions made by the Hon’ble Supreme Court in the case of Md. Ibrahim & Ors. (Supra) the case of the petitioners is fully covered by the said judgment. 10. It is well settled that if the criminality is made out, the civil and criminal case both can go simultaneously, however, in the case in hand, so far as these petitioners are concerned, criminality is not made and further partition suit has already been filed by the accused No. 1 Surendra Kumar Singh. 11. In view of the above facts, reasons and analysis, so far as these petitioners are concerned, the entire criminal proceedings including the order taking cognizance dated 12.05.2011, by which, cognizance for the offence under Sections 467, 468 and 471 of the Indian Penal Code has been taken against the petitioners, in connection with C/1 Case No. 2008 of 2009, pending in the court of learned S.D.J.M., Jamshedpur, are hereby, quashed. 12. 13.
Decision
Accordingly, this petition is allowed and disposed of. It is made clear that this Court has not interfered with the order taking cognizance so far as other accused persons are concerned and -9- the same has been kept intact and the learned court will proceed in the matter in accordance with law. 13. It is also made clear that the civil suit, filed before the learned court will be decided on its own merits without being prejudiced by this order. Amitesh/- (Sanjay Kumar Dwivedi, J.)