Kanti Mahanty Rohini v. State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 957 of 2011 Kanti Mahanty Rohini... ............. Petitioner Versus State of Jharkhand ………… Opp. Party Coram: Hon’ble Mr. Justice R.R.Prasad …… For the Petitioner For the State I.A. No. 858 of 2013 …… ……
Legal Reasoning
: Mr. Sumeet Gadodia, Advocate : Mr. H.K.Shikarwar, APP 6./27.02.2013 Learned counsel appearing for the petitioner submits that initially this application was filed for quashing of the first information report. Subsequently, after completion of the investigation, when the charge sheet was submitted, cognizance of the offence has been taken vide order dated 09/11/2011, which has been challenged in this interlocutory application. Prayed made in the interlocutory application is hereby allowed. Let this interlocutory application form part of this application.
Decision
I.A. No. 858 of 2013 stands disposed of. Cr. M.P. No. 957 of 2011 Heard the learned counsel appearing for the petitioner and the learned counsel for the State. Earlier this application was filed for quashing of the first information report of Chandil P.S. Case No. 120 of 2010 (G.R. No. 789/2010), instituted under Sections 420, 201, 120 B/34 of the Indian Penal Code against the petitioner and others. Subsequently, by way of interlocutory application, the order dated 09/11/2011, under which cognizance of the offences punishable under Sections 420, 201/120 B of the Indian Penal Code was taken against the petitioner on submission of the charge sheet, has been challenged. The case of the prosecution is that a piece of land bearing Plot Nos. 574, 575, 576, 577, 571, 572, 573 appertaining to Khata No. 31 situated at Mauza Aasanbani, Thana No. 325, had been acquired by the State Government for Swarnrekha Multi Purpose Project, but this petitioner Kanti Mohanty Rohini successor in interest of the land holders, whose land had earlier been acquired, sold the land to one Rahat Sayeed vide sale deed dated 18/06/2007 and, thereby, both, in connivance with each other sold and purchased the land without disclosing it in the sale deed that the land had already been acquired by the Government. Mr. Gadodia, learned counsel appearing for the petitioner submits that accepting the entire allegations levelled against the petitioner to be true, the petitioner cannot be said to have defrauded or cheated the State Government and, as such, the petitioner cannot be said to have committed any offence under Section 420 of the Indian Penal Code as ingredients for constituting offence under Section 415 of the Indian Penal Code never gets attracted in the facts and circumstances of the case. In support of his submission he has referred to a decision rendered in a case of “Mohammed Ibrahim and Others-versus- State of Bihar and Another, reported in (2009) 8 SCC 751”. As against this, learned counsel appearing for the State submits that though the land never belongs to this petitioner, rather it belongs to the State Government, still he sold the land to the purchaser and, thereby, this petitioner can be said to have committed the offence of cheating. Having heard learned counsel appearing for the parties, it does appear that after the case was lodged under Sections 420, 201, 120 B/34 of the Indian Penal Code, it was investigated upon and after completion of the investigation when the charge sheet was submitted, the Court vide its order dated 09/11/2011, took cognizance of the offences punishable under Sections 420, 201/120 B of the Indian Penal Code against the petitioner, who happens to be the seller of the land, which land is said to have been acquired by the State Government earlier. Accepting that allegation to be true it is to be considered as to whether the petitioner has committed offence of cheating as defined under Section 415 of the Indian Penal Code. Admittedly, no dishonest or fraudulent act was done by the petitioner to cheat the Government and, as such, the petitioner cannot be said to have committed offence under Section 420 of the Indian Penal Code. Almost in similar situation, the question fell for consideration before the Hon'ble Supreme Court in a case of “Mohammed Ibrahim and Others- versus- State of Bihar and Another” (supra), whereby their Lordships after taking notice of the provision as contained in Section 415 I.P.C., did observe as follows:- “20. When a sale deed is executed conveying a 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 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. 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. A clarification 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 thereby defrauds 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 the deed may not be able to make such complaint.” Coming to the facts of the instant case, it has never been the case of the prosecution that the State Government was defrauded in any manner by the petitioner by selling the property to the purchaser though purchaser may have grievance of being cheated but he has not come forward to lodge the case rather he has been made accused alongwith the petitioner and, hence, the petitioner cannot be said to have committed offence of cheating. Similarly, nothing is there to attract offence under Section 201 of the Indian Penal Code and, thereby, the Court certainly committed illegality in taking cognizance of the offence. Accordingly, the entire criminal proceedings of Chandil P.S. Case No. 120 of 2010 (G.R. No. 789/2010), including the order taking cognizance dated 09/11/2011, is hereby quashed. In the result, this application stands allowed. Mukund/- (R.R.Prasad, J)