1. Jamuna Prasad @ Yamuna Prasad 2. Jagarnath Prasad @ Jagarnath Pd. 3. Mahabir v. … …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 2980 of 2019 ----- 1. Jamuna Prasad @ Yamuna Prasad 2. Jagarnath Prasad @ Jagarnath Pd. 3. Mahabir Mahto @ Mahavir Mahto 4. Kamini Pathak Versus … …. Petitioners The State of Jharkhand … …. Opp. Party ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners For the State : Mr. Niraj Kishore, Advocate : Mr. Vineet Kumar Vashistha, S.P.P. ----- C.A.V. on 29.03.2023 PRONOUNCED ON 03.04.2023 ----- 1. The instant criminal misc. petition has been filed for quashing the order taking cognizance under Sections 420, 423, 424, 467, 468, 469, 471, 477A, 120B, 109, 201 of Indian Penal Code and Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act, dated 18.11.2009 passed in Vigilance Case No. 25 of 2000 (Special Case No. 12 of 2000). 2. Can bonafide purchasers of land for value be prosecuted, if the vendor had no title, and claimed the same from one who also had no title, but had obtained mutation orders by fraud, is the central question in the present case. 3. Petitioners are purchasers from cooperative society, Jai Bhawani Sahkari Grih Nirman Samitee which claimed to derive title from, Chandan Sao, and Bharat Sao, who as per the prosecution case, had got their namely falsely mutated in Register-II at Circle Office, Ranchi without having proper documents and got the revenue receipt vide Receipt No. 691766 dated 31.03.1968. 4. As per the prosecution case, the land in question is situated at Village Hundru Khata No. 360, Plot No. 1260 measuring an area of 10.50 acres was originally recorded in the records of right (Khatiyan) as ‘Gair Majarua Malik’ which was Govt land. Chandan Sao and Bharat Sao got mutated it in their name without any valid document in connivance with officials of Circle Office, Ranchi. After
Legal Reasoning
prima facie inference can be drawn regarding the validity of the right, title of the vendor, then he cannot be imputed with dishonest intention. 20. Here in the present case, the vendor and its predecessor had documents of mutation and payment of revenue to the State, which induced the petitioners to a bonafide belief that the vendors had right to transfer title to them. 21. If the claim of the State is assumed to be true that land in question was Govt land, even then dishonest intention of the petitioners cannot be imputed as the cooperative of society had colour of right to sell the property, because revenue receipts were issued in favour of Chandan Sao and Bharat Sao and then in favour of the Cooperative Society. If the State for long, issues documents admitting possession of a party, acting on which bonafide purchasers, purchases the land, he cannot be attributed with dishonest intention. In the absence of dishonest intention no criminality can be imputed to the petitioners for the IPC offence. 5 22. As far as the offence under Prevention of Corruption Act is concerned, admittedly petitioners are not public servant and they are sought to be implicated based on charge of abetment and criminal conspiracy in obtaining orders of mutation. As stated earlier, the jamabandi was opened, names were entered in Register II and revenue receipts were already issued in the name of the vendor and the predecessors, much before the land was purchased by these Petitioners, which was continued and mutated in the name of the petitioners after they purchased the land. The petitioners were not party to the original mutation proceedings, when the land was mutated long back in the name of the vendors and their predecessors, before these petitioners had purchased the said land. Therefore, in such circumstance the petitioners cannot be said to have abeted the offence of criminal misconduct by a public servant u/s 13 (1)(d) of the PC Act. 23. This Court is of the view that no prima facie case is made out against the petitioners and it will be an abuse of process of court to permit the continuation of the instant criminal proceeding. The order dated 18.11.2009 passed in Vigilance Case No. 25 of 2000 (Special Case No. 12 of 2000) and the entire criminal proceeding arising out of it is set aside. Criminal Miscellaneous Petition is allowed. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 3rd April, 2023 AFR/ AKT/Sandeep
Arguments
lapse of twenty years, Chandan Sao conspired with Mr. Francis Lakra, Revenue Officer, Mr. J.N. Singh, Circle Officer, Sadar, Ranchi, and Mr. Rajdeo Dubey, Circle Inspector, Town Circle, Ranchi and got the revenue receipt No. 136232 dated 26.09.1980 without having any supporting documents. Since the land initially had been recorded as Gairmazurwa land, transfer of said land to different persons were illegal. 2 5. Chandan Sao and Bharat Sao transferred the land to Jai Bhawani Sahkari Grih Nirman Samitee, which on their part sold through its Secretary Mr. Mahabir Kanshi to several independent persons and received huge sale proceeds in lieu of the said land. 6. After this came to light, case was lodged by the Inspector, Vigilance against several persons including these petitioners for the offence of forgery, cheating and misappropriation. 7. After investigation, charge sheet has been submitted and cognizance has been taken against altogether 70 persons including these petitioners. 8. The order of cognizance has been challenged on the ground that the petitioners are bona-fide purchasers of the land and after the said purchase the land has been duly mutated in their names. Jamabandi had been opened in the name of Chandan Sao and thereafter he transferred the land to Mr. Mahabir Kanshi, Secretary of Jai Bhawani Sahkari Grih Nirman Samitee. Against this backdrop, dishonest intention cannot be imputed to these petitioners which is essential ingredient to make out the offence. 9. It is submitted that the petitioners are the purchasers and the criminal proceeding against similarly situated accused persons had already been quashed by this Court in Cr. M.P. Nos. 1866/2015, 497/2015, 93/2016. 10. Learned Spl.P.P. for the State has opposed the quashing petition. It is submitted that Govt land has been transferred and mutated without any valid document. Knowing full well about the past illegal transactions, the petitioners purchased the said land. 11. Before dealing with the rival submissions it need to be pointed out that an initial fraud cannot attain legitimacy by mere passage of time and subsequent events. in Inderjit Singh Grewal v. State of Punjab & Anr., (2011) 12 SCC 588: 17. It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law as fraud unravels everything. “Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.” It is trite that “fraud and justice never dwell together” (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. “Fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine.” 3 12. However, where the criminal prosecution is under challenge, the matter for consideration is if the accused had requisite dishonest intention to make out the offence alleged? If there is no material to disclose dishonest intention on his part, criminal prosecution shall not be sustainable and prima facie case of cheating will not be made out. 13. In order to make out an offence of cheating, the following ingredients must be present:- (i) practice of cheating by the offender (ii) on account of deception there must be fraudulent or dishonest inducement so as to make the person deceived to deliver any property or to do something etc. (iii) by delivery of property or doing of such act, there must be caused a damage or harm to such person. Dishonest intention of cheating is a distinguishing feature between a civil and criminal cheating. Every failure of promise will not attract provision of this section. Mere breach of contract cannot give rise to criminal prosecution u/s 420 unless fraudulent or dishonest intention is shown, right at the commencement of transaction, when the offence is said to have been committed. 14. In the instant case, cognizance is taken under Sections 420, 423, 424, 467, 468, 469, 471, 477A, 120B, 109, 201 of Indian Penal Code and Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act. It has been held in Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751: 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, execution of such 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. 15. In all the above IPC offences, dishonest intention is an essential ingredient. No offence will be made out unless there is some material to show that the accused had dishonest intention in committing the act for which he is sought to be prosecuted. 16. Matter for consideration is whether the materials disclose dishonest intention on the part of the petitioner. 17. The following facts on behalf of prosecution can be summed up: a. Land in question was Gairmajurwa Malik land. 4 b. Chandan Sao, and Bharat Sao, who as per the prosecution case, had got their names falsely mutated in Register-II at Circle Office, Ranchi without having proper documents and got the revenue receipt vide Receipt No. 691766 dated 31.03.1968. c. Chandan Sao, and Bharat Sao, transferred the land in favour of Jai Bhawani Sahkari Grih Nirman Samitee and the land was mutated in the name of this co-operative society. d. Petitioners purchased the land from the cooperative society and got the land mutated in their name. 18. Without entering into the merit of right and title acquired by the petitioners by the sale deed from the cooperative society , it is apparent that before the purchase of the said land, it had been duly mutated in the name of the Society and revenue receipts was being issued. 19. Once separate jamabandi had been opened in the name of vendor and his predecessor, vendor’s name had been entered in the record of rights, revenue receipts were issued in it, the petitioners cannot logically and practically have any reason to doubt the title of the Vendors. Intention of a person in any case is a mental element which can be inferred only by the acts of the parties and the surrounding circumstance. A person is intended to know the legal consequence of his act. If a person purchases a land without any valid documents, then in certain circumstance he can be said to be cognizant about the illegality in the said transaction. However, in cases where there are documents from which a