Subodh Kumar v. The State of Jharkhand

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For O.P. No.2 : Mr. Avilash Kumar, Advocate : Mr. Sahil, Advocate : Mr. P.D. Agrawal, Spl. P.P. : Mr. Akchansh Kishore, Advocate : Mr. Pandey Neeraj Rai, Advocate : Mr. Rohit Ranjan Sinha, Advocate : Mr. Suraj Kr. Verma, Advocate : Mr. Rishav Raj, Advocate ….. By the Court:-

Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding of Chandwara P.S. Case No. 63 Cr.M.P. No.2764 of 2021 1 of 2018, corresponding to G.R. No. 643 of 2020 including the order taking cognizance dated 28.09.2020 passed by the learned Chief Judicial Magistrate, Koderma whereby and where under, cognizance has been taken against the petitioners for having committed the offence punishable under Section 420/34 of Indian Penal Code. The allegation against the petitioners is that the petitioners deceitfully prepared forged document and has sold the land of the complainant to the co-accused persons of the case. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Md. Ibrahim & Ors. vs. State of Bihar & Anr. reported in [2009 (4) East Cr C 6 (SC)], paragraph no. 15 of which reads as

under:- “15. 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. The term ‘fraud’ is not defined in the Code. The dictionary definition of ‘fraud’ is “deliberate deception, treachery or cheating intended to gain advantage”. Section 17 of the Contract Act, 1872 defines ‘fraud’ with reference to a party to a contract. In Dr. Vimla vs. Delhi Administration3 - AIR 1963 SC 1572, this Court explained the meaning of the expression ‘defraud’ thus “The expression “defraud” involves two elements, namely, deceit and injury to the person deceived.

It is then submitted by the learned counsel for the petitioners that the allegation against the petitioners are false and the petitioners are the descendants of recorded raiyat Deepchand Modi and their great grandfather Tiko Modi was son of Deepchand Modi and Tiko Modi got 0.35 decimal of land in plot no. 6847. It is also submitted by the learned counsel for the petitioners that the name of great grandfather of the petitioners namely Tiko Modi has been entered in the Register II and rent receipt has been issued in his favour. It is further submitted by the learned counsel for the petitioners that the cloak of criminal colour is tried to be given at best to a purely civil dispute between the parties and the continuation of the case will amount to Cr.M.P. No.2764 of 2021 3 abuse of process of law. Hence, it is submitted that entire criminal proceeding of Chandwara P.S. Case No. 63 of 2018, corresponding to G.R. No. 643 of 2020 including the order taking cognizance dated

28.09.2020 passed by the learned Chief Judicial Magistrate, Koderma be quashed and set aside.

Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer for quashing the entire criminal proceeding of Chandwara P.S. Case No. 63 of 2018, corresponding to G.R. No. 643 of 2020 including the order taking cognizance dated 28.09.2020 passed by the learned Chief Judicial Magistrate, Koderma. It is submitted by the learned counsel for the opposite party no.2 that this is not a case of cheating simpliciter rather this case involves forgery and using of forged document for the purpose of cheating. Hence, it is submitted that at this nascent stage the entire criminal proceeding ought not to be quashed. It is lastly submitted that this criminal miscellaneous petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that a person who claims to be the bona fide owner of the property cannot be sued by any person other than the purchaser of the property for the purpose of cheating and in this case the learned Magistrate has only found prima facie case for the offence punishable under Section 420/34 of Indian Penal Code. The learned Magistrate has not found prima facie case for any other offence. Undisputedly, the petitioners claim to be the owner of the Cr.M.P. No.2764 of 2021 4 property being the descendant of Deepchand Modi and the purchasers from the petitioners have no grievance against them and they have not lodged the first information report, rather a third person, who is not the purchaser, has lodged the first information report. But the learned Magistrate, ignoring this settled principle of law in the case of Md. Ibrahim & Ors. vs. State of Bihar & Anr. (Supra) has taken cognizance even though the purchasers of the property from the petitioners have no grievance against the petitioners.

Under such circumstances, this Court is of the considered view that continuation of the criminal proceeding will amount to abuse of process of law and this is a fit case where the entire criminal proceeding of Chandwara P.S. Case No. 63 of 2018, corresponding to G.R. No. 643 of 2020 including the order taking cognizance dated

28.09.2020 passed by the learned Chief Judicial Magistrate, Koderma be quashed and set aside.

Accordingly, the entire criminal proceeding of Chandwara P.S. Case No. 63 of 2018, corresponding to G.R. No. 643 of 2020 including the order taking cognizance dated 28.09.2020 passed by the learned Chief Judicial Magistrate, Koderma is quashed and set aside.