IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.25664 of 2009
Kapil Ram
Versus
State Of Bihar & Anr
with
Criminal Miscellaneous No.37026 of 2009
Kapil Ram & Ors
Versus
State Of Bihar & Anr
--------
For the petitioners: Mr Vidyasagar, Advocate
Mr Onkar Nath, Advocate
For the Opposite party no.2: Mr A.B. Ojha, Advocate
Mr Bharat Bhushan, Advocate
For the State: Mr Dr. Mayanand Jha, Advocate
———-
6 3.11.2011 Cr. Misc. No. 25664/2009 has been filed by
the petitioner- Kapil Ram, who is an accused in Complaint
case no. 378C/2008, for quashing order dated 13.8.2008
passed by Sri K.M. Tiwary, Judicial Magistrate, Ist Class,
Buxar in the above stated Complaint case no. 378C/2008,
Trial no.1275/2008 by which and whereunder the learned
Magistrate having found prima facie case under sections
420,467, 468, 474, 120B of the IPC against the petitioner and
others ordered to issue summons upon him and others for their
appearance.
2. Cr. Misc. No. 37026/2009 has been filed
by the petitioners- Kapil Ram, Deomuni Ram and Ram Niwas
Ram who are accused in Complaint case no. 379C/2008 for
quashing order dated 16.10.2008 passed by Sri A.K.
Srivastava, Judicial Magistrate, Ist Class, Buxar in the above
stated Complaint case no. 379C/2008 by which and
whereunder the learned Magistrate having found prima facie
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case under sections 147 and 379 of the IPC ordered to issue
summons upon the petitioners for facing trial.
3. In Cr. Misc. No. 25664/2009 this court
ordered to issue notice upon opposite party no.2 of the
aforesaid criminal misc. case and in response thereto,
opposite party no.2 made his appearance through his counsel
and after that vide order dated 12.7.2011 this court ordered to
put up Cr. Misc. No. 37026/2009 along with Cr. Misc. No.
25664/2009 and accordingly, both the above stated criminal
misc. cases were heard together with the consent of both the
parties.
4. Opposite party no.2, namely, Yogendra
Nath Tiwary filed Complaint case no. 378C/2008 against the
petitioner in Cr. Misc. No. 25664/2009 and four other
accused persons in the court of learned Chief Judicial
Magistrate, Buxar alleging therein that his wife, namely,
Dulhin @ Urmila Devi had purchased plot no.2 of khata no.
19 area 59 decimal lands and 1 acre 4 decimal lands by two
registered sale deeds dated 21.10.2000 and 27.1.2001
respectively from Gopal Tiwary son of Singhasan Tiwary of
village Rajdiha and came in possession of the above stated
lands but the petitioner in Cr. Misc. No. 25664/2009
purchased 81 decimal of lands of plot no.2 of khata no. 19
from one Late Ganesh Tiwary son of Anant Tiwary of village
Rajdiha having knowledge of this fact that wife of the
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complainant had already purchased the entire lands of plot
no.2 of khata no. 19. Since the witnesses and identifiers on
the sale deeds of the petitioner in Cr. Misc. No. 25664/2009
were co-villager of the complainant- Yogendra Nath Tiwary,
the above stated petitioner in Cr. Misc. No. 25664/2009 was
fully aware about the sale deeds of the wife of complainant
but in spite of that the petitioner in Cr. Misc. No. 25664/2009
and other accused of Complaint case no. 378C/2008 got
prepared forged document to cheat and damage the
complainant’s wife and they also used the said document for
getting name of the petitioner-Kapil Ram mutated in circle
office. Furthermore, the complainant (Opposite party no.2)
alleged that on 26.2.2003, petitioner- Kapil Ram got executed
23 decimal lands of plot no.2 appertaining to khata no. 19
from Gopalji Tiwary, the vendor of the complainant’s wife,
with an intent to cheat complainant’s wife.
5. The learned Magistrate having conducted
an enquiry under section 202 of the Cr.P.C passed the
impugned order dated 13.8.2008 in the manner as stated
above.
6. The petitioner in Cr. Misc. No.
25664/2009 challenged the impugned order dated 13.8.2008
by filing the above stated Cr. Misc. No. 25664/2009.
7. Opposite party no.2 in Cr. Misc. No.
37026/2009 filed Complaint case no. 379C/2008 against the
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petitioners in Cr. Misc. no. 37026/2009 and twenty unknown
persons in the court of learned Chief Judicial Magistrate,
Buxar alleging therein that on 23.4.2008 the aforesaid
petitioners along with unknown persons having armed with
fire arms and other lethal weapons came on the purchased
lands of complainant’s wife and forcibly cut wheat crops
from the aforesaid purchased lands of complainant’s wife.
The above stated complaint petition was enquired by the
learned Judicial Magistrate, Buxar and having found prima
facie case under sections 147 and 379 of the IPC ordered to
issue summons upon the above stated petitioners vide order
dated 16.10.2008 which is under challenge in Cr. Misc. no.
37026/2009.
8. Since the above stated Complaint case no.
379C/2008 is an offshoot of Complaint case no. 378C/2008,
this court thought it proper to hear Cr. Misc. No. 25664/2009
and Cr. Misc. no. 37026/2009 together and accordingly, a
common order is being passed in both the above stated
criminal misc. cases.
9. During the pendency of the above stated
Cr. Misc. no. 25664/2009, the petitioner in the aforesaid
criminal misc. case filed an interim application for stay of
further proceeding of Complaint case no. 378C/2008, Trial
no. 1275/2008 pending in the court of Sri K.M. Tiwary,
Judicial Magistrate, Buxar and accordingly, above stated I.A.
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petition is also being disposed off by the present common
order.
10. Learned counsel, Sri Vidyasagar,
appearing on behalf of the petitioners in both the criminal
misc. cases, submits that the petitioner in Cr. Misc. No.
25664/2009 purchased the lands in question in good faith
without having knowledge of so-called sale deeds of
complaint’s wife and when he came to know about the sale
deeds of complainant’s wife, he enquired from his vendor,
namely, Gopal Tiwary and after that his vendor namely,
Gopal Tiwary executed a deed of agreement in his favour
and according to the aforesaid deed of agreement dated
19.7.2009, the aforesaid vendor of the petitioner in Cr. Misc.
No. 25664/2009 executed another sale deed dated 10.6.2009
in respect of plot no. 1260 khata no. 54 area 34 decimals in
place of plot no. 2 of khata no. 19 area 23 decimals and
accordingly, the petitioner in Cr. Misc. No. 25664/2009 has
already relinquished his claim in respect of plot no. 2 of
khata no. 19 area 23 decimals. It is contended by him that the
aforesaid circumstances clearly suggest this fact that the
petitioner in Cr. Misc. No. 25664/2009 had no knowledge
about the so-called sale deed of complainant’s wife and he
had no intention either to cheat the complainant or his wife.
It is further contended by him that so far as rest area of plot
no. 2 of khata no. 19 situated at village Karuaz police station
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Koran sarai district Buxar is concerned, the petitioner in Cr.
Misc. No. 25664/2009 had purchased the aforesaid land from
one Late Ganesh Tiwary through registered sale deed dated
26.2.2003 for valid consideration. It is also contended by him
that the aforesaid Late Ganesh Tiwary had purchased 81
decimal lands out of plot no. 2 of khata no. 19 through
registered sale deed dated 15.1.2001 from Mostt. Kausaliya
Devi w/o late Singhasan Tiwary and after aforesaid purchase,
the aforesaid Late Ganesh Tiwary came in possession of the
aforesaid land and subsequently, he transferred the said land
in favour of the petitioner in Cr. Misc. No. 25664/2009 on
26.2.2003 after taking consideration money. It is further
contended by him that the very face of the complaint case
does not disclose any offence of cheating and, at best, it is a
case of bona fide land dispute. So, the continuance of
Complaint case no. 378C/2008 is nothing but only an abuse
of process of the law. It is also contended by him that the
complainant’s wife had already filed title suit bearing Title
Suit no. 108/2007 in the court of learned Sub Judge I, Buxar
in respect of disputed plot and, therefore, civil remedy is
available to the complainant and so, two proceedings can not
be allowed to proceed simultaneously.
11. Learned counsel appearing for the
petitioners further submits that after purchasing the aforesaid
lands they harvested paddy crops on purchased lands but the
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complainant (opposite party no.2) with intent to lay pressure
upon the petitioners filed Complaint case no. 379C/2008
which can easily be said offshoot of the above stated
litigation and, therefore, continuance of the proceeding of
Complaint case no. 379C/2008 is, too, nothing but only an
abuse of process of the court. It is further contended by him
that when the dispute arose between the parties police visited
the disputed land and found that wheat crops had been
harvested by the petitioners. It is also pointed out by him that
an advocate commissioner also visited disputed land and
found that wheat crops had been harvested by the petitioners
though the learned Sub Judge, Buxar refused to grant interim
injunction in favour of the petitioners.
12. Learned counsel for the petitioners refers
several decisions in support of his contentions which are as
follows:-
(i) 2007 (Suppl.) PLJR 229 in which
this court has held that if the creation of the alleged forged
and fabricated document to defeat the claim of the
complainant is already subject matter in the partition suit
pending between the parties, the continuance of criminal case
will not serve any purpose and after decision of the suit the
complainant will be at liberty to take action according to law
and the dispute is of civil nature and so, its continuance
would be an abuse of process of the court.
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(ii) 2000 (4) PLJR 44 in which it has
been held by this court that criminal proceeding launched on
the same cause of action in which civil suit is pending and if
the allegations do not constitute criminal offence rather
allegations are of civil in nature; the very initiation of
criminal proceeding is an abuse of process of the court.
(iii) 2000 (2) PLJR 243 in which it has
been held by this court that if allegations are of civil nature
and it could be decided by the competent civil court,
summons to the accused in a complaint case is an abuse of
process of the criminal court.
(iv) 2011 (1) PLJR 354 in which it
has been held by this court that in absence of any dishonest
inducement to deliver any property to any person, no case is
made out under section 420 and to bring action punishable
under the Indian Penal Code, it has first to be ascertained
whether an offence as classified in section 2(n) is made out.
(v) 2000 (1) PLJR 51 in which it has
been held by this court that judicial process should not be an
instrument of oppression or needless harassment and even if
the complaint petition discloses an offence but the materials
show that the same is vexatious one and has been filed just to
harass and humiliate the accused persons, the continuance of
the prosecution can not be permitted.
13. On the strength of the aforesaid
9
decisions, learned counsel for the petitioners submits that both
the above stated complaint cases have been brought by the
complainant on account of land dispute just to lay pressure
upon the petitioners so that they may relinquish their claim in
respect of the plot no.2 khata no. 19 area 81 decimals which
has been purchased by the petitioner in Cr. Misc. No.
25664/2009 from Late Singhasan Tiwary who had purchased
the said land from mother of Gopal Tiwary, so-called vendor
complainant’s wife, much prior to the purchase of
complainant’s wife.
14. On the other hand, learned counsel Sri
A.B. Ojha, appearing for the opposite party no.2, supported the
impugned order and submitted that it is an admitted position
that wife of opposite party no.2 had already purchased entire
area of plot no.2 of khata no.19 from Gopal Tiwary and after
the above stated purchase, the petitioner in Cr. Misc. No.
25664/2009 purchased the said land from Gopal Tiwary. It is
further contended by him that the vendor of Late Ganesh
Tiwary had no right to transfer the land in question in his
favour because admittedly, she was the second wife of
Singhasan Tiwary who had solemnized his second marriage in
the life time of his first wife. So, even if, the above stated
Ganesh Tiwary had purchased the aforesaid land from
Kausaliya Devi, the second wife of Singhasan Tiwary, then
also, the aforesaid transfer was illegal and furthermore, the
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petitioner in Cr. Misc. no. 25664/2009 was fully aware of this
fact that his vendor Gopal Tiwary had already transferred the
lands in question in favour of complainant’s wife but in spite
of having knowledge of the aforesaid facts, the petitioner in Cr.
Misc. No. 25664/2009 purchased the lands in question from the
aforesaid Ganesh Tiwary as well as Gopal Tiwary with an
intent to make false claim and to damage and cheat the
complainant’s wife and, therefore, a clear cut case under
section 420 and other provisions of the IPC is made out against
the petitioner and other accused of Complaint case no.
378C/2008. It is further contended by him that mere pendency
of civil suit does not preclude complainant to launch criminal
prosecution against the petitioner in Cr. Misc. No. 25664/2009
and other accused of Complaint case no. 378C/2008. It is
further contended by him that the petitioner in Cr. Misc. No.
25664/2009 had filed injunction petition before the learned Sub
Judge I, Buxar in Title Suit no. 108/2007 but he could not
succeed to get any relief upto the appellate court. It is further
contended by him that the report submitted by the advocate
commissioner in Title suit no.108/2007 as well as the report
submitted by the police do not make any difference because the
aforesaid reports would not be read in the above stated
complaint case.
15. Learned counsel for opposite party no.2
placed reliance on the following decisions which are as
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follows:-
i) 2000 Cr. LJ 1487 in which the Hon’ ble
Supreme Court held that the if allegations levelled in
complaint on the face of it disclose offence alleged, the
complaint can not be quashed merely on the ground that civil
remedy is available.
ii) 2005 Cr. LJ 1838 in which the Hon’
ble Andhra Pradesh has held that the criminal proceeding can
not be quashed on the ground that complainant failed to
specifically allege in complaint that there was intention to
cheat on part of accused even at time of entering into
contract.
iii) AIR 1999 SC 1216 in which the Hon’
ble Apex Court of this country has held that the complainant
not required to re-produce verbatim all ingredients of offence
alleged in body of complaint and to constitute of an offence
of cheat and the crux is intention of accused persons.
iv) 2007(3) PLJR 384 in which this Court
has held that the allegations of selling land fully knowing that
the said land earlier sold to somebody else whether the
petitioners had knowledge or had intention to cheat required
deeper investigation which could be done by holding a full-
fledged trial.
16. On the basis of the aforesaid decisions,
learned counsel for the opposite party no.2 prayed for
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dismissing both the above stated criminal misc. cases.
17. Having heard rival contentions of both
the parties I have gone through the record and the decisions
cited on behalf of the parties.
18. Certain facts are admitted between the
parties. It is an admitted position that the land of plot no.2 of
khata no. 19 belonged to one Sihasan Tiwary who had
solemnized his second marriage with Mostt. Kaushaliya Devi
and the aforesaid Kaushaliya Devi had transferred 81
decimals land of plot no.2 khata no.19 to one Ganesh Tiwary
on 15.1.2001 by registered sale deed and the aforesaid
Ganesh Tiwary later on, transferred the aforesaid 81 decimals
land in favour of the petitioner in Cr. Misc. No. 25664/2009
by executing registered sale deed dated 26.2.2003 for valid
consideration. It is also an admitted position that the wife of
opposite party no.2 purchased the aforesaid 81 decimals land
from Gopal Tiwary son of Singhasan Tiwary on 27.1.2001
i.e. after purchase of Late Ganesh Tiwary from the mother of
aforesaid Gopal Tiwary. It is also an admitted position that
the petitioner in Cr. Misc. No. 25664/2009 purchased 23
decimal lands of plot no.2 of khata no.19 on 26.2.2003 from
Gopal Tiwary who had already sold the above stated lands to
wife of opposite party no.2 and after that above stated Gopal
Tiwary executed another sale deed on 10.6.2009 in respect of
plot no. 1260 of khata no. 54 in favour of the petitioner in Cr.
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Misc. No. 25664/2009 in place of above stated 23 decimal
lands of plot no.2 khata no.19 and also executed an agreement
to the above stated effect on 19.7.2009 and, therefore, it is
clear that the petitioner in Cr. Misc. No. 25664/2009 is not
laying any claim on 23 decimal lands of plot no.2 khata no.19
which had earlier been transferred in his favour by the above
stated Gopal Tiwary vide registered sale deed dated
26.2.2003 and only 81 decimal lands of plot no.2 khata no.19
remained left in dispute between the parties. Admittedly, 81
decimal lands has been transferred by one Ganesh Tiwary in
favour of the petitioner in Cr. Misc. No. 25664/2009 and the
aforesaid Ganesh Tiwary had purchased the aforesaid land
from Kaushaliya Devil the step-mother of Gopal Tiwary, and
subsequently, the aforesaid Gopal Tiwary transferred the
aforesaid land in favour of wife of opposite party no.2. So,
even if, it is assumed that the petitioner in Cr. Misc. No.
25664/2009 was aware about sale deed of wife of opposite
party no.2 at the time of purchasing of 81 decimal lands of
plot no.2 khata no.19 from Ganesh Tiwary, then also, it can
not be said that he had purchased the aforesaid lands to cheat
the complainant’s wife because he had not purchased the said
lands from the vendor of wife of opposite party no.2 and, at
best, it can be said that the petitioner in Cr. Misc. No.
25664/2009 had purchased the aforesaid land from a person
who had no right to transfer the aforesaid land.
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19. Complaint case no. 379C/2008 is an
offshoot of the aforesaid litigation because the complaint has
alleged in the aforesaid complaint petition that he had sown
wheat crops in the disputed land but the petitioners in Cr.
Misc. No. 37026/2009 had forcibly cut the aforesaid wheat
crops. Admittedly, both the parties are claiming their title and
possession over the above stated disputed land which can be
decided in a civil suit.
20. In 2011(1)PLJR Supreme Court page
20, the Apex Court of this country has held that allegation of
selling land, notwithstanding, having knowledge that the said
land had already been transferred to someone else and no link
to give rise to suspicion of conspiracy between the present
vendor, first vendor and his brother to cheat complainant, the
complainant, at best, question such transfer and claim damage
from vendor of the present vendor and no action would lie
before a criminal court.
21. In the present case, the complainant
alleged the factum of conspiracy on the basis that all the
witnesses and identifiers on the sale deeds of the petitioner in
Cr. Misc. No. 25664/2009 are co-villagers of complainant and
they were fully aware about prior execution of sale deed of his
wife but there is nothing in the entire complaint petition to
show this fact that the petitioner in Cr. Misc. No. 25664/2009
was also aware about the existence of sale deeds of
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complainant’s wife prior to purchase of lands in question.
Moreover, as I have already stated that the petitioner in Cr.
Misc. No. 25664/2009 has already relinquished his claim in
respect of 23 decimal lands of plot no. 2 khata no. 19 and he
has purchased 81 decimal lands of plot no.2 khata no. 19 from
one Ganesh Tiwary who is not the vendor of the complainant’s
wife and, therefore, in my view, there is no link to give rise to
suspicion of conspiracy between the petitioner in Cr. Misc. No.
25664/2009 and other accused of Complaint case no.
378C/2008 as well as Late Ganesh Tiwary, the vendor of the
petitioner in Cr. Misc. No. 25664/2009 and, at best, it can be
said that there is link to give rise to suspicion of conspiracy
between Late Ganesh Tiwary and other accused of Complaint
case no. 378C/2008 to cheat not only the complainant’s wife
but also the petitioner in Cr. Misc. No. 25664/2009. Therefore,
the continuance of Complaint case no. 378C/2008 as well as
Complaint case no. 379C/2008 is nothing but only an abuse of
process of the law.
22. It is also an admitted position that Title
Suit no. 108/2007 in respect of disputed lands is pending
between the parties and the dispute of the parties appears to
be a bona fide land dispute and, therefore, on this score also
continuance of the proceedings of the aforesaid complaint
cases is nothing but only an abuse of process of the law.
23. On the basis of the aforesaid
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discussions, I feel no hesitation to allow both the criminal
misc. cases and quash the impugned orders dated 13.8.2008
and 16.10.2008 passed in Complaint case no. 378C/2008 as
well as Complaint case no. 379C/2008 respectively and
accordingly, both the above stated impugned orders dated
13.8.2008 and 16.10.2008 passed in the above stated
complaint cases respectively are, hereby, quashed in respect
of petitioners only.
24. In the aforesaid manner, both the above stated
criminal misc. cases and I.A no. 1811/2009 stand disposed off.
Shahid ( Hemant Kumar Srivastava,J)