Abdul Samad Son of Aas Mohammad vs The State of Bihar

This application under Section 482 of the Code of

Criminal Procedure has been filed to quash the order dated

13.02.2014 passed by the learned Chief Judicial Magistrate,

Katihar in G.R. No. 885 of 2013 arising out of Katihar P.S. Case

No. 167 of 2013 whereunder the learned Magistrate finding prima

facie case for the offence under Sections 467, 468, 406 and 420 of

the Indian Penal Code took cognizance of offence against this

petitioner and ordered for issuance of summons.

Heard both sides and perused the record.

The informant lodged an F.I.R. with S.H.O. of Katihar

Police Station alleging inter alia that her five brothers executed a

deed of agreement in favour of this petitioner for executing the sale

deed with respect to 40 decimal land for a total consideration of

Rs. 15,00,000/-. The said land was her ancestral land, which was

acquired by her father. After death of her father, she along with her

five brothers and mother came in possession over the said land.

Her five brothers in order to deprive the informant have executed

deed of agreement and in the said agreement, they mentioned the

name of the informant and also forged the signature of the

informant and thereby, all her five brothers and this petitioner

cheated the informant and committed breach of trust by retaining

the earnest money with respect to the deed of agreement.

The learned counsel for the petitioner submits that the

petitioner had contracted with the brothers of the informant for

purchasing the said land for a total consideration of Rs.

15, 00,000/-. The land in question was purchased by Zuddin. The

brothers of informant received an amount of Rs. 15,00,000/- after

executing a deed of agreement in favour of the petitioner. The

Opposite Party No. 2 filed Partition Suit No. 347 of 2012 for

partition of landed property left by her father. In the said partition

suit, the informant had not mentioned the land, which is the subject

matter of deed of agreement, which shows that the informant had

already entered into agreement to transfer the land in favour of the

petitioner. It was further submitted that one Hena Rani has filed a

Title Suit No. 37 of 2007 against the father of the informant. After

the death of her father, the informant and her five brothers and

mother were substituted as defendant nos. 1 to 1(f). The said title

suit was filed with respect to the land, which is subject matter of

the present case. In the said title suit, the petitioner had filed

intervener petition for making him as party to the suit. The

informant and her brothers filed rejoinder and in the said rejoinder

petition they admitted that she along with her brothers has already

entered into an agreement for executing a sale deed in favour of the

petitioner. She has further admitted that the petitioner has been put

in possession over the said land. The learned counsel in view of the

above facts has submitted that the dispute between the parties is

purely a civil dispute. The petitioner is an intending purchaser and

even after making payment of Rs. 15, 00,000/-, he is facing

litigation which has been launched by the informant and her

brothers, who are in collusion with each other.

The learned counsel for the informant as well as the

learned APP for the State opposed the submission. It has been

submitted that the court below found material constituting the

offence of cheating, fraud and forgery in manipulating a deed of

agreement has rightly taken cognizance and so, no interference is

required under inherent jurisdiction under Section 482 Cr.P.C.

On perusal of F.I.R. and annexures available on record,

I find that the petitioner is intending purchaser of 42 decimal land.

The brothers of the informant had executed a deed of agreement in

favour of the petitioner. The informant is also the party to the said

agreement. It is not in dispute that the informant and her brothers

jointly filed a petition in Title Suit No. 37 of 2007 wherein

admitted that she (informant) along with her brothers had received

the earnest money from the petitioner and put him in possession

over the said land. A Title Suit No. 37 of 2007 is also pending with

respect to the land in question. The dispute between the parties

appears to be a civil dispute. It further appears that the five

brothers of the informant, who are party to the agreement in

question, have been exonerated by the trial court as no cognizance

has been taken against them. The dispute between the parties are

purely a civil dispute and two civil suites bearing Title Suit No. 37

of 2007 and Partition Suit No. 347 of 2012 are still pending in the

civil court. In the circumstance, the criminal prosecution of this

petitioner would be an abuse of process of court.

In view of above discussions, the impugned order dated

13.02.2014 passed in G.R. Case No. 885 of 2013 taking

cognizance against the petitioner and his criminal prosecution on

that basis is hereby quashed and this application is allowed.