Ajay Mehta vs State Of Bihar

Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State.

The petitioner has filed the instant writ petition praying for issuance of writ in the nature of certiorari or any other appropriate writ quashing/setting aside the First Information Report of Civil Lines P.S. Case No. 178 of 2020 registered against him under Sections 420, 467, 468 and 471 of the Indian Penal Code.

It is alleged by the petitioner that he became the owner of a piece and parcel of land comprising in Cadastral Survey Khata No.67, Plot No.17, Mauja-Silaunja, Revenue Thana No.442 within police Station Bodh Gaya in the District of Gaya by way of inheritance from his ancestors. According to the petitioner, his grandfather took settlement of land measuring 22.50 acres in C.S. Plot No.17, C.S. Khata No.67 of Village-Silaunja from the Superior Landlord and Intermediary Mahanth Kishan Dayal Giri. Subsequently, the said land was partitioned between the petitioner and his father and the petitioner became absolute owner of 19.50 acres of land in respect of the aforesaid plot. Further, case of the petitioner is that his ancestors used to pay rent to the Jamindar who settled the land in favour of his grandfather against Jamindari rent receipts. After abolition of jamindari system and vesting of jamandari rights the grandfather of the plaintiff mutated his name in the Anchal Office and he used to pay rent to the Government in respect of the said land. The petitioner alleges that during revisional survey the land was wrongly recorded in the name of the State of Bihar. Sometimes, in the year 1984 when the title of the petitioner remained under cloud, he filed Title Suit No.113 of 2008 which was renumbered as T.S. No.88 of 2008 in the Court of the learned Sub-Judge, Gaya for declaration of his right and title over the disputed property. The said suit was decreed on contest by a judgement and decree dated 22.12.2011 and 24.01.2012 respectively. On 15.03.2015, petitioner sold 06 acres of land to Cambodian Buddhist Monastery Trust, Bodhgaya out of the said 19.50 acres of land by executing a registered deed of sale. The petitioner also delivered possession of the said 06 acres of land to the Cambodian Buddhist Monastery Trust, Bodhgaya. In the year 2016, the Administrative Authority under the State Government initiated an encroachment proceeding against Cambodian Buddhist Monastery Trust, Bodhgaya. Sometimes in January 2017 the said Trust filed a Writ Petition being C.W.J.C. No.1808 of 2017 against the encroachment order. A co-ordinate Bench of this Court passed an order on 04.01.2017 directing the respondents not to take any coercive action against the petitioner till the disposal of the above mentioned writ petition. The said writ petition is still pending before this Court. Inspite of such order, local police under the direction of the concerned department badly ransacked the construction made by the Trust and also assaulted both male and female monks on 17.02.2017. The petitioner filed an intervening petition in C.W.J.C. No.1808 of 2017 and the said petition still pending before this Court. Vide order dated 01.03.2017, this Court passed an order directing the respondents to show cause as to why the order dated 04.02.2017 passed in C.W.J.C. No.1808 of 2017 was violated.

In the meantime, title appeal filed by the State of Bihar against the judgment and decree passed in Title Suit No.113 of 2008 renumbered as 88 of 2008 was dismissed by the First Appellate Court and the judgment and decree passed by the Trial Court were affirmed. The State of Bihar has filed a Second Appeal against the judgment and decree passed in Title Suit No.27 of 2014 before this Court and the said appeal is still pending. Sometimes in the month of January, 2020 on the basis of some complaint made against the petitioner a proceeding was initiated under the Bihar Right to Public Grievance Redressal Act, 2015. The Second Appellate Authority under the said Act, 2015 passed final order on 16.01.2020 on the basis of a complaint of one Avinash Kumar Mehta holding inter-alia that the subject land was recorded in R.S. operation in the name of the State of Bihar, the petitioner wrongfully and illegally and by way of manipulation of records got 06 acres of land out of the subject land transferred in favour of Cambodian Buddhist Monastery Trust, Bodhgaya and the petitioner is guilty for such illegal transfer. The Second Appellate Authority under the Act of 2015 directed the District Magistrate, Gaya to take strict action against the petitioner and his vendee. On the direction of the District Magistrate, Gaya the local Sub-Registrar filed an F.I.R. on the basis of which Civil Lines P.S. Case No.178 of 2020 dated 22.05.2020 under Sections 420, 467, 468 and 471 of the Indian Penal Code was registered. The petitioner has filed the instant writ petition praying for quashing the F.I.R.

The record of the instant writ petition shows that on 18.10.2022 the respondent no.5 filed a counter affidavit denied all the allegations made out by the petitioner in his writ petition. It is stated on behalf of the respondent no.5 that till the date of filing of the counter affidavit, the Investigating Officer recorded statement under Section 161 of the Cr.P.C. of five witnesses. The case diary was produced before the Deputy Superintendent of Police, Gaya. The Deputy Superintendent of Police, Gaya directed the Investigating Authority to examine the documents by virtue of which the petitioner was claiming the ownership of the land and other documents in order to come to a final decision with regard to veracity of the criminal case instituted against the petitioner. The respondent authority relied upon the finding of the Second Appellate Authority under the Bihar Right to Public Grievances Redressal Act, 2015 and held that the petitioner wrongfully and illegally transferred the said land in favour of Cambodian Buddhist Monastery Trust, Bodhgaya. It is also stated that when the discrepancy in the record of rights were found in respect of the subject land a direction was issued to the registration office to stop registration of transfer of the subject land or any portion thereof in the year 2012 but the petitioner manipulated the record of the registration department and got 06 acres of land out of 19.50 acres of land in the disputed plot registered in favour of Cambodian Buddhist Monastery Trust, Bodhgaya on 15.03.2015. Therefore, prima-facie allegation of cheating, forgery, creation of false document using the same as genuine has prima-facie been established against the petitioner.

Respondent nos.2 to 4 have filed a separate counter affidavit stating inter-alia that the Anchal Adkhikari, Bodhgaya in compliance of the order passed in Land Encroachment Case No.18 of 2016-17 on 25.01.2017 went to the subject land with the Executive Magistrate, Officer-in-Charge, Bodhgaya to remove the encroachment but they were attacked by the disciples of Cambodian Buddhist Monastery Trust, Bodhgaya and created obstruction to the public servants in discharging their public duty which laid the police to institute Bodhgaya P.S. Case Nos.55 of 2017 and 56 of 2017, both dated 25.01.2017.

It is also contended by the contesting respondents that since the land was recorded as “Anabadi” land under the ownership of State of Bihar, a restriction against transfer of the said land was imposed in the registration office, since 2012 but the petitioner by manipulation of the record got a deed of conveyance register showing Cadastral Survey Record by misrepresentation of fact. However, when such manipulation and misrepresentation was found, the Administrative Authority, refused mutation of the land which was allegedly transferred by executing a Registered Deed No.4593/2015 dated 27.03.2015 and accordingly, no Jamabandi was created in favour of the vendee. The contesting respondents also submits that the encroachment made on the subject land was removed on the strength of the order passed in Bihar Land Encroachment Case No.18 of 2016-17 before the order of status-quo being passed in C.W.J.C. No.1808 of 2017.

Again on 29.01.2024 and 19.03.2024 counter affidavits were filed on behalf of the respondent no.5 reiterating the progress of investigation in connection with Civil Lines P.S. Case No.178 of 2020.

I have heard the learned Advocates on behalf of the petitioner and the contesting respondents.

Having heard the learned counsels for the parties and on careful perusal of the entire materials on record, it appears that the petitioner is claiming a piece and parcel of land measuring about 19.50 acres by way of inheritance and partition stating inter-alia that the grandfather of the petitioner took settlement of 24.50 acres of land from the Jamindar sometimes in the year 1941. During C.S. operation the said land was recorded in old Khata No.67, Old Plot No.17, Thana No.442 in the name of the predecessor-in-interest of the petitioner. Subsequently, during R.S. operation the said land was recorded in the Khata of Bihar Government as an uninhabited land in new Khata No.234, New Plot No.15 in Thana No.442. Thus, by virtue of R.S. operation the respondent authorities are claiming that the ownership of the land rests on Bihar Government.

It is needless to say that record of rights is a document of possession and it does not confirm any title in favour of the person in whose name the record of rights are prepared.

Indisputably, the petitioner filed a suit for declaration of his title over the subject land, the said suit was decreed. The State of Bihar was a party to the said suit and the suit was contested by the State of Bihar against the judgement and decree passed by the Trial Court, the State of Bihar filed an appeal before the First Appellate Court. The First Appellate Court affirmed the judgment and decree passed by the Trial Court. The State of Bihar has filed a Second Appeal against the concurrent finding of fact declaring title of the petitioner over the disputed land before this Court, the said second appeal is still pending. Therefore, the judgment and decree passed by the competent Civil Court and affirmed by the First Appellate Court still holds good in respect of assessment of title over the subject land. When a competent Civil Court declared that the petitioner had right, title and interest over the property, the Second Appellate Authority under the Bihar Right to Public Grievances Redressal Act, 2015 cannot sit over the judgment and decree passed by the Trial Court and hold that the petitioner was guilty for transferring a portion of the said land in favour of the Cambodian Buddhist Monastery Trust, Bodhgaya. The Second Appellate Authority under the Bihar Right to Public Grievances Redressal Act, 2015 had no right to hold that the petitioner by showing a wrong Hukumnama and making it a basis obtained an ex-parte decision in his favour against the Bihar Government in Title Suit No.113 of 2013. The said Hukumnama was exhibited before the Civil Court and the Civil Court held that the said Hukumnama was a genuine document. Any authority under the Bihar Right to Public Grievances Redressal Act, 2015 cannot adjudicate the veracity of an exhibited document of a Civil Court and come to a finding as to whether it was genuine or wrong.

The decision of the Second Appellate Authority under the Bihar Right to Public Grievances Redressal Act, 2015 did not even consider the judgment passed by the Civil Court. They relied on a Joint Inspection Report and the record of rights in respect of the subject property. Thus, the key issue pending consideration before this Court is as to whether a document or a deed of conveyance executed by the petitioner can be held to be the result of forgery and cheating when the issues are pending consideration of Civil Court. It is held in Rajeshbhai Muljibhai Patel and others Vs. State of Gujarat and others reported in (2020) 3 SCC 794 that when issue as to genuineness of the documents, forgery of which was the basis of the criminal proceedings was pending consideration in Civil Suit, F.I.R. ought not to be allowed to continue as it would prejudice the interest of the parties and stand taken by them in the Civil Suit. In the second appeal filed by the State of Bihar, the right, title and interest of the petitioner over the disputed property on the basis of Jamindari Jamabandi and C.S. record of rights as well as subsequent transfer of land to Cambodian Buddhist Monastery Trust, Bodhgaya is under challenge. Now if the genuineness of the document, i.e. the deed of transfer is to be adjudicated by the criminal Court on the basis of a case instituted on police report, it would prejudiced the interest of the parties and stand taken by them in the Civil Suit.

In the case of M/S Indian Oil Corporation vs M/S Nepc India Ltd., & Ors reported in (2006) 6 SCC 736, Hon’ble Supreme Court reviewed the precedence on the exercise of the jurisdiction under Section 482 of the Cr.P.C. and formulated guidelines in the following terms in para-12 :-

“12 ………..(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inher-ently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim repro-duce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the of-fence.”

In the instant case, the F.I.R. is reproduced herein below:-

On perusal of the F.I.R. it is found that there is absolutely

no allegation made against the petitioner of committing the of-

fence of cheating and forgery.

Section 415 of the Indian Penal Code defines cheating as herein under :-

“415. Cheating.— Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”

The essential ingredients of cheating are one deception of any person

Fraudulently or dishonestly inducing that person-

(i) to deliver any property to any person or

(ii) to consent that any person shall written any property or

(iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or earn to the person in body, mind reputa-tion or property.

Section 420 of the Indian Penal Code defines cheating and dishonestly inducing delivery of property, the provision runs thus:-

“420. Cheating and dishonestly inducing delivery of property.— Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Section 420 of the I.P.C. is a graver form of cheating that includes inducement to lead or move someone to happen in terms of delivery of property as well as valuable securities, this section is also applicable to matters where the destruction of property is caused by way of cheating and inducement.

In the instant case assuming for the time being that the petitioner fraudulently transferred 06 acres of land in the dis-puted property in favour of Cambodian Buddhist Monastery Trust, Bodhgaya, though he had no right, title and interest to transfer the said land, the person allegedly deceived is the trust, the trust did not make any complaint or F.I.R. against the peti-tioner alleging inter-alia that the petitioner having no right, title and interest transferred a piece of land against valuable consid-eration and thereby committed cheating to Cambodian Buddhist Monastery Trust, Bodhgaya, no such F.I.R. has been lodged by the Trust against the petitioner.

In Vesa Holdings (P) Ltd. Vs. State of Kerala reported in (2015) 8 SCC 293, the Hon'ble Supreme Court made the follow-ing observation in Para-13, the provisions runs thus:

“It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.”

In the case of State of Tamil Nadu Vs. R. Soundirarasu reported in (2023) 6 SCC 768, it is held by the Hon’ble Supreme Court in para-62 to 64, which are reproduced below:

“62. Section 239 CrPC lays down that if the Magistrate considers the charge against the accused to be ground- less, he shall discharge the accused. The word "ground-less", in our opinion, means that there must be no ground for presuming that the accused has committed the of-fence. The word "groundless" used in Section 239 CrPC means that the materials placed before the court do not make out or are not sufficient to make out a prima facie case against the accused.

The learned author Shri Sarkar in his Criminal P.C., 5th Edn., on p. 427, has opined as :

"The provision is the same as in Section 227, the only difference being that the Magistrate may examine the ac-cused, if necessary, of also Section 245. The Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and documents mentioned in Section 173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless i.e. either there is no legal evidence or that the facts do not make out any offence at all.

In short, it means that if no prima-facie case regarding the commission of any offence is made out, it would amount to a charge being groundless.”

In the instant case, the State of Bihar has alleged that the petitioner committed cheating and forgery of records by registering a deed in favour of Cambodian Buddhist Monastery Trust, Bodhgaya. The said land stands in the name of the State of Bihar in R.S. record of rights. The said fact is under consider-ation before this High Court in Second Appeal. When title of the petitioner is established by a competent Civil Court and the judgment and decree passed by the competent Civil Court has not yet been set aside in the second appeal, the petitioner's title over the property is held to be settle till date in respect of settle title the petitioner is entitled to transfer a portion of the property. Transferability of property is one of the ingredients of having title over the property. The respondent’s authorities try to establish its claim on the basis of subsequent record of rights. The said record of rights is under scrutiny before this Court in second appeal. At this stage, the F.I.R. and registration of Civil Lines P.S. Case No.178 of 2020 dated 22.05.2020 is a malafide exercise on the part of the Public Officer.

I have already held that the Second Appellate Authority under the Bihar Right to Public Grievances Redressal Act, 2015 cannot sit over the judgment passed by the Competent Civil Court, it has no power to hold that Civil Court passed the decree in favour of the petitioner on the basis of a wrong Jamindari Hukumnama.

The dispute between the parties essentially civil in nature, criminal case is not maintainable.

For the reasons stated above, I come to this conclusion that the F.I.R. in connection with Civil Lines P.S. Case No.178 of 2020 should be quashed and set aside. It is not out of place to mention that the principles of quashing F.I.R. under Section 482 of the Cr.P.C. and Article 226 of the Constitution of India are the same and identical. Accordingly, the F.I.R. in connection with Civil Lines P.S. Case No.178 of 2020 dated 22.05.2020 is quashed and set aside.

The instant writ petition is allowed on contest without costs.