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Judgment
D.G.R. Patnaik, J.—Heard the learned Counsel for the petitioners and learned Counsel for the State.
It appears that though the Opposite Party No. 2 has appeared in the present case through lawyer but despite repeated calls on several dates, the lawyer does not appear to represent the Opposite Party No. 2 at the time of hearing.
The petitioners in this application, have challenged the order dated-17.07.2006, passed by the Chief Judicial Magistrate, Ranchi in G.R. Case No. 3453 of 2001 arising out of Lalpur P.S. Case No. 186 of 2001, whereby the cognizance for the offences under Sections 420, 465 and 468 of the I.P.C. has been taken against the petitioners and they have been summoned to face trial.
Learned Counsel for the petitioners informs that by order dated 11.11.2009, this Court had stayed the further proceedings, pending against the petitioners, in the case before the court below.
Assailing the impugned order of cognizance, learned Counsel submits that the order of cognizance has been passed in a mechanical manner without application of judicial mind and without appreciating the facts in proper perspective. Elaborating his arguments, learned Counsel explains that even after going through the entire contents and the allegations in the F.I.R. filed by the Opposite Party No. 2, it would transpire that the dispute is out and out in the nature of a civil dispute and does not attract any criminal liability for any offence whatsoever against the petitioners.
Learned Counsel explains that the dispute arises out of an Agreement, which was admittedly entered into by the predecessor of the petitioners with the Opposite Party No. 2 and two others, for the sale of certain lands. Even according to the Agreement, which was executed on 14th June. 1986, the sale was to be finally concluded by 31st December, 1986. However, the sale could not be completed for several reasons. The complainant/Opposite Party No. 2 filed a suit before the Munsif, Ranchi, praying for relief of permanent injunction against the petitioners in order to restrain them from selling the same lands to any other person. After hearing the parties concerned, the learned Munsif dismissed the suit on 12th September, 2008, declaring that the Agreement would not be binding on the defendants (present petitioners) and that it was not valid and enforceable. This fact has been admitted by the Opposite Party No. 2.
Learned Counsel adds that upon such declaration made by the Court of Munsif, the petitioners executed a fresh power of attorney in favour of one Kumud Kr. Jha entrusting him with authority to sell the lands to any prospective customer. Learned Counsel explains further that the execution of the power of attorney cannot therefore be assailed as a forged document nor would any such execution of the power of attorney invite any of the ingredients of any of the offences for which the cognizance was taken against the petitioners and the continuation of the criminal prosecution against the petitioners would therefore, be a total abuse of process of Court.
To buttress his arguments, learned Counsel refers to and relies upon the judgment of the Supreme Court in the case of Dalip Kaur and Ors. v. Jagnar Singh and Ors. reported in 2009 (4) J.L.J.R. 13 (SC) and also to an earlier judgment of the Supreme Court in the case of V.Y. Jose and Anr. v. State of Gujarat and Anr. reported in 2009 (2) J.L.J.R. 1 (SC)
Learned Counsel for the State on the other hand, while referring to the counter affidavit of the Opposite Party No. 2, would submit that as it appears, though the Suit filed by the complainant/Opposite Party No. 2 in the Court of the Munsif, Ranchi against the present petitioners for restraining them from selling away the lands to any other person, was dismissed by the learned Munsif but the plaintiff/Opposite party No. 2 has filed an Appeal against the judgment and decree of the Munsif vide Title Appeal No. 112 of 2008, which is presently pending.
Having heard the learned Counsel for the parties and having gone through the materials available on record and also the contents of the complaint petition including the F.I.R. and the statements of the Opposite Party No. 2 in the counter affidavit and other documents, 1 find that the main grievance of the Opposite party No. 2 is against the execution of the fresh power of attorney by the petitioners in favour of another person, despite the fact that way back in June, 1986, the predecessors of the petitioners had executed an Agreement of sale of the lands in favour of the Opposite Party No. 2 and others.
From the undisputed facts as informed by the learned Counsel for the petitioners, though the predecessors have entered into an Agreement for sale of certain lands in favour of the Opposite Party No. 2, but even as declared by the judgment and decree of the Court of Munsif in the Title suit filed by the Opposite Party No. 2, the agreement had spent its force and no more binding on the petitioners. Under such circumstances, the execution of the fresh power of attorney by the petitioners, does not by any stretch of imagination, render the document, a forged document nor does it invite the ingredients of any of the offences for which the learned court below has taken cognizance against the petitioners. Learned Counsel for the petitioners has rightly submitted that while passing the impugned order of cognizance, the learned court below has not applied its judicial mind to the facts and circumstances, which would otherwise, demonstrate that the dispute which is exclusively in the nature of the suit, has been sought, to be converted into a Criminal proceedings without any firm basis. The very initiation and continuation of the criminal proceedings against the petitioners under such circumstances, would certainly be an abuse of the process of Court and such abuse cannot be allowed to be continued.
In the light of the facts and circumstances and the discussions made above, 1 find merit in this application. Accordingly, this application is allowed. The impugned order of cognizance, dated-17.07.2006, passed by the learned Chief Judicial Magistrate, Ranchi in G.R. Case No. 3453 of 2001 arising out of Lalpur P.S. Case No. 186 of 2001 and the entire criminal proceeding following the order of cognizance against the petitioners, is hereby quashed.