Tribhuan Pathak S/o - Vidya Sagar Pathak vs The State of Bihar

Heard learned counsel for the parties.

The petitioners, in the present case, are seeking

quashing of the order taking cognizance and issuance of process dated

04.02.2013 passed by learned Judicial Magistrate 1 st Class, Chhapra at

Saran in Complaint Case No. 1378(C)/2012 for the offence alleged

under Section 420 of the Indian Penal Code.

Learned counsel for the petitioners submits that the

present application is fit to be allowed on the solitary ground that

from a reading of the complaint petition, without adding or

subtracting anything out of it, no offence under Section 420 IPC is

even prima facie made out. He submits that in fact a perusal of the

complaint petition would show that the entire story as made out by the

complainant is in the nature of a civil dispute and there are certain

presumptions and assumptions taken by the complainant for purpose

of filing of the complaint case. Learned counsel submits that much

before filing of the present complaint case, the opposite party no. 2

had filed a title suit bearing no. 360/2011 against the legal heirs of late

Vidya Sagar Pathak. These three petitioners are sons of late Vidya

Sagar Pathak and they have been impleaded as defendants no. 2, 3 and

4 respectively in the title suit which is on the same subject matter.

Learned counsel, therefore, submits that the order taking cognizance

has been passed by the learned Magistrate in a routine and mechanical

manner.

On the other hand, learned counsel representing the

opposite party no. 2 submits that the learned Magistrate has rightly

taken cognizance and the statement made in the complaint petition

discloses commission of an offence under Section 420 IPC, therefore,

this Court may not like to interfere with the impugned order. Learned

counsel, however, does not deny the fact that a title suit bearing no.

360/2011 has been filed by the opposite party no. 2 in the court of the

learned Sub Judge 1st, Siwan against the legal heirs of late Vidya

Sagar Pathak including the present petitioners. Learned counsel does

not deny the contents of the plaint of the said title suit which has been

enclosed as Annexure-2 to the present application.

I have considered the materials available on the record

and the submissions made at the Bar. The opposite party no. 2 has

filed the present complaint alleging that his grand-father Sant Bax

Singh had got executed two Bainama (Agreement) dated 12.05.1955

from Parmanand Pathak and Binda Pathak in respect of Khata No.

341, Survey No. 214, measuring an area 11 Kathha, 11 Dhur and

Khata No. 342, Survey No. 215, measuring an area 12 Kathha, 7

Dhur. The complainant - opposite party no. 2 claims that his grand-

father purchased the land and came in possession for the same,

thereafter his grand-father was cultivating the land. The complainant-

opposite party no. 2 claims that after death of his grand-father, he

along with the other legal heirs came in possession of the land.

It is further case of the opposite party no. 2 that the

accused persons requested him to make available the said land on

lease for establishing a petrol pump; initially the opposite party no. 2

was not agreeable but, later on, agreed to execute a lease deed in

favour of the accused persons. Thereafter, it is alleged that on request

of the accused persons, the opposite party no. 2 gave them a

photocopy of the Bainama for purpose of showing the same to the Oil

Company in order to find out whether the company may grant

permission for establishing the petrol pump on the said piece of land.

It is alleged that when no information could be received from the

accused persons about further development in the matter of lease, the

opposite party no. 2 contacted them and wanted to know whether they

would be getting permission for opening the petrol pump, but at this

stage the accused persons informed the opposite party no. 2 that the

company is not granting them permission to establish the petrol pump

on the said land. Here it is alleged that when the opposite party no. 2

demanded return of the photocopy of the Bainama (emphasis is mine)

the accused persons informed that both the photocopies have been

submitted in the office of the company, therefore, cannot be returned.

The opposite party no. 2 has further alleged that on

01.06.2011 the accused persons went to the house of the opposite

party no. 2 and claimed that the grand-father of the complainant -

opposite party no. 2 had executed the Bainama in favour of their

father late Vidya Sagar Pathak which was not within their knowledge

and, therefore, they were not willing to get a lease of the said land.

The opposite party no. 2 alleged that when he asked the accused

persons to show a copy of the Bainama, on 02.06.2011 the accused

persons handed over a photocopy of the said Bainama. The claim of

the opposite party no. 2 is that the photocopy which was handed over

by the accused persons is bearing Deed No. 257 of the year 1956. The

opposite party no. 2 thereafter said to have enquired form the Registry

Office about Deed No. 257 of the year 1956 but the said deed was

missing from the Registry Office, therefore, he got copy of the Thumb

Impression Register from which it was found that Deed No. 257 of the

year 1956 has been executed by one Ramadhar in favour of Izrail

Mian. The allegation is that the accused persons want to grab the land

of this opposite party no. 2 by fraudulent acts. It is alleged that the

accused persons have got removed the name of Sant Bax Singh in

collusion with the Registry Office of Chhapra and got a fabricated

Bainama said to have been executed by Sant Bax Singh. The opposite

party no. 2 says that Sant Bax Singh had never executed any Bainama.

On perusal of the plaint of Title Suit No. 360/2011

(Annexure-2) it appears that the opposite party no. 2 has filed the suit

in respect of the very same subject matter. The opposite party no. 2

has prayed for a declaration of title and confirmation of possession in

his favour. There is also a prayer for declaration that the Bainama

claimed by the accused persons is forged and fabricated, this

declaratory suit was filed on or about 28.06.2011 where the parties are

contesting the issues. A perusal of the two documents, i.e., the

complaint petition and the plaint of the title suit clearly indicates that

the parties are fighting a civil dispute, the complainant-opposite party

no. 2 is claiming that the land in question was legally acquired by his

grand-father and he was in possession throughout whereas the accused

persons - petitioners are trying to usurp the said land by virtue of the

Bainama allegedly executed vide Deed No. 257 in the year 1956. The

case of the complainant - opposite party no. 2 is that on the basis of

this Bainama which, according to him, is forged, the accused persons

want to usurp the land but in the complaint petition at least there is no

material even prima facie showing that the accused persons have done

any specific act or omission which may come within the purview of

Section 420 IPC. Section 420 IPC reads as under:-

"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."

The complainant - opposite party no. 2 has challenged

the photocopy of the alleged Bainama which allegedly bears Deed No.

257 of the year 1956, the same is the subject matter of challenge in the

title suit. The opposite party no. 2 is himself seeking a declaration of

title and confirmation of possession over the land. The civil suit is to

be decided independently on the basis of the materials before the

Court but so far as the present proceeding is concerned, the same

cannot be allowed to continue on the basis of assumptions,

presumptions and apprehension of the opposite party no. 2 which are

apparent in the complaint petition. To this Court, it appears to be a

pure and simple civil dispute which has been given colour of a

criminal proceeding.

The Hon''ble Supreme Court has times and again held

that the tendency to convert a purely civil dispute in a criminal

proceeding must be discouraged. In this connection reference may be

made to the judgment of the Hon''ble Supreme Court in the case of

Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors.,

reported in (2007) 12 SCC 1. Paragraphs 23, 24, 25 and 26 of the said

judgment are quoted hereunder for a ready reference.

"23. This court in a number of cases has laid down the scope and ambit of courts_ powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code ; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

Discussion of decided cases Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court_s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

Having considered the entire materials and the

submissions of the parties this Court is of the considered opinion that

the learned Magistrate has not applied himself correctly in present

case. Section 420 IPC is not attracted. On a total reading of the

complaint, a mere statement of the opposite party no. 2 saying that a

photocopy of Bainama bearing deed no. 257 of the year 1956 was

handed over to him by the accused which has been prepared

fraudulently and on that basis accused want to usurp the land of the

opposite party no. 2 would not constitute an act of cheating U/S 420

IPC . The learned Magistrate could not appreciate that much before

filing of the complaint, the opposite party no. 2 has filed a title suit for

a declaration of his title and confirmation of possession over the land

in question, he is also seeking a declaration that Bainama held by

accused persons is fraudulent, thus it is essentially a pure civil dispute

and a civil dispute alone. There is no prima facie case of cheating,

therefore, the order taking cognizance and issuance of summons

against petitioners is bad-in-law and the same is liable to be set-aside.

In the opinion of this Court, further continuance of the prosecution in

the court below would only be an abuse of the process of the court.

The impugned order is thus set aside and the

application is allowed. It is made clear that any observation made

here-in-above for purpose of this case shall not prejudice the either

parties in the civil dispute.