Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16291 of 2010 ====================================================== 1. Champa Devi w/o Late Dashrath Pasi. 2. Dinesh Ram son of Late Ratan Ram. 3. Ram Narayan Ram son of Late Moti Ram, all residents of village- Harpur. 4. Ramayan Prasad son of Late Dwarika Bhagat, Resident of village Harpur Tola Kadirganj. 5. Ram Chander Bhagat son of Mukha Bhagat, Resident of village- Tatahali, All 1 to 5 of Police Station-Bhrharia, Distt-Siwarn .... .... Petitioner/s Versus 1. State Of Bihar 2. Jiut Ram son of Late Damari Ram, resident of Khryanpur, P.S. Barharia, Distt- Siwan. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Raghav Prasad, Adv. For the Opposite Party/s : Mr. Manish Kumar-II, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 19-07-2012 Heard learned counsel for the petitioner as well as learned APP for the State. In spite of having appearance of O.P. No.2 none appeared on her behalf. 2. O.P. No.2, Jiut Ram filed a Complaint Petition No. 2075 of 2009 putting an allegation that accused no.1 and 2, namely, Shyam Sundari and Champa Dev have executed sale deed on 21.08.2009 in favour of Dinesh Ram and Ram Narayan Ram. The aforesaid sale deed has been executed illegally and fraudulently for the purpose of putting the complainant under wrongful loss. 3. The learned Chief Judicial Magistrate, Siwan Patna High Court Cr.Misc. No.16291 of 2010 (3) dt.19-07-2012 2 transferred the case for holding an enquiry under Section 202 of the Cr.P.C., as per Section 192 of the Cr.P.C. to the Court of R.K. Pandey, Judicial Magistrate, 1st Class, Siwan where complainant was examined on S.A. along with two witnesses and on the basis thereof, the learned lower court took cognizance for an offence punishable under [STATUTE] and summoned the petitioners accordingly. 4. Contention on behalf of the petitioners is that none of the Sections are applicable in the facts and circumstance of the case because of the fact that no fraudulent document has been prepared by accused no.1, Shyam Sunder Devi as well as accused no.2 Champa Devi rather they have got their right and interest on the basis of being descendant of the recorded tenant Gopi Pasi. Further submitted that as the Gopi Pasi had died in the year 1937, therefore, story brought up by the complainant that he had executed sale deed in favour of Awadh Kishore Narayan Sinha son of Babu Laxmi Narayan Sinha from whom he had purchased the land vide sale deed dated 1st March 1949 does not arise. In worst case, it has further been submitted that there happens to be claim and counter claim over the land under dispute and the redressal of aforesaid dispute is finally has to be taken through the competent court and that happens to be the reason behind that Patna High Court Cr.Misc. No.16291 of 2010 (3) dt.19-07-2012 3 complainant of this case had already instituted Title Suit No. 641/2009 for the cancellation of aforesaid sale deed along with other ancillary relief wherein petitioners have already appeared and filed their W.S. and the Suit is ripe for hearing. So submitted that as the document happens to be genuine one therefore none of the Sections wherein cognizance has been taken is found to be attracted. 5. On the other hand, learned APP opposed and submitted that such type of dispute gives civil cause as well as criminal cause. That means to say even having pendency of civil suit will not bar institution of criminal case. 6. Now coming to the facts in hand, it is evident that complainant had not alleged that a forged and fabricated document has been created rather his allegation is to the extent of execution of sale deed by Shyam Sunder Devi and Champa Devi in favour of Dinesh Ram and Ram Narayan Ram being illegal, inoperative and for that Champa Devi and Shyam Sunder Devi have claimed their legal and valid right being descendant of recorded tenant Gopi Pasi. They have also contended so in their W.S. (Annexure-3) filed on behalf of O.P. No.2/complainant in Title Suit No. 641/2009 (Annexure-2). Therefore, it happens to be a dispute with regard to right, title of the party and the same has to be adjudicated Patna High Court Cr.Misc. No.16291 of 2010 (3) dt.19-07-2012 4 upon only through the competent Civil Court where the litigation is presently pending. 7. Even taking into account the allegation as per narration of O.P. No.2 (Complainant) it is not the case where forged document has been prepared or a forged document has been used in any manner rather it is the event wherein document was executed /created by the accused claiming their legal right in the property under dispute. This right, after filing of title suit, became matter of adjudication and till the time it is decided by the court of competent jurisdiction, the genuineness of document could not be doubted under criminal proceeding as the criminal court lacks power on this score. Execution of document by the accused asserting his title and possession and questioning the stand of accused by the complainant did not attract application of [STATUTE] because of the fact that neither any document has been forged nor a forged document has been used as a genuine. For better appreciation [STATUTE] is incorporated below:- “Section 463. Forgery:- Whoever make any false documents or false electronic record of a document or electronic record with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery”. “464. Making of false document.- [A person is said to Patna High Court Cr.Misc. No.16291 of 2010 (3) dt.19-07-2012 5 make a false document or fal

Applicable IPC Section: 471

Statute Text:
Section 471 of the Indian Penal Code. Using as genuine a forged document which is known to be forged. Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.