Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.6976 of 2009 ====================================================== 1. Krishna Kumar son of late Harendra Prasad, 2. Kunal Kumar, son of Harendra Prasad, both resident of Mohalla- Bettiah Balkrishan Colony Haribatika Chowk, Behind Ramjanki Mandir, P.S.-Bettiah Town, District- West Chamapran, 3. Anil Kuwar son of Bachcha Kuwar, 4. Santosh Kuwar son of Bachcha Kuwar, 5. Ramashankar Kuwar son of Mainejar Kuwar, 6. Most Ramkuwara Devi wife of late Chandrama Kuwar, 7. Ramjanam Kuwar son of late Rudal Kuwar, 8. Rameshwr Thakur son of Chandrama Thakur, 9. Shiv Dayal Kuwar son of late Indrasan Kuwar, 10. Prabhudayal Kuwar son of late Indrasan Kuwar, 11. Satar Mian son of late Ali Hussain Mian, 12. Surendra Singh son of late Bhrighunath Singh, 13. Suresh Kuwar son of late Chandrama Kuwar, 14. Awdhesh Kuwar son of late Chandrama Kuwar, 15. Ashok Manjhi son of late Inar Manjhi, 16. Mainejar Kuwar @ Chandrama Thakur son of Late Khobhari Kuwar, 17. Dhananjay Kuwar son of Ramjanam Kuwar & 18. Dularchand Ram son of late Annat Ram, All resident of village-Deokuli, P.O.-Shyampur, P.S.-Mohammadpur, District-Gopalganj, 19. Shree Narayan Singh son of late Harinandan Singh, resident of village- Gopi Chhapar, P.S.-Kotawa, District- East Champaran .... .... Petitioner/s Versus 1. The State of Bihar & 2. Vinay Prasad Srivastava, son of late Jhulan Prasad, resident of village- Deokuli, P.S.-Mohammadpur, Distirct- Gopalganj. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. U. C. Verma, Advocate For the State : APP For the Opposite Party No.2 : Mr. Satyavarat Verma, Advocate ====================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL ORDER 4/ 19-04-2012 Heard the parties. The petitioners seek quashing of the order dated 16.10.2008 passed in Tr.No.2437 of 2009 arising out of Complaint Case No.1687-C of 2006, by which cognizance has been taken Patna High Court Cr.Misc. No.6976 of 2009 (4) dt.19-04-2012 2 / 3 2 under [STATUTE] . The case of the complainant is that Petitioners No.1 to 3 sold and transferred the land of the Opposite Party No.2 through registered sale deed in the name of the Petitioners No.4 to 9. After examination of the witnesses, complaint was dismissed on the ground that the complainant has stated on solemn affirmation during enquiry that the land sold off was ancestral property standing in the name of three brothers, namely, Ramchander Lal, Ramawatar Lal and Yugal Lal. Petitioners No. 1 to 3, who were the vendors, were the heirs of Ramchander Lal. No paper with regard to partition was produced by the complainant. For the same dispute a civil suit was also pending. For these cogent reasons, the complaint was dismissed under section 203 Cr. P. C. However, the Complainant moved the Revisional Court which set aside the order of dismissal of the complainant and remanded the matter for further enquiry. The Magistrate took cognizance on the very same material as mentioned above. Learned counsel for the petitioners submits that it was not within the powers of the Magistrate to take cognizance on the same material without holding a further enquiry as directed by the Revisional Court. Further submission is that in the facts of the case no offence whatsoever is made out. Learned counsel for the Complainant-Opposite Party No.2 submits that the Magistrate was fully justified in taking cognizance by reappraising the evidence and, therefore, the order of cognizance is not bad. Having heard the rival contentions and in the line of the several decisions on the point that the Magistrate can take cognizance on reappraising the evidence without holding further Patna High Court Cr.Misc. No.6976 of 2009 (4) dt.19-04-2012 3 / 3 3 enquiry, I reject the submission of the counsel for the petitioners on this point. However, I am convinced that in the facts of the case no offence whatsoever is made out since admittedly the parties were relatives and the land was ancestral. No document of partition was produced by the complainant during enquiry to substantiate even prima facie the allegation that the lands belonged to him and, therefore, the accused persons committed a criminal offence in transferring the same. A suit is already pending which appears to be tenable. In view of such, the order dated 16.10.2008 passed in Tr.No.2437 of 2009 arising out of Complaint Case No.1687-C of 2006 as also the entire proceeding is set aside. The application stands allowed. JA/- (Anjana Prakash, J)

Applicable IPC Section: 417

Statute Text:
Section 417 of the Indian Penal Code. Cheating. Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.