Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.13082 of 2010 ====================================================== Dinbandhu, S/O Sri Arjun Prasad Sharma, R/O village-Mahsoura, P.S. Ramgarh Chowk, Dist-Lakhisarai, at present working as Assistant Teacher, High School Chandan, Distt-Banka .... .... Petitioner/s Versus 1. State Of Bihar 2. Sharad Kumar, S/O Arjun Prasad Sharma, R/O village-Mahsoura, P.S.- Ramgarh Chowk, Distt-Lakhisarai .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Praveen Kumar, Adv. For the O.P No.2 : Mr. Sanjeev Kumar, Adv For the State: Smt. Sangita Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 6/ 01-02-2012 Petitioner has preferred instant petition for quashing of order dated 06.01.2010 passed by Sub Divisional Judicial Magistrate, Lakhisarai in complaint case no. 652C/2009 whereby and whereunder he has been summoned to face trial for an offence punishable under [STATUTE] . 2. O.P. No.2/complainant filed complaint petition showing date of occurrence from 16.5.2003 to 9.9.2009 showing place of occurrence at village Mahsoura as well as Civil Court, Lakhisarai asserting the fact that both complainant and accused are full brothers. Ancestral property was partitioned and on 16.5.2003 “Shartnama” was prepared with respect thereto in presence of well 2 wishers. However, accused Dinbandhu made interpolation therein time to time for his undue favour. On 9.9.2009 accused Dinbandhu had also instituted a false criminal case against the complainant bearing Lakhisharai P.S. Case No. 433/2009 on the basis of the aforesaid memorandum of partition dated 16.05.2003. On 23.12.2006, Dinbandhu had filed Partition Suit No. 24 of 2004 wherein he had annexed copy of memorandum of partition which happens to be contrary to the memorandum of partition annexed with the FIR of Lakhisarai P.S. Case No.433/2009. Accused had knowingly and intentionally prepared forged and fabricated memorandum of partition only to defeat interest of petitioner. Complainant was apprehended in connection with Lakhisarai P.S. Case No. 433/2009 and after being released, has filed instant case. Enquiry was conducted thereupon in accordance with Section 202 Cr.P.C. and subsequently thereof petitioner/accused has been summoned to face trial, hence a cause has arisen for filing instant petition. 3. Contention on behalf of the petitioner is that the instant case is nothing but has been maliciously filed to harass and coerce the petitioner to desist from proceeding with Lakhisarai P.S. Case No. 433/2009. Further submitted that from the evidence whatever been collected during course of enquiry 3 under Section 202 of the Cr.P.C., it is evident that no allegation is substantiated. Also submitted that O.P. No.2 had annexed two memorandum of partition Annexure-C series of counter affidavit from which it transpires that recitals are same and similar save and except having signature of father of both the parties namely, Arjun Prasad Sharma over one while is absent over other which the complainant on court question had himself explained under paragraph-1 that signature of father was obtained later on. So non presence of signature of father at first count over the document had itself been explained by the complainant himself. 4. Apart from this, it has also been submitted that none of the sections whereunder petitioner has been summoned is prima facie supported with the materials available on the record. Not only this, it has further been submitted that partition suit is also pending amongst the parties whereunder genuineness of memorandum of partition dated 16.05.2003 is also subject to adjudication. 5. Then thereafter, it has been submitted that the petitioner who was granted anticipatory bail by this Court under Cr.Misc. No.12306/2010 had gone to Hon’ble Apex Court against the condition imposed by the Court whereunder the Hon’ble Apex Court had specifically held that genuineness, 4 correctness and validity of a document used as evidence in a suit can be ascertained and adjudicated upon by a competent Civil Court only. Therefore, prosecution of petitioner in the aforesaid background will be nothing but an abuse of process of the court and so taking into account the principle enunciated by the Hon’ble Apex Court in State of Haryan v. Bhajanlal & Ors, the same is fit to be set aside. Further to support its plea, also relied upon (2011) 1 PLJR 23 (SC). 6. On the other hand, Mr. Sanjeev Kumar, learned counsel for the O.P. No.2, submitted that the steps taken up by the learned lower court happens to be in accordance with law. Then submitted that at the time of summoning of accused, the Magistrate has to see only a prima facie case without adverting to its merit as well as whether the material, if unrebutted, would lead conviction of the accused. During course of enquiry, ample material has been produced to support the plea that petitioner/accused had interpolated the document dated 16.5.2003 for his illegal gain. That means to say by such illegal act petitioner/accused ultimately became the sole beneficiary. In other words, unsuccessful attempt for illegal gain has been made by the petitioner by creating forgery in the document dated 16.5.2003. Hence, summoning the petitioner is fully justified. Merely, 5 pendency of civil suit is not going to blur the fate of criminal prosecution. Also relied upon 1994 Cr.L.J. 2238. 7. Learned Additional P.P., Smt. Sangeeta Sharma endorsed the view of O.P. No.2 and further submitted that at the stage of summoning of accused, the court is under obligation to search out only a prima facie case and nothing more. Also submitted that presence of civil suit is not at all a ground for setting aside or quashing the criminal prosecution. 8. With regard to justifica

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.