Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.13112 of 2011 ====================================================== Suryamangal Rai & Ors. .... .... Petitioner/s Versus The State Of Bihar & Anr. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. S.S.P.Yadav, Adv. For Opposite PartyNo.2 : M/s. Najmul Hoda & Virendra Kumar,Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 3 09-10-2012 Heard learned counsel for the petitioners, for the O.P.No.2 and the State. In this case, petitioners are challenging the order dated 14th December 2010 passed in Cr. Revn. No. 94 of 2010 as well as order dated 30th March 2010 passed in Complaint Case No. 521 of 2009 pending in the court of Judicial Magistrate, 1st Class, Sitamarhi. In the present case, petitioners have challenged the order of cognizance which has been affirmed by the revisional court. The point that has been raised is, statement of that the FIR shows basically a civil dispute which has been wrongly branded as criminal case and the court below has wrongly taken cognizance under the aforesaid sections of the IPC. It is an undisputed fact that Bishwanath Yadav, the complainant and Suryamangal Rai, the petitioner no.1 are full brothers. The complainant is elder brother whereas petitioner no.1 is younger. The complainant has retired from service of B.M.P. whereas petitioner is serving as Class-IV employee in the B.M.P. They have separated themselves and are running their separate mess, business while they were in joint family, they Patna High Court Cr.Misc. No.13112 of 2011 (3) dt.09-10-2012 2 / 5 2 purchased the land jointly measuring 7 ½ Katha from one Ram Sundar Devi on 21st June 2004 by registered sale-deed. Both the brothers partitioned their land through mutual agreement by half and half. In partition, the petitioners were allotted the eastern side whereas O.P.No.2 was allotted western side. It has been claimed that O.P.No.2 has constructed a Pucca house over he aforesaid land. The cause of dispute which led to filing of FIR is, the petitioner no.1 gifted a property to his wife through registered deed dated 9th January 2008. The present case has been filed by the complainant making an allegation that he portion of the land which was allotted to his share has been transferred by gift by the petitioner no.1 to his wife knowing full well, O.P.No.2 has right, title and possessions over the same. It has been stated in the FIR that the alleged transfer has been made with malicious intention to deprive the O.P.No.2 from his rightful possession over the land in question. Complainant O.P.No.2 filed a complaint case and the same was sent by the Magistrate [STATUTE] (3) Cr.P.C. for instituting a Police case and for investigation. The same was registered as Nanpur P.S. Case No. 21 of 2009 on 10th February 2009. Police after investigation, submitted Final Form treated it a civil dispute arising from land dispute in between two brothers. While the matter was pending before the Magistrate, a protest petition was filed which was treated as a complaint in support of protest petition, O.P.No.2 examined himself on S.A. and also examined witnesses in support of his case. The court after considering material on record took cognizance against the petitioners [STATUTE] ed before the revisional court and the Court did not find favour with the petitioners and vide order dated 14th Patna High Court Cr.Misc. No.13112 of 2011 (3) dt.09-10-2012 3 / 5 3 December 2010 dismissed the revision application. It will also be relevant to mention here that the complainant O.P.No.2 has also filed Title Suit No. 8 of 2009 which is pending before the Sub-ordinate Judge-I, Sitamarhi claiming relief for declaration of right, title and possession over the land which has been executed by the petitioner no.1 and for declaration of the deed executed by the petitioner no.1 to be a forged, fabricated document and not binding on the O.P.No.2. Counsel for the petitioner submits on conspectus of the fact it appears, it is primarily a civil dispute and it has wrongly been given the colour of criminal case, in so much so that when the O.P.No.2 has already filed a civil suit prior to lodging of the criminal case, the order of cognizance and the subsequent proceeding is an abuse of process of the court and to prevent the abuse of the process of the court, this Court should quash the order of cognizance as well as the order passed by the revisional court. In support of his contention, learned counsel for the petitioners has relied on the judgments reported in (1) 2012(3) PLJR 91, (2) 2010(4) PLJR 1096, (3) 2009(3) PLJR 90, (4) 2009(2) PLJR 1(SC) and (5) 2010(1) PLJR 459. Counsel for the O.P.No.2 has submitted that the court below has taken cognizance on admitted facts that the land which the petitioner no.1 has transferred was allotted in favour of O.P.No.2 in amicable partition and, as such, the action of the petitioner in transferring that land is completely malicious with avowed intention to deprive the O.P.No.2 from his valid right, title and possession over the same. The Hon’ble Supreme Court in case of Indian Oil Corporation v. NEPC India Ltd., 2006(6) SC 736 has held that a complaint can be quashed where the allegations made in the complaint, even if they are Patna High Court Cr.Misc. No.13112 of 2011 (3) dt.09-10-2012 4 / 5 4 taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. The Court has considered three situations in given set of facts, such as : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also i

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. 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.