Case Facts:
Patna High Court Cr.Misc. No.44625 of 2010 (4) dt.30-11-2012 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44625 of 2010 ====================================================== 1. Jai Prakash Singh 2. Om Prakash Singh Both sons of Late Bijendra Singh Resident of Village- Nathupur, P.O.- Kurthaul, P.S- Parsa Bazar, Distt- Patna .... .... Petitioners Versus The State Of Bihar & ano .... .... Opposite Party/s ====================================================== Appearance: For the petitioners : Mr. Rudra Deo, Advocate For opposite party 2 : Mr. Ashok Kumar, Advocate For the State : Mr Harendra Prasad, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER --------- 04 30.11.2012 Heard learned counsel for the petitioners as well as learned Addl. Public Prosecutor. Also heard learned counsel for the opposite party no.2 and with the consent of all the parties, this court proceeds to finally dispose off this matter on admission stage itself. Petitioners have prayed for quashing the order dated 12.1.2010 passed by Smt Noor Sultana, Judicial Magistrate, Ist Class, Patna in Complaint case no.2444C/2009 by which and whereunder she having found prima facie case under [STATUTE] ordered to issue summons against the petitioners. The brief fact, which lies to file this quashing petition, is that opposite party no.2 filed the above stated Complaint case no.2444C/2009 against the petitioners on 9.9.2009 alleging therein inter- alia, that being cooperative society opposite party no.2 agreed to Patna High Court Cr.Misc. No.44625 of 2010 (4) dt.30-11-2012 2 purchase some piece of land from grand father of the petitioners and in pursuance of the aforesaid agreement, a deed of agreement for sale was executed on 22.4.1992 by the grand father of the petitioners but later on, grand father of the petitioners neither executed absolute sale deed nor returned consideration amount which had been taken by him at the time of execution of the above stated deed as well as subsequent stage. So far as the petitioners are concerned, it is alleged that petitioner no.1 signed the aforesaid deed of agreement for sale as witness Learned counsel for the petitioners raised two grounds. Firstly, he submitted that according to the complaint case itself, deed in question was executed on 22.4.1992 whereas the complaint case was filed on 9.9.2009 and the impugned order by which cognizance has been taken for the offence under [STATUTE] was passed on 12.1.2010. It is further contended by him that offence under [STATUTE] is punishable up to imprisonment for three years only and therefore, cognizance of the aforesaid offence is hit by section 468 of the Cr.P.C. Secondly, he submitted that even if the story, as propounded by opposite party no.2 in his complaint petition, assumed to be true, then also, at best, civil dispute is made out between the parties and the petitioners can not be prosecuted for any criminal liability. Continuing his submissions, he submitted that at the time of execution of deed in question petitioners were minor and, as a matter of fact, signature of petitioner no.1 was forged on the deed in question. Learned counsel for the petitioners referred a decision reported in 2007 (2) BBCJ V page 387 in which it has been held by a bench of this court that breach of contract or breach of faith is not a criminal offence. Patna High Court Cr.Misc. No.44625 of 2010 (4) dt.30-11-2012 3 On the other hand, learned counsel for the opposite party no.2 submitted that learned court below has not taken cognizance in proper section and, as a matter of fact, [STATUTE] etc are made out from the contents of the complaint petition. He relied upon a decision reported in AIR 2004 SCW page 4786 in which it has been held by Apex Court of this country that the offences under [STATUTE] are not covered under the ambit of section 468 of the Cr.P.C. Admittedly, learned court below has taken cognizance for the offence under [STATUTE] which is punishable only up to three years imprisonment and furthermore, it is an admitted position that deed in question was executed in the year 1992 whereas cognizance of the offence was taken in the year 2010 i.e. beyond the period of limitation and, therefore, I am in full agreement with learned counsel for the petitioners that cognizance under [STATUTE] is hit by section 468 of the Cr.P.C. So far as second contention of learned counsel for the petitioners is concerned, I am again in agreement with him and in my view also no criminal case can be lodged on the basis of facts as put forth in the complaint petition because admittedly, deed in question was executed by one Dwarika Singh who happened to be grand father of the petitioners and it is merely stated that petitioner no.1 signed the deed in question as witness. So even if it is assumed that petitioner no.1 is witness on the deed in question, then also, it can only be said that he is a witness of the execution of the aforesaid deed. Moreover, there is nothing on the entire record to show this fact that from very inception of Patna High Court Cr.Misc. No.44625 of 2010 (4) dt.30-11-2012 4 execution of the aforesaid deed in question, there was an intention of executor of the aforesaid deed as well as petitioners to cheat the opposite party no.2. Therefore, I am of the firm view that the facts of the present case reflect only civil dispute. On the basis of the aforesaid discussions, I am of the opinion that continuance of the prosecution of petitioners in Complaint case no.2444C/2009 is nothing but only an abuse of the process of the court. Accordingly, impugned order dated 12.1.2010 passed in Complaint case no.2444C/2009 is, hereby, quashed. In the aforesaid manner, this petition stands disposed off on admission stage itself. Shahid ( Hemant Kumar

Applicable IPC Section: 468

Statute Text:
Section 468 of the Indian Penal Code. Forgery for the purpose of cheating. Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.