Case Facts:
Patna High Court Cr.Misc. No.2229 of 2010 (5) dt.11-07-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.2229 of 2010 ====================================================== 1. Upendra Kharwar S/O Late Sudama Kharwar R/O Vill.- Kateya,P.S.- Kateya, Dist.-- Gopalganj. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Jitendra Kharwar S/O Sri Gauri Shankar Kharwar R/O Vill.- Kateya, P.S.-Kateya, Dist.-Gopalganj. .... .... Opposite Party/s ====================================================== ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 5 17-07-2012 Petitioner, while invoking the extra ordinary power of this Court vested under Section 482 of the Cr.P.C., has prayed for quashing the order dated 16.01.2009 passed by Sri Mritunjai Singh, Judicial Magistrate, 1st Class, Gopalganj in Complaint Case No. 1302 of 2008 corresponding to Trial No. 2345 of 2009 by which and whereunder he having found prima facie case under [STATUTE] ordered to issue summons against the petitioner and others. The brief fact, which lies to file this quashing petition, is that Opposite Party No. 2 filed complaint case bearing Complaint Case No. 1302 of 2008 against the petitioner and three others alleging therein that survey plot no. 425 pertaining to khata no. 342 area 5 katha 8 dhur situated at Baba Ke Mauza, P.S.- Kateya, District-Gopalganj was stood in the name of Lotu Kamkar Patna High Court Cr.Misc. No.2229 of 2010 (5) dt.11-07-2012 in survey khatian. The aforesaid Lotu Kamkar had three sons, namely, Tengadi, Lakhan and Ram Kishun. There was partition between the aforesaid three sons of Lotu Kamkar and the aforesaid land came in the share of Tengadi who was grand father of Opposite Party No. 2. The petitioner is descendant of Ram Kishun but petitioner knowingly and dishonestly transferred the aforesaid land in favour of the accused, Yugal Prasad by executing registered sale deed and the aforesaid fact came to the notice of Opposite Party No. 2 on 12.06.2008 when petitioner and other accused being armed with lethal weapons attempted to take possession of the aforesaid land. The Opposite Party No. 2 asked the aforesaid persons not to do so but he was assaulted by the petitioner and others with fists and slaps as well as lathi. After the aforesaid incident, Opposite Party No. 2 went to registry office and obtained the certified copy of the above stated sale deed and then filed the aforesaid complaint case. The matter was enquired under Section 202 of the Cr.P.C. and after that the impugned order was passed by the learned court below in the manner as stated above. Having receipt of the notice, Opposite Party No. 2 appeared and filed counter affidavit mentioning this fact that the disputed land was fallen in the share of his ancestor and one Patna High Court Cr.Misc. No.2229 of 2010 (5) dt.11-07-2012 Bhirgurasan Kamkar who happened to be full brother of his grand father and the said Bhirgurasan Kamkar mortgaged the entire disputed land by registered deed in favour of Ram Lakhan Sah on 02.06.1959 and later on, he redeemed the same on 22.05.1966 and, therefore, the aforesaid circumstance clearly shows that the aforesaid land was fallen in the share of ancestors of Opposite Party No. 2. Learned counsel for the petitioner submits that it is an admitted position that petitioner and Opposite Party No. 2 are descendants of Lotu Kamkar and as a matter of fact, an oral partition had taken place and the disputed land was allotted to the ancestors of petitioner and having valid title and right, petitioner transferred the aforesaid land in favour of the accused Yugal Kishore. It is further contended by him that even if, the story as propounded by the complainant (Opposite Party No. 2), assumed to be true, then also, it is a case of civil nature and permission to continue the criminal prosecution is nothing but only an abuse of process of the court. It is further contended by him that earlier a proceeding under Section 144 of the Cr.P.C. was initiated between the parties but the aforesaid proceeding was ended in favour of the petitioner. It is further contended by him that the vendee of the petitioner has already got mutated his name in revenue records in Patna High Court Cr.Misc. No.2229 of 2010 (5) dt.11-07-2012 respect of the disputed land and, therefore, in the aforesaid background the continuance of the prosecution of the petitioner for criminal offence is only an abuse of process of the Court. On the other hand, learned counsel appearing for the Opposite Party No. 2 supported the impugned order arguing that Anneuxre-1 to the counter affidavit reveals that one Bhirgurasan Kamkar who happened to be son of Tengadi Kamkar had dealt with the lands in question. So, the aforesaid fact clearly establishes that the disputed land was fallen in the share of ancestors of Opposite Party No. 2. It is further contended by him that petitioner having full knowledge of the aforesaid transaction as well as above stated fact executed sale deed in respect of the aforesaid land without having any valid right and title and, therefore, he committed criminal offence and so, the learned court below has rightly passed the impugned order. Having heard the contentions of both the parties, I have gone through the record. It is an admitted position that the land in question was recorded in survey khatian in the name of common ancestors of the parties but the case of the complainant is that the aforesaid land fell into the share of his ancestor after partition whereas case of the petitioner is that the aforesaid land fell into the share of his Patna High Court Cr.Misc. No.2229 of 2010 (5) dt.11-07-2012 ancestor in partition. The factum of partition is admitted but the question arises as to when the aforesaid partition took place and as the disputed land was allotted to whom. The aforesaid question relates t

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.