IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.25664 of 2009 Kapil Ram Versus State Of Bihar & Anr with Criminal Miscellaneous No.37026 of 2009 Kapil Ram & Ors Versus State Of Bihar & Anr -------- For the petitioners: Mr Vidyasagar, Advocate Mr Onkar Nath, Advocate For the Opposite party no.2: Mr A.B. Ojha, Advocate Mr Bharat Bhushan, Advocate For the State: Mr Dr. Mayanand Jha, Advocate ---------- 6 3.11.2011 Cr. Misc. No. 25664/2009 has been filed by the petitioner- Kapil Ram, who is an accused in Complaint case no. 378C/2008, for quashing order dated 13.8.2008 passed by Sri K.M. Tiwary, Judicial Magistrate, Ist Class, Buxar in the above stated Complaint case no. 378C/2008, Trial no.1275/2008 by which and whereunder the learned Magistrate having found prima facie case under sections 420,467, 468, 474, 120B of the IPC against the petitioner and others ordered to issue summons upon him and others for their appearance. 2. Cr. Misc. No. 37026/2009 has been filed by the petitioners- Kapil Ram, Deomuni Ram and Ram Niwas Ram who are accused in Complaint case no. 379C/2008 for quashing order dated 16.10.2008 passed by Sri A.K. Srivastava, Judicial Magistrate, Ist Class, Buxar in the above stated Complaint case no. 379C/2008 by which and whereunder the learned Magistrate having found prima facie 2 case under sections 147 and 379 of the IPC ordered to issue summons upon the petitioners for facing trial. 3. In Cr. Misc. No. 25664/2009 this court ordered to issue notice upon opposite party no.2 of the aforesaid criminal misc. case and in response thereto, opposite party no.2 made his appearance through his counsel and after that vide order dated 12.7.2011 this court ordered to put up Cr. Misc. No. 37026/2009 along with Cr. Misc. No. 25664/2009 and accordingly, both the above stated criminal misc. cases were heard together with the consent of both the parties. 4. Opposite party no.2, namely, Yogendra Nath Tiwary filed Complaint case no. 378C/2008 against the petitioner in Cr. Misc. No. 25664/2009 and four other accused persons in the court of learned Chief Judicial Magistrate, Buxar alleging therein that his wife, namely, Dulhin @ Urmila Devi had purchased plot no.2 of khata no. 19 area 59 decimal lands and 1 acre 4 decimal lands by two registered sale deeds dated 21.10.2000 and 27.1.2001 respectively from Gopal Tiwary son of Singhasan Tiwary of village Rajdiha and came in possession of the above stated lands but the petitioner in Cr. Misc. No. 25664/2009 purchased 81 decimal of lands of plot no.2 of khata no. 19 from one Late Ganesh Tiwary son of Anant Tiwary of village Rajdiha having knowledge of this fact that wife of the 3 complainant had already purchased the entire lands of plot no.2 of khata no. 19. Since the witnesses and identifiers on the sale deeds of the petitioner in Cr. Misc. No. 25664/2009 were co-villager of the complainant- Yogendra Nath Tiwary, the above stated petitioner in Cr. Misc. No. 25664/2009 was fully aware about the sale deeds of the wife of complainant but in spite of that the petitioner in Cr. Misc. No. 25664/2009 and other accused of Complaint case no. 378C/2008 got prepared forged document to cheat and damage the complainant’s wife and they also used the said document for getting name of the petitioner-Kapil Ram mutated in circle office. Furthermore, the complainant (Opposite party no.2) alleged that on 26.2.2003, petitioner- Kapil Ram got executed 23 decimal lands of plot no.2 appertaining to khata no. 19 from Gopalji Tiwary, the vendor of the complainant’s wife, with an intent to cheat complainant’s wife. 5. The learned Magistrate having conducted an enquiry under section 202 of the Cr.P.C passed the impugned order dated 13.8.2008 in the manner as stated above. 6. The petitioner in Cr. Misc. No. 25664/2009 challenged the impugned order dated 13.8.2008 by filing the above stated Cr. Misc. No. 25664/2009. 7. Opposite party no.2 in Cr. Misc. No. 37026/2009 filed Complaint case no. 379C/2008 against the 4 petitioners in Cr. Misc. no. 37026/2009 and twenty unknown persons in the court of learned Chief Judicial Magistrate, Buxar alleging therein that on 23.4.2008 the aforesaid petitioners along with unknown persons having armed with fire arms and other lethal weapons came on the purchased lands of complainant’s wife and forcibly cut wheat crops from the aforesaid purchased lands of complainant’s wife. The above stated complaint petition was enquired by the learned Judicial Magistrate, Buxar and having found prima facie case under sections 147 and 379 of the IPC ordered to issue summons upon the above stated petitioners vide order dated 16.10.2008 which is under challenge in Cr. Misc. no. 37026/2009. 8. Since the above stated Complaint case no. 379C/2008 is an offshoot of Complaint case no. 378C/2008, this court thought it proper to hear Cr. Misc. No. 25664/2009 and Cr. Misc. no. 37026/2009 together and accordingly, a common order is being passed in both the above stated criminal misc. cases. 9. During the pendency of the above stated Cr. Misc. no. 25664/2009, the petitioner in the aforesaid criminal misc. case filed an interim application for stay of further proceeding of Complaint case no. 378C/2008, Trial no. 1275/2008 pending in the court of Sri K.M. Tiwary, Judicial Magistrate, Buxar and accordingly, above stated I.A. 5 petition is also being disposed off by the present common order. 10. Learned counsel, Sri Vidyasagar, appearing on behalf of the petitioners in both the criminal misc. cases, submits that the petitioner in Cr. Misc. No. 25664/2009 purchased the lands in question in good faith without having knowledge of so-called sale deeds of complaint’s wife and when he came to know about the sale deeds of complainant’s wife, he enquired from his vendor, namely, Gopal Tiwary and after that his vendor namely, Gopal Tiwary executed a deed of agreement in his favour and according to the aforesaid deed of agreement dated 19.7.2009, the aforesaid vendor of the petitioner in Cr. Misc. No. 25664/2009 executed another sale deed dated 10.6.2009 in respect of plot no. 1260 khata no. 54 area 34 decimals in place of plot no. 2 of khata no. 19 area 23 decimals and accordingly, the petitioner in Cr. Misc. No. 25664/2009 has already relinquished his claim in respect of plot no. 2 of khata no. 19 area 23 decimals. It is contended by him that the aforesaid circumstances clearly suggest this fact that the petitioner in Cr. Misc. No. 25664/2009 had no knowledge about the so-called sale deed of complainant’s wife and he had no intention either to cheat the complainant or his wife. It is further contended by him that so far as rest area of plot no. 2 of khata no. 19 situated at village Karuaz police station 6 Koran sarai district Buxar is concerned, the petitioner in Cr. Misc. No. 25664/2009 had purchased the aforesaid land from one Late Ganesh Tiwary through registered sale deed dated 26.2.2003 for valid consideration. It is also contended by him that the aforesaid Late Ganesh Tiwary had purchased 81 decimal lands out of plot no. 2 of khata no. 19 through registered sale deed dated 15.1.2001 from Mostt. Kausaliya Devi w/o late Singhasan Tiwary and after aforesaid purchase, the aforesaid Late Ganesh Tiwary came in possession of the aforesaid land and subsequently, he transferred the said land in favour of the petitioner in Cr. Misc. No. 25664/2009 on 26.2.2003 after taking consideration money. It is further contended by him that the very face of the complaint case does not disclose any offence of cheating and, at best, it is a case of bona fide land dispute. So, the continuance of Complaint case no. 378C/2008 is nothing but only an abuse of process of the law. It is also contended by him that the complainant’s wife had already filed title suit bearing Title Suit no. 108/2007 in the court of learned Sub Judge I, Buxar in respect of disputed plot and, therefore, civil remedy is available to the complainant and so, two proceedings can not be allowed to proceed simultaneously. 11. Learned counsel appearing for the petitioners further submits that after purchasing the aforesaid lands they harvested paddy crops on purchased lands but the 7 complainant (opposite party no.2) with intent to lay pressure upon the petitioners filed Complaint case no. 379C/2008 which can easily be said offshoot of the above stated litigation and, therefore, continuance of the proceeding of Complaint case no. 379C/2008 is, too, nothing but only an abuse of process of the court. It is further contended by him that when the dispute arose between the parties police visited the disputed land and found that wheat crops had been harvested by the petitioners. It is also pointed out by him that an advocate commissioner also visited disputed land and found that wheat crops had been harvested by the petitioners though the learned Sub Judge, Buxar refused to grant interim injunction in favour of the petitioners. 12. Learned counsel for the petitioners refers several decisions in support of his contentions which are as follows:- (i) 2007 (Suppl.) PLJR 229 in which this court has held that if the creation of the alleged forged and fabricated document to defeat the claim of the complainant is already subject matter in the partition suit pending between the parties, the continuance of criminal case will not serve any purpose and after decision of the suit the complainant will be at liberty to take action according to law and the dispute is of civil nature and so, its continuance would be an abuse of process of the court. 8 (ii) 2000 (4) PLJR 44 in which it has been held by this court that criminal proceeding launched on the same cause of action in which civil suit is pending and if the allegations do not constitute criminal offence rather allegations are of civil in nature; the very initiation of criminal proceeding is an abuse of process of the court. (iii) 2000 (2) PLJR 243 in which it has been held by this court that if allegations are of civil nature and it could be decided by the competent civil court, summons to the accused in a complaint case is an abuse of process of the criminal court. (iv) 2011 (1) PLJR 354 in which it has been held by this court that in absence of any dishonest inducement to deliver any property to any person, no case is made out under section 420 and to bring action punishable under the Indian Penal Code, it has first to be ascertained whether an offence as classified in section 2(n) is made out. (v) 2000 (1) PLJR 51 in which it has been held by this court that judicial process should not be an instrument of oppression or needless harassment and even if the complaint petition discloses an offence but the materials show that the same is vexatious one and has been filed just to harass and humiliate the accused persons, the continuance of the prosecution can not be permitted. 13. On the strength of the aforesaid 9 decisions, learned counsel for the petitioners submits that both the above stated complaint cases have been brought by the complainant on account of land dispute just to lay pressure upon the petitioners so that they may relinquish their claim in respect of the plot no.2 khata no. 19 area 81 decimals which has been purchased by the petitioner in Cr. Misc. No. 25664/2009 from Late Singhasan Tiwary who had purchased the said land from mother of Gopal Tiwary, so-called vendor complainant’s wife, much prior to the purchase of complainant’s wife. 14. On the other hand, learned counsel Sri A.B. Ojha, appearing for the opposite party no.2, supported the impugned order and submitted that it is an admitted position that wife of opposite party no.2 had already purchased entire area of plot no.2 of khata no.19 from Gopal Tiwary and after the above stated purchase, the petitioner in Cr. Misc. No. 25664/2009 purchased the said land from Gopal Tiwary. It is further contended by him that the vendor of Late Ganesh Tiwary had no right to transfer the land in question in his favour because admittedly, she was the second wife of Singhasan Tiwary who had solemnized his second marriage in the life time of his first wife. So, even if, the above stated Ganesh Tiwary had purchased the aforesaid land from Kausaliya Devi, the second wife of Singhasan Tiwary, then also, the aforesaid transfer was illegal and furthermore, the 10 petitioner in Cr. Misc. no. 25664/2009 was fully aware of this fact that his vendor Gopal Tiwary had already transferred the lands in question in favour of complainant’s wife but in spite of having knowledge of the aforesaid facts, the petitioner in Cr. Misc. No. 25664/2009 purchased the lands in question from the aforesaid Ganesh Tiwary as well as Gopal Tiwary with an intent to make false claim and to damage and cheat the complainant’s wife and, therefore, a clear cut case under section 420 and other provisions of the IPC is made out against the petitioner and other accused of Complaint case no. 378C/2008. It is further contended by him that mere pendency of civil suit does not preclude complainant to launch criminal prosecution against the petitioner in Cr. Misc. No. 25664/2009 and other accused of Complaint case no. 378C/2008. It is further contended by him that the petitioner in Cr. Misc. No. 25664/2009 had filed injunction petition before the learned Sub Judge I, Buxar in Title Suit no. 108/2007 but he could not succeed to get any relief upto the appellate court. It is further contended by him that the report submitted by the advocate commissioner in Title suit no.108/2007 as well as the report submitted by the police do not make any difference because the aforesaid reports would not be read in the above stated complaint case. 15. Learned counsel for opposite party no.2 placed reliance on the following decisions which are as 11 follows:- i) 2000 Cr. LJ 1487 in which the Hon’ ble Supreme Court held that the if allegations levelled in complaint on the face of it disclose offence alleged, the complaint can not be quashed merely on the ground that civil remedy is available. ii) 2005 Cr. LJ 1838 in which the Hon’ ble Andhra Pradesh has held that the criminal proceeding can not be quashed on the ground that complainant failed to specifically allege in complaint that there was intention to cheat on part of accused even at time of entering into contract. iii) AIR 1999 SC 1216 in which the Hon’ ble Apex Court of this country has held that the complainant not required to re-produce verbatim all ingredients of offence alleged in body of complaint and to constitute of an offence of cheat and the crux is intention of accused persons. iv) 2007(3) PLJR 384 in which this Court has held that the allegations of selling land fully knowing that the said land earlier sold to somebody else whether the petitioners had knowledge or had intention to cheat required deeper investigation which could be done by holding a full- fledged trial. 16. On the basis of the aforesaid decisions, learned counsel for the opposite party no.2 prayed for 12 dismissing both the above stated criminal misc. cases. 17. Having heard rival contentions of both the parties I have gone through the record and the decisions cited on behalf of the parties. 18. Certain facts are admitted between the parties. It is an admitted position that the land of plot no.2 of khata no. 19 belonged to one Sihasan Tiwary who had solemnized his second marriage with Mostt. Kaushaliya Devi and the aforesaid Kaushaliya Devi had transferred 81 decimals land of plot no.2 khata no.19 to one Ganesh Tiwary on 15.1.2001 by registered sale deed and the aforesaid Ganesh Tiwary later on, transferred the aforesaid 81 decimals land in favour of the petitioner in Cr. Misc. No. 25664/2009 by executing registered sale deed dated 26.2.2003 for valid consideration. It is also an admitted position that the wife of opposite party no.2 purchased the aforesaid 81 decimals land from Gopal Tiwary son of Singhasan Tiwary on 27.1.2001 i.e. after purchase of Late Ganesh Tiwary from the mother of aforesaid Gopal Tiwary. It is also an admitted position that the petitioner in Cr. Misc. No. 25664/2009 purchased 23 decimal lands of plot no.2 of khata no.19 on 26.2.2003 from Gopal Tiwary who had already sold the above stated lands to wife of opposite party no.2 and after that above stated Gopal Tiwary executed another sale deed on 10.6.2009 in respect of plot no. 1260 of khata no. 54 in favour of the petitioner in Cr. 13 Misc. No. 25664/2009 in place of above stated 23 decimal lands of plot no.2 khata no.19 and also executed an agreement to the above stated effect on 19.7.2009 and, therefore, it is clear that the petitioner in Cr. Misc. No. 25664/2009 is not laying any claim on 23 decimal lands of plot no.2 khata no.19 which had earlier been transferred in his favour by the above stated Gopal Tiwary vide registered sale deed dated 26.2.2003 and only 81 decimal lands of plot no.2 khata no.19 remained left in dispute between the parties. Admittedly, 81 decimal lands has been transferred by one Ganesh Tiwary in favour of the petitioner in Cr. Misc. No. 25664/2009 and the aforesaid Ganesh Tiwary had purchased the aforesaid land from Kaushaliya Devil the step-mother of Gopal Tiwary, and subsequently, the aforesaid Gopal Tiwary transferred the aforesaid land in favour of wife of opposite party no.2. So, even if, it is assumed that the petitioner in Cr. Misc. No. 25664/2009 was aware about sale deed of wife of opposite party no.2 at the time of purchasing of 81 decimal lands of plot no.2 khata no.19 from Ganesh Tiwary, then also, it can not be said that he had purchased the aforesaid lands to cheat the complainant’s wife because he had not purchased the said lands from the vendor of wife of opposite party no.2 and, at best, it can be said that the petitioner in Cr. Misc. No. 25664/2009 had purchased the aforesaid land from a person who had no right to transfer the aforesaid land. 14 19. Complaint case no. 379C/2008 is an offshoot of the aforesaid litigation because the complaint has alleged in the aforesaid complaint petition that he had sown wheat crops in the disputed land but the petitioners in Cr. Misc. No. 37026/2009 had forcibly cut the aforesaid wheat crops. Admittedly, both the parties are claiming their title and possession over the above stated disputed land which can be decided in a civil suit. 20. In 2011(1)PLJR Supreme Court page 20, the Apex Court of this country has held that allegation of selling land, notwithstanding, having knowledge that the said land had already been transferred to someone else and no link to give rise to suspicion of conspiracy between the present vendor, first vendor and his brother to cheat complainant, the complainant, at best, question such transfer and claim damage from vendor of the present vendor and no action would lie before a criminal court. 21. In the present case, the complainant alleged the factum of conspiracy on the basis that all the witnesses and identifiers on the sale deeds of the petitioner in Cr. Misc. No. 25664/2009 are co-villagers of complainant and they were fully aware about prior execution of sale deed of his wife but there is nothing in the entire complaint petition to show this fact that the petitioner in Cr. Misc. No. 25664/2009 was also aware about the existence of sale deeds of 15 complainant’s wife prior to purchase of lands in question. Moreover, as I have already stated that the petitioner in Cr. Misc. No. 25664/2009 has already relinquished his claim in respect of 23 decimal lands of plot no. 2 khata no. 19 and he has purchased 81 decimal lands of plot no.2 khata no. 19 from one Ganesh Tiwary who is not the vendor of the complainant’s wife and, therefore, in my view, there is no link to give rise to suspicion of conspiracy between the petitioner in Cr. Misc. No. 25664/2009 and other accused of Complaint case no. 378C/2008 as well as Late Ganesh Tiwary, the vendor of the petitioner in Cr. Misc. No. 25664/2009 and, at best, it can be said that there is link to give rise to suspicion of conspiracy between Late Ganesh Tiwary and other accused of Complaint case no. 378C/2008 to cheat not only the complainant’s wife but also the petitioner in Cr. Misc. No. 25664/2009. Therefore, the continuance of Complaint case no. 378C/2008 as well as Complaint case no. 379C/2008 is nothing but only an abuse of process of the law. 22. It is also an admitted position that Title Suit no. 108/2007 in respect of disputed lands is pending between the parties and the dispute of the parties appears to be a bona fide land dispute and, therefore, on this score also continuance of the proceedings of the aforesaid complaint cases is nothing but only an abuse of process of the law. 23. On the basis of the aforesaid 16 discussions, I feel no hesitation to allow both the criminal misc. cases and quash the impugned orders dated 13.8.2008 and 16.10.2008 passed in Complaint case no. 378C/2008 as well as Complaint case no. 379C/2008 respectively and accordingly, both the above stated impugned orders dated 13.8.2008 and 16.10.2008 passed in the above stated complaint cases respectively are, hereby, quashed in respect of petitioners only. 24. In the aforesaid manner, both the above stated criminal misc. cases and I.A no. 1811/2009 stand disposed off. Shahid ( Hemant Kumar Srivastava,J)