Criminal Miscellaneous No.33770 of 2004 *** In the matter of an application under section 482 of the Code of Criminal Procedure *** 1. Bachchu Pd. Mandal s/o Late Ram Kishun Mandal 2. Anand Pd. Mandal s/o Late Ram Dutta Mandal Resident of village-Parsa, Police Station- Hathauri, District- Samastipur 3. Bhuwan Mandal S/o Late Gango Mandal Resident of village-Katghara, Police Station- Hathauri, District- Samastipur 4. Shekhar Kumar Thakur S/o Ganesh Thakur Resident of Ward No.13, under Notified Area Committee Rosera, District- Samastipur 5. Shivjee Mandal s/o Dani Mandal, Resident of village-Sarhila, Police Station- Hathauri, District- Samastipur ...Petitioners Versus 1. THE STATE OF BIHAR 2. Mahendra Mandal s/o Late Dashrath Mandal Resident of village-Bhataura, Tol-Molarahi, Police Station- Hathauri, District- Samastipur (Dead) …Opposite Parties *** For the petitioners : Mr. S. Kr. Thakur, Advocate For the O P No.2 : Mr. B. N. Sinha “Suman” & Rohit Kumar, Advocates For the State : Mr. Chobey Jawahar, APP *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The petitioners seek quashing of the entire complaint including the order dated 22.11.2003 by which the Judicial Magistrate, 1st class, Rosera, Samastipur, has taken cognizance for the offence under sections 420, 467, and 471 Indian Penal Code in Complaint Case No.802 of 2003 (T.R. No. 718 of 2004) as well as the revisional order of the Sessions Judge, Samastipur, in Cr. Revision No.236 of 2004, by which he has refused to interfere in the matter by order dated 09.09.2004. 2 2. On 24.11.2005, notices were issued to the opposite party no.2 with stay of further proceedings in the court below. On 25.4.2006, son of the opposite party no.2 was substituted in place of his father who was dead. On 18.9.2006 the matter was admitted for hearing. 3. The case of the complainant is that one Siya Devi was the widow of his uncle, who came in legal possession of the land left by her husband. On 17.6.1999, accused no.1 is said to have got a gift deed executed in his name but when a protest was made he left the land, in question, and Smt. Siya Devi remained in possession of the same. Subsequently, on 28.11.2010, it is said that once again the accused persons in conspiracy with each other got four registered gift deed executed in favour of petitioner no.1 and 2 in which the petitioner nos. 4 and 5 appeared as attesting witnesses by producing a fictitious lady in place of real Siya Devi. For this reason, Title Suit bearing No.87 of 2003 was filed before the learned Sub-Judge, Rosera. 4. It appears that during enquiry the said Siya Devi, who is the sole person who could testify about the falsity or truth of the allegations made in the complaint, was not examined and, therefore, the submission is that in her absence all allegations which are oral in nature have failed. Further submission is that from the facts of the case a clear case of civil dispute is made out between the parties which has already been resorted to by the complainant and, therefore, the criminal case is superfluous. Additional submission on behalf of the petitioner nos. 4 and 5 is that they are merely attesting witnesses on the preparation of the document and not its contents and, therefore, could not be prosecuted in the eye of law. 5. The counsel for the opposite party no.2, on the other hand, has contested the submission of the petitioners and submits that in 3 the facts of the case offence under sections 420, 467 and 471 Indian Penal Code is made out against the accused persons. 6. On going through the complaint, I find that there is no doubt that the complainant has made only oral allegations against the accused persons and he was certainly not the person who was competent to testify as to whether Siya Devi herself had executed the deed of gift or a fictitious lady had stood in her place. The fact that the said Siya Devi was not examined during inquiry completely nullifies the allegations against the petitioners since it was she alone who was competent to complain of being cheated or forgery having been committed on a document purportedly executed by her. Moreover, the complaint appears to be totally vague and sweeping in nature and merely alleging that the petitioners have got the registered deed of gift executed through a fictitious lady can not be enough ground for their prosecution in a criminal case. 7. In view of such, this application is allowed and the entire proceeding including the order dated 22.11.2003 passed by the Judicial Magistrate, 1st class, Rosera, Samastipur, in Complaint Case No.802 of 2003 (T.R. No.718 of 2004) is hereby set aside. 8. Application stands allowed. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 12th July, 2010 NAFR/ JA/-