CRIMINAL MISCELLANEOUS No.33061 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure --------------- 1. Mridula Chandra, Wife of Nirmal Chandra (Dead) 2.Nirmal Chandra , Son of Late Nareshwar Pd. Dutta, at present both residents of New Vikram Hotel, Exhibition Road, P.S. Gandhi Maidan, District & Town-Patna --- Petitioners Versus 1. THE STATE OF BIHAR 2. Prakash Kumar, Son of Late Mohan Lal Pugalia, resident of Mohalla- Boring Road, Police Station-Budha Colony, Town and District-Patna ---------------------------------- Opp.Parties. ------------- For the petitioners: Sri A.B.Ojha, Advocate For the State: Smt. Veena Kumari Jaiswal, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Earlier present petition was filed by two petitioners. However, during the pendency of this petition, since petitioner no.1 died, the name of petitioner no.1 was expunged. Since the case against petitioner no.1 had abated after her death, this order of abatement was passed on 24.10.2002, while admitting the present petition. Opp.Party no.2 had already entered his appearance through his Counsel at the time of admission of the present case. However, at the time of hearing none has come forward on behalf of Opp.Party no.2. 2. In the present case, order under challenge is dated 10.3.1992 passed by the learned Chief Judicial Magistrate, Patna in Complaint Case No.63( C) of 1992 . By the said order, the learned Chief Judicial Magistrate has taken cognizance of offences under Sections 323,506 and 468 of the Indian Penal Code. The allegation as per the complaint petition was that 2 though a sale deed was executed by Late Mridula Chandra, who was petitioner no.1 earlier, and it was presented before the Registrar for its registration ,on subsequent stage certain addition was made in page-10 of the deed and one clause vide Clause-9 was added. It was alleged that Late Mridula Chandra in connivance with the Registrar had got the sale deed amended fraudulently. On the said sale deed, allegation against the present petitioner, i.e. Nirmal Chandra was of being a witness. From the order impugned, it appears that the learned Chief Judicial Magistrate without conducting any enquiry and even though the complaint was not an official complaint, passed the order of cognizance. 3. Sri A.B.Ojha, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance as well as initiation of present proceeding in Complaint Case No.63 (C) of 1992, has submitted that the allegation, which was made in the present complaint petition, was also made in a suit vide Title Suit No.213 of 1992, which was filed by the complainant and his mother, namely, Smt. Jhankar Devi. Learned counsel for the petitioner, while referring to Annexure-9 to the supplementary affidavit, submits that Title Suit No.213 of 1992 was finally decided against the plaintiff/ complainant. Sri Ojha , learned counsel for the petitioner has placed internal page-8 of Annexure-9 , which is the Judgment passed by the learned Subordinate Judge-VII, Patna in T.S.No.213 of 1992 . One of the issues , which was framed relating to the controversy , was issue no.6 in the said case, which is as follows: “Whether the defendants in collusion with the Deputy Sub-Registrar Mukta Verma and other officials of Registration Department has changed the last page of the sale 3 deed executed by the defendant in favour of the plaintiff, by incorporating the new condition in Clause no.9.” 4. This issue was dealt with and was answered against the plaintiff/complainant at internal page-13 , which reads as follows: “In the entire record, there is no evidence or no circumstances in proving that the fraud was committed in changing the page no.10 of the sale deed. The condition may cause injury to the plaintiff. But this injury is legal and so it is a valid condition. On the basis of discussion I find that the plaintiff has failed to prove the fraud. This issue is decided in favour of the defendant and against the plaintiff.” 5. On the strength of finding recorded by the competent of civil jurisdiction in T.S.No.213 of 1992, learned counsel for the petitioner submits that after the Judgment in the civil case, nothing remains in the complaint petition to be decided. Accordingly, he has prayed that without going on the question as to whether the Chief Judicial Magistrate was entitled to take cognizance of offences on the complaint petition filed by the complainant without conducting any enquiry that, too, in a case where the complaint was not an official complaint, the learned Magistrate was not entitled to pass order of cognizance. 6. Sri A.B.Ojha submits that on the merit as well as subsequent development, the proceeding in Complaint Case No.63 (C) of 1992 has become meaningless and unwarranted and, accordingly, it has been prayed to quash the impugned order of cognizance. 7. I have already noticed in preceding paragraphs that despite entering into appearance, none has appeared at the time of hearing on behalf of Opp.Party no.2. However, Smt. Veena Rani Jaiswal, learned 4 Addl.Public Prosecutor has opposed the prayer of the petitioner. 8. Besides hearing learned counsel for the petitioner and the State, I have also examined the materials available on record, particularly the Judgment of the Civil Court, which is at Annexure-9 to the supplementary affidavit. In view of the facts and circumstances, the Court is of the opinion that no purpose will be served by allowing the proceeding in Complaint Case No.63 ( C) of 1992 to further proceed. 9. Accordingly, for the ends of justice, it is necessary to quash the order of cognizance dated 10.3.1992 passed by the learned Chief Judicial Magistrate, Patna in Complaint Case No.63 (C) of 1992 and same is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated: the 22nd July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )