IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48284 of 2005 MD.MOHIUDDIN @ MD.UDDIN RAIN, son of Domi Rain,resident Of Village-Parsauni, Police Station-Bheja, District-Madhubani --------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Bachcha Yadav, son of Late Nathuni Yadav, resident of Village- Bheja, Police Station-Bheja, District-Madhubani -------------- Opp.Parties. ----------- For the petitioner : Mr. Gagan Deo Yadav, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. ----------- O R D E R The petitioner who along with another has been arrayed as accused in Complaint case bearing C.R. No.206 of 2002 is aggrieved by and has prayed for the quashing of the order dated 28.2.2005 passed therein by Sri R.N.P.Bharti, Judicial Magistrate, First Class, Jhanjharpur, whereby and whereunder he has taken cognizance for offences punishable under Sections 420,406, 120B I.P.C. against both the arraigned accused including the petitioner. The prosecution case is based upon the complaint petition filed on 15.3.2002 by one Bachcha Yadav, impleaded herein as Opp.Party no.2, who inter alia stated therein that accused no.1 Joginder Jha was a Munshi in the Jhanjharpur Sub Registration Office who was primarily given to cheating innocent people and accused no.2,Md. Mohiuddin alias Md. Uddin Rain( the petitioner herein) was an expert in purchasing lands without making any payment. It is said that when the complainant fell in dire need of money for the marriage of his daughter, he agreed to sell 5 kathas 10 dhurs of his lands - 2 - appertaining to Khesra No.8052 ( old) /27( new) in mauza Parsauni to the petitioner for a consideration of Rs.9000/- only which the petitioner promised to pay at the Registration Office. Accordingly, on 20.12.2001, the sale deed was scripted at the Registration Office and when the complainant demanded the money, both the accused assured him that the consideration would be paid after the registration of the sale deed. The assurance notwithstanding the petitioner again postponed the payment till the complainant signed the chirkut . This time the complainant, annoyed by the conduct of the accused refused to sign unless the money was paid. Later, it is alleged, the complainant came to know through rumours that the accused persons got one Ram Japu Paswan to impersonate as the complainant and by obtaining his thumb impression on the chirkut obtained the registered sale deed. It is also alleged that the complainant arranged for a panchayati in the village which they did not attended and instead abused him. The complainant claims to have approached the police who refused to institute a case. Denying the manner of occurrence as alleged, it has been submitted that the prosecution version is full of concoction and fabrication and that the petitioner had been falsely implicated in this case due to previous grudge. However, the learned counsel for the petitioner has curiously not revealed or divulged the cause for such grudge. It was also submitted that it would be apparent from perusal of the sale deed that the same had been executed after receipt of the consideration and even if the payment had not been made the - 3 - complainant ought to have raised objections at the time of registration or ought to have taken steps for the cancellation of the sale deed, none of which were restored to. The further submission of the petitioner was that the accusations as alleged were purely civil in nature for which the criminal law could not be invoked. Finally, it was submitted that no offence under Section 420 I.P.C. was made out and the cognizance under Section 406 I.P.C. was time barred under Section 468 Cr.P.C. as cognizance for an alleged offence taking place on 20.12.2001 was taken after 3 years on 28.12.2005. Although, the complainant, impleaded herein as Opp.Party no.2, was duly served with notice he has chosen not to appear and contest the case. Admittedly, the entire dispute revolves round the payment of consideration money for alleged purchase of land by the petitioner from the complainant. The fact of purchase is not denied by the petitioner who in fact has appended a copy of the sale deed as Annexure 2 to the application. While the specious stand of the complainant in the complaint petition is that the petitioner with an intention to cheat and play fraud kept postponing the issue of payment of consideration money from one stage to another and eventually obtained the registered sale deed by practicing fraud in making one Ram Japu Paswan impersonate as the complainant before the registering authorities without paying the consideration, the stand of the petitioner is that he had made all payments or else the complainant would have raised objections before the registering officials and/or - 4 - applied for cancellation of the sale deed, none of which he had restored to. From the discussion made in the foregoing paragraph, it would be apparent that the case hinges on disputed facts which can be decided only after trial. At this stage it cannot be said with certainty that the entire case has the trappings of a civil dispute and criminal action is not applicable. So far as the question of limitation in taking cognizance is concerned, the same ought to have been raised before the trial court as a preliminary issue in view of the Full Bench decision of this Court in Ram Kripal Prasad Vrs. State of Bihar ( 1985 PLJR 271 (FB). Due regard being had to the discussions made above, I find no merit in this case which is dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 9th February,2009 Nawal Kishore Singh/A.F.R.