Criminal Miscellaneous No.4667 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ 1. Sanjay Pandey 2. Anil Pandey : both sons of Ram Nath Pandey 3. Ram Awadhesh Pandey, Son of Late Ganga Sagar Pandey 4. Rita Devi , Wife of Sanjay Pandey 5. Partima Devi, Wife of Anil Pandey All residents of Village Barka Gaon, Rakasia, P.S. Bikramganj, District-Rohtas at Sasaram ----- Petitioners Versus 1. THE STATE OF BIHAR 2. Vijay Shankar Rai, Son of Late Deosaran Rai, resident of Village- Barka Gaon, Rakasia, P.S. Bikramganj, District- Rohtas at Sasaram ---------------- Opp.Parties. ----------- For the petitioners: S/Sri Ram Kant Sharma, Sr. Advocate For Opp.Party no.2 : Mr. Girish Chandra Sharma, Advocate For the State : Mr. A.M.P.Mehta, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J Learned counsel for the petitioners is permitted to make correction in paragraph-1 of the petition so far as the date of order of cognizance is concerned. He submits that instead of mentioning the date of impugned order of cognizance as 6.1.1999, it has been incorrectly typed as 22.12.1998. 2. Prayer is allowed. 3. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the entire prosecution as well as order dated 6.1.1999 passed by the learned Sub Divisional Judicial Magistrate, 2 Bikramganj at Sasaram in Complaint Case No.409 of 1998. By the said order, the learned Magistrate has taken cognizance of offences under Sections 420 and 467 of the Indian Penal Code. 4. Short fact of the case is that Opp.Party no.2 filed a complaint case vide Complaint Case No.409 of 1998 alleging therein that accused persons i.e. petitioners by way of cheating persuaded the complainant to execute two sale deeds in the name of Rita Devi and Pramila Devi vide Kewala Nos. 4795 and 4794 respectively. It was alleged in the complaint petition that the complainant was provided with liquor by the accused persons and while he was in drunken state, he was carried to the Registry Office and thereafter they persuaded the complainant to execute the aforesaid sale deeds. Subsequently, after noticing the fact that he was cheated, the complaint petition was filed. After filing the complaint petition, the complainant was examined on S.A. and in support of the complainant , witness was also examined and thereafter the learned Magistrate by the impugned order has taken cognizance of the offences as mentioned above. 5. Sri Rama Kant Sharma, learned counsel appearing on behalf of the petitioners at the very outset has submitted that the present complaint petition was maliciously filed by the complainant. He submits that firstly the complainant sold the land in question by executing two sale deeds and subsequently in connivance with his family members, he filed the present complaint petition. He further submits that the complainant after executing the sale deeds got a suit filed by his sister , namely, Indrasani Devi vide Title Suit No.312 of 3 1998 for declaring the said deed as void and thereafter he filed the present complaint petition with an oblique motive, particularly with a view to create a defence in the T.S.No.312 of 1998. Sri Sharma has further argued that from the contents of the complaint petition itself, it appears that the complaint was falsely and calculatively filed. The complainant had disclosed that on 15.7.1998 he was persuaded to execute the sale deeds. However, the complaint petition was filed after lapse of several months on 22.12.1998. In between 15.7.1998 and 22.12.1998, a title suit was got filed for declaring the sale deeds as void vide Title Suit No.312 of 1998 . Sri Sharma , while referring to Annexure-3 to the petition, which is photo copy of the certified copy of the ordersheet in Title Suit No.312 of 1998 , submits that the complainant had already entered his appearance in the said suit on 7.12.1998 and thereafter, the present complaint was filed on 22.12.1998. It was argued that in a case, which is purely civil in nature, Opp.Party no.2 has set criminal law into motion by filing the present complaint petition. It was submitted that though the complainant had appeared in Title Suit No.312 of 1998 prior to the filing of the complaint petition, the complainant has purposely suppressed this fact in the complaint petition and in the complaint , a story has been cooked up by the complainant that accused persons had persuaded him to reside in their village and thereafter the complainant was regularly provided wine/liquor by the accused persons and on the date of occurrence in a drunken state of affairs, he was carried to the Registry Office , two sale deeds were got executed .Accordingly, it has been 4 submitted that the present complaint petition has been maliciously filed and prayer has been made to quash the entire criminal prosecution as well as the order of cognizance. 6. I have heard Sri Girish Chandra Sharma, learned counsel appearing on behalf of Opp.Party no.2. He has argued that in the case on the basis of materials available on the record, the learned Magistrate has taken cognizance of offences. He submits that since the learned Magistrate had taken cognizance of offences, let the Magistrate be allowed to proceed with the case and this Court may not interfere with the matter that, too, while exercising power under Section 482 of the Code of Criminal Procedure. He has emphatically argued that the offence has been committed, which is to be tried by the competent court. The criminal case may not be settled at its initial stage and accordingly he has prayed for rejection of the present petition. 7. I have also heard Sri A.M.P.Mehta , learned counsel appearing on behalf of the State. He has supported the stand of the learned counsel for Opp.Party no.2. He submits that this Court may not interfere at the initial stage in the complaint case. Accordingly, he has also prayed for rejection of the present petition. 8. Besides hearing learned counsel for the parties, I have also examined the materials available on the record. The court is conscious that while exercising power under Section 482 of the Code of Criminal Procedure, many materials, which have been brought on record along with the present petition, may not be looked into, but in peculiar facts and circumstances of the present case I feel that it is 5 necessary to examine such materials. First of all , while examining the complaint petition, it appears that the story, which has been made out in the complaint petition, appears to be not probable , particularly in view of the fact that the complainant disclosed in the complaint petition that he was persuaded by the accused to reside in their village and thereafter he was provided with wine/liquor regularly and only thereafter in a drunken state of affairs, he was carried to the Registry Office and on 15.7.1998 two sale deeds were got executed . The complainant in the complaint petition has not even whispered as to what was the reason for filing a complaint after lapse of about more than five months. The story of the complainant becomes more doubtful on noticing the fact that before filing of the complaint petition, a title Suit was already got filed vide Title Suit No.312 of 1998 for declaring the aforesaid two sale deeds void. The said suit was filed by the sister of the complainant and in the said suit he had appeared prior to the filing of the complaint petition, but in the complaint petition he has not at all whispered regarding pendency of the said title suit or his appearance in the said suit. On the contrary, he has stated that after execution of the sale deed, i.e. from 15.7.1998, he was regularly residing in the village of the accused persons, i.e. village Jamuaon and on 5.12.1998 when he came out from the village-Jamuaon, many people told him regarding his mistake and thereafter on 22.12.1998, the complaint petition was filed. The learned counsel for the petitioners has brought on record photo copy of the certified copy of the plaint of T.S.No.312 of 1997, which has been marked as Annexure-2 to the 6 petition and he has also brought on record photo copy of the certified copy of the ordersheet of T.S.No.312 of 1998. In the relief portion of the plaint of the Title Suit i.e. Annexure-2, it has been categorically prayed that the sale deed numbered as 4795 and 4794 dated 15.7.1998 be declared to be fraudulent, illegal and not genuine. In the complaint petition, the complainant has categorically stated that he had executed two sale deeds numbered as 4795 and 4794. In Title Suit, the complainant was made party as Defendant no.6. Photo copy of the ordersheet dated 7.12.1998 shows that defendant no.6 had appeared in the Suit. 9. I am of the view that since the complainant had already appeared in the title suit , it was required for him to mention this fact in the complaint petition, but perusal of the complaint petition indicates that many facts were suppressed by the complainant .In that view of the matter, I am of the opinion that only with a view to create a defence in the civil suit , the present complaint was maliciously filed by Opp.Party no.2 and , as such, on the basis of such complaint petition, it would not be appropriate to allow the prosecution of the petitioners. I am of the view that allowing the criminal prosecution in Complaint Case No.409 of 1998 to further proceed will certainly amount to allowing the abuse of the process of the court and with a view to prevent abuse of the process of the court as well as for the ends of justice, it is necessary to interfere even at the initial stage of the criminal case. 10. Considering the facts and circumstances of the case as 7 mentioned herein above, I hereby set aside the order of cognizance and subsequent proceeding in Complaint Case No.409 of 1998. Accordingly, petition stands allowed. Patna High Court,Patna Dated :the 29th April,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )