IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2340 of 2009 1. RAM PRASAD SINGH SON OF SAKALDIP SINGH R/O ASLANPUR P.S. AND DISTT. ARWAL. 2. MITHILESH SINGH@MITHILESH YADAV SON OF DEO NARAYAN SINGH R/O VILLAGE ABGILA TOLA SUKHIBIGHA R/O VILLAGE TARAPUR P.S. PALILGANJ DISTT. PATNA. 3. RAJIV RANJAN SINHA SON OF LOK NATH SINGH R/O MAKHDUMPUR P.S. AND DISST. ARWAL. 4. DURGA VISHWKARMA SON OF RAMCHANDRA VISHWAKARMA R/O VILLAGE BAIDRABAD, P.S AND DISTT. ARWAL. 5. RAM SURESH SON OF HARINANDAN SINGH R/O KARAUTI P.S. SIGORI DISTT. PATNA. Versus 1. STATE OF BIHAR 2. AMARNATH GUPTA S/O VIJAY KUMAR GUPTA R/O VILL- BAIDRABAD P.S. ARWAL DISTT. ARWAL. ----------- 4 30.11.2010 Heard learned counsel for the petitioner and the State. No one appears on behalf of the opposite party. This Criminal Misc. petition is directed against the order dated 16.4.2008 passed by Shri S.k. Sinha Judicial Magistrate First Class Jehanabad, in Arwal P.S. Case No. 87/2006 by which cognizance has been taken for offence under Section 419, 467, 468 and 120 of the Penal Code. The prosecution case has alleged that the father of the informant was Amarnath Gupta son of Vijay Prakash Gupta aged about 14 years and it is alleged that his father was a drunkard and his mother died in 1997 and his father gifted the property to the informant and his brother in the year 1990 and his father became a drunkard after the death of his mother. It is further alleged that the 2 accused persons Mithilesh Singh Yadav, Satyendra Yadav and Ram Suresh Singh, Ram Prasad Singh got sale deed executed dishonestly with regard to the land by administering liquor to Vijay Prasad Gupta in the year 2003-2004 since then his father is missing. It is admitted that with regard to the allegation the cognizance have been taken under Sections 467, 468, 471, 120B as well as Section 419 and 420 of the IPC. However, the allegation is that sale deed got executed by administering liquor. 467 is forgery of valuable security, 468 forgery for the purpose of cheating and 471 using as genuine of forged document. However, forgery has been defined in 463 which has been defined as follows:- (Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury), to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.. The false document has been defined in Section 464 and is defined as follows:- A person is said to make a false document or electronic record- 3 First- who dishonestly or fraudulently- (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing 4 that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration. Allegation in the FIR does not fit in either of 3 clauses of 464 to conclude a false document or that any document was forged nor there is any allegation that sale deed was executed by impersonating any other person in place of his father nor there is any allegation whatsoever to indicate that the signature was taken by deceiving without the content being disclose to the father or the sale deed executed under the influence of liquor without knowing the content of deed. Moreover the allegation that the father is missing from the date of execution of the deed. Hence the source of knowledge also not disclosed apparently appears that allegation made out malafidely to spite vengeance to disclaim the claim of the petitioner. However, the allegation is that the sale deed was executed with regard to the land which was earlier given to the claimant by deed of gift however, having regard to the allegation it appears that the Criminal Case has been filed to claim a civil right. If the petitioner claims to set aside the sale deed in view of the deed of gift executed in their favour they may file a suit for setting aside the sale deed, however, having regard to the allegation no offence of forgery is made out and hence allowing the prosecution to continue amounts to abuse of process of the Court when apparent on the allegation cognizance taken for the 5 offence even accepting the allegation entirely on the case of the cognizance does not make out a case and hence the impugned order taking cognizance of offence and the prosecution is hereby quashed and the petition is allowed. Amrendra/ ( Gopal prasad, J.)