IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.5144 of 2009 1. YASHODA DEVI, W/O SRI DUPTY PANDEY 2. DUPTY PANDEY, S/O LATE HAARIPANDEY 3. RAJU PANDEY, S/O DUPTY PANDEY 4. KULAI PANDEY, S/O LATE RADHA PANDEY ALL R/O VILLAGE PIPRAKALA, P.S. MAHARAJGANJ, DISTRICT SARAN 5. BASHISHTH PANDEY, S/O SRI RAGHU NATH PANDEY, R/O SARAIYA, P.S. MAHARAJGANJ, DISTRICT SARAN .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. MOST. SUMITRA KUER, W/O LATE JAMADAR PANDEY, R/O VILLAGE PIPRA KALA, P.O. PIPRA VIA TAKIPUR, DISTRICT SIWAN, PIN – 841244 .. OPPOSITE PARTIES **** For the petitioners .. Mr. Aditya Nr. Singh, Adv. For the State .. Mr. B.P. Singh, A.P.P. For the informant .. Mrs. Poonam Kumari, Adv. **** /4/ 09.12.2010 Heard the counsel for the parties. 2. This criminal miscellaneous petition has been filed for quashing the order, dated 17.11.2008, passed by Judicial Magistrate, First Class, Siwan, in Complaint Case No. 1013 of 2008, by which the learned Magistrate has taken cognizance of offence under Sections 465, 379 and 120B of the Indian Penal Code. 3. The prosecution case, as alleged in the 2 fardbeyan by the complainant, is that her signature taken on sale deed on pretext of fraudulent and false representation for executing a conditional sale for limited period. The complainant learnt about execution of sale deed on 20.02.2008, hence, it is alleged that the forgery has been committed. It has, further, been alleged that the accused persons dishonestly committed theft by cutting the tree worth of Rs.30,000/- from the said land of the complaint. The complainant and his witnesses examined on solemn affirmation and considering the statement of complainant on solemn affirmation and statement of witnesses the cognizance, has been taken. 4. The learned counsel for the petitioners, however, contended that it is out and out a case of civil nature and it has, further, been asserted that the deed was executed in 2007 and the complaint petition has been filed in 2008 and the cognizance under Sections 465 and 379 of the Penal Code has been taken on 17.11.2008, hence, the order of cognizance suffers from illegality. 5. The learned counsel for the opposite parties, however, contended that the allegation itself made out an offence and it is covered by definition of false document 3 enumerated under Section 464 of the Indian Penal Code. It has, further, been contended that a civil case does not bar a criminal case if an offence is made out. It has, further, been submitted that signature of the complainant taken on a false pretext of executing a conditional sale and she came to know about sale deed on 20.02.2008. The limitation runs from the date of knowledge and is question of limitation is a disputed question of fact and law and law can only be decided during the trial. 6. Hence, on the respective submissions of the parties, the question for consideration is whether the cognizance taken suffers from any illegality. 7. However, having regard to the allegation as reveals from the complaint petition itself that allegation is that a sale deed was executed on the pretext of executing a conditional sale. However, under Section 463 of the Indian Penal Code defines that whoever makes a false document with intent to cause damage or injury to any person or to support any claim or title or to cause any person to part with property intent to commit fraud, commits forgery. However, the false document has been defined in Section 464 of the Indian Penal Code and third 4 part of Section 464 of the Penal Code indicates that if any person dishonestly and fraudulently cause any person to sign a document knowing that by reason deception prevailed upon him, he does not know the content of the document said to have made on false document. 8. Hence, the allegation that signature of the complainant was taken on sale deed on pretext of conditional sale on deception by dishonest concealment of the content of the deed and, further, getting the signature on paper on false pretext and misrepresentation and deception comes under the definition of creating false document and, hence, amounts to forging. Hence, taking into consideration the allegation make out prima facie for offence under Section 465 of the Indian Penal Code. 9. However, having regard to the fact that it appears that prima facie offence is made out. 10. However, the learned counsel for the petitioners submits that even if prima facie offence is made out, this is a case of civil nature and the remedy to complainant lies for setting aside the sale deed and complaint is require to file civil suit and the civil suit has been filed, however, it has been contended that if a civil 5 suit is filed then two cases, a civil case and another criminal case, can not run together and for which has relied upon a decision reported in 2008(1) P.L.J.R., 51(S.C.) (All Cargo Movers (I) Pvt. Ltd. & Ors. Vrs. Danesh Badamal Jain & Anr.) and refers paragraph 18 of the case reported in (2000) 2 S.C.C., 636 (S. Sagar Suri & Anr. Vrs. State of U.P. and Ors.). However, in decision reported in 2008(1) P.L.J.R., 51(S.C.) (supra) held that in the fact and circumstances of that case and allegation made in the complaint even given on face value and taken to be correct in it’s entirety did not disclose an offence and decision reported in (2000) 2 S.C.C., 636 (supra) has required to see either case is essentially of a civil nature has been given a cloak of criminal offence. However, having regard to the fact that a criminal offence is made out on the allegation made in the complaint taken on it’s face value, hence, the decision cited about is not applicable. 11. However, under the facts and circumstances of present case the allegation is that sale deed got executed under a deception and misrepresentation of executing a conditional sale, once there is element of deception. If an 6 offence is made out then a criminal case and the civil case may run together and there is no bar that the criminal offence can not be prosecuted even if the civil suit is pending and this proposition is substantiated in a Bench decision reported in 2007(3) P.L.J.R., 150(S.C.) (Rashida Kamaluddin Syed & Anr. Vrs. Saikh Saheblal Mardan (dead) through LRs & Anr.) and it is relevant to quote paragraph 28 of the said judgment, which is as follows : “Finally the contention that a civil suit is filed by the complainant and is pending has also not impressed us. If a civil suit is pending, an appropriate order will be passed by a competent court. That, however, does not mean that if the accused committed an offence, jurisdiction of criminal court would be ousted. Both the proceedings are separate, independent and one can not abate or defeat the other.” 12. Hence, further proceeding is no bar to a criminal complaint. 13. The next point raised is about the limitation. However, in the complaint case it has been asserted that the complainant got the knowledge of forgery on 20.02.2008 and it is a disputed question of fact which can only be decided in the trial and not at this stage. 7 14. Hence, having regard to the facts and circumstances, I do not find any merit in this case to interfere with the order. 15. This application is dismissed. S.A. ( Gopal Prasad, J.)