IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43474 of 2007 Anwar Alam, son of Abul Khair, Deed Writer, Sadar Registry Office, Patna, resident of Isapur Bagh Mohalla, PS Phulwari Sharif, Dist. Patna – Petitioner. Vs. 1. The State of Bihar, 2. Syed Imteyaz Ahsan, son of Syed Reyaz Ahsan, Mohalla Salempur, Ward No. 9, PS and P.O. Barh, District Patna – Opposite parties. … For the petitioner : Mr. Subodh Kumar No. 1, Advocate. For the S t a t e : Mr. Jharkhandi Upadhyay, Addl. P. P. For opposite party no.2 : Mr. Abbas Haidar, Advocate. … 5 13.8.2009 The petitioner has filed this application against the order, dated 25.8.2007 passed by Judicial Magistrate, Ist Class, Barh, Patna in Complaint Case No. 97©/2006 whereby and whereunder the court has rejected the petition filed on behalf of the petitioner to discharge him for offences alleged to have been committed under sections 148, 447, 420, 323, 467, 471 and 120B of the Penal Code. A complaint was filed by one Syed Imteyaz Ahsan, nephew of husband of Raunaq Saba. The allegations made in the complaint petition are that except for the petitioner, the other accused persons were constructing a boundary on khesra no. 438, khata no.188 which was objected to by the complainant which resulted in exchange of words and a scuffle. It is further stated in the petition that one Ram Jatan Prasad had purchased a piece of land pertaining to plot no. 435 measuring 56 decimals from Anwar Hussain. It is said that Anwar Hussain is said to have purchased the land from one Raunaq Saba on 30.7.2005. These documents were produced at the time of execution of the sale deed, dated 13.7.2005 which is the subject matter of 2 dispute in this case. The allegation is that at page 8 of the sale deed three lines have been included which mentions lands other than which was sold by Bibi Raunaq Saba to Anwar Hussain and therefore it is alleged that there is an interpolation in the sale deed. As far as this petitioner is concerned, he is said to be the deed writer of the sale deed. There is no allegation against the petitioner in the entire complaint petition that he had interpolated the said three lines in the sale deed, rather, it is vaguely submitted that the informant is also aggrieved (f’kdk;r gS) with the petitioner who is the deed writer of the sale deed. There is no direct allegation against the petitioner but on the basis of the presumption it is said that the petitioner may have in connivance with the vendor added the three lines. It is relevant to quote the allegations from the complaint petition to bring home the points raised by the petitioner : ;g fd] vkosnd us jftLVªh dkxt ua0& 8134] fn0& 30 tqykbZ] 2005 bZ0 [chch jkSud lck oxSjk fcØhdÙkkZ ouke~ eks0 vuoj gqlSu [kjhnkj ds ewy dkxt] dk otkIrk udy fudyok;k o vfHk;qDrx.k }kjk lk{kh la0&1 dks fn;k x;k QksVks dkih jftLVªh dkxt ua0& 8184 lk{kh ls feyku fd;k o ik;k dh i`IB la[;k&08 ewy ok otkork dkxt ls fHkUu gS ,oa ewy dkxt] ctkors udy ls fHkUu gSA ftlesa rhu ykbZu fcØhdÙkkZ ds gLrk{kj ds ckn o jftLVªh djokus ds iwoZ VkbZi e’khu ls tksM+k x;k o iqu% mlds Nk;k izfr esa tks lk{kh la[;k&1 dks vfHk;qDrksa }kjk fn;k x;k gS] esa iqu% rhu ykbZu mlh VkbZi e’khu ls jftLVªh ds ckn tksM+k x;k gS] tcdh ewy dkxtkr dEI;wVj ls VkbZi fd;k gqvk gS o nks gLrk{kj ftlesa ,d cxy esa nwljk 3 uhps [fcØhdÙkkZ] dk ik;k tks ,d nwljs ls fHkUu gS] ;s Hkh tky ik;k fd vfHk;qDrx.k ua0& 02 lS;n canh vlxj mQZ ckcw dk uke dh fder ds Hkqxrku dÙkkZ ds :I esa [kjhnkj eks0 vucj gqlSu ds lkFk fy[kk gqvk ik;k ,oa mlh i`IB esa ;g Hkh tky ik;k fd nksuksa mijksDr vfHk;qDrksa dk uke [kljk ua0 435 o 438 ds] [kjhnkj o jk’kh [tjlEeu] ds Hkqxrku izkIrdÙkkZ ds :i esa ik;k tcfd dkxt la[;k& 8134 esa dsoy [kljk ua0& 435 dh Hkwfe 56-25 fMlehy cspk x;k gSA Learned counsel for the petitioner submits that on the basis of the aforesaid allegations and the statement of the witnesses that have come on record, there is no allegation that the petitioner was responsible for the interpolation and as such no offence under sections 467, 471, 420and 1230B of the Penal Code is made out. As far as conspiracy angle is concerned, learned counsel for the petitioner submits that in order to prima facie show that there was a conspiracy between the vendor and the deed writer, there must be an allegation that the deed writer had knowledge or was responsible for making the alleged interpolation. It is admitted that the deed writer had no benefit to gain from making the said interpolation and as such it is submitted that the entire allegations are based on presumption. It has also been emphasized that the sale deed is presented by the vendor or vendee for registration before the Registrar of the department. The entire process is now computerized in Patna. The role of deed writer ends at that stage. Therefore, the presumption that deed writer inserted the three lines at the time of presentation of the documents is prima facie not substantiated. It has also been contended that the order, dated 25.8.2007 refusing to discharge the 4 petitioner is mechanical one passed without application of mind. In this context learned counsel for the petitioner relies upon a decision of this court in the case of Rajendra Prasad Gupta vs. State of Bihar, 2008 (1) PLJR 138 wherein the court has remanded the matter back to the court concerned to reconsider the matter as the order refusing to discharge was issued without application of mind. However, I am not inclined to remand this matter back to the court below. To constitute an offence under section 420 of the Penal Code it must be shown that a fraudulent or dishonest intention exists at the time of commencement of the offence. The F.I.R. in this case does not disclose that Anwar Alam, the deed writer had any fraudulent intention to deceive the complainant or induced him to part with any property. Similarly, the allegation that there is interpolation in the sale deed, has not been attributed to the petitioner, as when the deed was presented, there was no interpolation and the allegation of forgery is not made out against the petitioner. Therefore, I find that no offence whatsoever is made out against the petitioner under sections 420, 467 and 471 of the Penal Code to constitute an offence of cheating in the facts of the present case. This court, therefore, finds that this case comes under exception (1) mentioned in the case of State of Haryana vs. Bhajan lal, (1992) Suppl. 1 S.C.C. 335 which reads inter alia : “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.”. 5 In view of the aforesaid facts the order, dated 25.8.2007 passed by the Judicial Magistrate, Ist Class, Barh, Patna in Complaint Case No. 97©/2006 is hereby quashed so far as the petitioner is concerned. In the result, this application is allowed. haque (Sheema Ali Khan, J.)