IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.5094 of 2009 LALITA DEVI, wife of Shri Ramanand Sah, Resident of village and Post – Naula, P.S. – Bhagwanpur, At present Mirganj, Ward No. 08, P.S. and District – Begusarai. ........... Petitioner. Versus 1. THE STATE OF BIHAR 2. Anjani Bhushan, Son of Late Shashi Bhushan Singh, of village – Manda, P.S. – Bibhutipur, District – Samastipur. ........ Opp. Parties. ----------- For the Petitioner :- Mr. Amresh Kumar Verma, Advocate. For the O.P. No. 2 :- Mr. Akhileshwar Prasad Singh, Advocate. For the State :- Mr. S. M. Rahman, A.P.P 06/ 02 .02.2011 This is a petition for quashing the order dated 08.08.2008 passed by Shri Rakesh Malviya, Judicial Magistrate, First Class, Begusarai by which summon has been ordered to be issued after taking cognizance for offence under Sections 418, 419 and 465 of the Indian Penal Code. 2. The prosecution case as alleged in the complaint petition alleging therein is that the father of the complainant had three marriages. From the first wife Mundrika Devi there was no issue. From the second marriage he was blessed with two daughters, namely, Pushpa Singh and Anju Rai and since no male issue was born, third marriage was performed with Smt. Indira Devi who was blessed with three sons, namely, Anjani Bhushan, the complainant, 2 Tirupati Bhushan and Shri Niwas Bhushan and Mundrika Devi with the consent of her husband accepted the complainant as adopted son and came in possession. It is further alleged that the complainant and his brother after the death of their parents were minor and used to stay in the house of Pushpa Singh and it is alleged that Pushpa Singh under a conspiracy took away the papers and the pass book of the bank with regard to the movable and immovable property and under conspiracy executed a sale deed in favour of Lalita Devi accused no. 5 for sale of the building purchased by Mundrika Devi by two sale deeds, showing herself the daughter of Mundrika Devi. Hence, it is alleged that Pushpa Singh executed the sale deed as the daughter of Mundrika Devi and hence asserted that Pushpa Singh executed the sale deed by misrepresenting that she is daughter of Mundrika Devi whereas Mundrika Devi died issueless and further it is alleged that in Succession Case No. 15 of 2004 affidavit has been filed by her to grab the property. 3. However, on the complaint petition the complainant was examined on solemn affirmation and three witnesses were examined on his behalf supported the case and on 3 considering the allegation and the witness statement of the complainant and his three witnesses summons were ordered to be issued against the accused persons after taking cognizance for offence under Sections 418, 419 and 465 of the Indian Penal Code. 4. Learned counsel for the petitioner, however, contended that the petitioner is vendee and even taking into consideration the entire evidence no offence is made out and the nature of the allegation itself is a matter of civil dispute regarding the claim of the share between the complainant accused and Pushpa Devi the vendor of sale deed and so far this petitioner is concerned she is the vendee in whose favour Pushpa Devi has executed a sale deed. 5. The allegation is that Pushpa Devi executed the sale deed and even if whatever allegations made taken to be true on face value, does not make out an offence against this petitioner and however, it is a matter of civil dispute regarding the right of the claim between the Pushpa Devi and the complainant as the complainant claim himself to be the adopted son of Mundrika Devi. However, admits that Pushpa Devi is also daughter of Shashi Bhushan Singh and asserted that Shashi Bhushan Singh had three marriages and 4 Pushpa Devi was the daughter of one of the alleged third wife and hence admittedly the daughter of Pushpa Devi and if Mundrika Devi is the first wife and then naturally she is the mother of Pushpa Devi. However, the forgery has defined as whoever makes a false document with intent to cause damage or injury to any persons. However, false document has been defined in Section 464 of the Cr.P.C. and there are three parts in Section 464 of the Cr.P.C, the first part mentions that if a document is created with the intention of causing it to be believed that such document was made by the authority of a person by whom or by whose authorities, he knows that it was not made. Here it is not disputed that the document has been executed by the Pushpa Devi. However, it is only mentioned that the daughter of Mundrika Devi has wrongly been mentioned. However, it is not disputed that Mundrika Devi was the wife of Shashi Bhushan Prasad. However, even then the first condition is not made out the second condition mentions that whatever alters a document. However, it is not the case that any document was altered and the third condition that whoever dishonestly and fraudulently cause any person to sign, seal or alter knowing that such person 5 could not by reason in his own mind, intoxication and deception know the content of the document and hence the three conditions mentioned in Section 464 of the Cr.P.C is not made out. However, the two explanations is explanation 1 and explanation 2 that a man’s signature of his own name. However, the identity of the complainant Pushpa Devi is not for signature of another person of same name or even he was not the real person. However, she claims to be the daughter of Mundrika Devi is also not a false fact. In view of the fact admitted by the complainant and further the explanation two also not applicable as it is not a case of impersonation. However, even accepting allegation to be true on the face value whatever allegation has been made is allegation against Pushpa Devi. However, there is no allegation against this petitioner that Pushpa Devi executed sale deed in the name of Lalita Devi. However, the deed did not bear the signature of Lalita Devi and so far the allegation against this petitioner is concerned, neither there is any inducement to complainant nor the complainant parted with any money to attract Section 415 of the Cr.P.C. or in consequence under Section 418 of the Cr.P.C. and whatever allegation made is against Pushpa Devi but not 6 against this petitioner Lalita Devi. 6. Hence, having regard to the fact and the allegation taken on face value of the complaint to be true no offence under Sections 465, 418 and 419 of the Indian Penal Code for which the cognizance has been taken made out against this petitioner to issue process. However, in the complaint petition there is neither allegation that the complainant on deception parted with any money for any act of commission or omission made by this petitioner to make out an offence and hence there is no question of cheating by this petitioner and moreover the petitioner is the vendee and any person if cheated is this petitioner and hence taking into consideration the entire allegation no offence is made out under Section 465, 418 and 419 of the Indian Penal Code against this petitioner and hence it appears that the learned Magistrate without due application of mind to the facts and circumstances of the case proceeded to take cognizance against the petitioner in mechanical manner and hence the impugned order is set aside to the extent of this petitioner and hence, the petition is allowed. Kundan (Gopal Prasad, J.)