IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15824 of 2005 CHANNA MAHTO SON OF LATE NIRSHU MAHTO, RESIDENT OF VILLAGE RAUTINIYA, P.S. KARJA, DISTT. MUZAFFARPUR. Versus STATE OF BIHAR ----------- 15. 22.2.2010. Heard Mrs. Anjana Mishra, learned counsel for the petitioner, Mr. Sheonandan Prasad Singh, learned counsel for the opposite party no.2 and Mr. Jharkhandi Upadhyaya, learned Additional Public Prosecutor appearing on behalf of the State. The petitioner invoking inherent jurisdiction of this Court under Section 482 of Cr.P.C. has prayed for quashing of the order dated 24.3.2004 passed by Sri Shashi Bhushan Mani Tripathi, Judicial Magistrate, Ist Class, Muzaffarpur in Town P.S. Case No.5 of 2004(Trial No.932 of 2004) whereby the court below has taken cognizance of the offence under Sections 420, 467, 468, 471 of the Indian Penal Code. The opposite party no.2 had initially filed a complaint petition vide Complaint Case No.3025 of 2003 which was transferred to the police under Section 156(3) of the Code of Criminal procedure,1973 and as such F.I.R. vide Muzaffarpur Town P.S. - 2 - Case No.5 of 2004 was registered. While pressing the petition, learned counsel for the petitioner submitted that the complainant had sold his land in question to the petitioner by executing sale deed dated 6.12.2000 and thereafter, mutation was done in favour of the petitioner and rent receipts were also issued in his favour. Learned counsel for the petitioner submits that petitioner who basically sells toddy is a poor man belonging to a weaker section of society. Any how he had purchased the land in question and thereafter he was in peaceful possession of the same. Subsequently, after lapse of several months, one Mukesh Kumar came over the land and claimed to be the purchaser of the land in question. The complaint petition was filed by opposite party no.2, who according to the complaint petition, had sold the land to one Mukesh Kumar and when he was restrained from taking possession of the land, Mukesh Kumar informed the vendor i.e. the complainant. It has been alleged in the complaint petition that thereafter the complainant came to know that - 3 - the petitioner by putting a fictitious person had got the sale deed executed in his favour and as such the present complaint petition was filed, which was registered as Complaint Case No.3025 of 2003. Subsequently, the complaint was transferred to the police for registering F.I.R. and F.I.R. vide Muzaffarpur Town P.W. Case No.5 of 2004 was registered for offence under Sections 420, 467, 468 and 471 of the Indian Penal Code. Learned counsel for the petitioner while pressing this petition submits that the petitioner has also filed complaint case, which was subsequently transferred to the police and F.I.R. vide Kajra P.S. Case No.28 of 2004 was registered against the complainant and others. In the said complaint petition, the petitioner alleged that the complainant of the present case i.e. Birendra Singh had cheated him in respect of sale of the land in question which is the subject matter of the present complaint. Learned counsel for the petitioner submits that prima facie this dispute appears to be civil dispute and she also referred - 4 - judgment of Hon’ble Supreme Court reported in 200(6) S.C.C. 736 (Indian Oil Corporation Vs. NEPC India Ltd. and others). She has argued that the false implication of the petitioner in the present case is evident from the fact that though as per the complaint petition, the vendee i.e. Mukesh Kumar, who claims to be subsequent purchaser of the land, did not take any step for filing any case against this petitioner. She argued that the complainant himself has cheated the petitioner and even after receiving the consideration amount, the complainant did not hand over original document to the petitioner instead he was provided only with the photo copy of the document purporting it to be original one. She states that the opposite party being illiterate and down trodden could not appreciate the implications. Subsequently, the complainant Birendra Kumar Singh again sold the same property to Mukesh Kumar. On the aforesaid facts and circumstances, learned counsel has assailed the order of cognizance and prayed for quashing of the entire proceeding. - 5 - Learned counsel for the opposite party no.2 raised preliminary objection that while exercising inherent jurisdiction under Section 482 of the Cr.P.C., the court is not required to conduct a roving enquiry. He submits that at this stage only thing required to be seen is as to whether prima facie case is made out or not. By referring complaint petition, he submits that the complaint petition itself discloses the offences committed by the petitioner. He further submits that if in a case, there is possibility of dispute relating one to be civil in nature and another as criminal offence, the criminal proceeding cannot be scuttled at the initial stage or interlocutory stage and as such he submitted that there is no merit in the petition in question and it is fit to be rejected out rightly. Learned counsel for the State supports the argument advanced on behalf of the opposite party no.2. I have examined the materials available on record. I am aware that the - 6 - power under Section 482 is to be exercised in rarest of the rare cases and that too if there is remedy available to an accused under the Code of Criminal Procedure then in that event the court should refrain from exercising this power. However, from the facts of the present case which according to me appears to be a peculiar in nature I feel that if I restrain myself to exercise my jurisdiction under Section 482, I will be allowing abuse of process of the court which has been adopted by complainant in the present case. From the complaint petition, it is evident that complainant admits that he sold the land in question to one subsequent vendee and as such it was subsequent vendee, who was to be aggrieved by the action of the petitioner but to the reasons best known to the complainant neither subsequent vendee nor Mukesh Kumar has come forward to take any action against the petitioner. On query made to the learned counsel appearing on behalf of the opposite party no.2, while argument was going on, as to whether the complainant has filed any suit for declaring the sale deed - 7 - executed in favour of the petitioner as void learned counsel for the opposite party admits that no such action has been taken. However while I was dictating order learned counsel for opposite party no.2 submitted that on this point he has not received instruction. In this case, opposite party no.2 filed vakalatnama in the month of July, 2007 but did not file any counter affidavit. From the complaint petition, it is not clear as to whether any civil action has been taken by the complainant or not. In view of the facts and circumstances as brought on record, it appears that dispute in between complainant and opposite party no.2 appears to be a dispute of civil nature and the complainant may not be allowed to abuse the process of the court by filing such complaint petition and as such I am of the view that allowing the proceeding in Town P.S. Case No.5 of 2004 upon Trial lNo.932 of 2004 will amount to allow abuse of process of the court and as such the entire proceeding is liable to be set aside and, accordingly, the order of - 8 - N.H./ cognizance dated 24.3.2004 passed in Trial No.932 of 2004 (Arising out of Muzaffarpur Town P.S. Case No.5 of 2004) and proceeding in the case is set aside. The petition stands allowed. There is no order as to costs. ( Rakesh Kumar,J.)