CRIMINAL MISCELLANEOUS No.14505 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- BINDA LAL SAH S/O GATI LAL SAH, RESIDENT OF VILLAGE BAGAURA, P.S. DARONDA, DISTT- SIWAN AT PRESENT RESIDENT OF VILLAGE SIHAUTA BAZAR, P.S. MAHARAJGANJ DISTT- SIWAN ... ... PETITIONER. Versus THE STATE OF BIHAR ... OPPOSITE PARTY. ---- For the Petitioner : Mr. Yogendra Pd. Sinha, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 8.6.1993 passed in Complaint Case No.490 of 1993 by Sri S.N. Srivastava, Judicial Magistrate, Ist Class, Siwan. By the said order, the learned Magistrate had taken cognizance of offence under Sections 120B, 420, 465, 467, 468 and 471 of the Indian Penal Code. The petitioner has also prayed for quashing of entire criminal proceeding of the case. By filing supplementary affidavit, the petitioner has further prayed for quashing of an order dated 2.2.1999 passed by Ist Additional Sessions Judge, Siwan, whereby the learned Additional Sessions Judge had rejected the revision petition, which 2 was preferred against the order of cognizance. 2. Short fact of the case is that a complaint was filed with an allegation that the complainant had executed a deed of mortgage in favour of the petitioner after accepting consideration money of Rs.5,500/- in respect of 8 kathas and 17 dhurs of land. As per the complaint, it was agreed in between the parties that when the amount is re-paid by the complainant, the petitioner will execute a deed of re-conveyance in favour of the complainant. However, even though after some time, the complainant approached the petitioner for execution of re-conveyance deed, after getting the loan amount, the petitioner started to defer the matter on one pretext or the other. It was alleged by the complainant that at a later stage, he came to know that virtually the petitioner had cheated the complainant and on false pretext, the petitioner had got signature of the complainant on a absolute sale deed and, accordingly, the complaint petition was filed in the court of Chief Judicial Magistrate, Siwan. The learned Chief Judicial Magistrate, by its order dated 28.5.1993, transferred the complaint to the court of Sri S.N. Srivastava, Judicial Magistrate for its disposal under Section 192 of the Code of Criminal Procedure. Thereafter, in the transferee 3 court, the complainant was examined on S.A. In support of the complaint, enquiry witnesses were also examined and after completing the enquiry, by order dated 8.6.1993 i.e. the impugned order, the learned Magistrate took cognizance of the offences under Sections 120B, 420, 465, 467, 468 and 471 of the Indian Penal Code and summon the accused persons including the petitioner. 3. Aggrieved with the order of cognizance, the petitioner initially filed a revision vide Cr. Revision No.313 of 1993, which was finally rejected on 2.2.1999 by the Ist Additional Sessions Judsge, Siwan. The learned Additional sessions Judge, while rejecting the revision petition, observed that the scope of revision was limited and only correctness, legality or propriety of the finding was required to be looked into, while hearing a criminal revision. 4. After rejection of the Cr. Revision No.313 of 1993, by order dated 2.2.1999, the present petition was filed before this Court by the petitioner. It is really surprising that though the revision was rejected on 2.2.1999 and present petition was filed on 25.6.1999, in the main petition, the petitioner has not made any statement for quashing/setting aside of the order dated 2.2.1999 passed by the revisional court. 4 However, the petitioner besides making a prayer for quashing of order of cognizance dated 8.6.1993 passed by the learned Magistrate and also made a prayer for quashing of entire criminal proceeding in Complaint Case No.490 of 1993. In normal course, on this ground alone, the present petition was required to be rejected. However, keeping in view the nature of allegation as well as alleged date of occurrence, which, according to the complainant had occurred on 17.10.1998, the court was persuaded to examine the material available on record for just decision in the present case. 5. Shri Yogendra Pd. Sinha, learned Counsel, appearing on behalf of the petitioner, at the very outset, has argued that from the contents of entire complaint petition, no criminal offence is made out. It was submitted that though the complainant had alleged in the complaint petition that by committing fraud, the petitioner got a signature on the sale deed, which was executed by the complainant under the impression that he was executing a mortgage deed, the complainant has not even mentioned plot number and khata number of the land, which is the subject matter of the dispute. Learned Counsel, while referring to different annexures of the present petition, has submitted that after accepting full consideration 5 amount i.e. Rs.5,500/-, the sale deed was executed by the complainant in favour of the petitioner on 17.10.1978 and after execution of the sale deed, the petitioner got the land mutated in his favour and thereafter, the petitioner, after a considerable time, had transferred the said land to Sri Sheobachan Sah, who was arrayed as Accused No.2 in Complaint Case No.490 of 1993. The second limb of argument as advanced by Shri Sinha is that the complainant, subsequent to filing of the complaint petition, had also filed a suit vide Title Suit No.12 of 1995 in respect of the same allegation. However, while filing the plaint in the court of Munsif-II, Siwan, the complainant, who was plaintiff, had described the number of plot and khata of the land in question. It was further submitted that during the pendency of the complaint case, the complainant died and due to that reason before this Court, the complainant was not impleaded as opposite party. On the aforesaid grounds, learned Senior Counsel for the petitioner has prayed that the order of cognizance and entire criminal proceeding in Complaint Case No.490 of 1993 is liable to be set aside. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State has vehemently opposed the prayer of 6 the petitioner. It was submitted by her that at the stage of cognizance, this Court may not interfere and reject the present petition. 7. Besides hearing learned counsel for the petitioner and State, I have also perused the materials available on record. After perusing the complaint petition, the court is of the opinion that it is difficult to infer as to what offence was committed by the petitioner in connivance with one another. The complaint petition itself makes it clear that whatever deed was executed by the complainant, was executed in the month of October,1978. The complainant has also admitted that he had received the consideration amount of Rs.5,500/-. Merely on the assertion made by the complainant after lapse of several years that the complainant was under impression that he was executing a mortgage deed, it would not be appropriate to form an opinion that an offence was committed in such circumstance. Moreover, on perusal of Annexure-4 to the petition, which is photo copy of the plaint of Title Suit No.12 of 1995, which was filed in the court of Munsif-II, Siwan by the complainant, it appears that whatever dispute was existing in between the parties, same was purely civil in nature and as such right course was adopted by the complainant at 7 subsequent stage. Besides, the merit of the case, the court is also inclined to interfere with the present complaint proceeding on the ground of inordinate date. In the present case, allegation is in respect of false execution of a deed on 17.10.1978 for which complaint was filed in the year 1993. One way or the other, the matter remained pending for quite a considerable period either before the court of Additional Sessions Judge, Siwan or before this Court. This Court, while admitting the present petition, by its order dated 17.9.1999, had directed that during the pendency of this petition, further proceedings in the court below shall remain stayed and order of stay is still continuing. 8. In view of the facts and circumstances of the present case, the court is satisfied that prosecution on the allegation, which has been made in the complaint petition, was un-warranted and moreover, after lapse of 17 years from the date of filing of the complaint petition, it would not be advisable to direct the petitioner to participate in the proceeding before the court below. 9. Accordingly, the order of cognizance dated 8.6.1993 passed by Sri S.N. Srivastava, Judicial Magistrate, Ist Class, Siwan, order dated 2.2.1999 passed by Additional Sessions Judge, 8 Siwan in Cr. Revision No.313 of 1993 and entire criminal proceeding in Complaint Case No.490 of 1993 are hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 30th July, 2010 N.A.F.R./N.H.