IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48812 of 2007 1. AKHILESHWAR PRASAD @ BACHCHAN LAL S/O LATE SAMBHU PRASAD 2. AJAY KUMAR SINHA S/O AKHILESHWAR PRASAD @ BACHCHAN LAL ( BOTH 1 AND 2 RESIDENT OF VILL. NATHU CHHAP P.S. SIWAN MUFASIL, DIST. SIWAN. --- PETITIONERS Versus 1. STATE OF BIHAR 2. SACHCHIDA NAND PRASAD SON OF LATE BRAMHA PRASAD R/O VILL. NATHU CHHAP P.S. SIWAN MUFASIL, DIST. SIWAN. --- OPP. PARTIES FOR THE PETITIONERS: MR. RANJEET KUMAR, ADVOCATE. FOR THE STATE : MR. C. SEN PRASAD SINGH, A.P.P. ----------- 03 25.03.2010 Heard learned counsel for the petitioners and State. Petitioners seek to challenge the order dated 31.10.2005, passed by the learned Judicial Magistrate, Siwan, in complaint case no. 1599( C) of 2005. By the said order, the learned Magistrate has taken cognizance under Section 427 of the Penal Code, and has directed for issuance of summons. The complainant/ opposite party no.2 lodged the said complaint alleging therein that he had purchased two plots on 23.07.1984 and 20.07.1984 in the name of his wife. The petitioners digged and removed earth from plot no. 881 situated in village Nathu Chhap, in the District of Siwan worth Rs. 2500/- and as a result whereof, they had committed the offence. An enquiry appears to have been made wherein few witnesses were examined and thereafter the learned Magistrate, by the impugned order, has directed for issuance of summons, as the materials on record did reveal a prima facie case. 2 Learned counsel for the petitioners draws attention of this Court to the plaint of Title Suit filed by the complainant against the present accused persons. It appears that just after filing of the present complaint case, the complainant filed Title Suit no. 147 of 2005, in the Court of Munsif Ist, Siwan, in which it has been averred that the wife of the complainant (plaintiff of the suit) had purchased certain areas appertaining to survey plot no. 882 and 883. There is land in between these lands appertaining to plot no. 881 measuring a small area of 3 dhur. The plaintiff ( wife of the complainant) approached the Court for demarcating the aforesaid plot no. 881, which, it appears, lie in between plot nos. 882 and 883. From perusal of the aforesaid plaint as also the map provided at the foot of the plaint, it is apparent that the complainant does not claim any title over the said plot no. 881 measuring a small area of 3 dhur. Learned counsel for the petitioners further submits that the accused petitioners have already appeared in the said suit and they shall deposit a sum of Rs. 2500/- ( Twenty five hundred) with the Court ( Learned Munsif Ist, Siwan), where Title Suit no. 147 of 2005, is presently pending, appropriation whereof, shall depend upon the outcome of the said suit. This will, thus, make good the alleged loss of value/utility of the land in question. Nobody has appeared on behalf of the complainant to oppose this application. This Court, on consideration of the materials on record, is of the view that the stand taken by the petitioners 3 appears to be just and proper. Admittedly the complainant does not claim title/possession over the land in question (plot no. 881). It appears that the wife of the complainant has already lodged a suit for demarcation of her land obtained by way of sale deeds executed on 20.07.1984 and 23.07.1984. It further appears from the plaint of the said Title Suit that plot no. 881 measuring an area of 3 dhur lay between the plots/lands purchased by the complainant in the name of his wife. The stand of the petitioners that they shall deposit a sum of Rs. 2500/- (Twenty five hundred) in the Court where the aforesaid Title Suit is pending will take care of the allegations contained in the present complaint that by such digging and removal of the earth the petitioners had caused diminishment in the value/utility of the land. Let the petitioners, named above, deposit a sum of Rs. 2500/- (Twenty five hundred) in the Court of Munsif Ist, Siwan, and furnish receipt thereof in the Court where the present criminal proceeding is pending. On these terms, this Court is inclined to interfere with the order. The application is allowed. Order dated 31.10.2005, passed by Learned Judicial Magistrate, Siwan in complaint case no. 1599 of 2005, is hereby quashed and set aside subject to deposit of a sum of Rs. 2500/- ( Twenty Five hundred) in the Court of learned Munsif First, Siwan in connection with Title Suit no. 147 of 2005 and furnish receipt thereof. Sym ( Kishore K. Mandal, J.)