IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7501 of 2008 1 MOHAR LAL CHOUDHARY @ MOHAN LAL CHOUDHARY, S/o – Shyam lal Choudhary @ Nathuni Chaudhary. 2 Urmila Devi, W/o – Mohan Lal Choudhary @ Mohar Lal Choudhary 3 Parasnath Mishra, S/o – Bharat Mishra. 4 Ram Pravesh Ram, S/o – Late Raghubir Ram all are resident of village – Mathia Mohan, P.S. – Dhaka, District – East Champaran. ---------------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Dawarika Mishra son of Jagdeo Mishra, resident of village – Mathiya Mohan, P.S. – Dhaka, District – East Champaran. -------------------- Opposite Parties. ***** For the Petitioners : Mr. Vijay Shankar Shrivastava, Adv. For the State : Mr. Uday Chand Prasad, APP. ****** 04 28.04.2010 This application has been filed for quashing of the order dated 1st November, 2007 passed in Dhaka P.S. Case No. 86 of 2006 by Sub-Divisional Judicial Magistrate, Sikrahana at Motihari, East Champaran, for the offences under Sections 420, 467, 468, 120B of the Indian Penal Code. In spite of notice served personally, opposite party no. 2 complainant informant turned away. The learned counsel for the applicants drawn my attention towards the contents of complaint petition at Annexure – 1, which was sent before the police under Section 156 of the Criminal Procedure Code on the basis thereof, the case was instituted. The relevant facts in short is that the complainant informant got an information that the applicants in collusion with each other got a sale deed executed with respect of a piece of 2 land falling in his share on private partition in the family made on 26.10.1998. The deed in question was brought into existence on 17.04.2006. The complainant informant on getting certified copy of the deed filed the complaint before the court below whereupon the case was instituted and after investigation charge sheet was submitted and cognizance was taken giving rise to instant application. Learned counsel for the applicants submitted that if the transfer deed is executed with respect to a piece of land allegedly falling to share of complainant by another stating to be his own land, the complainant may get the due declaration from competent civil court by filing suit but no criminal offence is made out. Learned counsel for the applicants placed reliance in a decision of Apex Court in case of Mohammed Ibrahim and Others Vs. The State of Bihar and Another reported in (2009) 8 Supreme Court Cases 751 . The learned Additional Public Prosecutor conceded to the submissions. In the case before the Apex Court it is held in para 23: “that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be 3 understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.” In the instant case, opposite party no.2 and applicant no. 3 are agnates. There is a case of assertion of private partition between them and applicant no. 3 is the person executing the deed in favour of applicant nos. 1 and 2 wherein others appear as witness etc. It appears that the dispute between the parties is of civil nature. No criminal offence is constituted and the case stands squarely covered under the ambit of decision of the apex court in aforementioned case. In the result, the applicant stands allowed and the proceeding in question is quashed. Rajeev/ (Akhilesh Chandra, J.)