IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11336 of 2009 1. RAMJEE PRASAD SINGH, son of Ramdas Prasad. 2. Shashi Kumar, son of Ramdas Prasad. 3. Ramdas Prasad, son of Ram Surat Prasad. All resident of mohalla-New Area Bisar Tank, Police Station- Civil Lines, District-Gaya. …….....Petitioners. Versus 1. THE STATE OF BIHAR. 2. Surendra Prasad Mishra, Advocate, son of Late Yagyadutta Mishra, resident of mohalla-New Area Bisar Tank, Police Station-Civil Lines, Town Gaya, District-Gaya. …..….Opposite Parties. ----------- 4 06.01.2011 Heard. This is petition for quashing the order taking cognizance dated 11-10-2007 passed in Complaint Case No.919/2007 under Section 406 and 420 of the Indian Penal Code. The prosecution case as alleged in complaint that the accused person in visiting term inspired confidence in complaint and proposed to sell his 7760 Sq. feet land. Ultimately sold 7760 Sq. feet by three registered sale deed. One in favour of Ram Sakal Mishra, Smt. Kusum Mishra son-in-law and daughter of complainant for an area of 2000 Sq. feet another in favour of Bimla Devi the wife of complainant for an area of 2910 Sq. feet and third in favour of Bimla Devi for an area 2850 Sq. ft. for a consideration of Rs.67500 on 8.3.1991. The mutation of the land was made in 2003. The complainant through Ram Sakal Mishra Smt. 2 Kusum Mishra and Smt. Bimla Mishra sold 31/4 Katha to different person by two sale deed on 13.3.2007 and it is alleged that vendee of those sale deed Birendra Singh disclose that 3342.5 Sq.ft. purchased by Kebala (Sale deed) dated 8.3.91 was actually Gairmazarua Aam Land. So alleged all the accused person succeeded in selling part of Gairmajarua land and hence have cheated 29.400 by forging and preparing registered sale deed. On the complaint the cognizance has been taken for offence u/s 406 and 420 IPC on the said complaint after consider this statement of the complainant on solemn affirmation as well as the statement of the witnesses. The learned counsel for the petitioner submit that allegation made in complaint does not make out an offence. the allegation made concerns civil dispute as criminal court cannot decide the right of parties or the nature of land and further this petitioner himself purchase the said land and has sold the land to wife, son-in-law and daughter of complainant and after the sale they came in possession their name mutated with effect from the land and they also sold the land to the vendor and are fighting the case after 16 years without preferring any civil remedy. 3 However, no one appeared on behalf of O.P. No.2 even after notice however the State oppose the contentions of the petitioner that cognizance has been taken. However the allegation is that the vendee of the petitioner purchased the land by the three sale deed in 1991 he got the possession over the land the said land was mutated in his name and he even sold the land then he learnt that part of land was Gairmajarua but in enquiry under Section 200 and 202 nothing substantial to prima facie held that the land was Gairmajarua, however the criminal court has no jurisdiction to decide the right of party in land and the nature of land. The consideration money was paid for sale of land and land given in possession hence when the money paid is sale proceed of the land then it is not entrustment so 406 is not made out and hence money spent by the petitioner which was obtain as sale proceed of land and is not an entrustment to attract Section 406 Cr.P.C. and hence offence under Section 406 is not made out. So far the allegation under Section 420 is concern. The purchase was made in 1991 the complainant and vendee came in possession, mutation done over, thereafter, the vendees also sold the land it is asserted that part of the land was Gairmazarua. 4 However, the criminal prosecution after so many year when the vendee of the petitioner came n possession of the land mutated the land in his name remain in possession and even sold the land and the allegation is part of land was Gairmazarua. the petition had the knowledge itself vague. However, the allegation made does not make out an offence as criminal Court established and hold weather the nature of land and right of the party over the land and the petitioner coming after 1991 and complaint is malafide, frivolous, vexatious and moreover allegation is in the complaint of civil nature. the averment in complaint and statement of complaint and witness recorded by magistrate would amount to civil liability inference between party and no criminal liability can be attributing in the nature of the fact and circumstance of the case, the cognizance taken by the magistrate without due applications of mind for offence under Section 406 and 420 is an abuse of the process of the court. Hence the impugned order taking cognizance is hereby set aside and petition is allowed. PN (Gopal Prasad, J.)