1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Upendra Soni & anr. Vs. State of Rajasthan & anr. SB CRIMINAL MISC. PETITION NO.926/2002. UNDER SECTION 482 CR.P.C. DATE OF ORDER: 25th May, 2009. HON'BLE MR. JUSTICE S.P. PATHAK Mr. A.K. Gupta for the petitioners. Mr. Biri Singh with Mr. Rajesh Choudhary for the respondent. Mr. N.R. Saran PP for the State. By this criminal misc. petition filed under section 482 Cr.P.C. the petitioners have challenged the order dated 5.6.2002 passed by the Additional Sessions Judge No.3, Kota in Criminal Revision Petition No.1/2000 whereby the order dated 25.10.1999 passed by the Additional Judicial Magistrate No.5, Kota (North) in Criminal Case No.491/1999 taking cognizance has been up-held. Briefly stated, the facts for the disposal of the present petition are that complainant non-petitioner Dr. Laxmi Chand filed a complaint in the year 1995 before the learned Additional Chief Judicial Magistrate no.5, Kota with the averments that petitioner no.2 Dr. Kumari Lalita B. Kamat was owning a house bearing No.19-B in Gumanpura Kota and she sold the part of the house measuring 2710 sq.ft. under the registered sale-deed in the year 1982. The Western and Eastern side walls of the house remained in joint possession. On the first storey of the house there was an opened gate that was used by the complainant as well as 2 petitioner Dr. Kumari Lalita. It was also alleged in the complaint that on 5.9.1995, petitioner Dr. Kumari Lalita sold 3300 sq.ft. Western portion of the house to petitioner no.1 Upendra Soni. Both of them were fully aware of the fact that as back as in the year 1982 under the sale-deed 10 sq.ft. Land of the complainant was being sold to the petitioner no.1 and in that regard a pre-emptory suit was filed in the court of Additional District & Sessions Judge No.1, Kota and in that case Commissioner was appointed to report about the existent position of the site. On 12.6.1995, the Commissioner submitted its report along with map which showed that the portion of that sold to the complainant was sold again by petitioner no.2 to petitioner no.1. The report further showed that the door which was opened on the first storey was closed with the ply-board on 12.6.1995. It is also alleged that the petitioners in a wrongful manner to cause loss of the property to the complainant and to deprive the complainant of his right to enjoy the property sold in all 3300 sq.ft. land whereas petitioner no.2 was only having 3290 sq.ft. land with her, therefore, the petitioners have committed offence under sections 341, 147, 420,148 and 465 IPC. The complaint so filed was sent for investigation to police station Gumanpura. The police after investigation submitted a negative final report for the reason that the matter was of civil nature. Again on specific points, direction was given to investigate the matter that as to whether the land which was sold to the complainant subsequently out of the land already sold was sold by the 3 petitioner no.2 to petitioner no.1 and as such reduced 108.6 sq.ft. land of the complainant and this land was sold to the petitioner no.1. Again police submitted final report in the matter. The learned trial court on the protest petition found that from the investigation made by the police, it appeared that the land which was earlier sold to the complainant was sold again to petitioner no.1 by petitioner no.2. In all 108.6 sq.ft. of land which was of complainant was sold. It was also found that door was also closed, therefore, considering the matter fit in which cognizance was required to be taken against petitioner no.2 under sections 341, 420, 467, 468 and 471 IPC and against Upendra Soni- petitioner no.1 under sections 341 and 471 IPC took cognizance vide order dated 25.10.1999. The petitioners feeling aggrieved, preferred a revision petition no.1/2000 which came to be decided by the Additional District Judge NO.3, Kota vide order dated 5.6.20002. Hence, the present petition has been filed. It has been contended by the learned counsel that the dispute between the parties is regarding measurement of the land and in that regard civil suit is pending between the parties in the court, therefore, it is a matter which is to be decided by the civil court and the courts below have committed illegality in proceeding against the petitioners after taking cognizance against them. It has also been contended that the trial court has not properly considered the evidence collected during the course of investigation. It is also contended that the facts and circumstances 4 of the case would reveal that there was no criminal intention or mensrea on the part of the accused-petitioners. It has also been contended that in the absence of material, it cannot be said that the accused-petitioners have committed any of the offence regarding which the trial court has taken cognizance. It is also contended that the revisional court has also not poroperly appreciated the entire matter. On the other hand, it has been contended that it is not in dispute and cannot be disputed that the complainant purchased the house and land measuring 2710 sq.ft. Thereafter, remaining part of the house was only 3290 sq.ft and in subsequent sale made by non-petitioner no.2 to non-petitioner no1. Was of 3300 sq.ft., therefore, when there appears reference of earlier sale made to the complainant in the subsequent sale-deed in favour of petitioner no.1 then it is apparent that both the patitioners hatched conspiracy to cause loss to the complainant and committed offence alleged in the complaint. It is also contended that the map which was attached at the time of subsequent sale-deed is available with the complainant and in subsequent map prepared in the year 1995 showing the land which has already been sold to the complainant, therefore, a prima-facie conclusion drawn by the trial court which having been confirmed by the revisional court requires no interference and this misc. petition is liable to be dismissed. I have considered the submissions made before me and perused the material available on record. 5 It is to be seen that in the instant case it is not in dispute that petitioner no.2 is the owner of the disputed premises in question regarding which part of the portion was sold to the complainant and part of the portion was sold to petitioner no.1 by petitioner no.2. It also appears from the record that in all petitioner no.2 was owning 60x100 sq.ft. land as per the sale-deed dated 14.12.1982. Out of the above piece of land, 1400 sq.ft. land was sold to the complainant on one occasion and thereafter vide another sale-deed dated 8.7.1982 1310 sq.ft. land was sold to the complainant, therefore, it appears that in all complainant became owner of the land 1400+1310=2710 sq.ft. Subsequently, petitioner no.2 sold the remaining land/portion of the house to petitioner no.1 on 27.5.1995 under registered sale-deed. This sale-deed shows that 3300 sq.ft. land has been sold whereas petitioner no.2 was having remaining land 6000-2710= 3290 sq.ft. In view of above, if the petitioner no.2 was having only 3290 sq.ft. of land and sold 3300 sq.ft. land to petitioner no.1, then primafacie it appears that intentionally this mischief was done. It is correct that a civil suit has been filed in this matter but that suit is for pre-emptory rights. It is not always a condition that in all matters where civil litigation is pending, criminal proceedings are barred. In the case of Rashida Kamaluddin Syed & anr. Vs. Shaikh Saheblal Mardan (Dead) through Lrs. and another- 2007 RCC (SC) 641, it has been observed that a civil suit filed by the complainant and its pendency does not mean that if the accused 6 has committed any offence, jurisdiction of the criminal court would be ousted. Both the proceedings are separate, independent and one cannot abate the other. In the case of M.Krishnan Vs. Vijay Singh & anr.- 2001 VIII AD (SC) 494, the Apex Court observed that the civil remedy and criminal prosecution are distinct. Mere pendency of civil proceedings ipso-facto does not disentitle the parties to lodge criminal complaint. In the instant case, as has been found by the courts below that after submitting final negative report, the matter was re- investigated and the trial court after discussing the facts came to the conclusion that the petitioners have committed offence punishable under the IPC and there was material available on record to justify prosecution of the petitioner under the aforesaid sections of IPC for which cognizance has been taken. The order of the trial court was confirmed by the revisional court. Thus, there appears concurrent finding in relation to prima-facie availability of material on record. The position of law which is almost settled on the point is that at the time of cognizance courts are not required to scrutinize the evidence so thoroughly and to see that case would result in conviction. What is required to be seen is that if primafacie material is available to proceed against alleged accused in the complaint and for that matter material has been brought on the file, then cognizance can be taken. After carefully examining the matter, I find that it is not a case where this court 7 should exercise powers under section 482 Cr.P.C. to quash the proceedings pending before the trial court, therefore, this petition is liable to be dismissed. In the result, this misc. petition having no merit is dismissed. (S.P. PATHAK,J) BBLM