Patna High Court
Rajiv Kumar Gupta @ Rajiv Kumar & Anr vs State Of Bihar & Anr on 10 May, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
Patna High Court Cr.Misc. No.51584 of 2006
1.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.51584 of 2006
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1.Rajiv Kumar Gupta @ Rajiv Kumar
2.Sandeep Kumar Gupta @ Parmendar Prasad Gupta
Both sons of Purendra Prasad Gupta, resident of village-Uda-Kishanganj,
District- Madhepura.
3.Yadunandan Yadav S/O late Panchit Yadav, R/O vill.-Gorpar, P.S.-Uda
Kishunganj, District-Madhepura
.... .... Petitioner/s
Versus
1.The State Of Bihar
2.Ravish Prasad S/O Jagdish Prasad, resident of village-Dighra, P.S.-Ghailarh,
District-Madhepura
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.Ajay Kumar Thakur
Mr.Ravi Ranjan
For the Opposite Party No.2 : Mr.Krishna Prasad Singh, Sr. Advocate
Mr. Manish Kumar-3
For the State: Mr.Jharkhandi Upadhyay..
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
The petitioners have challenged the order dated 24.8.2006 passed in Cr. Revision No.53 of 2006 by the learned Additional Sessions Judge, Fast Track Court No.V, Madhepura whereby he has rejected the revision application of the petitioners against the order dated 3.3.2006 passed by Sri R.Kumar, the learned Judicial Magistrate, 1st Class, Madhepura in Complaint Case No.1059 of 2005 whereby he summoned the petitioners in order to face trial.
2. The fact of the case lies in a narrow compass. The complainant has alleged that her husband, who died in the year 1998, had purchased certain pieces of land during his life time in the name of the complainant through registered sale deed for consideration. She came in possession of the land and Patna High Court Cr.Misc. No.51584 of 2006 2. the rent receipts were being issued in her name. From the land of the complainant the petitioners forcibly cut the standing Shisham trees. When the complainant raised protest the petitioner no.1 told the complainant that he has got the land in question transferred in his name through a forged registered sale deed and now she has no right over the land. The complainant subsequently on enquiry came to know that the accused persons in conspiracy to each other fraudulently prepared a fake power of attorney of the complainant in the name of co-accused Pankaj Kumar and on the strength of forged power of attorney two sale deeds being deed no.6459 of 2001 and deed no.6460 of 2001 were executed by co-accused Pankaj Kumar in favour of petitioner no.2 and 1 respectively. In both the deeds recitals were made that co-accused Pankaj Kumar was given power of attorney by the complainant. The complainant alleges that she had never executed any power of attorney in favour of Pankaj Kumar. It is relevant to note it here that the petitioners are none else but the nephews (brother's son) of the complaint. The co-accused Pankaj Kumar is said to be a close agnate of the petitioners. The allegation is that all the accused persons were in know of the fact that the land in question, detail of which has been given in the plaint belongs to the complainant but in order to deprive her from ownership of the land they hatched up a conspiracy and co-accused Pankaj Kumar got the land transferred in the name of the petitioners.
3. Mr.Ajay Kumar Thakur, learned counsel for the petitioners submits that the order passed by learned Judicial Magistrate, Madhepura and the order passed by the revisional court are bad in law. The complainant had Patna High Court Cr.Misc. No.51584 of 2006 3. executed a power of attorney in favour of co-accused Pankaj Kumar only after receiving consideration amount and on the basis of said power of attorney, co- accused Pankaj Kumar executed the two deeds in question dated7.11.2001 in favour of own nephews of the complainant namely, Sanjeev Kumar Gupta and Rajeev Kumar Gupta (the petitioners). After purchase of the said land, the same was mutated in the name of the purchasers and rent receipts are being issued in their name. It is further submitted that even as per the complaint no case is made out against the petitioners as they were bona fide purchasers and, as such, if the transaction made by co-accused Pankaj Kumar was fraudulent they would be victim and not the accused. Whether power of attorney in question was legal or valid can only be adjudicated in a proper civil proceeding and allowing the present prosecution to continue would he an abuse of the process of court.
4. On the other hand, Mr. Krishna Prasad Singh, learned counsel appearing on behalf of the complainant submits that there is no illegality in the orders passed by the court below. The allegation made in the complaint clearly attracts the ingredients of the offence punishable under sections 420, 467 and 468/34 of the Indian Penal Code. In the present case, admittedly the petitioners were not strangers to the complainant. They are her own nephews. They were well aware of the fact that the land in question belongs to the complainant. The co-accused Pankaj Kumar is also a close agnate of the petitioners. They conspired together and on the strength of a forged power of attorney co-accused Pankaj Kumar transferred the pieces of land of the complainant in the name of the petitioners. He further submits that in a given case a civil suit as also a Patna High Court Cr.Misc. No.51584 of 2006 4. criminal proceeding would be maintainable. They can run simultaneously. The result in one proceeding would not be binding on the court in another proceeding. He further submits that co-accused Pankaj Kumar who executed the sale deeds fraudulently was a man set up by the petitioners knowingly and deliberately. The complainant had never executed any power of attorney in his favour. The petitioners were aware of this fact still they conspired together and got the sale deed executed in their favour. I must now look to the provisions under which a prima facie case is said to have been made out.
5. Section 467 of the Indian Penal Code deals with the offence relating to forgery of valuable security, will, etc. The same reads as under:-
"Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
6. The essential ingredients of the offence under section 467 of the Indian Penal Code are that the accused committed forgery and he did so by preparation of forged document in the manner provided under sections 463 and 464 of the Indian Penal Code.
7. Similarly, section 468 of the Indian Penal Code deals with the Patna High Court Cr.Misc. No.51584 of 2006 5. offence of forgery for the purpose of cheating which reads as under.:-
"Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine."
8. The essential ingredients of the offence under section 468 of the Indian Penal Code are that there should be a forgery in respect of the document in question and the intention of forgery should be that the forged document is to be used for the purpose of cheating.
9. Thus, for constituting an offence under section 467 of the Indian Penal Code there must an essence of forgery. Section 463 of the Indian Penal Code deals with the offence of forgery which reads as under.:-
463. Forgery - "whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
10. According to Mr. Krishna Prasad Singh, learned counsel appearing on behalf of opposite party no.2, making of a false document so as to support any claim over title would constitute forgery within the meaning of the said provision and as the forged power of attorney was created for the purpose of transferring the land of the complainant in favour of the petitioners Patna High Court Cr.Misc. No.51584 of 2006 6. by the accused persons, they must be held to have committed the offence.
11. In the light of the submissions made on behalf of the opposite party no.2 it is to be seen what would mean of making of a false document as specified in section 464 of the Indian Penal Code. A plain reading of section 464 of the Indian Penal Code makes it clear what is necessary is to execute document with intention of causing it to be believed that such document inter alia was made by the authority or by a person by whom or by whose authority he knows that it was not made.
12. Learned counsel for the petitioners in answer to the submissions made by the opposite party no.2 submits that the dispute, if any, between the parties can be determined only in a civil suit. The prosecution of the petitioners in a criminal case is an abuse of the process of court.
13. Having heard the parties and perused the record I find substance in the argument made on behalf of the complainant. It is well settled that in a given case civil and criminal proceeding can run simultaneously. The nature of allegation in the present case makes out a prima facie case against the petitioners. In case of Trisuns Chemical Industry Vs. Rajesh Agarwal and others since reported in (1999)8 SCC 686 the Apex Court has held that quashing of a complaint should be limited to a very extreme situation. The nature and scope of civil and criminal proceeding and the standard of proof required in both the matters is different and distinct. Merely because an act Patna High Court Cr.Misc. No.51584 of 2006 7. has a civil profile is not sufficient to denude it of its criminal outfit.
14. It is well settled that the disputed and controversial facts cannot be made the basis for exercise of jurisdiction under section 482 of the Code of Criminal Procedure. When I look to the allegation made in the complaint and the deposition of the witnesses made in course of enquiry, I find no illegality in the order passed by the learned Magistrate by which he took cognizance of the offence and summoned the petitioners to face trial. The revisional court has, thus, made no mistake in refusing to interfere with the order passed by the learned Magistrate.
15. For the reasons assigned herein above, the application merits no consideration and, accordingly, the same is dismissed.
(Ashwani Kumar Singh, J) Patna High Court, The 10th May, 2012 Md.S./AFR