Full Judgment
1. Mostt.Chano Devi, wife of Late Nikalal @ Rai, resident of village-Narayanpur, P.S. Kusheshwar Asthan, District- Darbhanga.
2. Hem Narayan Yadav, son of Dhanushdhar Yadav.
3. Ram Narayan Yadav, son of Medinidhar Yadav.
4. Ramadhar Yadav, son of Late Ram Prasad Yadav.
5. Dev Narayan Yadav, son of Banshidhar Yadav.
6. Bino Yadav, son of Late Bijal Yadav.
7. Ganesh Yadav, son of Pattu Yadav. All serial nos.2 to 7 are resident of village-Bahorva, Police Station-Kusheshwar Asthan, District-Darbhanga.
8. Upendra Narayan Yadav, son of Sitaram Yadav, resident of village-Bisharia, P.S. Singhiya, District-Samastipur.
9. Kamlesh Kumar Gupta, son of Ram Parikshan Prasad Gupta, resident of village-Bargaon, P.S. Kusheshwar Asthan, District-Darbhanga. Petitioners. Versus 1. The State Of Bihar.
2. Mahadev Yadav, son of Late Krishna Chandra Yadav, resident of village-Jhajhara, Tola-Bahorva, P.S. Kusheshwar Asthan, District-Darbhanga. ..Opposite Parties. ---------------------------------- For the Petitioners: Mr. Jagdish Prasad Singh, Advocate. For the State : Mr. Dashrath Mehta, A.P.P. ---------------------------------- O R D E R 7.19.1.2012. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 2.11.2007 passed by the Additional Chief Judicial 2 Magistrate, Benipur in Bahera P.S. Case No. 258 of 2005, taking cognizance of the offence under Sections 417, 419, 420, 421, 468, 471 and 120-B of the Indian Penal Code against the petitioners.
2. It is pertinent to mention here that initially this application was filed on behalf of the above named nine petitioners, but it appears that the aforesaid impugned cognizance order with respect to the petitioner no.4, Ramadhar Yadav, petitioner no.8, Upendra Yadav and petitioner no.9, Kamlesh Kumar Gupta, has already been quashed by a Bench of this Court vide order dated 24.2.2010. The supplementary affidavit filed on behalf of the petitioners reveals that the petitioner no.1, Mostt. Chano Devi and petitioner no.2, Hem Narayan Yadav have died during the pendency of this application on 21.4.2011 and 15.4.2008 respectively. As such, now, this application survives only in respect of the remaining four petitioners, namely, petitioner no.3, Ram Narayan Yadav, petitioner no.5, Dev Narayan Yadav, petitioner no.6, Bino Yadav and petitioner no.7, Ganesh Yadav.
3. In brief, the case is that on the basis of the complaint petition filed by the complainant-informant- 3 opposite party no.2, Mahadev Yadav, numbered as C.R. No.266 of 2005, as sent under Section 156(3) of the Code of Criminal Procedure to the concerned Police Station, Bahera P.S. Case No.258 of 2005 was instituted on 8.12.2005 under Sections 417, 419, 420, 421, 468, 471 and 120-B of the Indian Penal Code against the accused-petitioners. It is alleged by the complainant-informant-opposite Party No.2, Mahadev Yadav, that he and his wife got executed four sale deeds from the accused-petitioner no.1, Mostt. Chano Devi (since dead), out of which sale deed no.2019 dated 17.2.2004, was in the name of his wife, Amala Devi, sale deed nos.7300 and 7301 dated 26.8.2004, were in the names of his two minor sons, Rakesh Yadav and Mukesh Yadav and sale deed no.7302 dated 26.8.2004, was in his name. After execution of the aforesaid four sale deeds he came in possession of the purchased land. Rajgir Rai, the brother-in-law of the accused-petitioner no.1, Mostt. Chano Devi (since dead) under conspiracy got filed Bahera P.S. Case No.6 of 2005 dated 15.1.2005 through the accused-petitioner no.1, Mostt. Chano Devi (since dead) against the complainant-informant- opposite party no.2 and others in which the police on investigation submitted the final form showing the dispute 4 civil in nature. It has further been alleged by the complainant-informant-opposite party no.2 that accused- petitioner no.7, Ganesh Yadav, accused-petitioner no.3, Ram Narayan Yadav, accused-petitioner no.2, Hem Narayan Yadav (since dead), who were witnesses in the aforesaid case lodged by the accused-petitioner no.1, Mostt. Chano Devi (since dead) had full knowledge of purchasing the land by him from the accused-petitioner no.1, Mostt. Chano Devi (since dead). In spite of that the accused-petitioner no.1, Mostt. Chano Devi (since dead) filed C.R. No.45 of 2005 in the court of the S.D.J.M., Biroul (Benipur) against the complainant-informant-opposite party no.2 and others, on the basis of which Kusheshwar Asthan P.S. Case No.132 of 2005 was instituted on 9.10.2005 which is under investigation. It is also alleged that the accused-petitioner no.1, Mostt. Chano Devi (since dead) under conspiracy by concealing the facts regarding the execution of the sale deed in favour of the opposite party no.2, again executed the forged five sale deeds on 20.10.2005 in favour of accused-petitioner no.2, Hem Narayan Yadav (since dead), accused-petitioner no.3, Ram Narayan Yadav, accused-petitioner no.5, Dev Narayan Yadav, accused-petitioner no.6, Bino Yadav and accused- 5 petitioner no.7, Ganesh Yadav. In the sale deeds the accused- petitioner no.4, Ramadhar Yadav, was identifier and accused- petitioner no.8, Upendra Narayan Yadav, was the witness. When the opposite party no.2 came in knowledge regarding the execution of the sale deed on rumour then he enquired the matter from the Registry Office and got the certified copy of the aforesaid sale deeds. Thereafter, the complainant- informant-opposite party no.2 arranged Panchayti on 5.11.2005 in which the accused-petitioners admitted their guilt and assured to rectify their mistake according to law but lastly they refused, as such, the accused-petitioners committed forgery with him.
4. After investigation of the aforesaid Bahera P.S. Case No.258 of 2005 registered on the basis of complaint case bearing C.R. No.266 of 2005 filed on behalf of the opposite party no.2, police submitted the chargesheet in the court of the Additional Chief Judicial Magistrate, Benipur, who took the cognizance of the offence under the aforesaid section against the accused-petitioners through the impugned order dated 2.11.2007 which is impugned through this application.
5. Learned counsel appearing on behalf of the 6 remaining petitioners, namely, petitioner No.3, Ram Narayan Yadav, petitioner no.5, Dev Narayan Yadav, petitioner no.6, Bino Yadav and petitioner no.7, Ganesh Yadav, made submission that the aforesaid petitioners are bonafide purchaser of the land in dispute from the accused-petitioner no.1, Mostt. Chano Devi (since dead), so no inference could be drawn against them about committing forgery by them in executing the sale deeds. Moreover, the accused-petitioner no.1, Mostt. Chano Devi (since dead), and her sons have filed the Title Suit No.3 of 2006 in the court of the Sub-Judge, Benipur, Darbhanga, against the complainant-informant- opposite party no.2, Mahadev Yadav, his wife, Smt. Amala Devi and two minor sons, namely, Rakesh Yadav and Mukesh Yadav, making the petitioner as a formal defendant with the contention that on the basis of the agreement to execute the sale deed in favour of the accused-petitioners, namely, petitioner no.2, Hem Narayan Yadav (since dead), petitioner No.3, Ram Narayan Yadav, petitioner no.5, Dev Narayan Yadav, petitioner no.6, Bino Yadav and petitioner no.7, Ganesh Yadav, on 16.3.2001, she executed the sale deed in their favour on 20.10.2005 stating further about committing forgery by the complainant-informant-opposite 7 party no.2 to got execute the sale deeds behind back and also to declare the same as null, void and ineffective.
6. From perusal of the complaint petition bearing C.R. No.266 of 2005, which is the basis of the F.I.R. of Bahera P.S. Case No.258 of 2005, it appears that the allegation of the complainant-informant-opposite party no.2 is that the accused-petitioner no.1, Mostt. Chano Devi (since dead) executed the four sale deeds in favour of him, his wife and two minor children on 26.8.2004 and in spite of that the accused-petitioner no1., Mostt. Chano Devi (since dead) executed the forged five sale deeds regarding the same land in favour of the accused-petitioners, namely, petitioner no.2, Hem Narayan Yadav (since dead), accused-petitioner no.3, Ram Narayan Yadav, accused-petitioner no.5, Dev Narayan Yadav, accused-petitioner no.6, Bino Yadav and accused- petitioner no.7, Ganesh Yadav, on 20.10.2005, who had knowledge about the execution of the sale deed by the accused-petitioner no.1, Mostt. Chano Devi (since dead), in favour of him, his wife, Smt. Amala Devi and two minor sons on 26.8.2004.
7. Admittedly, the petitioners, namely, petitioner no.3, Ram Narayan Yadav, petitioner no.5, Dev Narayan 8 Yadav, petitioner no.6, Bino Yadav and petitioner no.7, Ganesh Yadav, are purchasers and not the seller. It also appears from Annexure-5 to the supplementary affidavit filed on behalf of the petitioners that the accused-petitioner no.1, Mostt. Chano Devi (since dead) and his four sons have filed the Title Suit No.3 of 2006 against the complainant- informant-opposite party no.2, Mahadev Yadav, his wife, Smt. Amala Devi, and two minor sons, namely, Mukesh Yadav and Rakesh Yadav, seeking their title in respect of land in dispute and also declaring the sale deed , as alleged to be executed in favour of the complainant-informant-opposite party no.2, his wife, Amala Devi and two minor sons, namely, Mukesh Yadav and Rakesh Yadav, ineffective and void. The complaint petition of the opposite party no.2, which is the basis of the F.I.R. of Bahera P.S. Case No.258 of 2005, disclosed the dispute is of pure civil in nature and in the Title Suit, as filed on behalf of the accused-petitioner no.1, Mostt. Chano Devi (since dead) and her four sons against the complainant-informant-opposite party no.2 and the purchasers/ petitioner no.3, Ram Narayan Yadav, petitioner no.5, Dev Narayan Yadav, petitioner no.6, Bino Yadav and petitioner no.7, Ganesh Yadav, are also formal 9 parties.
8. Under the aforesaid facts and circumstances, initiation of the criminal proceeding against the petitioner no.3, Ram Narayan Yadav, petitioner no.5, Dev Narayan Yadav, petitioner no.6, Bino Yadav and petitioner no.7, Ganesh Yadav, through the impugned order dated 2.11.2007 passed by the Additional Chief Judicial Magistrate, Benipur in Bahera P.S. Case No.258 of 2005, for the civil liability would be an abuse of the process of the court.
9. Accordingly, the impugned order dated 2.11.2007, passed by the Additional Chief Judicial Magistrate, Benipur, in Bahera P.S. Case No.258 of 2005, taking of cognizance against the aforesaid petitioners for the offence under Sections 417, 419, 420, 421, 468, 471 and 120- B of the Indian Penal Code, is hereby quashed and the application is allowed. (Rajendra Kumar Mishra, J) P.S.