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Judgment
Honourable Mr. Justice Amaresh Kumar Lal
The accused petitioners have preferred this revision application against the order dated 12.04.2001 passed by the learned Judicial Magistrate, Ist Class, Sheikhpura in Complaint Case No.3C/2001 by which a prima facie case has been found against them for facing trial under Sections 420, 467, 468 and 471 of the I.P.C.
The prosecution case, in brief, is that between 4.12.2000 and 9.12.2000 the occurrence took place. Shiva Kumar Prasad, father of the complainant, opposite party no.2 purchased 53 decimals of land of Mauza-Bajitpur, Thana & District- Sheikhpura bearing Khata No.105, Plot No.33 vide registered sale deed dated 12.11.1990 from Md. Ezad Kabir. Thereafter, the name of Shiv Kumar Prasad was mutated vide Mutation Case No.107 and later on the land was mutated in the name of the complainant vide Jamabandi No.169 and accordingly, the rent receipts are issued and he has been in possession of the land. On 4.12.2000, the accused petitioners making conspiracy executed a deed of sale with regard to 28 decimals of land arising out of the aforesaid 53 decimals of land and got the sale deed registered on 9.12.2000. In that sale deed, the accused Abdul Raquib and Md. Ezad are the executants and accused nos. 3 to 15 Parmeshwar Yadav and others are purchasers and accused Shailendra Kumar, Sanjay Kumar & Saiyad Ekbal are witnesses to the sale deeds. The accused have prepared the forged sale deed with intention to usurp the land of the complainant. The accused petitioner nos. 1 and 3 have no right to transfer the aforesaid land. A complaint to this effect was filed in the court of learned Chief Judicial Magistrate, Sheikhpura, which was registered as Complaint Case No.3C/2001. Later on the case was transferred to the court of learned Judicial Magistrate, Ist class. After inquiry, a prima facie case has been found against the accused vide the impugned order and an order has also been passed for issuance of summons against the accused to face the trial. Out of 18 accused, 3 have preferred this revision application.
The learned counsel for the petitioners submits that the present case is out and out a false case. Even as per the complaint petition, it is alleged that the father of the complainant purchased 53 decimals of land bearing Khata No.105, Khesra No.33 from Md. Ezaz Kabir, son of late Fauzal Kabir of village-Ramjanpur, Sheikhpura. Faizul Kabir were three brothers and one sister and the present land was recorded Khatiyani land of the grand mother namely Umatul Soghra. After the death of Mostt. Umatul Soghra, the grant mother of petitioner nos. 1 and 2 and Nana of petitioner no.3 came in possession of the aforesaid land and Dadi and Nani of the petitioners became the title holder as she was the only daughter of Most. Umataul Soghra. After the death of Dada, Dadi, Nana and Nani of petitioners respectively, all his three sons and one daughter i.e. father of petitioner nos. 1 and 2 as well as the father of executant of the deed from whom the father of the complainant purchased the land as well as the mother of petitioner no.3 became the owner and title holder of the plot in question. The petitioners'' ancestors as well as the ancestors of the executant of the deed in favour of the father of the complainant are from the same branch which is more evident from the fact that title suit was filed by Dr. Ahmad Kabir in the court of Sub-Judge, IV, Munger vide Title Suit No.63/1977. The plaint also shows the relationship between the executant father of the complainant and the petitioners. A land ceiling proceeding vide Case No.240/76-77 was initiated against the ancestors of the petitioners and an objection was filed by Md.Ezaz Kabir, the executant of the sale deed in favour of the father of the complainant. In the present plot, all the co-sharers have got their share. The mother of petitioner no.3 has half share of her brother, whereas, the father of petitioner nos. 1 and 3 as well as the father of the executant of the sale deed of the father of the complainant altogether got equal share. As such, father of the executant of the sale deed of the complainant had no right and title to sell the entire plot to any one. There was also a proceeding u/s 144 Cr.P.C. for the same land and it was considered that it was a civil dispute and the complainant after considering that he is not going to succeed in the 144 Cr.P.C. proceeding, filed the complaint case. 4. The learned counsel for the petitioners further submits that it is out and out a civil matter and criminal proceeding is abuse of the process of the court. The purchasers may have any grievance against the executants, but the purchasers have not filed the complaint petition. No loss or injuries has been caused to the complainant. No offence is made out under Sections 420, 467, 468 and 471 of the I.P.C. against the accused. Dispute is purely of civil nature.
The learned counsel for the petitioners has placed reliance upon a decision in the case of Devendra and Others Vs. State of U.P. and Another,
No one appears on behalf of the opposite party no.2.
The learned counsel for the State submits that at the time of taking cognizance, the learned Magistrate is not required to see the defence of the accused and the learned Magistrate has passed the impugned order on the basis of the materials on record and as such, no interference in the impugned order is required by this Court.
After hearing the learned counsel for the petitioners and the learned counsel for the State, it appears that the complainant is aggrieved by the deed of sale executed by the executant petitioner nos. 1 and 3 vide registered sale deed dated 9.12.2000 in favour of the accused 3 to 15 and the accused 16, 17 and 18 are the witnesses of the sale deed and the copy of the registered sale deed has also been filed in the complaint petition. The sale deed in question would show that as to how the vendors have right and title over the land. It has been alleged that 28 decimals of land arising out of 53 decimals of the land purchased by the father of the complainant was transferred in favour of the accused, therefore, the forgery, if any, has been committed against the purchasers, but, the purchasers have not filed any complaint case. Moreover, the question as to whether any person has a right to execute a deed of sale with respect to any land in favour of some one is purely a question of title and is of civil nature and the person in favour of whom the deed had been executed and if it is found that it has not been executed by the original owner, then the vendee may have the grievance, but in this case, the vendees have not filed any complaint case against the vendors. No other grievance has been raised by the complainant. From the facts and circumstances of the case, it appears that the execution of the deed of sale is purely a question of civil nature and the proceeding under the Criminal Procedure Code at the instance of the complainant is an abuse of the process of the court, which should not have allowed to be continued.
Considering the facts and circumstances stated above and relying upon the aforesaid decision of the Hon''ble Supreme Court, in my opinion, the impugned order is not fit to be sustained. The impugned order is set aside.
In the result, this application is allowed.