Ramchandra Prasad Agrawal & Anr. vs The State Of Bihar & Anr.

The petitioners have questioned the legality of the order dated 13.07.2016 passed in Complaint Case No. 920C of 2015 (G.R. No. 635/2015) by the learned Chief Judicial Magistrate, Lakhisarai (in short the C.J.M., Lakhisarai), who, finding, prima facie, case under Sections 406, 420 and 465 of the Indian Penal Code (in short the I.P.C.), has directed issuance of process against the petitioners for their appearance to face trial.

In nutshell, the prosecution case is that the complainant, namely, Pramod Kumar Agrawal, who is opposite party No. 2 herein, filed a complaint case on 11.05.2015 in the Court of learned C.J.M., Lakhisarai, alleging, inter alia, therein that way-back in the year 1966, a partition-deed was prepared in presence of his grand-parents and their four sons, which was duly registered and in pursuance thereof, all the parties to the partition suit took possession over their respective shares and have been continuing in peaceful possession of the same.

It is alleged by the complainant/opposite party No. 2 that the land situated at Khesra Nos. 435, 436 and Khata No. 69 though divided equally between the four sons, but their specific shares remain undemarcated. Taking the advantage of the same, petitioner No. 1, namely, Ramchandra Prasad Agrawal, who is the own uncle of the complainant/opposite party No. 2, with the help of other accused persons, manufactured a fake document dated 02.07.1986 and on the basis of the aforesaid document of 1986, the accused persons, namely, Ramchandra Prasad Agrawal and Sanjay Kumar Agrawal (petitioner Nos. 1 and 2 herein respectively) fraudulently sold complainant’s shares of land to one Neelam Roy, W/o Arun Kumar Roy and, thus, they have cheated him.

It is further alleged that on 12.08.2010, once again, accused/Sanjay Kumar Agrawal further sold some part of the land situated in Khesra No. 435 and Khata No. 69 to one Rani Kumari and Rajesh Kumar through sale-deed dated 12.08.2010. All the aforesaid sales were effected on the basis of false deed/document created on 02.07.1986 by the aforesaid accused persons.

Thus, all the accused persons, as named in the complaint petition, have conspired to sell the shares of the complainant’s land on the basis of a deed created in the year 1986 and, thus, they, with fraudulent intention, cheated the complainant/opposite party No. 2, knowing full-well that they are selling the complainant’s shares without there having any valid authority for the same.

On the basis of the aforesaid complaint, a complaint case, bearing No. 188C of 2015, was instituted and the same was forwarded to Surajgarha Police Station under Section 156(3) of the Code of Criminal Procedure, 1973 (in short the Cr.P.C.) for registration of an F.I.R. and consequent investigation. On receipt of the same, an F.I.R. was registered vide Surajgarha P.S. Case No. 68 of 2015, dated 21.04.2015, for the offences under Sections 420, 467, 468, 424 and 120(B)/34 of the I.P.C.

After thorough investigation into the matter, the police submitted final form vide Final Report No. 59 of 2015, dated 23.05.2015, holding the case to be of civil nature.

The complainant/opposite party No. 2 has already filed a protest petition in the Court of learned C.J.M., Lakhisarai, whereafter the learned Trial Court, on receipt of the final form, accepted the same vide order dated 11.12.2015 and proceeded on the protest petition filed on behalf of the complainant/opposite party No. 2, treating it to be a complaint case and as such, a complaint case vide Complaint Case No. 920(C) of 2015 came to be instituted.

Thereafter, in the aforesaid complaint case, viz., Complaint Case No. 920(C) of 2015, the solemn affirmation of the complainant/opposite party No. 2 was recorded on 15.02.2016 and the statements of the enquiry witnesses, namely, Mukund Murari and Binay Bhushan Jha were also recorded on 18.02.2016 and 21.04.2016 respectively.

After having perused and considered the solemn affirmation of the complainant/opposite party No. 2 and the statements of the enquiry witnesses, the learned C.J.M., Lakhisarai vide order dated 13.07.2016, finding, prima facie, case only against two accused persons, namely, Ramchandra Prasad Agrawal and Sanjay Kumar Agrawal, under Sections 406, 420 and 465 of the I.P.C., issued process for their appearance to face trial.

The aforesaid order dated 13.07.2016, passed by the learned C.J.M., Lakhisarai, is under challenge in the present petition.

Mr. Mrigendra Kumar, learned Advocate for the petitioners, assisted by Mr. Ambika Bhagat, learned counsel, submits that the petitioners and the complainant/opposite party No. 2 are agnates and are descendants of common ancestors and a partition between them has already taken place through a registered-deed of partition way-back in the year 1966 and after the aforesaid partition, all the agnates including the petitioners and the complainant/opposite party No. 2 came into possession of their respective shares and, accordingly, land was mutated in their names and the Jamabandi was also created, whereupon they started paying revenue to the Government.

It has also been submitted on behalf of the petitioners that after the partition, the respective shares of land was clearly demarcated and only thereafter, all the co-sharers/co-parceners came into possession over their respective shares of their demarcated land.

Mr. Kumar, learned Advocate for the petitioners, advances his arguments by submitting that, by way of registered sale-deeds, the petitioners have sold their respective shares in favour of the purchasers, who paid the requisite consideration amount. He submits that the sale of one’s share in land in favour of another person through a registered sale-deed, upon receipt of due consideration, is purely a civil transaction. The petitioners were duly competent and legally entitled to execute the said sale-deeds in respect of their respective shares, and, therefore, they cannot be prosecuted merely on the basis of the statement of an agnate (Gotiya), who has also been allotted his respective share pursuant to a partition.

From the perusal of the complaint petition as well as the solemn affirmation of the complainant/opposite party No. 2, it is very much evident that the instant complaint case has been filed merely alleging sale of undemarcated land, which the complainant/opposite party No. 2 claims to be of his share, but has been sold by the petitioners, who are none else than the agnates of the complainant/opposite party No. 2., and the petitioners have also got their respective shares out of the partition-deed executed in the year 1986.

Learned counsel for the petitioners also points out that the dispute between the parties is purely civil in nature, concerning their respective shares in a piece of undemarcated land. This fact is also borne out from the investigation report submitted by the police, wherein the dispute was found to be purely civil in nature. After conducting a thorough investigation, the police, finding the dispute between the parties to be civil in nature and relating to their respective shares in the land, submitted a final report, which was duly accepted by the learned Trial Court vide order dated 11.12.2015.

It has also been contended on behalf of the petitioners that none of the ingredients of Sections 406, 420 and 465 of the I.P.C. are attracted in the facts and circumstances of the present case, in view of the allegations made in the complaint petition, the solemn affirmation of the complainant/opposite party No. 2 as well as the statements of the enquiry witnesses recorded on oath.

Thus, the learned counsel for the petitioners contends that the order taking cognizance is not only bad in law and on facts, but also suffers from serious infirmity, reflecting non-application of judicial mind on the part of the learned C.J.M., Lakhisarai, who passed the order of cognizance in the most mechanical manner. It is, therefore, contended that the impugned order, being legally unsustainable, is fit to be set aside.

Learned counsel appearing on behalf of the complainant/opposite party No. 2, Mr. Dronacharya, controverts the submissions advanced on behalf of the petitioners by submitting that from perusal of the complaint petition, the solemn affirmation of the complainant/opposite party No. 2 as well as the statements of the enquiry witnesses recorded on oath, a prima facie case of cheating and fraud is undoubtedly made out. He submits that, by the acts of the petitioners, the complainant/opposite party No. 2 has not only been cheated but has also been defrauded. It is further submitted that the share of land belonging to the complainant/opposite party No. 2 has been sold by the accused/petitioners without verifying the relevant records to ascertain whether the said land belonged to them. The land so sold by the accused/petitioners was, in fact, part of the exclusive share of the complainant/opposite party No. 2 and as such, the sale of the said land by the petitioners, suppressing the material facts from the purchasers/buyers, prima facie, constitutes an act of cheating and forgery.

He further submits that the petitioners not only created a false deed in the year 1986, but also, on the basis thereof, executed sale-deeds in favour of various persons after receiving substantial consideration amounts, to which they were neither legally entitled nor competent to claim. He supports the order taking cognizance passed by the learned C.J.M., Lakhisarai, contending that the said order reflects due application of judicial mind and is based upon legally tenable evidence, which has duly been considered by the learned Court while issuing summons, upon having found, prima facie, that a case is made out against the petitioners.

Mr. Shyam Kumar Singh, learned Additional Public Prosecutor for the State, supports the contentions advanced on behalf of the complainant/opposite party No. 2 and, while concluding his submissions, submits that the bona fides of the claims and contentions advanced on behalf of the petitioners as well as the complainant/opposite party No. 2 can be tested and examined only in the course of trial. He further submits that the petitioners may be relegated to the Civil Court to establish their respective claims and contentions.

Heard the learned counsel for the respective parties and perused the documents brought on record as well as appended to the present application in the form of various annexures.

From a perusal of the complaint petition as well as the documents brought on record, the following facts come to the fore, which shed important light on the true nature of the allegations levelled by the complainant/opposite party No. 2 against the petitioners:-

Thus, the entire complaint petition is replete with almost identical nature of allegations with respect to selling of land by the petitioners, which was not demarcated and only on that premise, the instant criminal prosecution has been initiated against the petitioners.

Perusal of the complaint petition reflects the true nature of allegation.

The complainant/opposite party No. 2, being the son of late Kanhaiya Lal Agrawal, who was none other than the full brother of petitioner No. 1, namely, Ramchandra Prasad Agrawal, has lodged the present case being aggrieved by the sale of the pieces of undemarcated land, as claimed by him, by the petitioners through registered sale-deeds. Initially, a complaint case was filed, which was referred to the police for investigation under Section 156(3) of the Cr.P.C., whereupon Surajgarha P.S. Case No. 68 of 2015, dated 21.04.2015, was registered for the offences under Sections 420, 467, 468, 424 and 120(B)/34 of the I.P.C. The police, after conducting a thorough investigation into the matter, did not find any evidence with regard to any criminal act having been committed by the petitioners and, accordingly, treating the dispute to be purely civil in nature, submitted a final report. The said final report was duly accepted by the learned Trial Court. Thereafter, upon filing of a protest petition by the complainant/opposite party No. 2, which was treated as a complaint petition, the instant criminal prosecution came to be instituted against the petitioners.

The plain reading of the entire complaint petition, the solemn affirmation of the complainant/opposite party No. 2, and the statements of the enquiry witnesses recorded on oath, indisputably reveal that the instant criminal prosecution has been instituted arising out of a purely civil dispute between the parties with respect to their respective shares in an undemarcated piece of land, which was held by all the co-sharers after partition. The solemn affirmation of the complainant/opposite party No. 2 also substantiates the purely civil nature of the dispute between the parties concerning their respective shares in the said property. Save and except for making bald allegations of fraud and cheating against the petitioners, no documentary evidence of sterling quality has been brought on record which could substantiate, buttress or fortify the allegations levelled by the complainant/opposite party No. 2 so as to make out the necessary ingredients of the offences punishable under Sections 406, 420 and 465 of the I.P.C.

At this juncture, it would be germane to consider the scope, ambit, parameters and the ingredients of Sections 406, 420 and 465 of the I.P.C. in order to examine as to whether in the backdrop of the allegations as levelled in the complaint petition, any offence, under the aforesaid sections of the I.P.C., could be made made out against the petitioners for sustaining the instant prosecution against them.

Section 405 of the I.P.C. defines the offence of “criminal breach of trust”, which stipulates that:-

The offence under Section 405 of the I.P.C. is made punishable under Section 406 of the I.P.C., which reads as follows:-

Thus, for Section 406 of the I.P.C. to get attracted, there must be a criminal breach of trust in terms of Section 405 of the I.P.C. The essential ingredients for invoking Section 405 of the I.P.C. are enumerated as hereunder:-

As per Black’s Law Dictionary, the definition of the term ‘Entrustment’ means to give (a person), responsibility for something, usually after establishing a confidential relationship.

In the context of Section 406 of the I.P.C. proceedings of any criminal prosecution may be quashed if the complaint or F.I.R., even if taken at the face value, does not disclose the essential ingredients of the offence. A clear absence of allegations regarding entrustment or dishonest misappropriation can be a ground for quashing.

The Hon’ble Supreme Court in the case of Anand Kumar Mohatta & Anr. vs. State (N.C.T. of Delhi), Department of Home and Anr., reported in (2019) 11 SCC 706, emphasized the need to ascertain if the facts make out an offence under Section 406 of the I.P.C.

Section 406 of the I.P.C. prescribes the punishment for the offences of criminal breach of trust. This provision plays a crucial role in upholding fiduciary relationship and ensuring accountability for the misappropriation of property entrusted to another. Criminal breach of trust, as defined under Section 405 of the I.P.C., is a nuanced offence, requiring a careful examination of the elements of entrustment, dishonest misappropriation and the violation of legal or contractual duties.

The Hon’ble Supreme Court in the case of Radheyshaym & Ors. vs. State of Rajasthan & Anr., reported in (2024) SCC OnLine SC 2311 and Rashmi Kumar (Smt) vs. Mahesh Kumar Bhada, reported in (1997) 2 SCC 397, has culled out the aforesaid ingredients as discussed herein to constitute the offence of criminal breach of trust and has laid down as follows:-

In view of the legal conspectus of the ingredients, scope and parameters governing an offence under Section 406 of the I.P.C., as discussed hereinabove, the case at hand is required to be examined to determine whether the essential ingredients of an offence under Section 406 of the I.P.C. are made out against the petitioners or not.

The bare perusal of the averments made in the complaint petition as well as the statement of the complainant/opposite party No. 2, recorded on oath, unquestionably reveals that the dispute is essentially civil in nature and relates to the sale of an undemarcated share in the land. Nowhere in the entire complaint has it been alleged that the petitioners were entrusted with any property or valuable security, which they subsequently misappropriated. The allegations are confined to fraud and cheating and that too with reference to the sale of a piece of land by the petitioners through a registered sale-deed.

Considering the nature of the allegations levelled against the petitioners, it becomes manifestly apparent that the dispute between the parties is nothing but one of rival claims over a piece of land, which the complainant/opposite party No. 2 claims to be undemarcated, whereas the petitioners claim the same to be falling within their share. Such disputed questions of fact, involving rival claims, interests and possession over a particular piece of land, cannot, by any stretch of imagination, be brought within the ambit of the offence contemplated under Section 406 of the I.P.C.

Hence, in the case at hand, none of the essential ingredients of Section 405 of the I.P.C., for which punishment is provided under Section 406 of the I.P.C., are satisfied or attracted against the petitioners so as to warrant their prosecution for the said offence under Section 406 of the I.P.C.

The basic and essential ingredients of the offence of ‘cheating’ as defined under Section 420 of the I.P.C. are:-

Thus, to constitute an offence under Section 420 of the I.P.C., there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived to deliver any property or to make or alter or destroy wholly and in part a valuable security.

In the aforesaid connection, the judgment of Hon’ble Supreme Court as laid down in cases of Prof. R. K. Vijayasarathy and Anr. vs. Sudha Seetharam and Anr., reported in (2019) 16 SCC 739; A. M. Mohan vs. State represented by SHO and Anr., reported in (2024) 12 SCC 181; Mohammed Ibrahim and Ors. vs. State of Bihar and Anr., reported in (2009) 8 SCC 751 and Sarabjit Kaur vs. The State of Punjab and Anr., reported in (2023) 5 SCC 360 are of significant importance, wherein the ingredients and parameters within which the offence of cheating could be made out has decisively been laid down.

Having considered the same, in the case at hand, no offence of cheating could be said to be made out against the petitioners, as there was no fraudulent or dishonest inducement of any person so deceived by the accused persons and the persons who claim to have been deceived, has been induced to deliver any property to the accused persons.

Except for the bald allegations of forgery and cheating levelled against the petitioners, the complainant/opposite party No. 2 has not made out any specific case against them to establish that the petitioners, with fraudulent or dishonest intention, induced any person to deliver any property. The principal allegation is that the petitioners sold certain pieces of land which they claimed to be part of their share, whereas the complainant/opposite party No. 2 claimed the same to be of undemarcated share. The petitioners sold the said pieces of land by way of registered-deeds of sale executed in favour of the purchasers. However, the complainant/opposite party No. 2 has neither taken any steps for cancellation of the registered-deeds of sale executed by the petitioners nor instituted any civil proceedings asserting his title, right or share in respect of the said undemarcated piece of land.

Thus, in the absence of the basic ingredients constituting the offence of cheating, the petitioners cannot be allowed to be prosecuted for the said offence.

None of the ingredients of the offence of cheating as defined under Sections 415 and 420 of the I.P.C. are satisfied in this case against the petitioners and as such, no offence could be held to be made out against them for the aforesaid offence alleged to have been committed under Section 420 of the I.P.C.

Now coming to Section 465 of the I.P.C., which provides “punishment for forgery” and the same has been defined under Section 463 of the I.P.C. as follows:-

To prove an offence under this section, the following basic and essential ingredients must be satisfied:-

In the case at hand, the complainant/opposite party No. 2, except making allegations, has not brought on record any unimpeachable piece of evidence, particularly any documentary evidence, so as to substantiate the charge under Section 463 of the I.P.C. It has been alleged that a false partition-deed was created in the year 1986, on the basis of which the petitioners subsequently executed two sale-deeds, one in the year 2004 and the other in the year 2010, whereby they sold portions of the undemarcated land in which the complainant/opposite party No. 2 also claims to have a share and in absence of any demarcation, the petitioners, by executing the aforesaid sale-deeds, caused wrongful loss to the complainant/opposite party No. 2. However, neither the aforesaid partition-deed of the year 1986, which is alleged to be forged and fabricated, has been challenged before any Court of law by seeking a declaration to that effect, nor has either of the registered sale-deeds executed by the petitioners, on the strength of the said partition-deed, have been challenged before any Court of competent jurisdiction for a declaration that the same are forged and fabricated and, consequently, not legally enforceable.

In the absence of any cogent, credible and unimpeachable evidence, no prosecution under Section 463 of the I.P.C., for which, punishment has been provided under Section 465 of the I.P.C., could be initiated against the petitioners.

Thus, in the conspectus of the aforesaid factual and legal analysis, the impugned order dated 13.07.2016, whereby the learned C.J.M., Lakhisarai, in connection with Complaint Case No. 920(C) of 2015 (G.R. No. 635 of 2015), directed issuance of process against the petitioners for their appearance to face trial, clearly reflects total non-application of judicial mind.

Accordingly, the order dated 13.07.2016 passed by the learned C.J.M., Lakhisarai in connection with Complaint Case No. 920(C) of 2015 (G.R. No. 635 of 2015), being wholly unsustainable in the eyes of law, is, hereby, quashed and set aside. Consequently, all criminal proceedings emanating from Complaint Case No. 920C of 2015 (G.R. No. 635/2015) qua the petitioners are also, hereby, quashed and set aside.

The interlocutory application(s), if any, also stands disposed off accordingly.

The application stands allowed.