Jharkhand High Court
Mrs. Anamika Gautam vs The State Of Jharkhand on 13 December, 2021
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 281 of 2021
with
I.A. No. 2125 of 2021
Mrs. Anamika Gautam, W/o Dr. Nishkant Dubey, aged about 40 years,
R/o Opposite B.Ed. College, Williams Town, P.O. & P.S.-Town
Deoghar, Dist.-Deoghar. ... Petitioner
Versus
1. The State of Jharkhand.
2. The District Registrar-cum-Deputy Commissioner, Deoghar,
officiating from his office of O/o the Deputy Commissioner,
Collectorate Building, P.O. & P.S.-Town Deoghar, Dist.-Deoghar.
3. Shri Rahul Kumar Choubey, Father's name not known, currently
officiating as the Additional District Registrar, officiating from his
office at O/o Additional District Registrar, P.O. & P.S.-Town Deoghar,
Dist.-Deoghar. ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate.
: Mr. Nishant Roy, Advocate.
: Prashant Pallav, Advocate
: Parth Jalan, Advocate
: Mr. Rohan Mazumdar, Advocate.
For the State : Mr. Manoj Kumar, G.A.-III.
: Mr. Aditya Raman, A.C. to G.A.-III.
------
09/ 13.12.2021 Heard Mr. R.S. Mazumdar, learned senior counsel appearing
for the petitioner and Mr. Manoj Kumar, learned G.A.-III for the State.
2. This petition has been filed for quashing of the First
Information Report, registered as Town Deoghar P.S. Case No. 42 of 2021,
for the offence under Sections 406, 420, 467, 468, 471 and 120-B of the
Indian Penal Code and Section 82 of the Registration Act, 1908, pending
in the Court of learned Chief Judicial Magistrate, Deoghar.
3. The First Information Report was lodged by one Rahul Kumar
Choubey, the Additional District Registrar, Deoghar, wherein it has been
contended that vide letter bearing Number 106/2021 dated 19.01.2021,
requested the Station In-charge, Police Station-Town Deoghar to register
an FIR, on the basis of the order dated 18.01.2021 passed in Misc. Case
No. 10 of 2020-21 wherein the O.P. No. 2 had come to the conclusion that
the registration of the sale deed dated 18.08.2019 has been obtained
fraudulently. The registration of the sale deed has been cancelled and
further O.P. No. 2 has directed that FIR be registered against the vendor,
vendee and the witnesses.
4. Mr. R.S. Mazumdar, learned senior counsel appearing for the
petitioner at the outset submits that for the same cause of action, earlier
two FIRs have been lodged, which were registered as Deoghar Town P.S.
Case No. 346 of 2020 and Deoghar Town P.S. Case No. 343 of 2020 for
the same Sections of the Indian Penal Code and Registration Act except
Section 406 of the Indian Penal Code. He submits that both FIRs have
been challenged before this Hon'ble Court in Cr.M.P. Nos.1865 of 2020
and 1846 of 2020 respectively and by the judgment dated 18.03.2021, this
Court has quashed both the FIRs in both the cases. He further submits that
the order dated 18.03.2021 passed by this Court in Cr.M.P. Nos.1865 of
202 and 1846 of 2020 was challenged by the State of Jharkhand before
the Hon'ble Supreme Court in S.L.A. (Crl.) Nos. 4416 -4417 /2021, which
was dismissed by the order dated 12.07.2021. Learned counsel submits
that earlier two FIRs, which are the subject matter of the present case have
already been quashed by this Court and the same was affirmed by the
Hon'ble Supreme Court, filing of the third FIR for the same cause of
action is an abuse of the process of the Court. Learned senior counsel
draws the attention of this Court to the relevant paragraphs of the
judgment delivered in Cr.M.P. Nos.1865 of 202 and 1846 of 2020 and
submits that the entire facts of those cases are verbatim the same.
5. Per contra, Mr. Manoj Kumar, learned G.A.-III appearing for
the State submits that certain new facts have been disclosed in this FIR
that's why the earlier order of this Court has got no bearing for deciding
the present FIR, which is under challenge in the present case. He referred
to page-413 of the counter affidavit and submits that L.P.C. Nos. 177/1258
dated 23.01.2019/27.08.2019 was the basis of the FIR, which was already
cancelled. By way of referring the sale deed at page-477 of the counter
affidavit submits that the Executor of the Power of Attorney has died. He
further referred to Annexure-G (page-504) of the counter affidavit and
submits that by this communication dated 21.09.2016, certain guidelines
have been issued for registration of the FIR and on the basis of this, the
registration of the petitioner has been cancelled.
6. In view of the aforesaid facts, learned counsel appearing for
the State submits that the facts of the present FIR is different from the
earlier two FIRs. By way of referring the affidavit dated 28.01.2019 he
submits that false affidavit has been sworn by the petitioner. In the
background of these facts he submits that earlier two FIRs are different
from the present FIR, which is under challenge in the present round of
litigation.
7. Learned counsel for the State relied upon the judgment in the
case of Smt. Kiran Devi @ Kiran Singh Versus State of Jharkhand &
Ors. in Cr.M.P. No. 1479 of 2005 and submits that the challenge made
therein by the petitioner Kiran Devi of the FIR has been rejected by this
Court. He further relied upon the recent judgment of the Hon'ble Supreme
Court in the case of Jitul Jentilal Kotecha Versus State of Gujarat & Ors.
etc. in Criminal Appeal Nos. 1328-1333 of 2021, wherein the Hon'ble
Supreme Court held that the Power of Attorney Holder executed the deed
on the strength of power of attorney after the death of the executor of the
power of attorney, the criminal case to be filed. He further submits that in
the case of Kaptan Singh Versus State of Uttar Pradesh & Ors. reported
in (2021) SCC OnLine SC 580, the order of the High Court was set aside,
which was allowed by the High Court on the basis that the dispute is civil
in nature. On these grounds he submits that there are materials on record
and the allegations are different from the earlier two FIRs, which have
been quashed by this court.
8. In reply Mr. Mazumdar, learned senior counsel appearing for
the petitioner submits that all the arguments advanced by the learned
counsel appearing for the State has been considered by this Court while
deciding the earlier two Cr.M.Ps. (Supra) and he took the Court to
different paragraphs of the said judgment to substantiate his arguments.
Learned senior counsel relied upon paras-21, 22, 23, 24, 25, 26 and 28 of
the said judgments, which read as under:-
"21. During course of argument, a specific question was put
to the parties as to whether the sale deed dated 29.08.2019,
by which the petitioner No.1 claims to have purchased the
property, exists or not and whether the said document has
been registered or not. All the parties admitted existence of
the said document and also admitted that the said sale deed
is registered.
22. Another question was put to the parties about the
existence of two LPCs, reference whereof finds place in the
affidavit dated 28.01.2019 being LPC No.177 dated
23.01.2019 and LPC No.1258 dated 27.08.2019. All the
parties admitted existence of the said two LPCs. It is not the
case of any of the parties that these two LPCs were not
issued at all and these documents have been manufactured.
23. Now, in view of the penal Sections under which the FIR
is registered, it has to be seen whether the facts and the
allegations made in the FIR attracts any of the offences so
alleged, or the basic ingredients of the offences, as
enumerated above are there in the facts narrated in the FIR.
In simple words, it is to be seen whether any offence
mentioned in the FIR fulfills the aforesaid ingredients of the
penal provision or not. This has to be on the basis of the
narration made in the FIR itself.
24. From the First Information Report and the submission of
the parties, I find the following facts, which are admitted: -
A. There exists a sale deed, which is a registered
document executed on 29.08.2019, by which the power of
attorney holders, namely, Sanjeev Kumar and Kamal
Narayan Jha sold the land in favour of the petitioner
No.1.
B. It is not disputed that the persons, who executed the
sale deed are the power of attorney holders.
C. It is also not the case of any of the parties that some
imposters have executed the sale deed as power of
attorney holders, nor it is a case of impersonation.
D. Existence of LPCs being LPC No.177 dated
23.01.2019 and LPC No.1258 dated 27.08.2019 is
admitted.
E. Affidavit dated 28.01.2019, which has been duly signed
is not in dispute.
25. The allegations, which is born out from the First
Information Report and the arguments are that: -
A. The land in question was purchased by the informant
through power of attorney holder, namely, Chandra
Bhushan Ojha in the year 1994 and the same land was
purchased by the petitioners, which was sold by the power
of attorney holders, namely, Sanjeev Kumar and Kamal
Narayan Jha vide registered sale deed No. 770 dated
29.08.2019. Thus, the informant has been cheated.
B. The affidavit dated 28.01.2019 contains reference of
two LPCs, one being LPC No.177 dated 23.01.2019 and
the second being LPC No.1258 dated 27.08.2019. As the
second LPC has been issued on much later date than the
swearing date of the affidavit, the same could not have
been incorporated in the affidavit dated 28.01.2019,
thereby the affidavit seems to be manufactured and forged
document.
C. There is a huge cash transaction, which is absolutely
illegal and the same is a criminal offence.
D. The sale deed was not properly valued.
26. The aforesaid are the allegations levelled in the First
Information Report, whereas, during arguments, counsel for
the State came up with some new facts, which is not there in
the First Information Report and according to him, the said
facts are gathered during investigation and also constitutes
an offence. The new facts are as follows:-
A. The original vendors have stated that they have not
received any money in lieu of sale from the power of
attorney holders. (but, surprisingly, in the written
notes the original land owners have stated that some
amount has been paid to them).
B. In connivance with the petitioners, the LPCs were
issued by the officials, which could not have been
issued.
C. Power of Attorney Holders says that he has not
received any money from the petitioners in lieu of the
sale, rather the money which he has received was in
respect of some other transaction.
28. It has been admitted by the informant that the LPC,
which stood in her favour including the jamabandi were
cancelled. Miscellaneous Appeal challenging the said
cancellation was also dismissed and the writ petition is
pending before this High Court. It is also evident from the
First Information Report that the land was sold to these
petitioners vide sale deed No.770 dated 29.08.2019 executed
by Sanjeev Kumar and Kamal Narayan Jha, who claimed to
be the power of attorney holders of the original land owners.
There is no allegation that some imposters have executed the
deed nor there is allegation that there is no existence of the
registered sale deed. If that be so, at best, it can be said that
the petitioners have purchased a land from the persons, who
did not have any valid right, title, interest or possession over
the property. In the alternative, it can be said that the power
of attorney holders has sold a land to the petitioner No.1
without having any title nor the owners had any title."
9. Learned senior counsel further submits that the Memo No.
930 dated 201.9.2016 has been challenged by one Dhanya Bhooti
Enterprises in W.P.(C) No. 515 of 2021, which is the proprietorship firm
of this petitioner, wherein the proceedings of Revenue Case No. 15 of
2020-21 was kept in abeyance till further orders of this Court.
10. So far as the LPCs, pointed out by Mr. Manoj Kumar, learned
counsel appearing for the State is concerned, which was the subject matter
of the previous two FIRs and with regard to the LPCs, at paragraphs- 22
and 62 of the said judgment, this Court has recorded as under:-
"22. Another question was put to the parties about the
existence of two LPCs, reference whereof finds place in the
affidavit dated 28.01.2019 being LPC No.177 dated
23.01.2019 and LPC No.1258 dated 27.08.2019. All the
parties admitted existence of the said two LPCs. It is not the
case of any of the parties that these two LPCs were not
issued at all and these documents have been manufactured.
62. So far as the allegation that the affidavit sworn by the
petitioner No.2, i.e., affidavit dated 28.1.2019 before the
Notary is concerned, I find that there is an allegation that
the reference of LPC dated 27.8.2019 has been incorporated
in the said affidavit, which was sworn on 28.01.2019. It is
the case of the informant and the State that the reference of
the said LPC has been extrapolated in the affidavit at a later
stage. It may be noted here that in the said affidavit, there is
reference of another LPC being LPC No.177 dated
23.01.2019. It is an admitted case of the parties that both
these two LPCs existed and has been prepared by the
authority competent to do so. It is not the case that the LPC
dated 27.08.2019 is manufactured one. The opposite parties
harp heavily that since in the affidavit dated 28.01.2019, the
reference of LPC dated 27.08.2019 has been extrapolated,
the entire affidavit becomes a manufactured document and,
thus, Section 467, 468 and 471 of the Indian Penal Code
would be attracted. Both the LPCs are on record and the
contents of the same have been admitted by all the parties.
The first LPC, i.e., 177 dated 23.01.2019 mentions that on
application of Kamal Narayan Jha, an enquiry was
conducted and it was found that in Register II, the property
was registered in the name of Balai Chandra Ghosh. Vide
order No. 03/05 of the Circle Officer, the Khata was opened
in the name of Smt. Kiran Devi (informant herein), but again
vide order No.19/05, of the Additional Collector, Deoghar,
and memo No.246 dated 31.03.2005, name of Kiran Devi
has been removed and the old Jamabandi was restored. This
was the sum and substance of the first LPC.
In the second LPC, it has been mentioned that earlier
LPC No.177 dated 23.01.2019 was issued, after proper
verification and in the said LPC it has been mentioned that
the land is not surveyed and as per Register II, name of
Balai Chandra Ghosh has been reflected. From matching the
aforesaid two LPCs, it would be crystal clear that there is no
variance of facts in the two LPCs. The second LPC merely
reiterates what has been narrated in the first LPC."
11. It is an admitted position in para-3 of the judgment i.e.
arguments of the petitioner in the earlier judgments passed by this Court in
Cr.M.P. Nos.1865 of 2020 and 1846 of 2020 that the dispute is civil in
nature and Original Suit No.71 of 2019 before the learned Civil Judge
Senior Division-cum-Additional Chief Judicial Magistrate, Deoghar is
pending and has also filed a Miscellaneous Civil Application No.252 of
2019 for adding this petitioner as defendant therein. Further, a Civil
Miscellaneous Application No.253 of 2019 has also been filed by the
informant praying for a decree of declaration to the effect that the sale
deed No.770 of 2019 executed in favour of the petitioner be declared as
void-ab-initio and illegal. The same was considered by this Court in para-
60 of the judgment, which reads as under:-
"60. Further, in the present case, I find that it is an admitted
case of the informant, which bore out during the arguments
advanced by him and also from the written arguments that
her jamabandi was cancelled for which a civil suit is
pending before the competent Court and in the said civil
proceeding, the sale deed executed in favour of this
petitioner is also under challenge. It is also evident that
before executing and registering the sale deed in favour of
petitioner No.1, the jamabandi of the informant already
stood cancelled."
12. The case of Md. Ibrahim & Others versus State of Bihar &
Anr. reported in (2009) 8SCC 751 has also been considered by this Court
in para-53 of the judgment passed in Cr.M.P. Nos.1865 of 2020 and 1846
of 2020, which reads as under:-
"53. The issue involved here, more or less, has been set at
rest by the Hon'ble Supreme Court in the case of Md.
Ibrahim & Others versus State of Bihar & Another reported
in (2009) 8SCC 751. In the aforesaid case of Md. Ibrahim
(supra) I find that there was an allegation that without
having any connection with the land and without having any
title, a person, having no title thereto, had executed and
registered sale deeds in favour of other persons. In that case,
the seller was an accused, so were the purchasers, who
purchased the property. The aforesaid case, on amongst
other sections, was registered under Sections 420, 467, 471
of the Indian Penal Code. The facts of selling someone's
property by another person, who does not have any title, is
similar to this case also. In the aforesaid judgment, the
Hon'ble Supreme Court in paragraphs 13 to 16 has
discussed as to what is the condition precedent for an
offence under Section 467 and 471 of the Indian Penal Code.
In paragraph 14, the Hon'ble Supreme Court has held that a
person is said to have made a "false document", if (i) he
made or executes a document; or (ii) he altered or tampered
a document or (iii) he obtained a document by practicing
deception, or from a person not in control of his senses."
13. Section 82 of the Registration Act, 1908 has also been
considered by this Court in para-64 of the said judgment, which reads as
follows;-
64. So far as the attraction of Section 82 of the Registration
Act is concerned, from the facts of this case, as narrated in
the FIR and also from the submission of the parties, I find
that no false statement has been made before the Registering
Authority. Admittedly, on the date of registration of the sale
deed in favour of the petitioner, the Jamabandi of the
informant stood cancelled. Further, admittedly, it is not a
case of impersonation. No false document was produced
before the Registering Authority. In absence of all these
ingredients Section 82 of the Registration Act is not attracted
in this case. Reference of Section 82 of the Registration Act
has been incorporated in the FIR without any factual basis.
14. In order to demonstrate the offence of criminal breach of trust
group of entrustment is one of the ingredients. In the case in hand how the
entrustment has been took to the petitioner is lacking and the allegation for
the offence under Section 406 of the Indian Penal Code is not attracted.
The false document was considered by this Court in the judgment of
earlier two Cr.M.Ps. at para-39, which reads as under:-
"39. So, for the purpose of forgery as mentioned in Section
467, 468 and 471 of the Indian Penal Code read with the
definition, i.e., Section 463 of the Indian Penal Code, there
has to be an existence / making of a false document. What is
making of a false document is enumerated in Section 464 of
the Indian Penal Code. For better appreciation, it is
necessary to quote Section 464 of the Indian Penal Code,
which reads as under:-
464. Making a false document-A person is said to
make a false document or false electronic record -
First. - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part
of a document;
(b) makes or transmits any electronic record or part
of any electronic record;
(c) affixes any electronic signature on any electronic
record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that
such document or part of document, electronic record
or electronic signature was made, signed, sealed
executed, transmitted or affixed by or by the authority
of a person by whom or by whose authority he knows
that it was not made, signed, sealed, executed or
affixed; or
Secondly.-Who, without lawful authority, dishonestly
or fraudulently, by cancellation or otherwise, alters
a document or an electronic record in any material
part thereof, after it has been made, executed or
affixed with electronic signature either by himself or
by any other person, whether such 22 person be
living or dead at the time of such alteration; or
Thirdly. - Who dishonestly or fraudulently causes
any person to sign, seal, execute or alter a document
or an electronic record or to affix his electronic
signature on any electronic record knowing that such
person by reason of unsoundness of mind or
intoxication cannot, or that by reason of deception
practiced upon him, he does not know the contents
of the document or electronic record or the nature of
the alteration."
15. The Registration Act was the subject matter in the case of
Satya Pal Anand Versus State of M.P., reported in (2016) 10 SCC 767,
wherein in para-41, the Hon'ble Supreme Court has held as follows:-
"41. Section 35 of the Act does not confer a quasi-judicial
power on the Registering Authority. The Registering Officer
is expected to reassure that the document to be registered is
accompanied by supporting documents. He is not expected to
evaluate the title or irregularity in the document as such. The
examination to be done by him is incidental, to ascertain that
there is no violation of provisions of the Act of 1908. In the
case of Park View Enterprises (supra) it has been observed
that the function of the Registering Officer is purely
administrative and not quasi-judicial. He cannot decide as to
whether a document presented for registration is executed by
person having title, as mentioned in the instrument. We agree
with that exposition."
16. On going through all these paragraphs and the materials
available on record, it is crystal clear that no new facts have been stated in
the FIR, which is the subject matter of present criminal miscellaneous
petition.
17. In the case of Smt. Kiran Devi @ Kiran Singh (Supra), on
which, reliance has been placed by the learned counsel appearing for the
State, the FIR filed by one Kiran Devi has got no bearing to decide the
present FIR, as the contents of the present FIR has been affirmed by the
Hon'ble Supreme Court in the earlier two proceedings. Moreover the State
has gone before Hon'ble Supreme Court and the FIR has been filed by the
State in spite of knowledge of the order of Hon'ble Supreme Court.
18. In the case of Kaptan Singh (Supra), the dispute is arising out
of non-payment of certain consideration amount and also for some
altercation, which has taken place and the High Court on the ground of
civil nature and civil suits coming to the findings that no case is made out
for the offence under Section 406 of the Indian Penal Code and allowed
the petition, which was the subject matter before the Hon'ble Supreme
Court. The facts of those cases are different from the present one.
19. On perusal of the earlier written reports, on the basis of which,
the earlier FIRs have been registered, the registration number of sale deed
is 770 dated 29.08.2019 and in the complaint of Kiran Devi, the same sale
deed number is mentioned.
20. In the present FIR, the sale deed number 770 dated
29.08.2019 is again the subject matter. For the same sale deed, earlier two
FIRs have been filed, which have been quashed by this Court and which
has also been affirmed by the Hon'ble Supreme Court, as discussed above.
21. In view of what has been discussed above and after going
through the materials available on record, this criminal miscellaneous
petition is allowed. Accordingly, the First Information Report registered as
Town Deoghar P.S. Case No. 42 of 2021, registered under Sections 406,
420, 467, 468, 471 and 120-B of the Indian Penal Code and Section 82 of
the Registration Act, 1908, pending in the Court of learned Chief Judicial
Magistrate, Deoghar, is hereby, quashed and set aside.
22. Differing with the judgment of the Co-ordinate Bench in
Cr.M.P. Nos.1865 of 202 and 1846 of 2020, will amount to review the
order, which is barred under Section 362 Cr.P.C. that too in view of the
fact that the judgments have been affirmed by the Hon'ble Supreme Court.
23. In view of the above, this criminal miscellaneous petition is
allowed and disposed of. Pending interlocutory application also stands
disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
