Jharkhand High Court

M/S Adhunik Power & Natural ... vs The State Of Jharkhand on 3 May, 2023

                                     1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr.M.P. No. 1715 of 2013

M/s Adhunik Power & Natural Resources Ltd., represented by its authorized
representative Arun Kumar son of late R.C. Prasad, resident of 21C Road Bistupur,
P.O., P.S. Bistupur, Town Jamshedpur, District-Singhbhum East
....Petitioner
                            Versus                         .
1.The State of Jharkhand
2.Manoj Poddar                                        ...... Opp. Parties

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------

For the Petitioner     : Mr. Indrajit Sinha, Advocate
For the State           : Mrs. Vanadana Bharti, A.P.P.
For the O.P. No.2       : Mr. Vikesh Kumar, Advocate.

5/Dated: 03/05/2023

Heard Mr. Indrajit Sinha, learned counsel for the petitioner, Mrs.

Vandana Bharti, learned counsel for the State and Mr. Vikesh Kumar, learned

counsel for the O.P. No. 2.

2. The petitioner has filed this application for quashing the entire

criminal proceeding including order taking cognizance dated 22.03.2013 in

connection with P.C. Case No. 79/2012 pending in the Court of learned Judicial

Magistrate, Ist Class, Saraikella.

3. Complaint petition has been filed alleging therein during the

last revisional survey the land bearing Plot No. 95 recorded under Khata No.24

of mouza Bada Hariharpur has been recorded in the name of Birad Poddar, (2)

Ram Poddar, (3) Baidyanath Poddar, (4) Gour Poddar, (5) Sasadhar Poddar, (6)

Jagat Poddar and (7) Guru Charan Poddar in Khata No.24 of mouza Bada

Hariharpur. Out of the recorded raiyats only Ram Poddar is alive and other

recorded raiyats have died leaving behind their respective heirs. Recorded

raiyat Birad Poddar died leaving behind three sons Awadh, Prabodh @ Mansa

and Gopal are alive. Recorded raiyat Baidyanath Poddar died leaving behind

five sons Bistu, Guru, Bhola, Lala, and Badal. Recorded raiyat Gour Poddar died

leaving behind three sons Manohar, Dhanu and Manoj. Recorded raiyat Guru

Charan Poddar died leaving behind two, sons Mathan and Nimai. The

complainant is the son of recorded raiyat Gour Poddar. The accused No.1 is one

of the three sons of recorded raiyats Birad Poddar. Accused No.2 is one of the

five sons of recorded raiyat Baidyanath Poddar and accused no. 3 is the son of

Prabodh @ Mansa and grand son of recorded raiyat Birad Poddar. The accused

No.1 to 3 have clandestinely sold 0.49 decimals of land bearing plot no. 95

recorded under Khata Ne 24 of mouza bada Hariharpur which fact was not

known to the complainant or his other co-shares. When on 10/5/12 the

labourers of the accused no. 4 came over the schedule land to construction

work as advise by a staff of accused No.4 the complainant and his other co-

sharers came to learn that the accused No.1 to 3 have executed a deed of sale

in favour of the accused No.4 transferring the scheduled land. The complainant

obtained the certified copy of sale deed No.1532 dated 30/4/12 through which

the accused No.1 to 3 have sold the land to the accused No.4 by mis-

representing the facts and false statements. On perusal of the deed it

transpired that the accused No.3 has falsely stated that the father is died and

he is the only son of his father. As a matter of facts his father Prabodh @

Mansa is still alive who has also got another son named Pradeep. The accused

No.1 who permanently reside at purulia never possessed the schedule land

falsely claimed in the deed about his physical possession. The accused No.2 is

one of the five brother who also died exercise any act of possession. The

accused No.4 being fully aware of the fact that the vendors of sale deed

No.1532 dated 13/4/12 were never in possession of the schedule land nor they

were competent persons to execute sale deed and the real several other

owners of the scheduled land who were in physical possession were kept in

dark and got the sale deed executed by the accused persons No.1 to 3 and

thereby all the accused persons committed and caused wrongful loss to the

complainant, The accused No.1 to 3 dishonestly for their wrongful gain have

executed the sale deed No.1532 dated 30/4/12 by giving false statements

regarding their ownership and the accused No.4 has caused wrongful loss to

the complainant and his other co-sharers.

4. Mr. Indrajit Sinha, learned counsel for the petitioner submits that

the petitioner is a company. He further submits that offence under Sections

467/468/471 of I.P.C. so far as this petitioner is concerned, are not made out as

the petitioner has not forged any document nor has used any such documents

himself to gain wrongfully. He further submits that the petitioner is purchaser

of the land in question and has entered into an agreement on the basis of

representation of the other co-accused persons. The petitioner however has

paid the entire price for the land after duly executing the sale deed which he

believed to be a correct document.

5. On the other hand, learned counsel for the O.P. No. 2 submits that

the land in question has been willingly sold by the co-sharer to the petitioner

that is why case has been filed.

6. Learned counsel for the State submits that looking into solemn

affirmation and enquiry witnesses learned court has taken cognizance.

7. In view of above submissions of the learned counsel for the parties

the Court has gone through the contents of complaint petition and order taking

cognizance and finds that admittedly the petitioner has only purchased the

land in question. Even if the contents of complaint is taken to be true, case is

made out against the co-sharer who have also been made accused in the

complaint petition. The petitioner is only purchaser of the land in question and

said allegation cannot be fastened upon the petitioner. In this regard

reference may be made to the case of "Mohd. Ibrahim V. State of Bihar"

(2009) 8 SCC 751 wherein paragraphs 16 to 21 the Hon'ble Supreme Court

has held as under:-

"16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the

deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.

18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:

(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.

19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived

(i) to deliver any property to any person, or

(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).

20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner."

8. In the solemn affirmation the complainant has also stated that the

land was purchased by the petitioner and consideration amount was paid by

the petitioner. In the case of "Mohd. Ibrahim (supra) the Hon'ble Supreme

Court while deciding the case has observed that there was a growing tendency

of the complainants attempting to give the cloak of a criminal offence to

matters which are essentially and purely civil in nature and at the same time, it

should be noted that several disputes of a civil nature may also contain the

ingredients of criminal offences and if so, will have to be tried as criminal

offences, even if they also amount to civil disputes. In the said judgment the

Hon'ble Supreme Court has considered sections 420, 467, 468 and 471 of the

I.P.C.

9. In the complaint petition it has not been stated that petitioner