Jharkhand High Court
V.S. Gopal Mudaliyar @ V.S. Gopal ... vs The State Of Jharkhand on 17 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.23 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 23 of 2023
V.S. Gopal Mudaliyar @ V.S. Gopal Mudaliya, aged about 56 years, son of
Late V.S. Mudaliyar, Resident of Indraprasth Colony, Main Road,
Gamharia, P.O. and P.S. -Adityapur, District -Seraikella -Kharsawan.
.... Petitioner
Versus
1. The State of Jharkhand
2. Chandra Kant Sharma, aged about 59 years, son of Shyamnath Sharma,
Resident of D-222, Near Shiv Kali Mandir, Khuntadih, Sonari,
Jamshedpur, P.O. and P.S. -Sonari, District -East Singhbhum.
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
: Mrs. J. Mazumdar, Advocate
: Mr. Rohan Mazumdar, Advocate
For the State : Mr. Pankaj Kumar, P.P.
For the O.P. No.2 : Mr. Mahesh Kr. Sinha, Advocate
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed
invoking the jurisdiction of this Court under Section 482 Cr.P.C.
with a prayer to quash the entire criminal proceeding including
the order dated 11.07.2022 in connection with Complaint Case No.
915 of 2021 whereby and where under the learned Chief Judicial
Magistrate, Seraikella has found prima facie case for the offences
punishable under Sections 406/420/468 of the Indian Penal Code.
3. The allegation against the petitioner is that the petitioner
being the power of attorney holder of Sri Umashankar Sharma
and Sanju Devi in respect of a land which is claimed to have been
purchased by the complainant. The complainant claimed that the
mutation of the land was done in his name and he used to pay the
tax but in February, 2019, the petitioner with the co-accused
stopped the complainant from constructing the house over the
said land. On the basis of the complaint of the complainant, a
proceeding under Section 144 Cr.P.C. was initiated by the S.D.O.
but in-spite of the said proceeding, the petitioner and the co-
accused started constructing the house over the said land and on
being protested by the complainant, they drove the complainant
from the place of occurrence land after threatening him. It is
alleged that the petitioner and the co-accused person have forcibly
occupied the land of the complainant and residing over the same
with their family members and in a fraudulent manner have got
the land mutated in their name and also obtained the water and
electric energy connection on the basis of such forged mutation.
On the basis of the complaint, statement of the complainant under
solemn affirmation and statement of the enquiry witnesses, the
learned Chief Judicial Magistrate, Seraikella has taken cognizance
for the offences punishable under Section 406/420/468 of the
Indian Penal Code.
4. It is submitted by the learned senior counsel for the petitioner
that the petitioner in capacity of power of attorney holder of
Umashankar Sharma and Sanju Devi has only executed sale deed
in favour of co-accused -Jai Prakash Gupta and consequent upon
that the said land has been lawfully mutated in the name of
Umashankar Sharma and Sanju Devi which suggests that
Umashankar Sharma and Sanju Devi are in possession of the land
and not the petitioner. It is next submitted that apart from
mutation, the said land was demarcated by the Circle Amin vide
Demarcation Case No.5/2006-2007 and 6/2006-2007 on the
application of Sri Uma Shankar Sharma and Smt. Sanju Devi. It is
then submitted that though the complainant also filed Original
Title Suit No. 86 of 2019 but the petitioner has not even been
impleaded as a party and though the complainant claims right,
title and interest against Uma Shankar Sharma and Sanju Devi in
the said suit and recovery of possession in case he is dispossessed
during the pendency of the suit but no injunction has been
granted in favour of the complainant in that suit nor the
complainant has amended his plaint showing that in the
meanwhile, he has been dispossessed from the suit land. It is next
submitted that this complaint case is nothing but a malicious
proceeding only for wrecking vengeance against the petitioner,
therefore, continuation of this criminal proceeding will amount to
abuse of process of law.
5. The learned senior counsel for the petitioner relied upon the
Judgment of Hon'ble Supreme Court of India in the case of Usha
Chakraborty and Another Versus State of West Bengal and
Another, reported in 2023 0 Supreme (SC) 76, and submits that
the fact that the complainant has suppressed the filing of the said
Original Title Suit No. 86 of 2019 in the complaint by not
mentioning the number of the suit and the court in which the
same was filed and that the suit was not filed against the
petitioner; and the same has been done in a calculated manner to
suppress the material facts which amounts to abuse of process of
law.
6. It is lastly submitted that the entire criminal proceeding including
the order dated 11.07.2022 in connection with Complaint Case No.
915 of 2021 whereby and where under the learned Chief Judicial
Magistrate, Seraikella has found prima facie case for the offences
punishable under Sections 406/420/468 of the Indian Penal Code
be quashed and set aside.
7. The learned Public Prosecutor and the learned counsel for the
opposite party no.2 on the other hand vehemently opposes the
prayer for quashing the entire criminal proceeding including the
order dated 11.07.2022 in connection with Complaint Case No. 915
of 2021 whereby and where under the learned Chief Judicial
Magistrate, Seraikella has found prima facie case for the offences
punishable under Sections 406/420/468 of the Indian Penal Code
and submits that the allegations made in the complaint, statement
of the complainant on solemn affirmation and statement of the
inquiry witnesses is sufficient to constitute all the three offences
punishable under Section 406/420/468 of the Indian Penal Code.
Hence, it is submitted that this criminal miscellaneous petition
being without any merit be dismissed.
8. Having heard the submissions made at the bar and going
through the materials in the record, it is pertinent to mention here
that so far as the offence punishable under Section 468 of the
Indian Penal Code, the essential ingredients to constitute the
offence punishable under Section 468 of the Indian Penal Code,
are as under:
(i) The accused prepared a false document or electronic
record.
(ii) He did it for the purpose of fraud or deceit; as has
been held by the Hon'ble Supreme Court of India in
the case of Indian Bank v. Satyam Fibres (India)
(P) Ltd., reported in (1996) 5 SCC 550 :AIR 1996 SC
2592.
(iii) The intention of the forgery should be that the
forged document or electronic record is to be used
for the purpose of forgery.
(iv) There should be forgery with particular intent,
as has been held by the Hon'ble Supreme Court of India in the
case of Ram Narayan Popli v. Central Bureau of Investigation,
reported in (2003) 3 SCC 641.
9. Now coming to the facts of the case there is absolutely no
allegation against the petitioner as to which false document or
electronic record has been prepared by him nor there is any
allegation that any such document was prepared dishonestly or
fraudulently by the petitioner and in the absence of any offence of
any forgery, certainly the offence punishable under Section 468 of
the Indian Penal Code which is an aggravated form of offence of
forgery; as the offence punishable under section 468 of the Indian
penal code is made out only when the forgery is committed
intending that the forged documents shall be used for cheating,
cannot be made out.
10. So far as the offence punishable under Section 420 of the Indian
Penal Code is concerned, the essential ingredients of the said
offence are as follows :-
I) There should be fraudulent or dishonest
inducement of a person by deceiving him.,
II) (a) The person so induced should be intentionally
induced to deliver any property to any person or
consent that any person shall retain any property or,
(b) The person so induced to do anything which he
would not do or omit if he were not so deceived
and
(III) In cases covered by the second part of clause (a), the
act or omission should be one which caused or likely
to cause damage or harm to the person induced in
body, mind or property
As has been held by the Hon'ble Supreme Court of India in the
case of R.S. Nayak v. A.R. Antulay and Another, reported in
(1986) 2 SCC 716
11. Now coming to the facts of the case, there is no allegation against
the petitioner of inducing either the complainant or anyone else or
deceiving him. In the absence of these essential ingredients to
constitute the offence punishable under Section 420 of the Indian
Penal Code, this Court has no hesitation in holding that the
offence punishable under Section 420 of the Indian Penal Code is
not made out against the petitioner.
12. So far as the offence punishable under Section 406 of the Indian
Penal Code is concerned, the following ingredients are to be
established :-
(i) Mens rea
(ii) There must be dishonest misappropriation or conversion to
one's own use, or use in violation of a legal direction or of
any legal contract
(iii) The accused dishonestly used or disposed of the property
13. Now coming to the facts of the case, there is no allegation of
entrustment of any property or the petitioner having dominion
over a property belonging to the complainant or any of the
aggrieved person. Under such circumstances, this Court is of the
considered view that offence punishable under Section 406 of the
Indian Penal Code is not made out even if the contents of the
complaint, statement of the complainant under solemn
affirmation and statement of the inquiry witnesses are considered
to be true in their entirety.
14. Because of the discussions made above, this Court is of the
considered view that since none of the offences for which the
learned Chief Judicial Magistrate, Seraikella has found prima facie
case is made out against the petitioner, hence the continuation of
this criminal proceeding against the petitioner will amount to
abuse of process of law. Hence, this is a fit case where the entire
criminal proceeding including the order dated 11.07.2022 in
connection with Complaint Case No. 915 of 2021 whereby and
where under the learned Chief Judicial Magistrate, Seraikella has
found prima facie case for the offences punishable under Sections
406/420/468 of the Indian Penal Code be quashed and set aside
qua the petitioner.
15. Accordingly the entire criminal proceeding including the order
dated 11.07.2022 in connection with Complaint Case No. 915 of
2021 whereby and where under the learned Chief Judicial
Magistrate, Seraikella has found prima facie case for the offences
punishable under Sections 406/420/468 of the Indian Penal Code
is quashed and set aside qua the petitioner.
16. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 17th January, 2024
AFR/Sonu-Gunjan/-
