Patna High Court
Surendra Kumar And Anr vs State Of Bihar And Anr on 23 January, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.27623 of 2018
Arising Out of PS. Case No.-687 Year-2015 Thana- MUNGER COMPLAINT CASE
District- Munger
======================================================
1. Surendra Kumar, Son of late Hriday Narayan.
2. Sanjay Kumar, son of Sri Surendra Kumar,
Both are resident of Dalhatta Bazar, P.S.- Kotwali, District- Munger, at
present residing at Hospital More, Jehanabad, P.S.- Jehanabad, District-
Jehanabad.
... ... Petitioner/s
Versus
1. State of Bihar
2. Pramendra Bhushan Prakash, son of Tara Chand, resident of Dalhatta Bazar,
P.S.- Kotawali, District- Munger.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioners : Mr. Gopal Jha, Advocate.
Mr. Kumar Chandra Shekhar, Advocate.
For the State : Mr. Satyavarat Verma, APP
For the Opposite Party No. 2: Mr. Surya Narayan Sah, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
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Date : 23-01-2025
The present petition under Section 482 Cr.PC has
been preferred by the petitioners against the impugned order
dated 18.04.2016 whereby Shri Arvind Kumar Singh, learned
Judicial Magistrate, 1st Class, Munger, has taken cognizance
against the accused persons including the petitioners of the
offences punishable under Sections 323, 420, 467, 468 and 504
of the Indian Penal Code in Criminal Complaint No. 687 of
2015 titled Pramendra Bhushan Vrs. Surendra Kumar and
Others.
2. The Criminal Complaint was filed by one
Pramendra Bhushan against the petitioners and other three co-
accused alleging that house constructed on 5 katthas of land
situated in Mauza Dalhatta Bazar, bearing Tauzi No. 1338,
Ward No. 4, Holding No. 571 (new), 69 (old) by a registered
sale deed on 22.08.1957. It is further alleged that 01 kattha of
the same land was again sold by the petitioner Surendra Kumar
in favour of co-accused Smt. Shashi Devi and Manoj Kumar
Vishwakarma on 12.06.2015 and, thereafter, the purchasers Smt.
Shashi Devi and Manoj Kumar Vishwakarma came to the house
of the Complainant and started asking for possession of the
same.
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
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3. I heard learned counsel for the petitioners, learned
APP for the State and learned counsel for the Opposite Party
No.2.
4. Learned counsel for the petitioners submits that the
petitioners are innocent and have falsely been implicated in this
case. He further submits that as per the allegation, no case is
made out against the petitioners or any other accused
whatsoever because there is no allegation that the petitioners or
any accused has made any misrepresentation to the
Complainant or induced him to part with any property, nor is
any allegation that any document is forged and fabricated. As
per the allegation, the sale deed is genuine and not forged,
though, it is alleged that the petitioner Surendra Kumar has
executed the sale deed in question without any title in the
property, because he had already sold the same property to the
Complainant in 1957.
5. However, learned APP for the State and learned
counsel for the Opposite Party No. 2 defend the impugned order
submitting that there is no illegality or infirmity in the impugned
order and hence, the present petition is liable to be dismissed.
6. Learned counsel for the Opposite Party No. 2
submits that the petitioner Surendra Kumar had already sold the
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
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land in question to the Complainant in 1957, and, thereafter, he
has no longer any title in the same. But despite such lack of title
and interest in the property, he has again executed the sale deed
on 12.06.2015 in favour of Smt. Shashi Devi and Manoj Kumar
Vishwakarma and hence, he has committed forgery and cheating
against the Complainant/O.P. No.2 herein.
7. Before I proceed to consider the rival submissions
of the parties, it would be pertinent to see the scope and ambit of
Section 482 of the Cr.PC. Here it would be profitable to refer to
Amit Sinha Vs. State of Bihar, (2024 SCC online Pat 6330)
and Harihar Sah And Others vs. State of Bihar and Anr.,
(2023 SCC OnLine Pat 9582), wherein this Court, after
referring to relevant statutory provisions and binding judicial
precedents, has held that for taking cognizance of any offence
and issuing summons to any accused in a complaint case, there
must be a prima facie offence made out on the basis of the
allegation made in the complaint and the statements made by the
complainant and his witnesses during inquiry under Section 202
Cr.PC. However, such allegation or the statements should not be
patently absurd and inherently improbable to a prudent mind.
Moreover, the allegation/statements made in the complaint and
during inquiry under Section 200 Cr.PC should be examined as
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
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a whole, but the veracity of such statements could not be
examined at this stage. The statements have to be taken at their
face value to see whether prima facie case is made out or not.
Moreover, if the given set of facts makes only a civil dispute,
the complaint or the cognizance/summoning order should be
quashed to prevent abuse of the process of court and promote
ends of justice.
Whether prima facie case is made out against
the Petitioners.
8. Now, the question for consideration is, whether
the allegation made in the complaint or the statements of the
witnesses as recorded in support of the same taken at their face
value make out any case against the accused.
9. As per the allegation in the complaint and the
statements of the complainant and his witnesses during inquiry
under Section 200 Cr.PC, learned Magistrate, has taken
cognizance of offences punishable Sections 323, 420, 467, 468
and 504 of the Indian Penal Code vide the impugned order dated
18.04.2016.
10
. Section 467 of the Indian Penal Code provides
for punishment for forgery of valuable security, Will etc.
Section 468 of the Indian Penal Code provides for punishment
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
for committing forgery with intent to use the forged document
or electronic record for the purpose of cheating. The offence is
cognizable and non-bailable.
11. Section 420 of the Indian Penal Code provides
for punishment for cheating whereby dishonestly inducing the
person deceived to deliver any property to any person or to
make, alter or destroy the whole or any part of the valuable
security or anything which is signed or sealed and which is
capable of being converted into a valuable security. The offence
is punishable by imprisonment upto seven years.
12. Coming to the case on hand, I find that the sum
and substance of the allegation is that the landed property
belonging to the complainant has been sold by the accused-
petitioner, Surendra Kumar by the sale deed dated 12.06.2025.
13. The first question which arises for
consideration of this Court is whether the sale-deed executed by
the accused/petitioner, Surendra Kumar in favour of the
accused, Shashi Devi and Manoj Kumar can be held to be a
forged document.
14. Forgery has been defined in Section 463 of the
Indian Penal Code which provides as follows:
"463. Forgery.--Whoever makes any false documents or
false electronic record or part of a document or electronic
record, with intent to cause damage or injury, to the public
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
or to any person, or to support any claim or title, or to
cause any person to part with property, or to enter into any
express or implied contract, or with intent to commit fraud
or that fraud may be committed, commits forgery."
15. The basic ingredients of forgery as explained by
Hon'ble Supreme Court in Sushil Suri V. Central Bureau of
Investigation, [AIR 2011 SC 1713] are as follows:
" 1) The making of a false document or part of it and (2)
such making should be with such intention as is specified
in the section, viz., (a) to cause damage or infringe to (i)
the public, or (ii) any person; or (b) to support any claim
or title; or (c) to cause any person to part with property, or
(d) to cause any per son to enter into an express or implied
contract; or (e) to commit fraud or that fraud may be
committed."
16. Section 464 of the Indian Penal Code defines
making of false documents. It reads as follows:
" 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
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
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 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 practised upon him, he does not know
the contents of the document or electronic record or the
nature of the alteration.
Illustrations
17. Hon'ble Supreme Court had occasion to
consider the similar facts and circumstances in Mohammed
Ibrahim & Ors. Vs. State of Bihar & Anr., [(2009) 8 SCC
751] which had traveled from the district of Madhubani, Bihar.
In this case also, the complainant had made allegation that his
land was sold by the accused without having any title to the
land. The co-accused were witnesses, scribe and vendor in
regard to the sale-deed. Ld. Magistrate had taken cognizance of
offences punishable under Sections 467, 471, 420 and some
other sections of IPC. After analysis of Section 464 of the Indian
Penal Code, Hon'ble Supreme Court clearly held as follows:
" 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
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
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."
(Emphasis supplied)
18. Hon'ble Supreme Court in Randheer Singh
v. State of U.P., [(2021) 14 SCC 626], also held as follows:
" 24. A fraudulent, fabricated or forged deed could mean a
deed which was not actually executed, but a deed which
had fraudulently been manufactured by forging the
signature of the ostensible executants. It is one thing to
say that Bela Rani fraudulently executed a power of
attorney authorising the sale of property knowing that she
had no title to convey the property. It is another thing to
say that the power of attorney itself was a forged,
fraudulent, fabricated or manufactured one, meaning
thereby that it had never been executed by Bela Rani. Her
signature had been forged. It is impossible to fathom how
the investigating authorities could even have been prima
facie satisfied that the deed had been forged or fabricated
or was fraudulent without even examining the apparent
executant Bela Rani, who has not even been cited as a
witness.
19. In the given case on hand also, there is no
allegation of impersonation by any accused person while
executing the sale-deed in question. No one has forged signature
of the complainant or anybody else. Accused, Surendra Kumar
has executed the sale-deed in regard to the land in question in
favour of the co-accused, Shashi Devi and Manoj Kumar.
Hence, the sale-deed in question is genuine and not a forged
document. Whether it conveys title to the transferee is a legal
question to be decided by competent Civil Court. But Sections
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
467 or 468 of the Indian Penal Code do not get attracted against
the accused-petitioner.
20. As for application of Section 420 of the Indian
Penal Code in the alleged facts and circumstances of the case on
hand, I find that the ingredients of this Section are as follows as
explained by Hon'ble Supreme Court in Mohammed Ibrahim
case (supra) :
"18...........................................................
(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
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
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."
(Emphasis supplied)
21. As such, representation by the Accused to the
deceived doing fraudulent or dishonest inducement is sine qua
non for making out offence under Section 420 of the Indian
Penal Code. But in the case on hand, I find that there is no
allegation of the Complainant that any Accused has made any
representation to him to part with any property. As such, for
want of any representation, question of any fraudulent or
dishonest inducement of the Complainant does not arise.
22. Moreover, the complainant has not parted with
any property to the Accused persons, nor has he executed the
sale-deed. As such, his title, if any, to the land in question, is
still safe, because his title cannot get conveyed to purchaser if
the conveyance deed/sale-deed has been executed by someone
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
else, who is not possessed of the title to the land in question. A
purchaser can get the title conveyed only if the seller has title to
the property. It is a settled principle of law that no one can
transfer better title than his own, as Hon'ble Supreme Court in
Eureka Builders Vs. Gulabchand, (2018) 8 SCC 67, has
clearly held as follows:
"35. It is a settled principle of law that a person can
only transfer to other person a right, title or interest in any
tangible property which he is possessed of to transfer it for
consideration or otherwise. In other words, whatever
interest a person is possessed of in any tangible property,
he can transfer only that interest to the other person and no
other interest, which he himself does not possess in the
tangible property.
36. So, once it is proved that on the date of transfer
of any tangible property, the seller of the property did not
have any subsisting right, title or interest over it, then a
buyer of such property would not get any right, title and
interest in the property purchased by him for consideration
or otherwise. Such transfer would be an illegal and void
transfers."
(Emphasis supplied)
23. Here, it would be also pertinent to refer to JIT
Vinayak Arolkar Vs. State of Goa & Ors. ( Criminal Appeal
No. 393 of 2024) as decided by Hon'ble Apex Court just four
days back on 06.01.2025. In that case, undivided share in landed
property was sold by the accused and the FIR was lodged by the
co-sharer. In this case, Hon'ble Supreme Court quashed the FIR
holding as follows, relying upon Mohammed Ibrahim Case
(Supra):
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
"12.1 In this case, it is impossible to understand
how the appellant deceived the 4th respondent and
how the act of execution of sale deeds by the
appellant caused or was likely to cause damage or
harm to the 4th respondent in body, mind, reputation or
property. The appellant has not purported to execute
the sale deeds on behalf of the 4th respondent. He has
not purported to transfer the rights of the 4 th
respondent. There is no allegation that the appellant
deceived the 4th respondent to transfer or deliver the
subject property."
(Emphasis supplied)
24. As such, no offence under Section 420 of the
Indian Penal Code is made out in the case on hand.
25. There is also no allegation made by the
Complainant in his statements as made under Section 200 Cr.PC
which may attract application of Section 323 and 504 IPC
Conclusion/Finding of this Court
26. Hence, in my view, the complaint does not
disclose any offence, much less any offence under Sections 323,
420, 467, 468 and 504 of the Indian Penal Code. The alleged
facts and circumstances of the present case, at most, constitute a
dispute of purely civil nature between the parties for which
remedy lies before a civil court by filing appropriate civil suit.
As per the material on record, the Complainant/O.P. No.2 has
already filed a civil suit bearing T.S. 262/2015 in the Court of
Sub-Judge, Munger for declaring the sale deed in question dated
Patna High Court CR. MISC. No.27623 of 2018 dt.23-01-2025
12.06.2015 as void.
27. Hence, the impugned order is not sustainable
in the eye of law and is liable to be quashed and set aside to
prevent the abuse of the process of Court and meet the ends of
justice.
28. Accordingly, the present petition stands
allowed, quashing and setting aside the impugned order dated
18.04.2016, passed by Sri Arvind Kumar Singh, learned Judicial
Magistrate 1st Class, Munger, in Complaint Case No. 687 of
2015.
(Jitendra Kumar, J.)
S.Ali/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 24.01.2025
Transmission Date 24.01.2025
