NARESH Vs. CHURCH OF NORTH INDIA TRUST ASSOCIATION

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure [for short "the Code"] has been filed for quashment of complaint and taking cognizance vide order dated 28.10.2009 by JMFC, Mandleshwar, District Khargone and all further proceedings in S.T. No.259/2011 pending before ASJ, Mandleshwar.

(2.) Brief facts of this case are that a private complaint has been filed by the Respondent alleging that the petitioners have purchased the agricultural land situated at Patwari Halka No.9, Mandleshwar, District Khargone being Survey Nos.133/2, 136 and 137 from one Joseph Parihar who was a Power of Attorney holder of Malwa Church Council, Messiah Seva Mandal, Canadian Mission. Though the Power of Attorney given to Joseph Parihar was cancelled before execution of the sale-deed. Thus, Joseph Parihar has no authority to alienate the said land. The petitioners have purchased the said land in collusion with the Power of Attorney holder Joseph Parihar and thus committed the offence which is punishable under Sections 467 and 468 read with Section 109 of IPC. After enquiry, learned Magistrate has taken the cognizance against the petitioners and 2 other co-accused, namely Joseph Parihar and Ramswaroop Sharma. The petitioners have challenged this order before this Court in Misc. Criminal Case No.870 of 2010 [Nareshpal s/o Dharamsingh and 4 others v/s Church of North India Trust Association]. This Court vide order dated 03.03.2010 allowed the petition and setaside the order of taking cognizance and directed that petitioners shall move appropriate application before the Magistrate, then the Magistrate shall decide the application by passing a reasoned order without being impressed from the fact that cognizance of the offence has been taken by the Magistrate. Thereafter, petitioners have moved an application before the Magistrate; whereas the Magistrate by the impugned order dated 28.10.2009 rejected the application holding that there is material that the petitioners have hatched conspiracy and abetted the offence. Being aggrieved, the petitioners have filed this petition for quashment of taking cognizance by the Magistrate.

(3.) Learned Senior Counsel for the petitioners submits that the complaint has been filed by Power of Attorney holder Bishop L. Maida on behalf of Respondent Company, but no resolution of Board of Directors to authorize him to file the complaint has been produced along with complaint. Thus, the complaint has not been filed by competent and authorized person. Learned Senior Counsel further submits that the complaint was filed before the JMFC, Mandleshwar for the offences under Sections 420, 465, 467, 468, 109 and 506 of IPC. The offences relating to Sections 467 and 468 of IPC are triable by Court of Sessions as per the State Amendment Act No.2 of 2008 which came into force w.e.f. 22.02.2008. Thus, the JMFC was not at all having jurisdiction to take cognizance in this complaint.