SAILENDRA PRADHAN Vs. VIPPARLA JYOTI

JUDGEMENT

(1.) This CRLMC arises out of petition filed under Section 482 of Cr. P.C. seeking quashing of the order of cognizance taken in 1 C.C. Case No. 70 of 2004 by the S.D.J.M., Berhampur, Ganjam.

(2.) The facts of the case lie in a narrow compass. Petitioner is the accused and opp. parties are complainants in 1 C.C. case No. 70 of 2004 pending before the Court below. As per the complaint petition on 1-11-1980 Dr. V. Chancha Rao purchased a parcel of land situated in village Ogalpara (hereinafter referred to as 'case land') from one Prafulla Charan Samantray vide registered sale deed No. 1684 for a consideration of Rs. 15,000/- and possessed the same. After his death on 11-6-1997 the complainant-opp. parties 1 to 5 being his legal heirs stepped to his shoes. Since all these five complainants stay at U.S.A. and the case land situates far away from their place of stay, they wanted to dispose of the same. Complainant-opp. Party No. 1, the wife of late Dr. V. Chancha Rao registered a general power of attorney, bearing No. 10/91 in favour of D. Kesab Rao, Complainant-opp. Party No. 6, before the Sub-Registrar, Dwaraka Nagar, Visakapatnam on 18-4-1991. Complainant-opp. Parties 2 to 5 also executed a general power of attorney in favour of complainant-opposite party No. 6 before a Notary Public of U.S.A. Thereafter, when Complainant-opp. Party No. 6 wanted to negotiate with some prospective purchasers for sale of the case land, accused-petitioner approached him and said that Dr. V. Chancha Rao, the husband of Complainant-opp. Party No. 1 and father of Complainant-opp. Parties 2 to 5 was still alive and showed him a general power of attorney bearing No. 304 dated 30-7-2001 showing as if executed by Dr. Chancha Rao before the Sub-Registrar, Berhampur (Rural) in his favour. As per the complaint petition Dr. V. Chancha Rao expired on 11-6-1998 and his dead body was cremated in presence of Complainant-opp. Party No. 6 and others. On verification in the office of the Sub-Registrar, Berhampur (Rural), it was found that a general power of attorney was registered in favour of accused-opp. Party No. 1 by someone impersonating Dr. V. Chancha Rao and forging his signature. Accused Nos. 2 and 3 were made witnesses in the said forged deed. So, the complainant-opp. party No. 6 on behalf of complainant-opp. Parties 2 to 5 filed the aforesaid complaint case before the S.D.J.M., Berhampur against all the three accused persons including the petitioner on the allegation that they committed offence under Sections 147/420/465/467/468/471 506/34 I.P.C. read with Section 82 of Indian Registration Act. After taking initial statement of complainant-opp. Party No. 6, the learned S.D.J.M., took cognizance of the offence under Sections 467/468/471 I.P.C. read with Section 82 of Indian Registration Act. Being aggrieved with the said order, the petitioner has filed this CRLMC with the prayer as mentioned earlier.

(3.) At the outset learned counsel for the petitioner submitted that on the complaint of a power of attorney holder, a Magistrate cannot take cognizance of any offence. To fortify his submission he relied upon the decision in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (deceased by L.Rs.) AIR 2005 SC 48 : (2005 Cri LJ 112). He further submitted that as required under Section 195 (l)(b)(ii) of Cr. P.C. no cognizance can be taken under Section 471 of IPC except on a complaint in writing by the Court where the forged document was fraudulently or dishonestly used as genuine. In support of his submission he relied on the decision in Sachida Nand Singh v. State of Bihar, (1998) 14 OCR 312 : (1998 Cri LJ 1565). On the other hand learned counsel for opp. parties 1 to 6 and learned Addl. Standing Counsel appearing on behalf of the opp. Party No. 7 (State of Orissa) submitted that the trial Court has rightly taken cognizance of the aforesaid offences against the petitioner and the other two co-accused persons.