LAKSHMAN GUPTA Vs. HEMENDRA LAL BARUAH

JUDGEMENT

(1.) Both these petitions are directed against the order dated 10.8.2010 passed by the learned S. D. J. M II, Kamrup, Gauhati in Case No. 2899 c/20010 whereby cognizance of offence under Section 420/468/34 IPC was taken against the petitioners on the basis of complaint filed by the O. P. and the deposition of the complaint and his witness. By filing these petitions, the petitioners are seeking quashment of the complaint and the proceedings initiated and pending in the aforesaid Court. For the sake of convenience both these petitions are heard together and being disposed of by this common judgment and order. The O. P. /complainant filed the complaint before the learned C. J. M, Kamrup, Guwahati which was registered as CR Case No. 2899 c/10 and made over to the SDJM II, Kamrup, Guwahati for disposal. It is stated that the O. P. Shri Hemendra Lal Baruah and his wife purchased 2 different plots of land measuring 3K 15 lechas each by executing registered sale deeds No. 4173/01 dated 18.6.2010 and 5007/01 dated 14.6.01 from the recorded pattadar and have been possessing the same from the date of purchase. There after the O. P/complainant and his wife got their names mutated and got the final patta during the settlement operation, filed a proceeding under Section 145/146 Cr. P. C. before the Addl. Deputy Commissioner, Kamrup, Guwahati against Shri Tarini Medhi, Attorney of Shri Champaklal Himudia, which was registered as case No. 85 m/2006. The learned SDJM while drawing up a proceeding under Section 145 CrPC, attached the disputed land vide order dated 27.3.2006 and finally declared possession in favour of the O. P/complainant vide order dated 14.9.07. Thereafter, Shri Tarini Medhi, Attorney of Shri Champaklal Himudia, against the said order, preferred a revision before the learned Sessions Judge, Kamrup, Guwahati. It was dismissed. There after accused Himudia filed a Title Suit being T. S. No. 433/07 against the O. P/complainant and his wife which was dismissed on contest by the learned Musniff No. II, Guwahati vide order dated 19.5.10. Decree was also prepared accordingly but no appeal was filed by the O. P. or any other party against the said judgment and order passed in the aforesaid Title Suit. The O. P/complainant thereafter came to know that the petitioner Jogen Chandra Gogoi, the accused/petitioner, sold a plot of land measuring 3 Kathas 10 Lechas covered by Dag No. 81, Patta No. 82 of village Saukuchi under Mouza Beltola which belongs to the O. P/complainant and involved in TS 437/07 to one Shri Lakshman Gupta, the petitioner in Crl. P. No. 404/10, by executing the sale deed No. 3999 dated 3.7.10. The complainant/O. P, alleged that the accused/petitioners obtained the sale permission from the concerned Revenue Authority by suppressing the fact and swearing false affidavit. The Accused/petitioner Shri Jogen Chandra Gogoi, sold the land in question after the accused Himudia lost the Title Suit.

(2.) I have heard Mr. K. Agarwal, learned counsel for the petitioner in Crl. P. No. 404/10 and Mr. B. Sinha, learned counsel for the petitioner in Crl petition No. 453/10. Also heard Mr. A. K. Das, learned counsel for the O. P/complainant and Mr. D. Das, learned Addl. P. P, Assam for O. P. No. 1 on Crl. P. No. 453/10.

(3.) Mr. Agarwal, learned counsel for the petitioner submits that the statements/allegations made in the complaint petition as well as initial deposition of the complainant and his witness under Section 202 Cr. P. C. do not contain any definite accusation against the petitioner, nor do they constitute offence under Section 420/468/34 IPC and as such it is conceptually misconceived and legally untenable on the part of the learned Magistrate to take cognizance of offence against the petitioner under the aforesaid sections of the IPC. The accused/petitioner, as argued by Mr. Agarwal, being abonafide purchaser for value and he being in possession of the land in question and the said land being assessed by the Municipal Corporation, cannot be said to have committed offence under Section 420/468/34 IPC and the learned trial court issued process without application of judicial mind. If the proceeding continues it would amount to unnecessary harassment on the petitioner and it would be nothing but the abuse of process of the court, which must be interfered with and quashed at the threshold. For making a point for such interference by this court, he primarily relies on the decision of the Apex Court in State of Haryana & Ors. Vs. Bhajan Lai & Ors., 1992 Supp1 SCC 335 and Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., 1998 5 SCC 749. He also refers to the following cases:-