HRIDAYANGSHU BHATTACHARJEE Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the order dated 13-2-2001, whereby and whereunder the learned Munsif has allowed the Opposite parties to appear and file show cause and also directed the petitioner to reproduce his witnesses for giving opportunities to cross-examine those witnesses in the preliminary enquiry, which was conducted by the Court below u/S. 340 of the Code of Criminal Procedure in connection with Misc. Case No. 23/2000.

(2.) Short facts giving rise to this application is that a Title Suit No. 16 of 1988 for specific performance was filed by the petitioner and others against Rekha Bhattacharjee and others claiming that there was an agreement between the petitioner and Smt. Rekha Bhattacharjee and others for sale of property for a consideration of Rs. 1,36,000.00 out of which Rs. 35,937.00 were paid in advance and the rest amount was to be paid at the time of execution of the sale deed, but since the sale deed was not executed, a suit for specific performance was filed, which was dismissed but subsequently allowed in First Appeal against which L.P.A. was filed and suit was remanded for fresh trial, which is pending. One Title (Eviction) Suit No. 6 of 1998 was also filed on the ground of personal necessity claiming themselves (O.Ps.) to be proprietor of the suit property and the petitioner as a tenant. One Ranjan Bhattacharjee was the Pairvikar of the Eviction Suit No. 6 of 1998 on behalf of Smt. Rekha Bhatacharjee and others. A Civil Revision No. 103 of 1998 was filed by the petitioner which was disposed of with an observation to decide both the suits together, but again a Civil Review No. 43 of 1998 was filed which was allowed and directed by the Court below to decide both the suits independently. Subsequently, Eviction Suit No. 6 of 1998 was decided in favour of Smt. Rekha Bhattacharjee and others. It is further stated that much prior to passing of the judgment and preparation of the decree in Eviction Suit No. 6 of 1998 one of the plaintiffs, namely, Sisir Kumar Bhattacharjee died on 1-3-1999 at Calcutta but the plaintiff (Opposite party) did not bring this fact to the knowledge of the Court below. Execution Case No. 5 of 1999 was filed by Smt. Rekha Bhattacharjee and others and in the Execution application there was signature of late Sishir Kumar Bhattacharjee also apart from signatures of Smt. Rekha Bhattacharjee and Samir Kumar Bhattacharjee, which is absolutely forged signature of late Sishir Kumar Bhattacharjee who already died much before. Thereafter, the petitioner and others filed Misc. Case No. 7 of 1999 stating all the facts and requested to hold an enquiry and file a complaint case. The petitioner produced the witnesses in the enquiry and they were examined and after conclusion of the evidence, the opposite party appeared and filed a show cause without any Vakalatnama and after hearing the parties the Court below passed the impugned order allowing that petition to cross-examine the witnesses of the petitioner who were directed to reproduce the said witnesses. Hence, this application.

(3.) On the other hand, a counter-affidavit has been filed claiming therein that Vakalatnama filed in the main case of proceeding also presumed to be filed in the Misc. proceeding arising out of the main case and no separate Vakalatnama is required to be filed in the Misc. Case. It is further claimed that there is no illegality in the impugned order for interference and Sishir Kumar Bhattacharjee already signed the paper in question as well as the application u/S. 195, Cr.P.C. was filed and notice was also issued to the opposite party for hearing on the point. It is further stated that this application is not maintainable as the main case is pending in the Court of Munsif as regards to the civil case and as such the enquiry u/S. 340, Cr.P.C. is not maintainable. Moreover, the application has been filed u/S. 195 of the Code of Criminal Procedure and this application has been filed with oblique motive without any basis which is fit to be dismissed.