SHIV SHAKTI KUMAR SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) After hearing Mr. A.K. Das, the learned counsel for the petitioners, Mr. Jitendra Kumar Pasari, the learned counsel for the O.P.No.2 and Mr. Bishambhar Shastri, the learned counsel for the respondent State, the judgment was reserved on 15/3/2023.

(2.) This petition has been filed for quashing of the entire criminal proceeding as well as the order taking cognizance dtd. 1/2/2013 passed by the learned Judicial Magistrate, Dhanbad in C.P. Case No.1746 of 2012 whereby he has been pleased to take cognizance under Sec. 420 of the I.P.C, pending in the court of learned Judicial Magistrate, Dhanbad.

(3.) The complaint has been made alleging therein that the petition dtd. 1/8/2012 lodged by the complainant against the petitioners and others is that the complainant is the owner of the raiyati land measuring 1.56 acres bearing plot no.137 within khata no.23 situates at Mouza Shyamdih, Mouza No.249 within Katras P.S. in the District of Dhanbad by virtue of sale deed no.14446 dtd. 19/8/1968 from Smt. Sharda Kumari for valuable consideration. Since the date of purchase the complainant is in peaceful possession thereof without any interruption whatsoever from any corner. The further case of the complainant is that he resides with his brother Sri Balmukund Rajgaria, in Rajgaria Market Complex at Rajganj Road, Katrasgarh, P.O. Katrasgarh, P.S. Katras, District Dhanbad and his wife had died long ago having only son and one daughter. The daughter was married in the year 1999 and the son namely Vinay Kumar Rajgaria has been residing in Assam in connection with his business. It is further alleged that the complainant fell in serious depression in the second week of June, 2012 and hence his brother, Balmukund Rajgaria had been getting his treated by Dr. T.R.Roy on and from 20/6/2012. It is further alleged that the younger brother of the complainant namely Shyam Sunder Rajgaria, resident of Rajganj, hearing serious depression of the complainant came to meet the complainant on 24th or 25/6/2012 and told him that due to depression of the complainant, he may not be able to look after his property which may be grabbed by the miscreants of the locality and hence told the complainant to execute power of attorney in his favour only for looking after the said land so that the said land may not be grabbed by other persons. It is further alleged that believing the same, complainant agreed to execute the power of attorney. Upon this, Shyam Sundar Rajgaria and his son, accused no.9 came at Katrasgarh on 26/6/2012 and took the complainant to Govindpur Sub-Registry Office were they took the signature and L.T.I on some papers and also took finger prints there and photographs were also taken but due to serious depression, the complainant blindly believing on accused no.8 he executed the power of attorney without going through the contents made therein and after executing the said power of attorney on 26/6/2012 the accused no.8 took the complainant to Rajganj at his residence and left the complainant at Katras on the next day i.e. on 27/6/2012. It is further alleged that the son of the complainant Vinay Kumar Rajgaria was informed by the brother of the complainant namely Bal Mukund Rajgaria, who immediately came to Katras on 6/7/2012 in the night by purchasing 'Tatkal Ticket' from Railway. It is alleged that on 10/7/2012 the complainant told his son, Vinay Kumar Rajgaria and younger brother Bal Mukund Rajgaria regarding execution of power of attorney on 26/6/2012 in favour of Shyam Sundar Rajgaria for looking after his land but his son and the said younger brother became suspicious an went to Govindpur Sub Registry Office for enquiry and upon enquiry they learnt that accused no.8 had committed fraud, cheating and breach of trust with the complainant by getting the power of attorney executed by the complainant in favour of three persons i.e. in the name of the accused no.5, accused no.6 and accused no.7 respectively whereby all the power including power of sell the land was given. While the complainant was told by the accused no.8 for execution of power of attorney only for the purpose of looking after the land. It is alleged that upon this, the complainant along with his brother, Bal Muknd Rajgaria and his son Vinay Kumar Rajgaria, went Rajganj at the residence of accused no.8 to meet on 12/7/2012 but neither the accused no.8 nor the accused no.9 were found in their house and they were told that they are out of station for some days. It is also alleged that having learnt such illegal conduct and apparent fraud with the complainant, he cancelled the said power of attorney dtd. 26/6/2012 on 13/7/2012 by executing registered cancellation deed at Govindpur Sub- Registry Office. It is alleged that the complainant sent a legal notice to the petitioners through his lawyer, Sri H.N.Agarwal, on 14/7/2012 intimating the revocation of powers dtd. 26/6/2012 the complainant further came to learn that the petitioners have sold the entire land part wise to the accused no.1 to accused no.4 by virtue a registered sale deed no.4264 dtd. 12/7/2012 in favour of Balika Devi showing consideration of Rs.1,60,000.00. Sale deed no.4370 dtd. 12/7/2012 in the name of Poonam Agarwal showing consideration of Rs.1,00,000.00, Sale Deed no.4371 dtd. 12/7/2012 in the name of Sri Amar Shankar Jha, showing consideration of Rs.1,00,000.00 and Sale Deed No.4373 dtd. 12/7/2012 in the name of Smt. Puja Kumari showing consideration of Rs.1,60,000.00. It is alleged that the complainant intimated the Anchal Adhikari, Baghmara on 25/7/2012 regarding fraud committed by the accused Shyam Sundar Rajgaria and requested him not to mutate the name of the accused no.1 to accused no.4 in place of the complainant as the entire land is still in possession of the complainant and the sale deeds are illegal. Mr Das, the learned counsel appearing for the petitioners submitted that the petitioners are innocent and they have committed no offence as alleged at all and they have been falsely implicated by the complainant at the behest of his son and brother out of greed to make more money. He further submitted that on 26/6/2012 a registered power of attorney has been executed by the complainant in favour of the petitioner accused no.5 to 7 being registered General Power of Attorney in respect of subject land wherein the complainant gave power in favour of the accused no.5 to 7 empowering the petitioners to transfer the subject land to any person by executing registered deed by the petitioners on behalf of the complainant. He further submitted that the petitioners for and on behalf of the complainant had sold the entire land to different purchasers who were cited as accused no.1 to accused no.4 in the case in hand and received consideration money from them on the date of execution of the registered sale deed i.e. 12/7/2012. The entire consideration amount has been received by the complainant to the tune of Rs.5.00 lakh at the registration office on 12/7/2012 and he issued a valid receipt in presence of the witnesses and the said receipt has been notorized dtd. 12/7/2012 contained in Annexure-3. He further submitted that the complainant being ill advised to purchase litigation and out of lust sent a notice dtd. 14/7/2012 to the accused no.5 to 7 intimating that the power of attorney given to them has been cancelled and revoked on 13/7/2012 at Govindpur Sub Registry Office which was received by the accused no.5 to 7 on 16/7/2012. He submitted that on receiving the said notice the petitioners were shocked and surprised to get the said notice. He submitted that the transaction was completed on 12/7/2012 however said power of attorney was cancelled on 13/7/2012 and notice was received on 16/7/2012 which itself suggest that the entire action was after thought. He further submitted that the complainant out of shrewdness on 23/7/2012 sold the entire subject land in favour of Bal Mukund Rajgaria, his brother and his son Vinay Kumar Rajgaria by registered sale deed no.4690 dtd. 23/7/2012 after receiving a sum of Rs.4,75,000.00 only. Mr. Das, the learned counsel for the petitioner further elaborated his argument by way of submitting that only to make out a case falsely it has been stated that the complainant was suffering from depression, however, subsequently on 23/7/2012 he has gone to the registry office for execution of sale deed in favour of his brother and son. He further submitted that the complaint was filed on 1/8/2012 but however he has not stated in the complaint as well as in the solemn affirmation that the said land was sold by him on 23/7/2012 to his brother and son. Even the C.W.1 who was son of O.P.No.2 not stated on oath that he is one of the purchaser of the said land by virtue of registered sale deed no.4690 dtd. 23/7/2012. C.W.2 namely Bal Mukund Rajgaria who was brother of O.P.no.2 and he has also not stated about the purchase of the land by registered sale deed dtd. 23/7/2012. Mr. Das, the learned counsel further submitted that the complainant has also lodged Title Suit No.65 of 2012 before the Civil Judge, Senior Division-II, Dhanbad against the petitioners and the purchasers for getting declaration and cancellation of sale deed and injunction, etc. and in the suit the petitioners have already appeared and filed their written statement. On these background, he submitted that for civil wrong and for which the suit is already pending, the complaint case has been filed and the learned court has taken cognizance which amounts to abuse of process of law. On these grounds, he submitted that the entire criminal proceeding may kindly be quashed. Per contra, Mr. Jitendra Kumar Pasari, the learned counsel appearing on behalf of the O.P.No.2 has submitted that the complainant has not received any amount from the petitioners rather the petitioners have obtained the signature on the blank paper and prepared the document. He further submitted that the complainant came to know about the cheating and that is why legal notice has been issued. He further submitted that son of the O.P.No.2 came and the accused persons in a very hurriedly manner have sold the land on 12/7/2012 to their wives and grand-mother and has stated that the said complainant has not received any amount from the petitioners. He submitted that the complainant has rightly registered the land to his brother since he is the owner of the land in question. He further submitted that the complainant was suffering from depression but seeing the cheating made by the petitioners and other co-accused persons he has registered the sale deed in question dtd. 23/7/2012. He further elaborated his argument by way of submitting that the enquiry was made by the learned court under Sec. 202 of the Cr.P.C. and solemn affirmation was also taken of the complainant and a list of document was also filed by the complainant along with the complaint petition and thereafter the learned court after perusal of the deposition of the witnesses and the documents on record has took cognizance against the petitioners and other co-accused. He submitted that from the perusal of the deposition of the witnesses and the documents filed prima facie case is made out against the petitioners and that is why the learned court has taken the cognizance. He further submitted that there is criminality involved in the petition and if the criminality is involved the criminal proceeding as well as civil proceeding can go simultaneously and to buttress his argument he relied in the case of 'Medchl Chemicals and Pharma Private Limited v. Biological E. Limited and Others', reported in (2000) 3 SCC 269 Relying on this judgment, he submitted that complainant discloses the commission of the offence and the complain cannot be quashed merely on the ground that civil remedy is available as has been held by the Hon'ble Supreme Court. On the same line he also relied in the case of 'Trisuns Chemical Industry v. Rajesh Agarwal and Others' reported in (1999) 8 SCC 686. On the same point, he also relied in the case of 'Ganga Dhar Kalita v. The State of Assam and Others' in Criminal Appeal No.592 of 2015 [arising out of S.L.P.(Crl) No.4425 of 2014]. Relying on these judgments, he submitted that it is well settled that when the criminality is there, both the proceeding, civil as well as criminal, can go simultaneously and in that view of the matter, this petition is fit to be dismissed. In view of the above facts and submissions of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record including the contents of the complaint and deposition of enquiry witnesses as well as the order taking cognizance.