- (1.) The present criminal miscellaneous petition has been filed for quashing the entire criminal proceeding arising out of Complaint Case No.405 of 2008 (T.R. No.1039 of 2009), including the order dated 16 th January, 2009 passed by the learned Judicial Magistrate, 1st Class, Ranchi by which cognizance of offences under Sections 420 and 468 of the Indian Penal Code has been taken against the petitioner.
(2.) The brief background of the case as culled out from the petition is that the opposite party no.2 instituted a complaint being Complaint Case no.405 of 2008 against the petitioner, alleging, inter alia, that the opposite party no.2 was in peaceful possession of the dwelling house, known as 'Gangotri' under R.S. Plot no.487(B) in Mauja Hatma, under Lalpur police station, Thana no.200, District Ranchi, corresponding to Ranchi Municipal Holding no.208 under Ward no.18, having total area of 13 Kathas. A partition suit being Partition Suit no.200 of 1993 was filed by the brother of the opposite party no.2, namely, Sanjiv Sinha, however, during pendency of the said suit he died and the suit got abated. After about four years, the petitioner was impleaded as party to the aforesaid partition suit on the basis of a registered sale deed. When the opposite party no.2 came to know about such a sale deed, she made the aforesaid complaint with an allegation that the said sale deed is a false and fabricated document in order to grab her undivided dwelling house. The complainant was examined on oath on 15th February, 2008. Three more enquiry witnesses were produced by the complainant in support of her allegation. The learned Judicial Magistrate vide order dated 16th January, 2009 took cognizance of the offences under Sections 420 and 468 of the Indian Penal Code against the petitioner.
(3.) Learned senior counsel for the petitioner further submits that the learned Sub Judge, Ranchi passed the judgment dated 2nd March, 1994 in Partition Suit no.200 of 1993 and a preliminary decree was prepared for the half share of the aforesaid dwelling house. Thereafter, the petitioner purchased the said share of Sanjiv Sinha by registered sale deed dated 26th March, 2002, but before preparation of the final decree, he died and as such the petitioner filed an application on 23rd August, 2004 for impleading her as plaintiff in place of Late Sanjiv Sinha, which was allowed by the learned Sub Judge vide order dated 27th January, 2006. It is further submitted that a preliminary decree was prepared on the own admission of the defendants (opposite party no.2 and her father). The consideration money in relation to the sale deed was paid through demand draft and without examining the fact that the money was credited to the account of Late Sanjiv Sinha, it cannot be alleged that the signature of Late Sanjiv Sinha is false and fabricated. The issue with regard to the genuineness of the sale deed can be adjudicated by a Civil Court in the suit pending for preparation of final decree and as such the instant criminal proceeding is not maintainable at all. Even if the allegations made in the complaint are considered on the face of it, unless a finding is given by the learned Sub Judge with respect to the alleged forgery committed during pendency of the said suit, no separate criminal proceeding is tenable in law in view of the provisions of Sections 195 and 340 Cr.P.C. The learned Judicial Magistrate has erroneously taken cognizance of the offences under Sections 420 and 468 of the Indian Penal Code particularly when the matter is still pending before the learned Sub Judge, Ranchi. The entire criminal proceeding initiated against the petitioner at the instance of opposite party no.2 is absolutely false and malicious with an intention to grab the entire property and to put the preliminary decree passed by the learned Sub Judge in jeopardy, which was passed on the basis of own admission of the opposite party no.2 herself taking advantage of the fact that the petitioner's vendor i.e. Late Sanjiv Sinha died before preparation of the final decree in the partition suit. It is lastly submitted by the learned senior counsel for the petitioner that continuance of the criminal proceeding as against the petitioner would be an abuse of process of Court and as such the same may be set aside.;