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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
AJIT BORTHAKUR, J.
Jatin Boruah S/o Shri Mishi Boruah – Petitioner
Versus
Shiv Kumar Sah S/o Late Santaram Sah – Respondent
Crl. Pet. No. 191 of 2018
Decided On : 28-07-2022
Indian Penal Code, 1860 – Sections 120B, 193, 199, 420, 423 – Criminal Procedure Code, 1973 – Section 200, 397, 91, 482 – Civil Procedure Code, 1908 – Order 39, Rule 2 (A)– Offence of false evidence – Specific performance of contract - Cheating and dishonestly inducing delivery of property – Examination of complainant – Calling for records to exercise powers of revision – Summons to produce document or other thing – Saving of inherent powers of High Court – Public servant negligently suffering such prisoner to escape – Whether on facts of case a criminal offence is made out or not - It is a settled legal proposition that while considering case for quashing of criminal proceedings Court should not “kill a still born child” and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. (Para 11).
Findings of the Court :
It appears that ownership of disputed land was not legally transferred to petitioner/ complainant either by its pattadar or his power of attorney holder pursuant to execution of Agreement for sale with petitioner receiving Rs. 75,000/- as advance, out of consideration of Rs. 1 Lakh - Petitioner instituted for specific performance of contract - Respondent No. 1 demanded him to handover disputed land to him claiming that he had purchased said plot of land and on his enquiry, it came to light that his (respondent No. 1) son, respondent No. 3, executed a registered sale deed, after obtaining sale permission, in favour of his mother respondent No. 2, suppressing fact of pendency of suit in respect of said plot of land and in violation of status quo order.
Result : Petition disposed of.
JUDGMENT :
AJIT BORTHAKUR, J.
1. Heard Mr. AK Gupta, learned counsel appearing for the petitioner/complainant and Mr. S Islam, learned counsel for the respondents No. 1 to 5.
2. This petition under Section 482 Cr.P.C. has been filed by the petitioner praying for setting aside and quashing of the order, dated 18.11.2017, passed by the learned Additional Sessions Judge, Tinsukia in Criminal Revision No. 03 (1)/2017 whereby the order dated 18.11.2016 passed in CR 91 C/2019 by the learned JMFC, Tinsukia taking cognizance of offences against the opposite parties under Sections 120B/199/420/423 of the IPC was set aside.
3. The petitioner/complainant’s case precisely is that he filed a complaint case against the respondents and another, namely, Manoj Kumar Sharma, on 27.10.2016, in the Court of learned Chief Judicial Magistrate, Tinsukia alleging, inter-alia, that on 07.01.2013, the accused Sri Manoj Kumar Sharma executed a Power of Attorney registered vide Deed No. 8/2013 before Senior Sub-Registrar, Tinsukia in favour of Bikash Jyoti Baruah thereby authorizing and empowering him to sell his land measuring 0 Bigha 2 Kathas 10 Lessas, covered by Dag No. 189 of periodic Patta No. 11, situated at Dihingia Gaon, Mouza- Bogdung, District-Tinsukia, Assam to intending purchasers and to do all the acts and deeds for giving effect of sale and in pursuance thereof on 12.03.2013, the said Bikash Jyoti Baruah entered into an Agreement for sale with the complainant for the aforesaid land and received Rs. 75,000/- as advance, out of fixed consideration of Rs.1,00,000/- and handed over the physical possession of the said land to the complainant well to the knowledge of Manoj Kumar Sharma. However, the said attorney did not execute the sale deed by assigning this and that reason and in the meantime, the opposite party No. 1 taking advantage of the situation tried to dispossess the petitioner. Having no alternative, on 10.02.2014, the petitioner filed TS No. 6/2014 in the Court of learned Munsiff No. 1, Tinsukia praying for Specific Performance of contract, injunction restraining the opposite party No. 1 or any other person claiming through him and the learned Munsiff No. 1 vide order, dated 10.02.2014 passed in Misc. (J) Case 8/2014 directed the parties to maintain status-quo as on 10.02.2014. In the said suit, Bikash Jyoti Baruah entered appearance for himself as well as for Sri Manoj Kumar Sharma as an attorney and the Opposite Party No. 1 also entered appearance and filed their reply. The said opposite party No. 1 in his reply stated that the Power of Attorney executed in favour of said Bikash Jyoti Baruah was revoked by said Manoj Kumar Sharma and a fresh attorney was executed in favour of opposite party No. 3 and also filed Misc. (J) Case No. 3/2015 alleging violation of the status quo order dated 04.02.2014, which came to be dismissed on 02.09.2015. Thereafter, the opposite party on 23.10.2016 demanded the possession of the said land. The petitioner smelling foul play caused an enquiry and found that the Opposite party No. 3 had sold the land by executing a sale deed bearing no. 1223 of 2014 in favor of the Opposite party No. 2 by making false declaration and affidavits before the concerned authority inspite of the status quo order and in collusion with the other opposite parties and Manoj Kumar Sharma and thereby prayed for taking cognizance of the offences under Sections 120B/193/199/420/423 of the IPC. The said complaint was registered as CR Case No. 91 C/2016. Thereafter, on 27.10.2016, the petitioner was examined on oath under Section 200 Cr.P.C. and on the same day, the petitioner also filed Petition No. 3062/2016 under Section 91 of Cr.P.C. praying for calling the records of Misc. (J) Case No. 8/2014 and Misc. (J) Case No. 3/2015 from the court of learned Munsiff No. 1. Tinsukia as well as record of Sale Permission No. TDA (T) 188/2000/LS/Pt/189 dated 19.06.2014, Sale Permission No. TSK/LSP/1209/2014/Tsk-446 (A) dated 21.07.2014 from the o
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