Heard counsel for the parties.

2. Instant petition has been filed for quashing the order dated 23.4.2010 passed by Sub-Divisional Judicial Magistrate, Chatra taking cognizance against the petitioners under Sections 419, 420, 467, 468 and 120-B of the Indian Penal Code.

3. The short fact as would appear from the complaint petition is that complainant Raghu Nandan Singh (Paswan) son of late Basudeo Singh filed a complaint case against accused-petitioners which was registered as Complaint Case No. 201 of 2009 in which it was alleged that complainant and accused nos. 1 and 2 as well as witness no. 1 are members of same ancestral family. A land under Khata No. 41, Plot No. 104, area 30 acres, 50 decimals under Mouza-Godwali, P.S. Hunterganj was recorded in the name of the complainant at the time of his father and accordingly Government rent-receipts were also being issued. During the lifetime of the father of the complainant he before the village Punches partitioned his moveable and immoveable properties between the four brothers and all were coming into possession of their respective shares of land. These facts were also accepted by accused no. 1 in his sale deed no. 4028 dated 11.7.2001 which relates to Khata No. 41, Plot No. 104 area 8 decimals.

4. The further case is that accused nos. 1 and 2 having knowledge of entire circumstances, by making conspiracy sold the land belonging to the brother of complainant who is witness no. 1 to accused nos. 3 and 4 by registered sale deed no. 3725 dated 25.6.2009 and misappropriated the entire consideration amount. After getting the knowledge, complainant approached the Registration Office, Chatra and obtained certified copy of it and found the incident correct and thereafter filed this complaint petition with a prayer to award punishment to the accused persons.

5. Accordingly, after recording the inquiry witnesses the Court of Sub-Divisional Judicial Magistrate, Chatra took cognizance of the offence under Sections 419, 420, 467, 468 and 120-B of the Indian Penal Code against all the accused persons and ordered for filing requisites for issuance of summons.

6. Learned counsel appearing on the behalf of the petitioners submitted that admittedly petitioner nos. 1 and 2 and O.P. No. 2 herein are brothers belonging to same family. He further submitted that as per allegation petitioner no. 1 has sold land in favour of accused nos. 3, 4 and 5 but no such documents have been annexed with the complaint petition. He further submitted that the cognizance is bad in law as the transaction relating to transfer of land is a matter to be decided by a civil court of competent jurisdiction. No case under the sections of Indian Penal Code is made out, therefore, the order taking cognizance is bad in law. He also submitted that no fraud or misrepresentation was made before the court as the transfer of land was effected with the correct recitals. If there is no false document as defined in Section 464 offences under Sections 467 and 471 of the Indian Penal Code are not made out, therefore, mere execution of a sale deed by claiming that property being sold was executant's property, did not fall under the category of offence committed under Sections 467 and 471 of the Indian Penal Code. He relied on a decision in the case of Mohammed Ibrahim and Others vs. State of Bihar and Another reported in (2009) 8 SCC 751 : 2009 (4) JLJR (SC)75 where it has been held that when a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted. He further relied on a decision of Rajen