Oral Order

09 / Dated : 09.10.2023

1. The instant criminal misc. petition has been filed for quashing the order dated 17.04.2018 passed in Cr. Revision No. 95 of 2017 whereby and where under, the revision preferred by the petitioners against the summoning order under Sections 120B and 420 of IPC has been dismissed as not maintainable.

2. The complainant is the son of Lalita Devi Sharma who executed a power of attorney in favour of petitioner no. 1 with respect to plot of land measuring

29.75 decimals fully detailed in the complaint, who executed the sale deed with respect to same land in favour of different persons including petitioner

nos. 2 and 3 on 12.05.2006.

3. The main allegation of the complainant is that during absence of the complainant from Giridih, he induced his mother to execute the power of attorney in favour of petitioner no. 1 and sold a very valuable property without payment of any consideration amount. Case has been filed after this came to his knowledge. Cheque which was given for the sale of piece of land, was never encashed. Petitioner no. 1 sold the land to petitioner nos. 2 and 3 who happened to be his own brothers. At the same time, the market value of the said land was Rs.1,50,00,000/- whereas it has been disposed of for a sum of Rs. Four Lakh.

4. The statements of the complainant and two witnesses were recorded after which summoning order has been issued and being aggrieved by the said order, the instant quashing petition has been filed.

5. It is submitted by learned counsel for the petitioners that the offence of Section 420 of IPC will not be made out on these averments, even if the same is assumed to be true. The seller of the land is not only the mother of the complainant, but also others, including his uncle and aunt who never came forward to file any complaint. The complainant has filed Original Title Suit No. 162 of 2017 wherein all the sellers and purchasers including the mother of the complainant have been impleaded as defendant parties.

6. It is further submitted that even if a co-sharer of the joint property sells or transfers the property, no criminal offence will be made out in view of the ratio laid down in (2009) 7 SCC 495. Reliance is placed on Mohd. Ibrahim v. State of Bihar , (2009) 8 SCC 751 , (2013) 11 SCC 673, (2018) 15 SCC 273 .

7. Learned AAG-III, appearing for the State, assisted by learned counsel for opposite party no. 2, have opposed the quashing petition. It is submitted that specific averment of selling the land on a throw away price has been made in the complaint petition which is fully supported by the statements of the witnesses during enquiry. At the stage of issuance of process only a prima facie case, it is to be taken and not the probative value of it. Taking advantage of absence of the complainant, petitioner no. 1 who was given responsibility to look after the property, induced his mother to execute power of attorney in his favour and thereafter sale deed was executed by petitioner no. 1 in favour of his own brothers, without taking any consideration amount. Although the cheque has been referred in the sale deed but it had never been handed over to the sellers.

Mother of the complainant had a right only over 1 ½ Katha of land and contrary to the recital made in the sale deed, there was no relinquishment of title by the complainant or others.

8. After having considered the rival submissions advanced on behalf of both the sides, the main grievance of the complainant is with respect to execution of the sale deed in the year 2006 for which the complaint has been filed in the year 2017. None of the sellers have either filed the criminal case nor any civil suit as per the submission advanced on behalf of the petitioners. Although the original sellers do not complain about inadequacy of consideration amount, but complainant complains that hi