A professional deed writer (Katib) cannot be held criminally liable for fraud or criminal breach of trust for drafting a sale deed in the course of professional duty unless there is tangible evidence of mens rea or collusion.

ORAL JUDGMENT

Heard learned counsel for the petitioner, learned APP for the State and learned counsel for the opposite party no.2.

2. The present application has been filed for quashing of the order dated 27.06.2022 passed by learned Judicial Magistrate, 1st Class, West Champaran at Bettiah, in connection with Manpur P.S. Case No.38 of 2020, whereby cognizance has been taken under Sections 341, 323, 406, 429, 506 and 504 of the Indian Penal Code.

3. The present case arises out of a written report filed by the opposite party no.2 making allegations with regard to the fact that by virtue of a registered sale deed, one co-accused Brajbhushan Ojha sold the said land to Shivnandan Ram without having any valid ownership of the said land. Further, the allegation is that the petitioner, being the Katib (deed writer) and other named accused persons, being the witnesses, identifier etc. all acted in collusion with each other in preparing the registered sale deed by applying fraudulent means.

4. Learned counsel for the petitioner submits that a bare narration of the facts in the First Information Report indicates that it was co-accused Brajbhushan Ojha who had registered the concerned plot of land to co-accused Shivnandan Ram without having a valid ownership and had used fraudulent means for the same. It also appears from the FIR that the said co-accused Brajbhushan Ojha had accepted his guilt and he had agreed before the panchayat to make good the loss, but subsequently when he was asked to make the said registry, he indulged in physical altercation along with his family members. It is only in last portion of the FIR that the name of the petitioner has also been included on account of the fact that he happened to be the deed writer of the said sale deed in question.

5. Learned counsel has further submitted that there is an internal land dispute between the parties on account of an ancestral property and the case is purely civil in nature and wrongfully a criminal colour has been given to the same. A supplementary affidavit has also been filed to state that land in question is joint ancestral land of the informant and the co- accused and the role of the petitioner features in the form of merely being the person who prepared/drafted the sale deed, which was his professional duty. The offences under Sections 341, 323, 506 and 504 of the IPC are just not made out as against the petitioner because the FIR also does not indicate that this petitioner had indulged in any act of assault etc. So far as the criminal breach of trust is concerned, the petitioner again cannot be held liable for the same as by virtue of he being a deed writer, he cannot be attributed with any allegations of mens rea or motive to commit the offence and moreover, there is no ‘entrustment’ to the petitioner in order to constitute the said offence.

6. Per contra, learned counsel appearing for the opposite party no.2 opposed the present application by submitting that there are allegations of collusion and conspiracy as against the present petitioner also and there is no patent illegality with the order taking cognizance.

7. Taking into consideration the entire factual scenario along with the settled legal position, this Court finds that the petitioner, being a sale deed writer (Katib), was merely doing his professional duty and the mens rea and intention required for indulging into any fraudulent activity, as such, does not surface as against the petitioner. The allegation of collusion is not substantiated by any tangible material and remains a bald and causal allegation. It is also clear that it was not the petitioner who indulged in any acts of altercation etc., rather it was the co-accused and his own family members who indulged in the same. Further, co-accused has himself accepted that he committed a mistake, as such, it would be wrong to say that the petitioner, being the deed writer, would in any way be involved in any int