Dismissed

Kamal Deo Dusadh And Anr. v. The State Of Jharkhand And Anr.

Jharkhand HC7 Nov 2022Cr.M.P./1052/2016

Case brief

AI extract

What is this about?

In this criminal miscellaneous petition, the High Court of Jharkhand dismissed an application to quash the entire criminal proceedings initiated under Section 156(3) Cr.P.C. on allegations of cheating by concealment of mortgage facts.

What did the court decide?

The petition for quashing the criminal proceedings is dismissed and the trial shall proceed without prejudice.

Kamal Deo Dusadh And Anr. Vs The State Of Jharkhand And… — Quashing and FIR | Jharkhand HC (2022)

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1 Cr.M.P. No. 1052 of 2016

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1052 of 2016

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Kamal Deo Dusadh, Son of Shri Chanarik Dusadh

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Manju Devi, wife of Kamal Deo Dusadh Both residents of Gotidhowra, P.O. & P.S. Gandhinagar, District- Bokaro … Petitioners

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-Versus-

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The State of Jharkhand

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Raju Kumar, Son of Sri Ganesh Ram, resident of Village Amlo, Subhash Nagar, Block No.1/5, P.O. & P.S. Bermo, District- Bokaro, Jharkhand

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… Opposite Parties

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Atanu Banerjee, Advocate For the Opposite Party-State : Mrs. Priya Shrestha, S.P.P. For Opposite Party No.2 : Mr. Pratyush Kumar Jha, Advocate

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06/07.11.2022. Heard Mr. Atanu Banerjee, learned counsel for the petitioner, Mr. Pratyush Kumar Jha, learned counsel for opposite party no.2 and Mrs. Priya Shrestha, learned counsel for the State.

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This petition has been filed for quashing the entire criminal proceedings arising out of Complaint Case No.306 of 2012, corresponding to Bermo P.S. Case No.142 of 2012 (G.R. No.876 of 2012), pending in the court of the learned Additional Chief Judicial Magistrate, Bermo at Tenughat.

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The complaint was filed alleging therein that sale deed was executed by accused nos. 1 and 2 and registered in favour of the complainant on 24.10.2011 on payment of valuable consideration transferred in account of accused no.4 on understanding that the consideration amount of Rs.4,87,000/- mentioned in the sale deed and out of rest Rs.4,03,000/-, the accused nos. 3 to 5 will keep their commission and give rest to accused no.1. The complainant constructed a house on the plot but in November, 2011, it transpired that against the said land loan was taken before the deed from Allahabad Bank, State Bank of India, a fake agreement made and

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Cr.M.P. No. 1052 of 2016

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Rs.8,90,000/- + 1 Lac (construction of house) grabbed by accused. On direction to initiate FIR under Section 156(3) Cr.P.C., the FIR was registered on 05.08.2012.

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Mr. Atanu Banerjee, learned counsel for the petitioners submits that the land in question was sold by the petitioners to the parents of opposite party no.2. He further submits that so far as right, title and interest are concerned, there is no dispute with regard to the petitioners. He also submits that the allegation in the said complaint case is made that the land is mortgaged in two banks, namely, Allahabad Bank and State Bank of India and loans were taken from the banks. However, money suit has been filed by opposite party no.2. He also submits that no criminality is made out, however for civil nature of case, criminal case has been filed. He further submits that nothing is on the record which suggests that the land was mortgaged with the said banks.

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On the other hand, Mr. Pratyush Kumar Jha, learned counsel for opposite party no.2 submits that by suppressing the fact that the land in question was mortgaged with the banks, the land in question was sold to his parents. He draws attention of the Court to the sale deed which is brought on the record and submit that in the sale deed it has been disclosed that there was no encumbrance on the land in question and the petitioners were having right, title and interest. He further submits that Annexure-2 is the certificate issued by the State Bank of India which suggests that petitioner no.1 has availed loan and he has closed his loan in the year 2014, whereas, registration of the land was made in the year 2011. He also submits that there is nothing on the record which suggests loan clearance of Allahabad Bank. On these grounds, he submits that criminality

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Cr.M.P. No. 1052 of 2016

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is there and at this stage, this Court may not entertain this petition.

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Mrs. Priya Shrestha, learned counsel for the State submits that the intention of the petitioners was not good from the very beginning. She further submits that the ingredient of cheating is made out against the petitioners.

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In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and after going through the contents of the FIR, it transpires that the land in question was mortgaged with two banks, namely, Allahabad Bank and State Bank of India and by concealing this fact, the sale deed was executed in favour of parents of opposite party no.2. In the sale deed also, it has been disclosed that there was no encumbrance on the land in question and by concealing this fact also, the sale deed was executed in favour of parents of opposite party no.2. The document brought on record at Annexure-2 suggests that the land was earlier mortgaged and the loan was closed in the year 2014, whereas, the sale deed was executed in the year 2011. There is no document on the record, which suggests that loan taken from Allahabad Bank has been cleared. It is not a case that the petitioners have disclosed the said facts before executing the sale deed in favour of parents of opposite party no.2. The land was mortgaged with two banks. Thus, the intention of the petitioners was to cheat from very beginning, which is one of the parameters of Section 415 of the Indian Penal Code. On the one hand, the petitioners have taken loan by mortgaging the land in question from the banks and on the other hand, they have sold the land in question to the parents of opposite party no.2. There is no doubt that if the case of civil nature is there, the Court is required to interfere, however at the same

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4 Cr.M.P. No. 1052 of 2016

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time, it is not in dispute that if criminality is also made out in the civil case, both the cases i.e. civil as well as criminal can go together simultaneously,

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as has been held by the Hon'ble Supreme Court in Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. & others; [(2000) 3 SCC 269] .

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In view of the above facts, reasons and analysis, no case of interference is made out. Accordingly, this petition stands dismissed. However, the trial shall proceed in accordance with law without prejudiced to this order.

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Interim order dated 15.12.2016 stands vacated.

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(Sanjay Kumar Dwivedi, J.)

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Ajay/

Kamal Deo Dusadh And Anr. v. The State Of Jharkhand And Anr.

Case brief

What is this about?

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Kamal Deo Dusadh And Anr. v. The State Of Jharkhand And Anr.

Case brief

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