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Rajendra Prasad Yadav & Ors vs State Of Bihar & Anr on 13 September, 2011

Patna High Court – Orders
Rajendra Prasad Yadav & Ors vs State Of Bihar & Anr on 13 September, 2011
                IN THE HIGH COURT OF JUDICATURE AT PATNA
                        Criminal Miscellaneous No.10782 of 2008
               1. Rajendra Prasad Yadav, son of Late Shivnandan Yadav.
               2. Jitendra Prasad Yadav, son of Late Shiv Nandan Yadav.
               3. Vijendra Prasad Yadav alias Laloo Prasad Yadav, son of
                  Late Shiv Nandan Yadav.
                  All resident of village-Maharajpur, P.S. Sadar, District-
                  Purnia.
                  .........................................................Petitioners.

                                              Versus

                   1. The State Of Bihar.
                   2. Vinay Das, son of Jagdish Das, resident of Mohalla-
                      Tatma Toli, P.S. K. Hat, District-Purnia.
                      ...............................................Opposite Parties.

                                  ----------------------------------

                    For the Petitioners: M/s. Rajesh Kumar Singh and Rana
                                         Pratap Singh, Advocates.
                    For the State      : Mr. Jharkhandi Upadhyay, A.P.P.

                                   -----------------------------------

                                            O R D E R

5. 13.09.2011. Vide order dated 2.9.2011, on the request made on

behalf of the petitioners, this case was adjourned for 5 th of

September, 2011 but it appears that inadvertently the same

has been typed as „ put up after one week‟.

In that view of the matter, let the order dated

2.9.2011 be read as under:

“As prayed for on behalf of the petitioners, post

this matter under the same heading on 5th of September,
2

2011.”

The order dated 2.9.2011 is modified accordingly.

2. This application, under Section 482 of the

Code of Criminal Procedure, has been filed on behalf of

the petitioners for quashing the order dated 24.8.2007

passed by Sri B.K. Mishra, Judicial Magistrate, First Class,

Purnia, in Complaint Case No.1628 of 2006 (Trial

No.2842 of 2007), summoning the accused-petitioners as

well as the order dated 5.1.2008 passed by the learned

Sessions Judge, Purnia, in Criminal Revision No.461 of

2007, dismissing the aforesaid Criminal Revision preferred

by the accused-petitioners against the order dated

24.8.2007.

3. The facts leading to this application is that the

complainant-opposite party no.2, Vinay Das, filed the

complaint petition, numbered as Complaint Case No.1628

of 2006, in which it has been alleged that he alongwith his

brother, Umesh Das and neighbour, Narayan Das, used to

do the business of purchasing and selling the land. Smt.

Bholeshwari Devi, the mother of the accused-petitioners

was the owner of the land of 7.99 acres of Khasra Nos.515,

517, 522, 523, 525, 526, 516 and 524/525 of Khata No.40
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of village-Madhopada, P.S. Khajanchi Hat, District-Purnia.

It is also alleged that the accused-petitioners with the

consent of their mother, Smt. Bholeshwari Devi,

negotiated with the complainant-opposite party no.2 to sell

the said land for consideration of Rs.9, 37,000/- and lastly,

on 21.8.2002, taking advance of Rs.1,50,000/-, out of the

aforesaid consideration amount Smt. Bholeshwari Devi

executed the sale deed of the aforesaid land on which the

petitioners no.2 and 3 put their signatures as witnesses

while the accused-petitioner no.1, at the time of execution

of the agreement to sale under conspiracy with his mother

and other accused forcibly entered his name as purchaser.

Being helpless, the complainant-opposite party no.2 and

other purchaser accepted the same. For the execution of

agreement to sale, the complainant-opposite party no.2,

handed over Rs.4,85,000/- to the accused-petitioner no.1

on five different dates; Rs.1,00,000/- on 25.2.2003,

Rs,1,50,000/- on 16.4.2003, Rs.80,000/- on 10.7.2003,

Rs.85,000/- on 28.2.2004 and Rs.70,000/- on 4.8.2004. As

such, the complainant-opposite party no.2, made payment

of Rs.6,35,000/- out of the total consideration amount of

Rs.9,37,000/-.

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According to agreement to sale, the mother of the

accused-petitioners on the instruction of the complainant-

opposite party no.2 executed the sale deeds of the land of

96.04 Katha in the name of the different persons and on

the sale deeds the complainant-opposite party no.2 put his

signature as a witness. Since the rate of the land was

finalized as Rs.50,000/- per Katha, as such, 134 Kathas of

land were to be sold for Rs.6,35,000/- but the mother of

the accused-petitioners on the instruction of the

complainant-opposite party no.2 executed the sale deeds of

the land only for 96 Katha 4 Dhoor. As such, Rs.94,500/-

was still due for the land of 37 Katha 16 Dhoor.

4. It is further alleged that the accused-petitioners

had given assurance to the complainant and got written in

the agreement to sale also that that the whole land is clear

and undisputed but after the execution of the aforesaid sale

deeds, the complainant-opposite party came to know that

the land measuring an area of 3.36 acres of Khasra

Nos.515, 525, 526 and 516 is in the possession of Dhagarh

Community. The mother of the accused-petitioners died

on 28.7.2004 and, thereafter, the accused-petitioners

jointly carried the liability of the agreement to sale and
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when the complainant-opposite party no.2 asked the

accused-petitioners to execute the sale deed of 37 Katha 16

Dhoor land for Rs.94,500/- on getting the possession of

land from Dhagarh Community, the accused-petitioners

started avoiding to execute the sale deed of the said land.

Being helpless, the complainant-opposite party no.2 sent

the registered notice to the accused-petitioners through

Advocate to execute the sale deed for remaining amount

but the accused-petitioner no.1, knowingly did not reply to

the notice and the rest two accused-petitioners no.2 and 3,

sent the reply to the notice through their Advocate, Dilip

Kumar and in reply, while they admitted about the

receiving of Rs.1,50,000/-, but denied the receiving of

Rs.4,85,000/- after the execution of agreement to sale. As

such, while the accused-petitioners were duty bound to

execute the agreement to sale but under conspiracy with

dishonest intention refused about the receiving of

Rs.4,85,000/-.

5. After filing of the complaint petition, on

inquiry the accused-petitioners have been summoned by

the court of Sri B.K. Mishra, Judicial Magistrate, First

Class, Purnia, finding prima facie case under Sections 406
6

and 420 of the Indian Penal Code vide order dated

24.8.2007. The accused-petitioners preferred the Criminal

Revision No.461 of 2007 assailing the summoning order

dated 24.8.2007, which has been dismissed by the court of

learned Sessions Judge, Purnia on 5.1.2008.

6. Learned counsel appearing on behalf of the

petitioners submits that admittedly agreement to sale of the

land was entered into in between Smt. Bholeshwari Devi

and the complainant-opposite party no.2, which was never

registered and, in fact, the lands were to be sold by Smt.

Bholeshwari Devi, on the instruction of the complainant-

opposite party no.2 but as the complainant-opposite party

no.2 did not pay the total consideration amount, and the

complainant-opposite party no.2 has filed the false case

only to put pressure upon the accused-petitioners and grab

the money. Learned counsel for the petitioner further

submits that on bare perusal of the complaint petition, it is

clear that the dispute is of civil nature but the learned

Magistrate illegally summoned the accused-petitioners for

the offence under Sections 406 and 420 of the Indian Penal

Code vide order dated 24.8.2007 passed in Complaint Case

No.1628 of 2006 filed by the complainant-opposite party
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no.2 and the learned Sessions Judge has also dismissed the

Criminal Revision No.461 of 2007 preferred by the

accused-petitioners against the said order vide order dated

5.1.2008.

7. On bare perusal of the complaint petition, the

case appears to be breach of contract entered in between

Smt. Bholeshwari Devi, the mother of the accused-

petitioners and the complainant-opposite party no.2.

Section 406 of the Indian Penal Code relates to

the punishment for criminal breach of trust which is

defined in Section 405 of the Indian Penal Code and

Section 420 of the Indian Penal Code relates to the

cheating and dishonestly inducing delivery of property.

Sections 405 and 420 of the Indian Penal Code are read as

under:

“405. Criminal breach of trust.- Whoever, being

in any manner entrusted with property, or with any

dominion over property, dishonestly misappropriates or

converts to his own use that property, or dishonestly uses

or disposes of that property in violation of any direction of

law prescribing the mode in which such trust is to be

discharged, or of any legal contract, express or implied,
8

which he has made touching the discharge of such trust, or

wilfully suffers any other person so to do, commits

“criminal breach of trust”.

420. Cheating and dishonestly inducing

delivery of property.- Whoever cheats and thereby

dishonestly induces the person deceived to deliver any

property to any person, or to make, alter or destroy the

whole or any part of a valuable security, or anything which

is signed or sealed, and which is capable of being

converted into a valuable security, shall be punished with

imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine.”

8. From reading the averments made in the

complaint petition in their entirety and accepting the

allegations to be true, it appears that the ingredients

constituting the offence under Sections 406 and 420 of the

Indian Penal Code are lacking and the dispute about the

fulfillment of contract is civil in nature. As such the order

of summoning the accused-petitioners for the offence

under Sections 406 and 420 of the Indian Penal Code

appears to be abuse of the process of the court as the

nature of the dispute is of civil.

9

9. Accordingly, the order dated 24.8.2007 passed

by Sri B.K. Mishra, Judicial Magistrate, First Class, Purnia

in Complaint Case No.1628 of 2006 and the order dated

5.1.2008 passed in Criminal Revision No.461 of 2007 by

the learned Sessions Judge, Purnia, are hereby quashed and

the application is allowed.

(Rajendra Kumar Mishra, J)

P.S.