CRIMINAL MISCELLANIOUS No.15320 OF 2005
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In the matter of an application under section 482 of the Code
Of Criminal Procedure.
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KAMAL LATA SINGH———————PETITIONER
Versus
1. STATE OF BIHAR,
2. RAM CHANDRA KUMAR. ———–0PP.PARTY
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For the Petitioner : M/s Ashwani Kr. Singh, Radha
Mohan Singh & Pankaj Kr.
Singh
For the State : Mr. Uma Shanker Pd. Singh,
APP
For the Informant : Mr. Mahendra Thakur
Opp.Party no.2
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PRESENT
THE HON’BLE MR. JUSTICE AKHILESH CHANDRA
Akhilesh Chandra, J. Heard Sri Ashwani Kr. Singh, learned
counsel for the petitioner, Sri U.S.P Singh, learned
Additional Public Prosecutor for the State, and Sri
Mahendra Thakur, for Opposite Party no.2.
2. This is an application under section 482 of
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the Code of Criminal Procedure seeking quashing of
order dated 02nd March, 2005 passed by the Chief
Judicial Magistrate, Purnia, taking cognizance for the
offences under Sections 406, 420 and 120B of the
Indian Penal Code in Khazanchi Hat P.S. Case no. 229
of 1999.
3. The relevant short admitted facts of this
case is that opposite party no.2 filed Complaint Case
no. 730 of 1999 in the Court of Chief Judicial
Magistrate, Purnia on basis whereof Khazanchi Hat P.S.
Case no.229 of 1999 was instituted. In the complaint
petition, which forms part of first information report, it
is stated that the complainant was in search of suitable
land to construct house for his residence, accordingly,
house under construction of the petitioner was selected
and the parties entered into an oral agreement for rupees
two lacs and one thousand. Rupees fifty thousand was
paid to the accused persons in cash followed by deposit
of a sum of rupees one lac in the Bank account of the
accused who delivered the possession with a direction
to complete the construction and start residing therein.
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The complainant towards completion of construction
invested rupees ninety thousand and further invested
rupees twenty thousand eight hundred in a function of
griha pravesh and thereafter started residing therein.
But, inspite of requests accused persons refused to
execute sale deed in favour of the complainant and also
started threatening etc. to get the house vacated. The
complainant realized that intention of the opposite party
petitioner is to digest the money advanced but do
nothing more towards transfer of the land with house.
The Police refused to lodge case finding the same
related with land. Consequently the complain was filed
which was sent to concerned Police Station under
Section 156(3) of the Code of Criminal Procedure and
after investigation Police submitted charge sheet.
Cognizance was taken giving rise to instant case.
4. It is further relevant to mention that earlier
also the petitioner invoked jurisdiction of this Court by
filing Cr.Misc. no. 28943 of 1999 which was dismissed
by order dated 19.7.2000 with the following relevant
observation:
“Learned counsel for the petitioners
4submitted that even on the face of the F.I.R. no
offence whatsoever is made out. It appears
that the matter is still under investigation.
The prayer of the petitioners at this stage,
therefore, is premature as the Police may not
file charge sheet against them. The petitioners
in that view of the matter, may raise the
questions after submission of final form. This
application is, therefore, dismissed at this
stage.”
5. Learned counsel for the petitioner
submitted that the case is outright of a civil nature and
there is no averment in the complaint petition attracting
any criminal offence. The learned counsel further
placed reliance upon Bhajan Lal’s case besides the case
of Murari Lal Gupta V. Gopi Singh; (2005) 13 SCC
699, and Anil Mahajan V. Bhor Industries Ltd. :
(2005) 10 SCC 228, and Uma Shankar Gopalika V.
State of Bihar; (2005) 10 SCC 336.
6. Learned counsel for opposite party no.2
and learned Additional Public Prosecutor both tried to
support the impugned order and submitted that the
matter may be considered by the trial court at the time
of hearing on the point of charge or at any appropriate
stage but neither impugned order nor the first
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information report deserve any interference. The case
instituted against the petitioner, as stated, is nothing but
out come of alleged non-performance of the contract, if
any, entered into between the complaint and the accused
person, that is the petitioner here, partly performing the
agreement. On behalf of the complainant side majority
of the consideration, as alleged, has been paid to the
accused person, the owner of the subject matter of the
case. Who, in compliance, delivered possession to the
complainant, who, as stated, reside with the family in
the house. The only things remains after the agreement
is taken to be true execution of the sale deed by the
accused persons on receipt of the remaining part of
consideration, if any.
7. The case appears to be squarely covered
under the decision of Apex Court in Murari Lal
Gupta (Supra) wherein in paragraph 6 it has been held:
“We have perused the pleadings of the
parties, the complainant and the orders of the
learned Magistrate and the Sessions Judge.
Having taken into consideration all the material
made available on record by the parties and
after hearing the learned counsel for the
parties, we are satisfied that the criminal
proceedings initiated by the respondent against
the petitioner are wholly unwarranted. The
6complaint is an abuse of the process of the
court and the proceedings are, therefore, liable
to be quashed. Even if all the averments made
in the complaint are taken to be correct, yet the
case for prosecution under Section 420 or
Section 406 of the Penal Code is not made out.
The complaint does not make any averment so
as to infer any fraudulent or dishonest
inducement having been made by the petitioner
pursuant to which the respondent parted with
the money. It is not the case of the respondent
that the petitioner does not have the property
or that the petitioner was not competent to
enter into an agreement to sell or could not
have transferred title in the property to the
respondent. Merely because an agreement to
sell was entered into which agreement the
petitioner failed to honour, it cannot be said
that the petitioner has cheated the respondent.
No case for prosecution under Section 420 or
Section 406 IPC is made out even prima facie.
The complaint filed by the respondent and that
too at Madhepura against the petitioner, who is
resident of Delhi, seems to be an attempt to
pressurize the petitioner for coming to terms
with the respondent.”
8. Two other decisions of the Apex Court in
the cases of Anil Mahajan (Supra) and Uma
Shankar Gopalika (Supra) also states almost same
principle.
9. In view of the above, the impugned order
and the first information report are hereby quashed.
This application is allowed without affecting liberty of
the complainant to agitate his claim before appropriate
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authority.
(Akhilesh Chandra, J.)
Patna High Court,
The 18th August, 2010.
AAhmad/(N.A.F.R.)