ORDER
1. The prayer of the petitioner in this application is for quashing the order dated 22.1.2003 passed by the District and Sessions Judge, Deoghar in Criminal Revision No. 53 of 2002 whereby the learned Sessions Judge allowed the said revision application and set aside the order dated 29.1.2002 taking cognizance
passed by the Chief Judicial Magistrate, Deoghar under Sections 420/120B of the Indian Penal Code against the opposite party Nos. 2 and 3.
2. The petitioner, who is the complainant, filed complaint case being PCR case No. 32 of 2002 in the Court of Chief Judicial Magistrate, Deoghar against the opposite party Nos. 2 and 3. It was alleged in the complaint petition that on being misrepresented by the opposite party No. 2 that they were exclusive owner of the land measuring 2600 square fit of plot No. 407 situated at Mauza Shyamganj in the town of Deoghar. The petitioner approached the opposite party Nos. 2 and 3 and offered to purchase the said land. The accused persons showed him the map of the land. It was alleged that believing on the statements of the opposite party Nos. 2 and 3, the petitioner entered into an agreement for sale of the aforesaid land with opposite party Nos. 2 and 3 and also paid Rs. 30,000/- by way of advance and it was agreed that the opposite party Nos. 2 and 3 would execute the deed of sale on 16.3.1998. It was further alleged that the opposite party Nos. 2 and 3 promised that they would get signature of other co-sharers of the deed. It was further alleged that inspite of repeated demand and request made by the petitioner, the accused persons did not register the sale deed and waited the same one or other pretext. The petitioner, therefore, alleged that he has been cheated by the opposite party Nos. 2 and 3 as he was induced to pay a sum of Rs. 30,000/- to the opposite party Nos. 2 and 3 who had the intention to cheat the petitioner. The petitioner also sent Advocate’s notice to the accused persons and demanded the execution of the sale deed but they did not execute the sale deed though they admitted the receipt of the advance money of Rs. 30,000/- and also promised to execute the sale deed.
3. The learned Chief Judicial Magistrate examined the complainant on solemn affirmation. No witness was examined on behalf of the complainant and only on the basis of the statements of the complainant the learned Chief Judicial Magistrate, Deoghar, by a well reasoned order 29.1.2002 took cognizance of the offence under Section 420/120B of the Indian Penal Code against the opposite party Nos. 2 and 3 and issued summons for their appearance.
4. Being aggrieved by the said order dated 29.1.2002 of the learned Chief Judicial Magistrate, Deoghar, the opposite party Nos. 2 and 3 moved before the Sessions Judge, Deoghar in Criminal Revision No. 53 of 2002. The learned Sessions Judge by his order dated 22.1.2002, after hearing the parties, allowed the revision application and set aside the order taking cognizance holding that the present case related to solely to the argument of sale of a land and liability, If any, of the accused persons was of civil nature. The learned Sessions Judge, relied on decision in the case of Deepali Devi v. State of Jharkhand i.e. Crl. Misc. No. 1338 of 2000.
5. Being aggrieved and dissatisfied with the order of the learned Sessions Judge, the complainant/petitioner has filed this present application.
6. The learned counsel for the petitioner has submitted that the learned Sessions Judge has committed illegality in setting aside the order taking cognizance holding that the liability of the opposite party Nos. 2 and 3 was only of a civil nature. He further submits that from the facts of the present case the liabilities of the opposite party Nos. 2 and 3 were both of civil and criminal nature and therefore, both civil and criminal proceeding can run simultaneously. The learned counsel for the petitioner has relied on the decisions of the Trisuns Chemicals Industry v. Rajesh Agarwal and Ors. reported in (1999) 8 SCC 686 and Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. reported in (2000) 3 SCC 269 : 2000 (2) East Cr C 524 (SC).
7. On the other hand, Mr. V. Shivnath, learned counsel for the opposite party Nos. 2 and 3 has contended that the whole case is based on an agreement, said to have been entered into between the petitioner
and opposite party Nos. 2 and 3 and therefore, if, at all, the opposite parties have failed to execute registered sale deed as alleged by the petitioner it can be said to be at best a case of breach of contract. He further submits that the petitioner has a remedy under the Specific Relief Act and he can file suit for Specific Performance of Contract. For the said breach of contract the opposite party Nos. 2 and 3 cannot be prosecuted for committing an offence under Sections 420/120B of the Indian Penal Code.
8. He further submits that since the opposite party Nos. 2 and 3, admit that they did receive advance money from the petitioner and they are still ready and willing to perform their part of contract by registering sale deed as and when other co-sharers agree to transfer the said land in favour of the petitioner, therefore, it cannot be said that the opposite party Nos. 2 and 3 have or had any intention to cheat the complainant/petitioner. In support of his submissions the learned counsel for the opposite parties has relied on decision in the case of Parhana Nasreen and Anr. v. State of Bihar and Anr. reported in 2001 (2) East Cr C 353 (Pat), Basanteshwari Prasad v. State of Jharkhand and Anr. reported in 2003 (1) East Cr C 641 (Jhr). Hindustan Copper Ltd. and Ors. v. State of Bihar and Ors. reported in 2001 (1) JCR 178 (Jhr).
9. In the case of Trisuns Chemicals Industry (supra) wherein it has been held that criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. Existence of an arbitration clause in the contract for supply of goods between two companies cannot be a sufficient ground for quashing the complaint and arbitrator cannot be said to be a competent to adjudge an offence.
10. The above decision, in my opinion, is not applicable in the facts and circumstances of this case because the facts of the present case as well as of the case before the Supreme Court are quite different.
11. So far as the decision in Medchl Chemicals and Pharma (P) Ltd. (supra) Where in it has been held that the complaint has to be examined as a whole without going into merits of the allegations made therein and if a prima facie is made out disclosing the ingredients of the offence alleged against the accused, Court should not quash the complaint but if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable. Court should not hesitate to quash the complaint. It has further been held that mere fact that the offence was committed during the course of a commercial transaction by itself not sufficient to quash the complaint, the Court has to see whether on the fact situation ‘civil profile’ outweighs the ‘criminal outfit’. It has further been held that in a case where allegations under Sections 415, 418 and 420 of the Indian Penal Code mens rea is an essential ingredient of the offence under Sections 418 and 420 of the Indian Penal Code.
12. Therefore, according to the decision of the Supreme Court also the intention of the accused persons was required to be examined from the allegation made in the complaint.
13. In the present case the whole allegation is on the basis of the agreement entered into between the parties. From the statements made in the complaint petition as well as from the statements on solemn affirmation, it appears that it is a purely case of civil nature and based on breach of contract. My view is supported by the decision cited by the opposite parties reported in 2001 (2) East Cr C 353 (Pat). The facts of this decision are exactly similar to the fact of the present case. In this case Patna High Court held that it is a simply case of breach of terms of agreement or contract and there cannot be any criminal liability. Only civil liability might be there.
14. In view of my above discussions and findings, I am of the clear view that it is a purely case of civil nature and a case of breach of agreement/contract and therefore, continuance of the Criminal Prosecution against the opposite parties would be an abuse of the process of the Court.
15. In that view of the matter, I find that the learned Sessions Judge has rightly allowed the revision application and set aside the order taking cognizance dated 20.1.2002 against the opposite party Nos. 2 and 3.
16. In the result, this application has got no merit. It is accordingly dismissed.