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