IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.12693 of 2009
1. VIJAY PRAKASH MISHRA
2. BHARTANDU KUMAR MISHRA,
BOTH SONS OF LATE RAMESHWAR PRASAD MISHRA,
R/O STATION ROAD, SITAMARHI, DISTRICT-
SITAMARHI.
--PETITIONER
Versus
1. THE STATE OF BIHAR
2. SMT. KUSMI DEVI WIFE OF GRIDHARILAL PRASAD,
R/O VILLAGE-MAHSOLE, PRATAPANAGAR, P.S. AND
DISTRICT-SITAMARHI.
--OPP.PARTY
For the Petitioners : M/s Sanjeev Kmumar
Mishra & Santa
Kumar
For the Opp.party : Mr. Uday Kumar
For the State : Mr. Amarendra Prasad,
APP
4 07.10.2010
Heard learned counsel for the petitioners,
learned Additional Public Prosecutor for the State and Sri
Uday Kumar for opposite party no.2.
With the consent of the learned counsels, this
application is being disposed of at the admission stage itself.
This is an application seeking quashing of order
dated 04.12.2008 passed in Trial no. 3413 of 2008 arising out
of Complaint Case no. 1106 of 2007 passed by Judicial
Magistrate, first class, Sitamarhi, taking cognizance for the
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offences under Sections 420, 467, 468 and 471 of the Indian
Penal Code.
The relevant facts of this case is that opposite
party no.2 got a sale deed executed in her favour by the
petitioners with respect to 14 dhurs land, old plot no.1390,
new 743 for Rs.47,500/-. Subsequently, there was a
proceeding under Sections 144 and 107 of the Code of
Criminal Procedure between her and one Bachchi Devi, not
party to the present case, wherein said Bachchi Devi claimed
herself to be purchaser of plot in question from father of the
petitioners much before. Undisputedly the relevant plot is of
a bigger area and there was one partition suit between the
family of original owners. The complainant opposite party
no.2 in the criminal proceeding asserted her possession by
virtue of the sale deed executed by the petitioners but during
pendency of 107 proceeding itself the complaint petition
before the court below was filed. There is nothing mentioned
about result of 144 of the Code of Criminal Proceeding.
However, it is now disputed that in said proceeding opposite
party no.2 got an order against her.
At the time of execution of the sale deed in
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favour of opposite party no.2 the petitioners have clearly
recited in the deed that in case of any defect of title or the
purchaser is out of possession due to such defects, they shall
return the consideration with interest at a particular rate.
It is submitted on behalf of the petitioners that in
earlier proceedings initiated much after transferring the land
to her, the complainant opposite party no.2 has clearly
asserted her possession but left the litigation only after
getting an order against her in the proceeding under Section
144 of the Code of Criminal Procedure which was only for a
limited purpose as preventive measure. She, at the instance of
others got initiated the criminal proceeding wherein also there
is nothing averred warranting commission of any offence.
But, cognizance has been taken without any material. On the
other hand, learned counsel for opposite party, while
supporting the order, submitted that petitioners knowing fully
well that some transaction is there in favour of another lady
by their father, but now they are not ready to refund the
money for which initially they were agreed.
It is evident from the deed in question that there
is an agreement to refund the consideration in case of any
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defect in, title or dispossession due to such defects and in the
complaint petition in paragraph 3 it is averred that in
pursuance of such agreement in the deed on the request made
by the complainant petitioners initially were agreed to refund
but after initial avoidance, ultimately, refused to pay the
amount giving rise to complaint petition.
The very averments in the complaint petition
supported with recitals in the sale deed indicates that in fact it
is a dispute relating to enforcement of an agreement to refund
the money on certain event. Thus, it is nothing but a civil
dispute for which criminal proceeding cannot be initiated
under law.
In the result impugned order and proceeding
before the court below is quashed without affecting the right
of complainant opposite party no.2 to get her grievances
redressed by competent civil court or Lok Adalat etc.
(Akhilesh Chandra, J.)
AAhmad