Shatrughan Prasad Gupta son of late Madan Prasad Gupta, resident v. of Anandpuri, P.S. Mizaffarpur, District Muzaffarpur
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.22822 of 2011 ====================================================== 1. Janakman Rajak, wife of Chandra Bhushan Rajak. 2. Chandra Bhushan Rajak, son of late Jaggu Rajak, resident of village- noon Gola Hajipur, P.S. Hajipur, District-Vaishali. 3. Hirjan Shaha son of late Niwaran Chandra Shaha, resident of village Chhitauni Colony, P.S. Chhitauni, District East Champaran 4. Smt. Prem Kanti Devi wife of Lal Babu Jha, resident of village Bhandar, P.S. Dhaka, District-East Champaran. 5. Smt. Shail Devi wife of Shashi Bhushan Yadav. 6. Shashi Bhushan Yadav, son of Late Shiv Rai, resident of village- lahdiya, P.S. Darp District East Champaran, 7. Smt. Anjali Kumari, wife of Binay Kumar resident of village shripur, P.S. Ghorashan District East Champaran ..... .... Petitioner/s 1. The State of Bihar 2. Shatrughan Prasad Gupta son of late Madan Prasad Gupta, resident Versus of Anandpuri, P.S. Mizaffarpur, District Muzaffarpur
Legal Reasoning
.... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ajay Kumar Lal, Adv. For the Opposite Party/s : Mr. R.K. Soni, Adv. Mr. Satendra Prasad, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 5 07-03-2013 Heard Mr. Ajay Kumar Lal, learned counsel for the petitioners, Mr. R.K. Soni, learned counsel for the opposite party No.2 and Mr. Satyendra Prasad, learned counsel for the State. This application under Article 482 of the Code of Criminal Procedure has been filed for quashing the order dated 17.11.2010/18.11.2010 passed by learned Chief Judicial Magistrate, East Champaran at Motihari in connection with Complaint Case No. 1294(C) of 2010 and Enquiry No. 372 of 2010 whereby the learned Chief Judicial Magistrate has been pleased to take cognizance of the offence punishable under Section 420 of the Indian Penal Code against the accused. 2 Patna High Court Cr.Misc. No.22822 of 2011 (5) dt.07-03-2013 2 / 5 The complaint is placed at Annexure-1 of this application and charges the accused of retracting from their agreement of sale of a piece of land bearing Khata No. 87 Khesra No. 1067 admeasuring 2.10 acres situated at Mauza-Chhitauni P.S. Motihari Mufassil, District East Champaran. It is the case of the complainant that the accused Janakman Rajak who is the wife of the accused-opposite Party No.2, Chandra Bhushan Rajak intended to sale the said land for a consideration amount of Rs. 4,75,000/-. It is stated that the husband of the opposite party No.1, Chandra Bhushan Rajak is working as a Sub-Inspector in the Home Police Department and thus the complainant believed him. It is further the case of the complainant that in view of the intendment shown, a sum of Rs. 50,000/- was handed over to the accused No.2, Chandra Bhushan Rajak and the signature of his accused wife Janakman Rajak was obtained on the agreement. The complainant states that he was also given possession of the said piece of land. It is further stated that on 26.5.2010, the accused came and informed him that the land stands sold in favour of a third person. The complainant has stated that when he went to the Registry Office it came to his information that the vendor in collusion with the other accused had sold the land in question on 18.5.2010 in favour of the accused Nos. 4 to 7 through four separate sale deeds. The complaint was registered and the learned Chief Judicial Magistrate on the basis of the allegation made in the complaint and on examination of the witnesses, has taken cognizance of the offence punishable under Section 420 of the Indian Penal Code against the accused. Mr. Ajay Kumar Lal, learned counsel for the petitioner has submitted that for a dispute which is of a pure civil nature, the criminal case has been instituted merely to apply pressure. It is stated that the statement made in the 3 Patna High Court Cr.Misc. No.22822 of 2011 (5) dt.07-03-2013 3 / 5 complaint even if accepted on its own face value though not admitted, yet it would at best be a case of breach of agreement and for which the complainant has already moved the Civil Court by filing a suit bearing Title Suit No. 340 of 2010 for specific performance of contract as against the accused herein. A further prayer has been made in the suit that the sale deed executed by the vendor dated 18.5.2010 would not be binding on the complainant who is the plaintiff in the Court. The short submission made by Mr. Ajay Kumar Lal, learned counsel for the petitioner, is that the pre-requisites for constituting an offence of cheating being absent in the present case, the continuation of the proceedings would be an abuse of the process of the Court. Mr. Kumar, in support of his submission, has relied upon a judgment of this Court reported in 2008(1) BBCJ 571 (Dr. Anzar Hassan @Dr.Anzar Hassan Ibrahim Vs. State of Bihar & Anr.). The complaint have been contested by the learned counsel for the State as well as Mr. R.K. Soni, learned counsel for the opposite Party No.2. It is stated that the accused persons having induced the complainant into believing that they were going to sale the property in his favour, their retraction from the assurance by itself is sufficient to constitute an offence under Section 420 of the Indian Penal Code. I have heard learned counsel for the parties and have perused the materials on record. The complaint charges the accused persons of having induced the complainant into an agreement for sale of land in question and thereafter retracting from the same. It also charges the accused of having sold of the said piece of land in favour of accused petitioner Nos. 4 to 7. Whether the 4 Patna High Court Cr.Misc. No.22822 of 2011 (5) dt.07-03-2013 4 / 5 allegation aforementioned would constitute a criminal offence or is a civil dispute is the subject matter in contest. It is not the case of the complainant that the land did not belong to the vendor when he entered into an agreement, if any, with the complainant. It is also not the case of the complainant that the land had already been vended by the vendor when the alleged agreement took place. On the contrary, it is a specific case of the complainant that the vendor and the other accused persons having entered into an agreement with the complainant for the sale of a piece of land, they have broken the agreement. There are certain essential elements which are necessary to be present in any transaction so as to constitute an offence of cheating and which is manifest from a plain reading of the definition of the term „cheating‟ found in Section 415 of the Indian Penal Code. A reading of the complaint nowhere mentions that there was any inducement on the complainant to deliver property or his consent was obtained with premeditated mind of deceiving the complainant with full knowledge that such action was likely to harm the complainant or his reputation or to his property. At best the complainant can charge the accused of having breached the agreement but then the same needs to be proved. This Court in the circumstances aforementioned is nodoubt that the allegations do not fulfill the constituents of the offence of cheating. The present case is another addition to the short cut method being adopted by a litigant for resolving civil disputes. Reference in this regard is made to a judgment of the Supreme Court rendered in the case of G.Sagar Suri and Anr.Vs. State of U.P. and Ors. reported in 2000(2) SCC 636. Para 8 of the judgment would be relevant for the matter in issue: 5 Patna High Court Cr.Misc. No.22822 of 2011 (5) dt.07-03-2013 5 / 5 “8. Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” For the reasons aforesaid, the order taking cognizance in Complaint Case No. 1294 of 2010 and the entire proceedings arising there from is quashed and set aside. This application is allowed. Bibhash/- (Jyoti Saran, J)