====================================================== 1. Ram Kishore Singh, son of Late Thakur Prasad Singh. 2. Laxmi Devi v. P.S.-Ahiyapur, District- Muzaffarpur
Case Details
Patna High Court Cr.Misc. No.37679 of 2012 (3) dt.05-08-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37679 of 2012 ====================================================== 1. Ram Kishore Singh, son of Late Thakur Prasad Singh. 2. Laxmi Devi, wife of Ram Kishore Singh. Both are residents of Village- Ishwarpatti, P.S.- Ahiyapur, District- Muzaffarpur. .... .... Petitioners. 1. State of Bihar. 2. Rajendra Paswan, son of Late Aklu Paswan, Resident of Village & Versus P.S.-Ahiyapur, District- Muzaffarpur. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioners : Mr. Nachiketa Jha, Advocate. For the Opposite Party No. 2 : Mr. Shankar Kumar, Advocate. Mr. Arun Kumar, Advocate. Mr. Nirmal Kumar Sinha No. 3, Advocate. For the State : Mr. Bipin Kumar, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 05-08-2013 Heard learned counsel for the petitioners, learned counsel for the opposite party no. 2 as well as learned counsel for the State. 2. This is an application for quashing the order dated 10.07.2012 passed by the learned 1st Additional Sessions Judge- cum- Special Judge, Muzaffarpur, in Sessions Trial No. 536 of
Legal Reasoning
2009/Trial No. 46 of 2009 arising out of Complaint Case No. 2003 of 2007 by which petition under Section 227 of the Cr.P.C. for discharge has been rejected with regard to offence under Sections 420 and 406 of the Indian Penal Code and Section 3(1) (x) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocity) Act. 3. The prosecution case as alleged in the First Information Report that accused has land in Patisia. It is alleged Patna High Court Cr.Misc. No.37679 of 2012 (3) dt.05-08-2013 that accused persons in the first week of January, 2006, agreed to sale 2 acre 6 decimal of land of Kheshra No. 70, Khata No. 230, Khata No. 195, Kheshra No. 78, 79, 80, 81 and 82. It is further alleged that petitioners also agreed to sale the land situated by the side of the land agreed to be sold at the same rate. It is further alleged that accused no. 2 executed sale deed on 15. 02. 2006 for 2 acre 6 decimal of land Kheshra No. 78, 79, 80, 81 and 82 on the consideration of Rs. 3,58,000/-, but has not sold the land of Khata No. 522, Kheshra No. 65 and land of Khata No. 267, Kheshra No. 71, 72, 73 and 76 as per agreement between the parties. The complainant has paid amount on 03. 01. 2006 through Cheque No. 187852 of Rs. 50,000/- on 10. 01. 2006 through Cheque No. 187852 of Rs. 1,00,000/- and on 06. 02. 2006 through Cheque No. 294624 of Rs.1,50,000/- which has been encashed by accused no. 1 and further on 12. 02. 2006 through Cheque No. 167856 of Rs. 4,18,000/- was paid to accused no. 2 and total amount worth Rs.8,01,000/- was paid by the complainant. It is further alleged accused no. 2 executed sale deed with regard to 2 acre 6 decimal of land for consideration of Rs. 4,58,000/- but for rest amount of Rs. 4,43,000/- no sale deed was executed and hence it amounts to criminal breach of trust and cheating. It is further alleged that when the complainant went to the house of the accused persons along with witness and demanded money then the accused persons along with two unknown persons abused by calling his caste name Patna High Court Cr.Misc. No.37679 of 2012 (3) dt.05-08-2013 as Dushad and pushed him on the road and abused him by calling Dushad. 4. On the complaint, the complainant and witnesses were examined and after examination, taking into consideration the statement of the complainant and witnesses cognizance was taken for offence under Section 420 and 406 of the Indian Penal Code as well as Section 3(1) (x) of SC/ST Act. 5. After cognizance the accused persons apprehended and filed a petition under Section 227 Cr.P.C. for discharge. The trial court taking into consideration the submission of the parties the claim of prosecution that complainant purchases the land at the rate of Rs. 6000/- per khatha. After taking cognizance the petitioners filed petition under Section 227 Cr.P.C. to discharge the petitioners on the ground that the price agreed to have been paid at the rate of Rs. 25,000/- per khatha and price fixed for sale of 2 acre 6 decimal land for a consideration of Rs.10,30,000/-, but only Rs. 8,01,000/- was paid and rest Rs. 2,29,000/- is still dues and the case is of breach of contract i.e. of civil nature. The case of prosecution on the other side that fixed at the rate of Rs.6000/- per khatha, though, the actual price is Rs. 25,000/- per khatha and taking into consideration the complaint petition and statement of complainant and witnesses find that there is sufficient evidence for framing of charge.
Legal Reasoning
6. Learned counsel for the petitioners however contends Patna High Court Cr.Misc. No.37679 of 2012 (3) dt.05-08-2013 that taking into consideration the allegation in the complaint, no offence is made out for offence under Sections 420 and 406 of the Indian Penal Code. Further when the complainant came to the house of the petitioners, the petitioners calling the caste name of the complainant as Dushad and merely calling the caste name offence under Section 3(x) of SC/ST Act is not made out. 7. Learned counsel for the complainant submits that allegation made makes out an offence and after execution of sale deed on 15. 02. 2006, the petitioners received Rs. 1,50,000/- and hence can well infer to have received the money to sale of lands and there is sufficient material to frame charge. 8. However, from the allegation in the complaint petition itself, it is apparent that there was agreement to sale of land of Khata No. 230 Kheshra No. 70, Khata No. 195, Kheshra No. 78, 79, 80, 81 and 82 and further allegation that it was agreed that after sale of this land rest land by the side of this land will also be sold at the same rate. However, in the complaint, there is no mentioned of the rate at which the land was agreed to be sold, nor the description of land to be sold after the sale of land agreed upon, nor the area of land to be sold is mentioned in that complaint and hence the allegation about agreement is vague. It is further alleged that money was paid on 03. 01. 2006, 10. 01. 2006, 06. 02. 2006 as well as 19. 05. 2006. However, except the money paid on 19.05.2006, rest amount has been paid prior to the Patna High Court Cr.Misc. No.37679 of 2012 (3) dt.05-08-2013 execution of the sale deed dated 15. 02. 2006 with respect to 2 acre 6 decimal of land. From the allegation itself, in the complaint it is apparent that neither the price of the land fixed nor of the land the rate per khatha has mentioned in the complaint petition. Hence the allegation that land agree to be sold at the rate of Rs. 6000/- per acre is not substantiated in the complaint nor the price fixed for 2 acre 6 decimal of land is mentioned in the complaint as Rs. 3,58,000/-. Hence the allegation regarding the contract for sale is is vague and omnibus. 9. So far question for consideration whether allegation made taken to be correct on face value of the complaint makes out an offence under Section 420 and 406 of Indian Penal Code. However, to prove the case for breach of trust under Section 406 of Penal Code there must be entrustment of the property and there must be allegation that the property so entrusted have been dishonestly misappropriated or converted to one’s own use. However, here allegation is there was agreement to sale and the money was paid as consideration for the sale of the land agreed to be sold. Hence when the money has been paid for consideration of sale of land as price it cannot be said to be any entrustment and the money received is not an entrustment, but sale price which can be used for any purpose the petitioner like. Hence it cannot be said that said money which was paid was kept for benefit of the person who paid it. Hence it cannot be said that offence under Section Patna High Court Cr.Misc. No.37679 of 2012 (3) dt.05-08-2013 406 I.P.C. is made out. 10. So far Section 420 I.P.C. is concerned there was agreement between the parties and sale deed was executed of 2 acre 6 decimal of land, hence it cannot be said that there was intention to cheat at the very outset when the parties enter into an agreement. Had there been intention to cheat the complainant by the petitioners. The petitioners may not have been executed the sale deed at all. Moreover the price of the land shown to be Rs.6000/- per katha itself appears to be execution of land and hence it can well be inferred that the agreement to sale was bonafide but the price of land appears to be absurd and execution of land and hence the bonafide of the petitioners to execute the sale deed for 2 acre 6 decimal of land itself indicate the bonafide of the petitioners and in such circumstance, it can well be inferred that the petitioners had no intention to cheat at very outset and neither concern with a breach of an agreement when it is civil consequence and hence no offence made out. The case appears to be of civil in nature for breach of contract and case filed with ulterior motive to pressure the petitioners to execute the sale deed of other land at low price to be benefit of the complainant. 11. Having regard to the fact and circumstance of the case, offence under Section 420 and 406 of Indian Penal code is not made out. Further allegation against the petitioners that they have called the complainant on his caste name as Dushad and this Patna High Court Cr.Misc. No.37679 of 2012 (3) dt.05-08-2013 allegation itself appears to be absurd and mere calling caste name as Dushad of the complainant by the petitioners, it cannot be said that offence under Section 3(1) (x) is made out and this part added maliciously to pressure for execution of the sale deed at thrown away price. Hence allegation made in the complaint does not makes out an offence under Sections 406 and 420 of Indian Penal Code and Section 3 (1)(x) of S.C./S.T. Act. Hence in the impugned order charge to be framed and trial proceeded and allowing the prosecution to continue shall be abuse of the process of the Court. Hence in the interest of justice deemed to be quashed the proceeding. 12. Accordingly, the entire proceeding is quashed and petition is allowed. m.p. (Gopal Prasad, J)