Mahendra Roy v. P.S. – Danapur, District – Patna

09.12.2011 passed by Sri Pankaj Chauhan, Judicial Magistrate- 1st Class, Danapur in Complaint Case No. 585-C/2011 by which the learned court below was pleased to issue summons against the petitioner after taking cognizance for the offence under Sections 403 and 417 of the Indian Penal Code.

3. A complaint petition was filed bearing No. 285(C) of 2011 by the complainant against the petitioner.

4. The prosecution case as alleged in the complaint is that the petitioner agreed to sell a piece of land appertaining to Tauzi No. 5835, Thana No. 17, Khata No. 91, Plot No. 138 and Area 10 Katha at the rate of Rs.73,000/- per Katha. The part of Patna High Court Cr.Misc. No.5359 of 2012 (3) dt.11-01-2013 consideration of Rs.1,00,005/- paid and parties entered into an agreement for sale and the terms of agreement were of six months. Subsequently Rs.1,00,000/- was also paid but the terms of agreement were not abide by even when the complainant was ready to perform his part.

5. On the basis of the complaint petition, a case was registered as Danapur P.S. Case No.351 of 2005. However, the police after investigation submitted final form. Thereafter a Protest-Cum-Complaint petition was filed.

6. The police after investigation submitted final form on 30.04.2006 with the report that the case is of civil nature. The learned court below accepted the final form and proceeded on Protest-cum-Complaint petition and after examining the complainant and his witnesses, ordered to issue summons after taking cognizance for the offence under Sections 403 and 417 of the Indian Penal Code.

7. The case of the petitioner is that the petitioner entered into an agreement for sale and received Rs.1,00,005/- as per the agreement but when the complainant did not pay the full amount as agreed upon then the petitioner returned the money advanced for sale to the complainant in presence of some witnesses. It is asserted that the petitioner and his family Patna High Court Cr.Misc. No.5359 of 2012 (3) dt.11-01-2013 have full ownership as the said property was purchased by the father of the petitioner from one Dasai Mahto and is paying the rent receipt. The said Dasai Mahto filed a suit for declaration of title with respect to land agreed to be sold in which petitioner was the main defendant which was decided in his favour and has filed the decree of the land. The complainant has remedy only by way of fling a suit for specific performance of contract and has filed a suit for specific performance of contract bearing T. S. No. 19 of 2012 in the court of learned Sub-Judge-I, Danapur.

8. The learned counsel for the petitioner submits that no offence under Sections 403, 406 and 420 of the Indian Penal Code is made out. The case is for breach of agreement as money was not paid as per agreement and hence is a civil dispute.

9. The learned counsel for the Opposite Party No. 2, however, submitted the witnesses supported prosecution case during inquiry on Complaint-cum-Protest petition on the basis of which summons were issued after taking cognizance for the offence under Sections 403 and 420 of the Indian Penal Code.

10. On respective submission of the parties, the Patna High Court Cr.Misc. No.5359 of 2012 (3) dt.11-01-2013 question for consideration is whether an offence under Sections 403 and 420 of the Indian Penal Code is made out or the case is of civil dispute.

11. However, taking into consideration the facts as alleged that the money was paid as consideration for sale of the land so the amount paid as advance in agreement of sale is the consideration for sale and the same hold by the petitioner is neither an entrustment nor as a trustee for the benefit of the complainant. Hence, use of the same by the complainant cannot be said to be case of dishonest misappropriation to attract Sections 403 and 406 of the Indian Penal Code.

12. To attract the offence under Section 420 of the Indian Penal Code i.e. for cheating, there must be fraudulently and dishonestly deception induced that person to deliver the property. Here the money was paid in agreement to sale. The plea is that the petitioner has no title and decreed. However, the decree in suit and rent receipt and copy of plaint filed by the complainant for specific performance of contract prima facie title of the petitioner which are documents of unimpeachable character to establish the bona fide of the petitioner as an owner of the land for which agreement to sale entered into. It is true that in a petition under Section 482 of the Patna High Court Cr.Misc. No.5359 of 2012 (3) dt.11-01-2013 Cr. P. C. this Court may not take in consideration or act upon the document filed accused without being tested or proved but in exceptional cases Court can look into these documents which are of unimpeachable and can be translated into evidence as has been held in decision reported in (2005)1 SCC 565 and in 2006 (4) PLJR 107. It is only alleged that the petitioner did show the paper but the fact that the complainant filed suit for specific performance itself indicates that the petitioner has title. Hence, the dispute is apparently a civil dispute.

13. Hence, when there is agreement for sale and money paid as consideration and time was essence of agreement to be paid within six months from the date of agreement in

13.02.2002 having not complied with and even the criminal case filed in 2005 and suit for specific performance of contract filed in 2012 by the complaint indicates title of petitioner having accepted by the complainant show the bona fide of the petitioner and in no stretch of imagination it can be said that there was deception on the part of the petitioner for dishonestly and fraudulently induced to deliver the property at the very out set.

14. It is true that this Court should sparingly exercise its jurisdiction to quash a criminal proceeding and the whole Patna High Court Cr.Misc. No.5359 of 2012 (3) dt.11-01-2013 circumspect of the case is required to be looked into for exercising the jurisdiction.

15. However, taking into consideration the facts and circumstances, since offence under Sections 403 and 420 of the Indian Penal Code is not made out and the case concerns with a breach of contract with a civil consequence then allowing the prosecution to continue is an abuse of process of the Court.

16. Hence, the criminal proceeding is hereby quashed and petition is allowed. Kundan/- (Gopal Prasad, J.)