Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7300 of 2013 ====================================================== Jay Kumar Singh S/O Mani Singh R/O Bank Colony, Gola Rooad, P.S. Danapur, District - Patna 1. The State Of Bihar 2. Sri Surya Prakash Singh S/O Late J. P. Singh R/O Mohalla - Versus .... .... Petitioner/s Sultanganj, P.S. Sultanganj, District - Patna .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner : Mr. Jagnnath Singh with Mr. Pramod Kumar Singh, Advocates For the State : Smt. Sahin Begum, APP
Legal Reasoning
For the opposite party no. 2 : Mr. Sandeep Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 7 07-10-2013 Heard learned counsel for the petitioner, learned A.P.P. for the State and learned counsel appearing for the opposite party no. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) seeks quashing of the order dated 07.01.2013 passed by the Judicial Magistrate, 1st Class, Patna in Kotwali P.S. Case No. 408 of 2007 (G.R. No. 4649 of 2007) by which a petition filed under Section 439 of the Code for discharge has been rejected. The opposite party no. 2 had filed Complaint Case Patna High Court Cr.Misc. No.7300 of 2013 (7) dt.07-10-2013 2/5 No. 2693 (C) of 2007 against the petitioner and others alleging that though he had given money for purchase of a Flat measuring 1000 sq. ft. to be built by the opposite party no. 2 and also after having paid him a total amount of Rs. 3,32,316/-, the flat which the opposite party no. 2 was ready to give to the petitioner was reduced. The said complaint was sent to the police which resulted in institution of Kotwali P.S. Case No. 408 of 2007. Learned counsel for the petitioner submits that the case is of a purely civil in nature since from the entire reading of the complaint, no criminal liability can be fastened upon the petitioner since, at best, the dispute can be with regard to an agreement between the parties relating to sale and purchase of a Flat in a multistoried apartment. Learned counsel submits that if at all the opposite party no. 2 had any grievance, he had the remedy of moving before a civil court of competent jurisdiction either for Specific Performance of the agreement or for seeking damages/compensation/refund. Learned counsel submits that later on the petitioner has also returned Rs. 4 Lakhs to the opposite party no. 2 and thus , as of now, the opposite party no. 2 has been compensated since despite the principal amount, almost Rs.70,000/- extra has been paid. Learned counsel submits that the Court had taken cognizance under Section 420 of the Indian Penal Patna High Court Cr.Misc. No.7300 of 2013 (7) dt.07-10-2013 3/5 Code which is erroneous inasmuch as there was no fraudulent or dishonest inducement by the petitioner leading to delivery of any property. It is submitted that in the course of business, there may have been an occasion where the parties had to modify the terms and conditions but in no way the same can be construed to be fraudulent or dishonest. Learned counsel submits that admittedly only Rs. 3,32,316/- was paid by the opposite party no. 2 and that Rs. 4 Lakhs has been returned to him. Learned counsel thus submits that the impugned order refusing to discharge the petitioner is equally erroneous both on facts as well as in law. Learned A.P.P. for the State and learned counsel for the opposite party no. 2 oppose the application. They submit that later on the petitioner had also sold the Flat, which was sought to be purchased by the opposite party no. 2, to another person which clearly establishes guilt under Section 420 of the Indian Penal Code. It is submitted that even the acceptance of Rs. 4 Lakhs has been without prejudice to the rights and contentions of the opposite party no. 2 and should not have a bearing on the present case. Considering the rival contentions and taking into account the facts and circumstances of the case, this Court finds substance in the submissions of learned counsel for the petitioner. Patna High Court Cr.Misc. No.7300 of 2013 (7) dt.07-10-2013 4/5 The dispute arising out of an agreement of sale and purchase between the parties, in the opinion of this Court, cannot give rise to any criminal case. As per the terms and conditions of the agreement, copy of which is part of the complaint case, in case of any dispute, as per Clauses-23 and 24, it is apparent that the matter had to go for arbitration and that the Courts having original jurisdiction in the town of Patna alone shall have jurisdiction in matters arising out of the agreement. In that view of the matter, when the only allegation is that the petitioner did not keep his side to deal as per the agreement, this Court finds that there cannot be any occasion for the Court to taking cognizance under Section 420 of the Indian Penal Code. The petitioner should have been discharged under Section 420 of the Indian Penal Code and thus requiring him to face trial in the criminal case, would be an abuse of the process of the Court. As far as the contention of learned counsel for the opposite party no. 2 that he had accepted Rs. 4 Lakhs with the stipulation that it was without prejudice to his rights and contentions, would not amount to it being without prejudice to his rights and contentions as far as the criminal case is concerned but it would only give him an actionable claim on the civil side, either before a civil court of competent jurisdiction or the arbitrator, as the case may be. The fact that the amount over Patna High Court Cr.Misc. No.7300 of 2013 (7) dt.07-10-2013 5/5 and above of what has been paid by the opposite party no. 2 to the petitioner having been returned and accepted by the opposite party no. 2, the criminal case, in the considered opinion of this Court, should not be allowed to proceed. Accordingly, the impugned order dated 07.01.2013 passed in Kotwali P.S. Case No. 408 of 2007 (G.R. No. 4649 of 2007) is set aside, as far as it relates to the petitioner. The petitioner stands discharged from the said criminal case. The application stands allowed. Anjani/- (Ahsanuddin Amanullah, J.)