====================================================== Kirti Verma @ Kirti Prasad Verma, S/O Late Nawal Kishore Prasad, Resident of v. Champapur, P.S.- Baligaon, District- Vaishali
Case Details
Patna High Court Cr.Misc. No.10874 of 2012 (6) dt.10-01-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 10874 of 2012 ====================================================== Kirti Verma @ Kirti Prasad Verma, S/O Late Nawal Kishore Prasad, Resident of Village - Champapur, P.S. - Baligaon, District- Vaishali, presently residing at 287-C, Ashok Nagar, P.S.- Argora, District- Ranchi, Jharkhand 1. The State of Bihar 2. Shri Lal Bahadur Das, S/O Late Akshay Das, resident of Village - Versus Champapur, P.S.- Baligaon, District- Vaishali .... .... Petitioner/s .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 6 10-01-2013 Heard learned counsel for the petitioner, State and the opposite party no. 2. This petition is directed against the order dated
Legal Reasoning
the eye of law and the allegation, prima facie, makes out a case of civil dispute like breach of contract. Hence, the order impugned issuing summons after taking cognizance is hereby set aside and the petition is allowed. Kundan/- (Gopal Prasad, J.)
Arguments
04.03.2011 passed by Smt. Rachna Srivastava, the learned Judicial Magistrate-1st Class, Patna in Complaint Case No. 2069(C) of 2010 by which the learned court below was pleased to issue summons against the accused persons after taking cognizance for the offence under Sections 420 and 406/34 of the Indian Penal Code. It is alleged that accused nos. 3 and 4 announced to sell some of their lands situated in village Champapur. The complainant approached accused nos. 4 and 5 to purchase the said land. After negotiation, the matter was finalized. The rate was finalized and the complainant had to pay Rs.25,000/- for Patna High Court Cr.Misc. No.10874 of 2012 (6) dt.10-01-2013 the land. The complainant in presence of his brother paid Rs.5,000/- as advance and on different date in presence of other witnesses paid altogether Rs.25,000/-. The accused persons granted receipt for the said amount. Accused nos. 1 and 4 are brothers. Accused no. 2 is a broker. After receipt of the money accused nos. 4 and 5 put the complainant in possession of the land, they went to U.S.A. promising that they will execute the sale deed when they will next visit India. Accused nos. 4 and 5 visited India several times and complainant contacted them and made request for execution of the sale deed but they went on assuring the same. A request for execution of sale deed made in favour of complainant and accused nos. 4 and 5 sent power of attorney but the same was defective then again request was made and again power of attorney was sent but it was also found defective and recently complainant got information that accused no. 2 in collusion with accused no. 1 negotiated and extorted money from different persons. The accused no. 1 in collusion with accused no. 3 wife of accused no. 2 and accused person shared the amount. The Magistrate after enquiry under Sections 200 and 202 Cr. P. C. recorded the statement of the complainant and Patna High Court Cr.Misc. No.10874 of 2012 (6) dt.10-01-2013 witnesses, ordered to issue process after taking cognizance for offence under Sections 406 and 420 of the Indian Penal Code. It is contended by the learned counsel for the petitioner that the allegation in complaint is quite vague. There is no mention about the date when the occurrence took place and time of occurrence though mentioned as 1996 but no mention of date when the agreement made and when the money was paid. There is neither mention of the description of land for which the parties agreed to sell and the trial court mechanically proceeded to issue summon after taking cognizance for the offence under Sections 420 and 406 of the Indian Penal Code. It is alleged in the complaint that the occurrence took place in between 1995-1996. The complaint mentions that receipt issued for payment of money but in enquiry it is stated that no receipt was issued. It is further contended that as per allegation there was contract for sale in the year 1995-96 and payment has been made in the year 1995-96 but the sale deed was not executed, hence, it can only be said that the case is of breach of contract and has civil consequence. No one appeared on behalf of the complainant though he has filed Vakalatnama. The learned counsel for the State, however, submitted Patna High Court Cr.Misc. No.10874 of 2012 (6) dt.10-01-2013 that there is allegation that Rs.25,000/- has been paid. However, it is alleged that the complainant approached for purchase of the land and there was agreement for sale and the land was given in possession after the receipt of money. It was assured that the sale deed will be executed after return from U.S.A. However, from the nature of allegation in the complaint as well as in enquiry during the complaint there is no mention about the specification of land for which the contract for sale was made or sale was agreed upon. There is no mention about the date on which the money was paid though it is alleged that Rs.5,000/- paid and thereafter rest amount of Rs.20,000/- was paid in several installments but neither the date nor the amount mentioned. Hence, the allegation about the payment of money and specification of land is quite vague. The case of the complainant is that for the payment of money receipt was granted but during enquiry the witnesses stated that there is no receipt for the payment of the amount. The court below did not consider those aspects and appears to have mechanically ordered to issue process after taking cognizance for the offence under Sections 420 and 406 of the Indian Penal Code without due application of mind. Patna High Court Cr.Misc. No.10874 of 2012 (6) dt.10-01-2013 However, for constituting offence under Section 420 of the Indian Penal Code i.e. cheating, there must be deception of any person by fraudulently and dishonestly inducing that person to deliver any property. The deception must exist at the very out set of the initiation of the transaction. Hence, under these facts that possession of land given on payment of part of money and hence by no stretch of imagination it can be said that the accused persons by any deceitful means had dishonestly or fraudulently induced the complainant to enter into agreement for supply of money. So allegation made does not make out offence under Section 420 of the Indian Penal Code and utmost it can be a case of breach of contract. So far the offence under Section 406 of the Indian Penal Code is concerned, there must be entrustment with respect to the property for which offence is committed. The ownership or beneficial interest in the property must be in some person other than accused and the accused must hold it on account of some person for his benefit. However, in case of sale the money paid in view of the land sold to the accused and the money paid to the vendor in view of land sold, hence, there is no entrustment and no Patna High Court Cr.Misc. No.10874 of 2012 (6) dt.10-01-2013 question of breach of trust to attract offence under Section 406 of the Indian Penal Code and hence the offence under Section 406 of the Indian Penal Code is not made out. Hence, taking into consideration the facts and circumstances of the case, it is evident that the impugned order has been passed in a mechanical manner without due application of mind and no offence under Sections 420 and 406 of the Indian Penal Code is made out for which the process has been issued after taking cognizance which is not sustainable in