Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 794 (PAT)

Anil Kumar v. State Of Bihar

2001-08-29

P.K.DEB

body2001
Judgment P.K.Deb, J. 1. This petition under Section 482 of the Code of Criminal Procedure has been filed by the accused-petitioners for quashing the entire criminal proceedings in Prabahore P.S. Case No. 328/98 under Sections 420/ 406 of the Indian Penal Code, including the order dated 8.3.2000 passed by the Judicial Magistrate, Patna rejecting the prayer of discharge made from the side of the petitioners. 2. The above mentioned case was registered on the basis of written information given by Manish Kumar, the informant to the effect that the petitioners, Anil Kumar and his wife, Urmila Devi had entered into an agreement to sell double storeyed house bearing Holding No. 147/161 situated at Mohalla Bakarganj, Patna to the informant and his aunt, Smt. Mala Devi on an agreed cost of Rupees Six Lacs. The agreement was entered on 31.10.1997 and the informant and his aunt paid an amount of Rs. Four Lacs towards advance to the consideration amount as an earnest money. As per the agreement assurance was there to execute the sale deed by 30th April, 1998 but although several requests were made to execute the sale deed, the petitioners did not accede to it. The informant had also filed a suit for specific performance being Title Suit No. 334 of 1998, against the petitioners and then the present case was filed which was registered as G.R. No. 4861/ 98. After the investigation charge-sheet had been submitted under Sections 420/406 of the Indian Penal Code. Cognizance was taken and processes were issued against the petitioners. On appearance the petitioners filed a petition for discharge but the same had been rejected by the impugned order. 3. The grievance of the petitioners is that the case of the informant, if be taken in toto to be correct, then also the same only reveal a dispute of civil nature and no criminality can be attached to it. His further submission is that no inducement can be there which is a pre-condition for an offence under Section 420 of the Indian Penal Code and for an offence under Section 406 of the Indian Penal Code, no entrustment is also there. His further submission is that no inducement can be there which is a pre-condition for an offence under Section 420 of the Indian Penal Code and for an offence under Section 406 of the Indian Penal Code, no entrustment is also there. The submissions made for and on behalf of the petitioners before the Court below had been annulled by the impugned order holding that on the circumstances and factual aspect of the case criminal offence prima facie could be made out against the petitioners and as such charges could be framed under Sections 420/406 of the Indian Penal Code. The informants side had also appeared and submitted that even if there is civil liability then also criminality cannot be altogether brushed aside if from the circumstances it could be shown that with prior intention of cheating the petitioners had entered into the agreement of sale. It further appears that the petitioner No. 1 earlier filed a criminal case against the informant on the plea that the deed of agreement had been stolen away from his house by the informant but that criminal case had been dismissed. 4. It is true that at first look it appears that when a suit for specific performance is already continuing between the parties then there should not be any criminal case for the same set of facts. Civil suit is for non-performance of contract of sale as contemplated under the Specific Relief Act but the criminal case is that with prior intention of not executing a sale deed by cheating an amount of Rs. Four lacs had been taken away from the informant although tnere was an agreement to the effect that for any reason if the sale deed could not be executed then the amount of earnest money should be returned. But neither the sale deed had been executed nor the earnest money had been returned, rather on the other hand a criminal case had been instituted by the petitioners against the informant for stealing away the agreement from the possession of the petitioners. 5. But neither the sale deed had been executed nor the earnest money had been returned, rather on the other hand a criminal case had been instituted by the petitioners against the informant for stealing away the agreement from the possession of the petitioners. 5. Various judgments have been referred to by the learned counsel appearing for and on behalf of the petitioners mainly on the principle enunciated by the Apex Court in AIR 1979 SC 550, Trilok Singh v. Satyadeo, wherein it was held that when the dispute raised is purely of civil nature, initiation of a criminal proceeding must be deemed to be an abuse of the process of Court and deserves to be quashed. On the same principle other judgments were also referred to such as AIR 1974 SC 1560 , Anil v. State, AIR 1988 SC 709 : 1988 East Cr C 285 (SC), Madhavrao v. Sambhajirao and judgments of other High Courts in this respect. On the other hand a recent judgment of the Apex Court as reported in 2000 (2) BBCJ (IV) 173, M/s. Modhol Chemicals & Pharma Pvt. Ltd. v. M/s. Biological E. Ltd. and others, has been referred. By referring to previous judgments of the Apex Court, it has been held that an inherent power under Section 482 of the Code of Criminal Procedure should very cautiously be exercised by the High Courts. Until and unless the Court comes to the finding that there is total abuse of the judicial process, the High Court should not interfere with the criminal proceedings. It has further been held that civil and criminal liability cannot be said to be mutually exclusive, rather they are co-extensive and essentially differ in their contents and consequences. I have already mentioned that in the present case, the prosecution could be able to make out a prima facie case that with the very intention to cheat the agreement has been arrived at. For that reason when sale deed has not been executed and the earnest money has also not been returned even several requests were notice again and again even by legal notice too. In that way, I do not find that at this stage, this Court can hold that the criminal proceedings are nothing but an abuse of the process of the Court. In that way, I do not find that at this stage, this Court can hold that the criminal proceedings are nothing but an abuse of the process of the Court. The way the petitioners moved can reveal their criminal intentions prima facie when they also first filed a criminal case against the informant with the allegation of theft of the agreement in question. This petition has got no force. Hence, the same is rejected.