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2007 DIGILAW 502 (JHR)

Geeta Agarwal v. State of Jharkhand

2007-06-22

D.K.SINHA

body2007
Order The present Cr. Revision has been directed against the order impugned dated 13.12.2005 passed by Shri Anil Kumar Pandey, Judicial Magistrate, 1st Class, Giridih in T.R. No. 832/05 arising out of Giridih (T) P.S. Case No. 35 of 2000 whereby and whereunder the discharge petition filed by the petitioner Geeta Agarwal was rejected. 2. The prosecution story in brief is that the O.P. No.2 Deepak Kumar Sinha presented a written report before the Giridih police alleging therein that he had entered into an agreement with the petitioner on 29.8:2000 whereby the petitioner had agreed for sale of her land appertaining to Holding No. 351, Ward No.1 situated at Makatpur @ 17,000/- per Katha for total area of 2 Bighas and in this connection she received Rs. 1,00,000/- as an advance on 29.8.2000 and further received Rs. 30,000/- on 5.10.2000 and Rs. 1,20,000/- on 3.10.2000 against the receipts. It was further alleged that the petitioner herein made over the possession of her land in question to the informant Opposite Party No.2 over which the latter constructed a room and was living therein with the members of his family. On 24.12.2000 when the informant Opposite Party No. 2 went to the petitioner and requested her to execute sale deed as per agre3ment for sale in his favour on payment of balance consideration amount, it was alleged that she became furious, abused him and declined to execute the sale deed and for her' such dishonest intention the first information report was lodged for the offence under Section 419/420 I.P.C. The police after investigation submitted charge-sheet in those sections and accordingly the cognizance of the offence was taken by the C.J.M., Giridih against the petitioner. 3. Learned Counsel for the petitioner submitted that the allegation is false against her and even if at all the Opposite Party No. 2/informant was aggrieved, the remedy was available by filing a suit for specific performance of contract. The informant presuming that he would not succeed in the civil suit preferred to file a criminal case with the intention only to put undue pressure upon the petitioner who is a widow, with oblique motive. 4. Learned Counsel attracted the attention by submitting that the petitioner had served notices on 19.12.2000 and 1.1.2001 upon the informant Opposite Party No.2 to tender the balance consideration money @ Rs. 4. Learned Counsel attracted the attention by submitting that the petitioner had served notices on 19.12.2000 and 1.1.2001 upon the informant Opposite Party No.2 to tender the balance consideration money @ Rs. 40,000/- per Katha for 60 Kathas of land to enable the petitioner to execute the sale deed in his favour as per agreement which shows the bona fides of the petitioner of her readiness and willingness to transfer the said land at agreed rate. As a matter of fact, the controversy between the parties was in respect of the proposed area of land and its price for transfer to the informant-Opposite Party No.2 which in worst case amounts to breach of contract by either side and therefore, the dispute is of civil nature which can be remedied in the civil court of competent jurisdiction and for that a title suit No. 15 of 2001 is already pending which was' presented by the petitioner against 'the, informant Opposite Party. 5. Learned Counsel submitted that if the informant-O.P. No.2 was not ready to purchase the entire land of 3 Bighas (60 Kathas) 'at the agreed rate of Rs. 40,000/- per Katha she is ready to refund the earnest money to the informant-Opposite Party No: 2 at any time. 6. With the above stand and contention the petitioner filed a discharge petition under Section 239 Code of Criminal Procedure for her discharge but the same was dismissed by the ordargeited 6.8.2004. Upon being aggrieved by the impugned order aforesaid the petitioner preterred Cr. Revision No. 933/05 and this Court by the order dated 6.8.2004 (sic) after setting aside the impugned order remanded the matter, back to the learned court below for re-appreciation and it was again dismissed by the impugned order dated 13.12.2005 which is under challenge. 7. Concluding his argument learned Counsel submitted that no offence under Section 419 or 420 I.P.C. is made out, against the petitioner in view of the admitted fact that the informant-Opposite Party No. 2 was put under the possession of the land in question after she had received the earnest money and therefore there was no dishonest intention on the part of the widow petitioner. The only grievance of the informant was that the petitioner be directed to execute the sale deed in his favour on his terms to which a court of criminal jurisdiction cannot pass such order and the remedy is available in the suit for specific performance of contract. 8. Reliance has been placed on a decision reported in (2005)13 S.C.C. 699 . The Apex Court in Murari Lal Gupta vs. Gopi Singh observed:- "We are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment, so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent." 9. Heard the learned A.P.P. 10. Having regard to the facts and circumstances of the case, I find substance in the argument advanced on behalf of the petitioner that in the given situation, on the face value of the F.I.R. and charge-sheet submitted under Section 420 I.P.C., the fact does not disclose the dishonest intention of the petitioner that she induced the informant-Opposite Party No.2 to deliver the earnest money without consideration rather the admitted fact is that the informant was put in possession over the land in question to which they had entered into agreement of sale. I find substance that the controversy between the parties is in respect of breach of contract by either side and for that the appropriate remedy for specific performance is lying with the civil court for the redressal. The proposition of law relied upon by the petitioner is relevant in the facts and circumstances of the case. 11. I find substance that the controversy between the parties is in respect of breach of contract by either side and for that the appropriate remedy for specific performance is lying with the civil court for the redressal. The proposition of law relied upon by the petitioner is relevant in the facts and circumstances of the case. 11. In the result, this Cr. Revision is allowed. The impugned order dated 13.12.2005 passed by Shri Anil Kumar Pandey, Judicial Magistrate, 1st Class, Giridih in T.R. No. 832/05 is set aside and the petitioner Geeta Agarwal is discharged from her criminal liability and criminal prosecution in the present case.