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2008 DIGILAW 380 (PAT)

Kamla Kant Trivedi v. State Of Bihar

2008-02-21

ABHIJIT SINHA

body2008
Judgment 1. The petitioner who has been impleaded as one of the two accused in Complaint Case No. 1224(C) of 2001 is aggrieved by order dated 27-2-2007 passed in Criminal Revision No. 1007 of 2006 by the learned Presiding Judge, Fast Track Court No. V, Patna whereby and whereunder he has refused to set aside the order dated 21-11-2006 passed by Sri Brajesh Pandey, Judicial Magistrate, First Class, Patna, framing charge under Section 420, IPC after rejecting the petitioners petition under Section 245, Cr. P.C. 2. One Parmeshwar Thakur, the complainant, impleaded as O.P. No. 2 herein, filed the aforesaid complaint stating inter alia that he had entered into an agreement for sale of land on 4-9-1999 with the petitioner through accused No. 2, namely, Sheo Shanker Upadhyay, and that accused No. 2 demanded full consideration amount on the date of agreement for sale and in pursuance thereof he allegedly made a payment of Rs. 2,00,000/- in cash to accused No. 1 in the presence of accused No. 2. It is said that the petitioner and the other accused was added in the agreement for sale as vendee with his consent. It has further been alleged that on 12-6-2000, accused No. 2, Shiv Shanker Upadhayay, got power of attorney from the petitioner No. 1 and on the basis of the said power of attorney he became the owner in place of accused No. 1. It is also alleged that notwithstanding several reminders the registration was avoided by O. P. No. 2 under various pretext and eventually a legal notice dated 30-9-2007 was sent in response whereto accused No. 2 denied all the allegations. The complainant has further alleged that he has come to know that neither of the accused have any possession over the land in question and by fraudulent means thev had cheated the complainant of Rs. 2,00,000/-. 3. It has been submitted on behalf of the petitioner that the said case had been pending for complainants evidence and in between 16-6-2003 and 20-8-2005, the complainant was able to examine only one witness which was he himself and notwithstanding several directions of the Court to the complainant to bring his witnesses and also award of costs only one C.W. had been produced and it is worth noting that the complainant as witness has neither exhibited the complaint petition nor any other document in support of his case. Referring to the deposition of the complainant the learned counsel for the petitioner sought to submit that from a bare perusal thereof it. would appear that no ingredient of Section 420, IPC had been made out and there appears to whisper of any allegation by the complainant that he had been cheated at the hands of the petitioner. There is also no allegation of assault against the petitioner. It would also appear that the complainants evidence does not disclose the commission of any offence under Section 420, IPC and to hold a person guilty of cheating it was necessary to show that he had fraudulent or dishonest intention at the time of making of the promise. 4. Grievance has been raised against the learned Magistrate of not applying his mind to the materials available on record and mechanically rejecting the petitioners petition when there was nothing in the complaint petition or in the testimony of the complainant which in the least would make out a case either under Section 420 or 323, IPC. The learned counsel for the petitioner has also raised grievance against the order of the revisional Court upholding the order of the learned Magistrate directing for framing of charge. 5. The learned counsel for the petitioner further sought to submit that as would appear the advanced money had been paid to accused No. 2, Sheo Shankar Upadhyay, and it was he to whom request for execution of sale deed was made and it was he who armed with the power of Attorney had avoided executing the sale deed. It would also be apparent that there is no allegation of any overt act or inducement against the petitioner herein and hence no offence is made out against the accused No. 1. The learned counsel further sought to submit that in view of the deed of agreement for sale not being brought on record as an exhibit, the Court had erred in accepting the complainants case and it would be apparent that the cause of action was civil in nature and the. criminal prosecution would be an abuse of the process of the Court. 6. It will not be out of place to mention here that although O. P. No. 2 appeared through vakalatnama yet at the time of the hearing of the admission matter none was present to represent O.P. No. 2. 7. criminal prosecution would be an abuse of the process of the Court. 6. It will not be out of place to mention here that although O. P. No. 2 appeared through vakalatnama yet at the time of the hearing of the admission matter none was present to represent O.P. No. 2. 7. It is apparent from a reading of the deposition of the complainant that he had handed over the money to accused No. 2, Sheo Shankar Upadhayay who in turn handed it over to this petitioner. It would also appear that accused No. 2, Sheo Shankar Upadhyay, who had obtained the power of attorney from accused No. 1 and all talks regarding registration and reminders for getting the registration done were held in between the complainant and the accused No. 2, Sheo Shankar Upadhayay. It would also appear that the complainant had noted down relevant dates on his palm and gave out the details after reading the same from his palm. Therefore, it would appear that whatever transaction took place was between the complainant and accused No. 2, Sheo Shankar Upadhayay and the petitioner had no role to play save and except to sign on the deed of agreement for sale. 8. The statement of the complainant does not appear to be corroborated by the evidence of other witnesses of the complainant. When two witnesses have been named in the complaint petition and sufficient indulgence of nearly two years was granted to the complainant to produce them yet none appeared, this is a circumstance against the complainant which ought to have been con-sidered by the learned Magistrate while rejecting the prayer of discharge. It is true that at the time of considering the discharge petition the Court is only required to see whether there was even slightest suspicion of the petitioner having committed a crime from the materials available on record. There does not appear any iota of suspicion to point an accusing finger at the petitioner and to that effect the learned Magistrate as also the revisional Court have erred. 9. That apart the entire transaction boils down to the fact of land not being registered by O.P. No. 2 holding a power of attorney although the entire amount of consideration had allegedly been paid by the complainant. In other words, the main grievance was that of a breach of contract. 9. That apart the entire transaction boils down to the fact of land not being registered by O.P. No. 2 holding a power of attorney although the entire amount of consideration had allegedly been paid by the complainant. In other words, the main grievance was that of a breach of contract. Mere breach of contract cannot give rise to a criminal prosecution under Section 420, IPC unless fraudulent or dishonest intention is shown right at the beginning of the transaction, i.e., the time when the offence is said to have been committed. Unless it cannot be shown that there was intentional duping from the side of the petitioner Section 420, IPC is not attracted. Therefore, the order rejecting the prayer of the petitioner appears to be unwarranted. 10. Due regard being had to the facts and the circumstances of the case, the impugned order regarding the rejection of the petitioners petition for his discharge and the consequential revisional Courts order of upholding the same appeared to be an abuse of the process of the Court and are quashed, so far as the petitioner is concerned. 11. In the result, the application is allowed.