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Patna High Court · body

2010 DIGILAW 440 (PAT)

Most. Mini Sinha v. State of Bihar

2010-03-22

body2010
ORDER 1. Heard learned Counsel for the petitioners and the A.P.P. appearing on behalf of the State. Nobody appears on behalf of the Opposite Party No.2, the complainant despite notice in this case. 2. This application has been filed against the order dated 23.05.2006 by which the Judicial Magistrate, 1st Class, Patna City has taken cognizance for the offences under Sections 406, 504, 323/34 of the Indian Penal Code in Complaint Case No. 964 of 2005. 3. The facts as stated in the complaint case are that on 07.09.2003, the complainant and the petitioners agreed to sell a piece of land along with a house situated in Patna City. The sale price was fixed at Rs. 9,00,000/-. On 07.09.2003, the complainant is said to have given an advance of Rs. 50,000/- to the petitioners with stipulation that she would pay the entire amount within a period of two years. The complainant alleged that after expiry of the aforesaid two years, she approached the petitioners to execute the sale deed. On being approached, the petitioners refused to execute the sale deed and also used vulgar language and it is said that they assaulted the husband of the complainant. 4. Learned Counsel for the petitioners submits that the allegations as made out in the complaint petition are unbelievable, the remedy lies in filing a civil suit and the filing of this complaint case is nothing but an attempt to pressurize the petitioners to sell his property although there was no such agreement. 5. On going through the complaint petition and the averments contained therein, it is apparent that the story that the petitioners agreed to sell the house for Rs. 9,00,000/- and gave two years' time to the complainant to pay the said amount is unimaginable in view of the fact that it is well known that the value of the property increases from year to year and no person will be ready to take a petty amount of Rs. 50,000/- against the total amount of Rs. 9,00,000/- and agree that the rest of the amount would be payable after twenty four months. The second aspect of the entire matter is that there is no written agreement which would support the case of the complainant. In a transaction of this nature, it is expected that the person giving an advance of Rs. 9,00,000/- and agree that the rest of the amount would be payable after twenty four months. The second aspect of the entire matter is that there is no written agreement which would support the case of the complainant. In a transaction of this nature, it is expected that the person giving an advance of Rs. 50,000/- would at least take a receipt showing that he has paid a sum of Rs. 50,000/- to a particular person. This Court finds that infact on perusal of the records and the complaint, there is no indication that there was a written receipt indicating that Rs. 50,000/- was paid by way of advance. The petitioners abused and assaulted the complainant is similarly vague and has obviously been stated to create seriousness to the entire situation knowing well that the complaint would not stand on its own merits. 6. I agree with the Counsel who submits that the only remedy available to the complainant was to file a suit for specific performance. Having not done that or having found, that infact no relief could be granted, if such a suit is filed, the complainant has taken resort to filing of a criminal case. 7. In the aforesaid background, this Court finds that infact no offence under Sections 406, 504 & 323/34 of the Indian Penal Code .are made out against the petitioners as there is no document to show that there was any entrustment or agreement to pay a sum of money by way of advance in lieu of purchasing a house. 8. It is well settled that there can be a criminal case that constitutes offence of a purely criminal nature and there are cases in which both criminal and civil cases are maintainable. However, in the facts of this case, I find that only a civil suit could have been the remedy except for the fact that there is no written agreement, and also find that the case made out in the complaint case is improbable and untrue and is fit to be disbelieved. 9. Accordingly, the order dated 23.05.2006 passed in Complaint Case No. 964 of 2005 is hereby quashed. 10. In the result, this application is allowed.