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2011 DIGILAW 389 (JHR)

Chanchal Kumar Gongopadhyay v. State of Jharkhand

2011-05-02

H.C.MISHRA

body2011
JUDGMENT. 1. Heard learned counsel for the petitioners and learned counsel for the State. Learned counsel for the opposite party has not appeared in this case in spite of repeated calls. 2. The Complainant-Nandini Modak had filed the complaint petition bearing C.P. Case No. 284 of 2000 against the petitioners, Chanchal Kumar Gangopadhyay, Tripti Kumar Bose and Prabhat Kumar Gangopadhyay, alleging therein that there was an agreement between both the parties for sale of the house for which the amount of Rs. 10,000/- was also advanced to the petitioners. It is further alleged that in course of making bank draft for rest of the consideration money, the Complainant had incurred a further loss of Rs. 4,000/-, but the accused persons refused to self the house to the Complainant and even the amount advanced was not returned. On the said complaint, cognizance was taken, and by the impugned order dated 22.8.2002 passed by the learned Judicial Magistrate, Dhanbad, in C.P. Case No. 284 of 2000, the application filed under Section 245(i) Cr.P.C. for discharge was rejected by the court. Hence, this revision. 3. Learned counsel for the petitioners has submitted that no criminal offence is made out against the petitioners, from the facts narrated in the complaint petition inasmuch as, the dispute between the parties is of civil nature, but the petitioners have been falsely and mala fidely dragged into the criminal case. Learned counsel has placed reliance upon the decision of the Hon’ble Supreme Court in Uma Shankar Gopalika VS. State of Bihar & Anr. reported in (2005)10 SCC 336 , as also in Murari Lal Gupta vs. Gopi Singh reported in (2005)13 SCC 699 , wherein it has been held that every breach of contract would not give rise to an offence of cheating unless there was any deception played at the very inception. The criminal proceeding against the accused persons have been quashed by the Hon'ble Supreme Court on the said ground. 4. Learned counsel has accordingly submitted that the facts narrated in the complaint case only make out a case of civil liability even if there is an agreement for the sale of the house and some money was allegedly advanced. Learned counsel accordingly submitted that the impugned order passed by the court below cannot be sustained in the eyes of law. 5. Learned counsel accordingly submitted that the impugned order passed by the court below cannot be sustained in the eyes of law. 5. Learned counsel for the State, on the other hand, has submitted that from the allegations made in the complaint petition, prima facie the case is made out against the accused persons and there is no illegality in the impugned order worth interference in the revisional jurisdiction. 6. Having heard learned counsel for both the sides and upon going through the record, I find that the allegations made in the complaint petition, even if they are accepted in toto, only make out a case of civil liability as there is only a breach of contract between the parties and continuance of the criminal case against the petitioners is only an abuse of the process of court. Merely because there was an agreement to sell the house property, which agreement was not honoured, it cannot be said that any criminal offence was committed by the petitioners and as such, the criminal proceedings against the petitioners cannot be sustained. 7. Accordingly, this revision application is allowed. The impugned order passed by the court .below is set aside as well as the entire proceeding pending against the petitioners before the court below, vide C.P. Case No. 284 of 2000 is hereby quashed.