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2012 DIGILAW 1160 (PAT)

Santosh Kumar Sinha v. State Of Bihar

2012-08-23

HEMANT KUMAR SRIVASTAVA

body2012
ORAL ORDER Heard learned counsel for the petitioner as well as learned counsel appearing for opposite party no. 2 on the point of admission and, in my view, this petition can be disposed off on admission stage itself. 2. Petitioner has preferred this quashing petition under Section 482 of the Cr.P.C. for quashing order dated 06.03.2009 passed by Sri Kanhaya Lal, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 3528 of 2008 as well as entire subsequent proceeding of the aforesaid complaint case. By the impugned order dated 06.03.2009, learned Judicial Magistrate, 1st Class, Patna having found prima facie case under Sections 420 and 406 of the Indian Penal Code against the petitioner ordered to issue process against him. 3. The brief fact, which lies to file the quashing petition, is that opposite party no. 2 filed complaint case bearing Complaint Case No. 3528 of 2008 against the petitioner alleging therein inter alia that on 28.11.2007 petitioner executed an agreement of sale in favour of the opposite party no. 2 in respect of his certain lands in presence of the witnesses and agreed to sale his lands to the opposite party no. 2. The petitioner took Rs. 51,000/- as advance and opposite party no. 2 agreed to make payment of balance amount within a period of seven months. Furthermore, it is alleged that petitioner received balance amount on different dates and accordingly, he took Rs. 4,41,000/- from the opposite party no. 2 till 31.05.2008 but later on when opposite party no. 2 asked the petitioner to take remaining amount, the petitioner refused to take the remaining amount and also refused to execute the sale deed in favour of opposite party no. 2. Thereafter, opposite party no. 2 send a legal notice on 05.08.2008 but no reply was made by the petitioner and thereafter opposite party no. 2 filed the above stated complaint case. 4. In course of inquiry, witnesses were examined under Section 202 of the Cr. P.C. and after that learned Judicial Magistrate passed the impugned order against which this petitioner has been filed. 5. Learned counsel appearing for petitioner submits that even if the story, as propounded by the opposite party no. 2, is accepted in toto, then also no criminal liability is made out against the petitioner and it is a case of civil nature and opposite party no. 2 may take steps in Civil Court. 5. Learned counsel appearing for petitioner submits that even if the story, as propounded by the opposite party no. 2, is accepted in toto, then also no criminal liability is made out against the petitioner and it is a case of civil nature and opposite party no. 2 may take steps in Civil Court. Learned counsel appearing for petitioner relied upon a decision reported in (2006) 6 SCC page 669 (Ram Biraji Devi and Anr. V. Umesh Kumar Singh and Anr.) in which the Apex Court of this country has held that even if a party agreed to sale some lands and later on refused to execute sale deeds, the aforesaid fact does not construe an offence under Sections 406 and 420 of the Indian Penal Code. Another decision cited on behalf of the petitioner is 2008 (1) PLJR 422 in which relying upon the above stated decision (Ram Biraji Devi and Anr. v. Umesh Kumar Sinch and Anr.), this court has held that if the allegation does not disclose an offence under Section 420 of the Indian Penal Code, the continuance of the prosecution is nothing but only an abuse of the process of the Court. 6. On the strength of the aforesaid two decisions, learned counsel for the petitioner prayed for quashing the impugned order dated 06.03.2009 as well as entire subsequent proceedings of Complaint Case No. 3528 of 2008. On the other hand, learned counsel appearing for opposite party no. 2 submits that the averments made in complaint petition constitute an offence under Sections 420 and 406 of the Indian Penal Code because according to complaint case, the petitioner took Rs. 4,41,000/- as earnest money and in spite of legal notice, he did not execute sale deed nor returned the aforesaid amount to the opposite party no. 2. He further submits that in 2001 (2) PCCR 448 (Anil Kumar and Anr. v. The State of Bihar), it has been held by this court that civil and criminal liability cannot be said to be mutually exclusive rather there are co-extensive and essential differ in their contents and consequences. It is further contended by him that even if there is civil remedy available to the opposite party no. 2, then also he can prosecute the petitioner for criminal liability. 8. Having heard the contentions of both the parties, I have gone through the record. It is further contended by him that even if there is civil remedy available to the opposite party no. 2, then also he can prosecute the petitioner for criminal liability. 8. Having heard the contentions of both the parties, I have gone through the record. Certain facts are admitted between the parties. It is an admitted position that an agreement of sale was executed between the parties on 28.11.2007 and in the aforesaid agreement of sale, there was a condition that opposite party no. 2 would make full payment within a period of seven months from the date of execution of aforesaid agreement of sale. It is alleged that opposite party no. 2 made payments to petitioner till 31.05.2008 and after that he gave a legal notice to the petitioner for accepting the remaining balance amount. So, it is clear that till 31.05.2008, the opposite party no. 2 had not made full and final payment to the petitioner. Annexure-3 to this petition reveals that a letter had been given to the opposite party no. 2 by the petitioner requesting him to make full and final payment within seven months from the date of execution of the agreement for sale. So, it is in dispute between the parties as to which of the parties was at fault and this dispute can only be resolved in civil trial and not in a criminal prosecution. Moreover, in the light of decision referred on behalf of the petitioner, it is explicit clear that the present case comes under the dispute of civil nature because there is nothing on the entire complaint petition to show this fact that the at the time of execution of agreement of sale, there was intention of the petitioner to cheat the opposite party no. 2 and due to lack of the aforesaid intention, it can easily be said that no case under Section 420 of the Indian Penal Code is made out on the basis of facts placed on the complaint petition as well as in course of inquiry. Similar position is in respect of 406 of the Indian Penal Code. Therefore, in my view, it is a fit case in which this Court should exercise its power vested under Section 482 of the Cr.P.C. 9. Similar position is in respect of 406 of the Indian Penal Code. Therefore, in my view, it is a fit case in which this Court should exercise its power vested under Section 482 of the Cr.P.C. 9. On the basis of the aforesaid discussion, this petition is allowed at admission stage itself and the impugned order dated 06.03.2009 as well as entire subsequent proceedings of Complaint Case No. 3528 of 2008 is, hereby, quashed. In the aforesaid manner, this petition stands disposed off.