Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 958 (JHR)

Bimal Kumar Kedia v. State of Jharkhand

2012-07-10

H.C.MISHRA

body2012
ORDER Heard learned counsel for the petitioner and learned counsel for the State, as also learned counsel for the complainant opposite party No. 2. 2. The petitioner has challenged the order dated 26.11.2010 passed by Shri A. K. Dubey, learned Judicial Magistrate, Rajmahal, in P.C.R. Case No.127 of 2005 / T.R. No.896 of 2010, whereby the application for discharge filed by the accused petitioner was rejected by the Court below and charge was framed against the petitioner for the offence under Section 406 and 420 of the IPC. 3. It appears from the record that the complaint petition was filed by the O.P. No.2 against the petitioner in the Court of Additional Chief Judicial Magistrate, Rajmahal, which was registered as P.C.R. Case No.127 of 2005. In the said complaint petition, it was alleged that there was an agreement between the parties whereby, the petitioner had agreed to sell 21 bigha and 17 kathas of land for a consideration amount of Rs.7,01,000/-to the complainant. Thereafter the complainant made the payment of Rs.1,00,000/-through cheque and an agreement was entered into on 27.5.2003. Again on 15.5.2003, the complainant paid Rs.50,000/-through cheque and thereafter on 30.8.2003, another cheque of Rs.50,000/-was given to the petitioner by the complainant and second agreement was entered into on 20.11.2003. It is further alleged, thereafter by way of draft and cash, Rs.2,15,000/-was again paid and third agreement was entered into between the parties and again fourth agreement was also entered into on 13.8.2004, when the complainant again paid Rs.25,000 to the petitioner through cheque. Further payments were also made by cheques and drafts and in this way, total amount of Rs.4,98,000/-was paid to the petitioner and Rs.2,03,000/-remained to be paid by the complainant to the petitioner. Thereafter the complainant tried to pay the balance money to the petitioner and to get the sale deed executed in his favour, but the same was not done. Alleging that the petitioner was having the dishonest intention from the very beginning, as the complainant had learnt that late father of the petitioner had gifted the property in favour of his grandson and subsequently 4 bighas, 11 Kathas and 19 dhurs of land were sold to different persons on the basis of power of attorney executed by the petitioner, the complaint petition was filed in the Court below. 4. 4. It appears that the statement of the complainant was recorded on solemn affirmation and the witnesses were examined at the enquiry stage and accordingly, the prima facie case was found against the petitioner for the offence under Section 406, 420 of the IPC. The impugned order shows that the said order taking cognizance was challenged before this Court in a criminal revision, which was dismissed by this Court, against which, the Petitioner moved the Supreme Court, but his petition was dismissed by the Supreme Court as well. Thereafter the petitioner filed application for discharge, which was rejected by the impugned order dated 26.11.2010 and charge was framed. 5. Learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in this case. It has also been submitted that four cheques issued by the complainant in favour of the petitioner had been dishonoured and this fact has been taken note of, by the Court below in the impugned order, though this fact had been concealed in the complaint petition and also in the statement of the complainant recorder on solemn affirmation as also in the evidence adduced by the complainant at the enquiry stage. Learned counsel submitted that in view of the dishonor of four cheques given to the petitioner, the agreement between the parties, if any, was not binding at all upon the petitioner. Learned counsel further submitted that this dispute is purely of civil nature and as such there can be no criminal liability on the petitioner. Learned counsel thus, submitted that the impugned order cannot be sustained in the eyes of law and the same is fit to be set-aside. 6. Learned counsel for the complainant opposite party No. 2, on the other hand has submitted that on the basis of the statement made in the complaint petition and the statement of the complainant recorded on S.A., as also the evidence adduced by the complainant at the enquiry stage, the offence is clearly made out against the petitioner, as it is a clear case of the complainant that the petitioner was having intention to deceive the complainant from very beginning, as the land in question was gifted by the father of the petitioner to his grandson and the land did not belong to the petitioner. Learned counsel accordingly, submitted that in view of the above facts, the offence is clearly made out against the petitioner. 7. Having heard learned counsels for both the sides and upon going through the impugned order, I find that even in the Court below, the petitioner had stated that the cheques issued by the complainant had been dishonoured. The Court below had taken note of this fact but has stated that admittedly the petitioner had received the money. The Court below found that the petitioner was having the dishonest intention from the very beginning, as the father of the petitioner had gifted the property in favour of his grandson, as such the land did not belong to the petitioner. Accordingly, the Court below found sufficient materials against the petitioner for framing the charge and as such, framed the charge against the petitioner, rejecting the application for discharge filed by the petitioner. 8. In the fact of this case, I find that the Court below has taken note of the fact that four cheques issued by the complainant, had been dishonoured. This fact was neither mentioned in the complaint petition, nor in the statement of the complainant recorded on solemn affirmation, or in the evidence adduced by the complainant at the enquiry stage. As such, it is apparent that the complainant had not approached the Court below with clean hands. In that view of the matter it was a fit case, where the petitioner was entitled to be discharged on this score alone. 9. This apart, even though it was found that the part of the consideration amount had been received by the petitioner, in my considered view, that makes out only a civil liability against the petitioner. The allegation by the complainant that the petitioner was having the dishonest intention from before, as the father of the petitioner had gifted the land in favour of his grandson, is not of much consequence, in as much as, it is the case of the complainant himself, that 4 bighas, 11 Kathas and 19 dhurs of land were subsequently sold to a third party on the basis of power of attorney executed by none else than the petitioner himself. In my considered view, even if the allegations made in the complaint case are accepted in its entirety, no offence can be said to be made out against the petitioner, as in the facts of the case, it cannot be inferred that the petitioner was having the dishonest intention from the very beginning, in as much as, it was the complainant who did not perform his part in the agreement, if any, as four cheques issued by him in favour of the petitioner were dishonoured, and it is an admitted fact that part of the land was subsequently sold to a third party on the basis of power of attorney executed by none else than the petitioner himself. Had the complainant performed his part of the contract and the cheques issued by him had been honoured, the sale deed might have been executed in favour of the complainant after receiving the balance amount. As such, there can be no criminal liability of the petitioner, and the dispute between the parties is purely of civil nature. In that view of the matter the continuance of the criminal case against the petitioner is only an abuse of the process of law, which cannot be allowed to be continued, more so, when the complainant himself had not approached the Court below with clean hands. 10. In view of the aforementioned discussions, the impugned order dated 26.11.2010 passed by Shri A.K Dubey, learned Judicial Magistrate, Rajmahal, in P.C.R. Case No. 127 of 2005 / T.R. No. 896 of 2010, is hereby, set-aside. Consequently, the petitioner stands discharged. This application is accordingly, allowed.