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2014 DIGILAW 841 (PAT)

Sanwarmal Budhia v. State of Bihar

2014-08-05

ASHUTOSH KUMAR

body2014
ORAL JUDGMENT Heard Mr. S.D. Sanjay, learned Senior Counsel appearing on behalf of the petitioner, Mr. K.D.P. Singh appearing on behalf of the Opposite Party No. 2 and Mr. Jharkhandi Upadhayay, appearing on behalf of the State. 2. The petitioner seeks quashing of the order dated 27th of January, 2007 passed by learned Judicial Magistrate, Ist Class, Gaya in Complaint Case No. 1041 of 2004 whereby cognizance has been taken under Section 420 of the Indian Penal Code. 3. Opposite Party No. 2, who is the nephew of the Birendra Kumar Singh had lodged a complaint vide Complaint Case No. 1041 of 2004 for the offence under Section 420 of the Indian Penal Code. It was alleged by him that despite having accepted money from his Uncle, accused persons did not execute the sale deed with respect to the property in question and did not even return the money. During the enquiry, witnesses supported the prosecution version so far as payment of money and non-execution of sale deed was concerned. 4. However, on perusal of the complaint petition and the deposition of witnesses, two things appear to be very conspicuous: According to the complainant the sale agreement was entered into between the Uncle of the complainant and the petitioner & others. Pursuant to such sale agreement, huge amount of money is also stated to have been paid. However, no document suggesting any such agreement to sale or payment of money, has been brought forward in the complaint petition. The complainant further states that a legal notice was sent to the accused persons and when such legal notices were not paid heed to, a Title suit for specific performance of contract vide Title Suit No. 308 of 2000 was filed by the Uncle of the complainant before Sub-Judge – II, Gaya. In absence of any document suggesting any sale agreement or payment pursuant thereto, it would be difficult to sustain the prosecution of the petitioner in the present case. 5. Learned senior counsel appearing on behalf of the petitioner submits that almost simultaneously, one friend of Birendra Kumar Singh, (Uncle of the complainant) had also filed a criminal case by way of complaint. The allegations in that complaint, the petitioner submits, are almost tautologically same with the averments made in the present complaint. 5. Learned senior counsel appearing on behalf of the petitioner submits that almost simultaneously, one friend of Birendra Kumar Singh, (Uncle of the complainant) had also filed a criminal case by way of complaint. The allegations in that complaint, the petitioner submits, are almost tautologically same with the averments made in the present complaint. In the complaint lodged by the friend of the Uncle of the complainant, cognizance was taken against the accused persons including the petitioner. Such cognizance order was challenged by the accused persons before this Court vide Criminal Miscellaneous No. 25790 of 2006 and Criminal Miscellaneous No. 17282 of 2007. The aforementioned applications preferred on behalf of the accused persons including the petitioner in the other complaint (as has been referred to earlier), this Court vide judgment dated 11th of July, 2007 and 2nd of August 2007 respectively quashed the order of cognizance as the proceeding, in the estimation of the Court was an abuse of the process of the Court (Annexure- 5 to this petition). 6. Otherwise also, no offence under Section 420 of the Indian Penal code can at all be said to have been made out against the petitioner. The Uncle of the complainant had filed a Title suit way back in the year 2000 which is still pending adjudication. This fact, in conjunction with other factors namely, non-fulfillment of the requirements, bringing home charges under Section 415 of the Indian Penal Code, make it very clear that the present prosecution of the petitioner is not sustainable. 7. In the absence of any material before the learned Court below so as to come to a conclusive finding that there is a prima facie case of cheating against the petitioner, the order taking cognizance, appears to be unsustainable. 8. The order dated 27.01.2007, on the premised reason, is therefore, held to be bad and is set aside. The application stands allowed. Application allowed.