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2015 DIGILAW 933 (JHR)

Sanjay Kumar Mishra v. State of Jharkhand

2015-08-07

D.N.UPADHYAY

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JUDGMENT : D.N. Upadhyay, J. Heard the parties. 2. This Cr.M.P. has been filed for quashing the order dated 09.09.2004 whereby cognizance for the offence punishable under Section 420 read with Section 120-B IPC has been taken by the Sub-Divisional Judicial Magistrate, Jamtara in connection with P.C.R. Case No. 428 / 2001 [T.R. No. 1030/ 2004] and the entire criminal prosecution arising out of said case as against the petitioners. 3. The facts in brief is that the complainant had authorised petitioner no. 1 to look after the cases which were pending against him at Deoghar. It has been contended that the complainant had agreed to sell the property to one D.P. Modi and he had received advance out of consideration amount. No Sale Deed was executed due to some reason or the other. Therefore, said D.P. Modi had launched some criminal case against the complainant. The complainant was also having some property dispute at Deoghar. It was not possible for him to pursue all those cases by staying at Deoghar because he is resident of Kolkata, West Bengal. It is alleged that the petitioner no. 1 persuaded the complainant to give him Power of Attorney so that he may search out intending purchaser for the property belonging to the complainant at Deoghar and he had also agreed to look after those cases including the matter relating to said D.P. Modi. It is further alleged that petitioner no. 1 induced the complainant to transfer the property in favour of petitioners nos. 2 and 3 on a low price of Rs.2,31,000/- whereas the property at the relevant point of time was valuing more than Rs.6 Lac. The petitioner no. 1 did not take care of interest of D.P. Modi. As a result he filed Title Suit against the complainant. Due to deceptive intention and inducement made by the accused persons, the complainant was compelled to transfer his property on less value than actual price of the property concerned and, thereby, sustained loss. In the circumstances stated above, the complainant filed P.C.R. Case No. 428/2001 and after holding enquiry, the Magistrate took cognizance vide Order dated 09.09.2004. 4. It is submitted that no agreement between the petitioner no. 1 and the complainant had ever taken place nor he induced him at any point of time to transfer the property either in his favour or in favour of the person of his choice. 4. It is submitted that no agreement between the petitioner no. 1 and the complainant had ever taken place nor he induced him at any point of time to transfer the property either in his favour or in favour of the person of his choice. Since the complainant was residing at Kolkata and cases against him were instituted by different persons at Deoghar, he had requested petitioner no. 1 to look after those cases and also to take care of D.P. Modi with whom the complainant had entered into an agreement to sell the property. It is incorrect to say that petitioner no. 1 ever agreed to pay Rs.50,000/-to D.P. Modi and no such agreement has been placed either at the time of presentation of the complaint or at any subsequent stage of enquiry. It is admitted case of the complainant that he had sold the property in favour of petitioner nos. 2 and 3 after receiving consideration amount and, accordingly, Sale Deed was executed. Even assuming it to be true that the petitioner no. 1 had assured the complainant to pursue the cases on behalf of the complainant, if he failed to do so, no case under Section 420, 120-B IPC is made out. No ingredients of the offence of cheating defined under Section 415 of the Indian Penal Code is attracted on the averments made in the complaint. The prayer of the petitioner is squarely covered by the Judgment given by the Apex Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335. Even if the averments made in the complaint are taken to be true, no offence under Section 420 read with Section 120-B of the Indian Penal Code is made out. 5. Learned counsel appearing for the opposite party no. 2 has opposed the prayer. 6. I have gone through copy of the complaint petition and the documents annexed. It is evident from the record that said D.P. Modi has filed Title Suit for execution of the Sale Deed because the complainant had refuted to comply the terms of agreement which was executed by him in favour of said D.P. Modi. The complainant had instituted two Sale Deeds in favour of the petitioner nos. It is evident from the record that said D.P. Modi has filed Title Suit for execution of the Sale Deed because the complainant had refuted to comply the terms of agreement which was executed by him in favour of said D.P. Modi. The complainant had instituted two Sale Deeds in favour of the petitioner nos. 2 and 3 out of his sweet will and he was all along present before the District Sub Registrar at the time of execution of those Sale Deeds. Even admitting the undertakings given by the petitioner no. 1 to be true, no case of cheating is made out. In the circumstances I feel inclined to allow the prayer. 7. Accordingly, the Order dated 09.09.2004 whereby cognizance for the offence punishable under Section 420 read with Section 120-B IPC has been taken by the Sub-Divisional Judicial Magistrate, Jamtara in connection with P.C.R. Case No. 428 / 2001 [T.R. No. 1030/ 2004] as well as the entire criminal prosecution arising out of said case as against the petitioners stand quashed. In the result, this Cr.M.P. stands allowed. Petition allowed.