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2017 DIGILAW 176 (PAT)

Santosh Kumar v. State of Bihar

2017-02-02

RAJENDRA KUMAR MISHRA

body2017
RAJENDRA KUMAR MISHRA, J.:–Heard learned counsel for the petitioners, learned counsel for the State and the learned counsel for the opposite party no. 2. 2. This application, under Section 482 of the Code of Criminal Procedure, is directed against the order dated 21.09.2011 passed in Complaint Case No. 951C of 2011, whereby the learned Judicial Magistrate Ist Class, Biharsharif at Nalanda, summoned the accused-petitioner, on inquiry, under Section 204 of Cr.P.C finding the prima facie case, under Section 420 of the Indian Penal Code. 3. The prosecution case in brief is that in the month of June, 2010, the complainant/opposite party no 2 had come to Bihar Sharif for purchasing the land. Accordingly, he talked to the accused-petitioners, to purchase the land. Accordingly, accused-petitioners executed the agreement to sale in respect to Plot No. 1643, area 5.5 decimals of Khata No. 499, of the Village- Kamarpur Paharpur, P.S. Deepnagar, Biharsharif, Nalanda, fixing the consideration amount of Rs.4,08,000/- on same day, two cheque, each cheque of Rs.1,00,000/- of Madhya Bihar Gramin Bank, Amber, Bihar Sharif, were given to the accused-petitioners and it was decided that the sale deed will be executed till 30.11.2010. Later on, on 03.07.2010, complainant-opposite party no.2 also paid Rs.40,000/- on 02.07.2010 and Rs.30,000/- on 03.07.2010 to the accused-petitioners in cash, which was also detailed in the back of the agreement to sale. Later on, Rs.2,08,000/- was also paid in cash on 20.11.2010. While, as per agreement to sale only Rs.48,000/- was to be paid but he paid Rs. 70,000/- excess to the accused petitioners for other aghreement to sale regarding which accused petitioners executed the sale deed in the name of his wife. In spite of payment of full consideration Rs. 4,08,000/- to the accused-petitioners they did not executed the sale deed as per agreement to sale made demand of Rs. 2,00,000/-more. 4. Learned counsel for the petitioners submits that it would appear from the complaint petition that the agreement was executed by the petitioners to execute the sale deed in respect to 5.5 decimals of land Khesra No. 1643 Khata No. 499 Village- Kamarpur Paharpur, P.S. Deepnagar, Biharsharif, Nalanda and accordingly the sale deed was executed by the land owner Bidya Nand Prasad Gupta on 21.12.2010 in favour of Smt. Sunita Kumari, wife of complainant-opposite party no. 2. 2. No date has been mentioned in the complaint petition about the second agreement to sale as alleged to be executed by petitioners nor amount of consideration of agreement to sale has been detailed. Moreover, the offence as alleged in the F.I.R. appears to be civil in nature no criminal liability is made out. 5. On perusal of the complaint petition and the S.A. of the complainant, it appears that there was agreement to sale of 5.5 decimals of Khesra No. 1643 of Khata No. 499, in Village- Kamarpur Paharpur, P.S. Deepnagar, Biharsharif, Nalanda, on 01.06.2010 regarding which, the sale deed has already been executed by the land owner, Bidya Nand Prasad Gupta, on 21.12.2010, in favour of Smt. Sunita Kumari, wife of complainant-opposite party no. 2 as appears from Annexure-3 to the application. There is no description about second agreement to sale in the complaint petition or in S.A. of the complainant to execute the sale by the petitioners in favoaur of complainant-opposite party no.2. Under the aforesaid facts and circumstances of the case. impugned order dated 21.09.2011 summoning the accused-petitioners finding prima facie case, under Section 420 of the Indian Penal Code, in Complainant in Complaint Case No. 951C of 2011 amount to abuse of the process of court. According, the same is hereby quashed.