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2018 DIGILAW 1482 (PAT)

Rakesh Kumar Sinha v. State of Bihar

2018-09-13

SANJAY PRIYA

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JUDGMENT : SANJAY PRIYA, J. 1. This petition under Section 482 Cr. P.C. has been filed for quashing the order dated 15.2.2012 passed by JM, Buxar in Tr. no. 1302 of 2015, arising out of Protest cum -complaint case no. 1354C of 2010 by which learned Magistrate has taken cognizance for the offence under Sections 406 and 420 of the IPC. 2. Learned counsel for the petitioners has submitted that in the instant case earlier police after investigation found the case to be of civil nature and submitted closure report vide final report no. 154/10 31.8.2010 (Annexure-2). Thereafter, learned Magistrate proceeded on the basis of protest-cum-complaint petition and by impugned order found prima facie case against these petitioners for the offence under Sections 406 and 420 of the IPC. It is further submitted that there is no chit of paper available with the complainant to show that any agreement for sale was entered into between them. He has further submitted that all these eight demand drafts which is said to have been given to the petitioners by the complainant have not been received by the petitioners. In this regard, he has referred to Annexure-4 which shows that out of eight demand drafts, seven demand drafts have been cancelled by the complainant himself and one of the demand draft was en-cashed by one person, namely, Dhiraj Kumar who is not related with these petitioners. 3. Learned counsel for the Opposite party no.2 has appeared. Neither any counter affidavit nor any chit of paper has been filed by the opposite party no.2 to demonstrate that any agreement of sale has been entered into between the petitioners and the complainant. 4. As per the prosecution case, the petitioners showed him a piece of land measuring around 12 decimals. An agreement was executed to this effect. The complainant issued six drafts in favour of petitioner no.2, one in favour of petitioner no.1 and one in favour of co accused Pankaj Kumar Sinha. In this manner, complainant paid a total amount of Rs. Seven lacs. Complainant claimed to have paid Rs. four lacs by way of drafts and another three lacs by cash to petitioner no.1. It is alleged that after entering into an agreement and receiving the payment petitioners executed an agreement for sale in favour of Subodh Kumar Sinha. In this manner, complainant paid a total amount of Rs. Seven lacs. Complainant claimed to have paid Rs. four lacs by way of drafts and another three lacs by cash to petitioner no.1. It is alleged that after entering into an agreement and receiving the payment petitioners executed an agreement for sale in favour of Subodh Kumar Sinha. The petitioner have neither agreed to execute the sale deed in favour of the complainant nor returned the money. 5. Learned counsel for the petitioners has pointed out Annexure-4 which is report submitted by the State Bank of India, Dumraon to the police during investigation of the case, wherein, it is mentioned that seven out of eight drafts alleged to have been given by the complainant have been cancelled by the complainant himself and one of the demand draft was en-cashed by Dhiraj Kumar who is not related with these petitioners. 6. Opposite party no.2 has not produced any chit of paper to show that any agreement for sale was entered into between the parties. The police after proper investigation found the case to be of civil nature and submitted final form. Therefore, this Court finds that this is a case of civil nature and no any mens rea is made out of any criminal offence. 7. Accordingly, the impugned order dated 15.02.2012 passed by J.M, Buxar in Tr. no. 1302 of 2015, arising out of Protest- cum- -complaint case no. 1354C of 2010 along with entire criminal proceeding against the petitioners is hereby quashed. 8. This Cr. Misc. petition is, accordingly, allowed.