Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37331 of 2008 ===================================================== Binod Kumar Vishwash, son of Late Gokul Prasad Biswas, resident of Flat-G-1, Block “C”, B.S. Plaza Apartment, South Chitragupt Nagar, Kankarbagh, P.S. Patrakarnagar, Town and District-Patna-20. .... .... Petitioner. Versus 1. The State Of Bihar. 2. Vijay Kumar Sharma, son of Kadarnath Sharma, resident of Flat No.204, Block “A” B.S. Plaza Apartment, South Chitragupt Nagar, Kankarbagh, Patna. .... .... Opposite Parties. ===================================================== Appearance : For the Petitioner : M/s. Chitranjan Sinha, Senior Advocate, Anirbun Kundu and Krishna Nath Jha, Advocates. For the State : Mr. Z. Hoda, A.P.P. For the O.P. No.2 : M/s. Pramod Mishra & Vibhuti Ranjan Sonvadra, Advocates. ===================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV ORDER ----------------- 9 5-03-2012 The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 14.11.2007 passed in Complaint Case No.436(C) of 2007 by the court of Sri S.P. Mishra, Judicial Magistrate, Ist Class, Patna, summoning the accused-petitioner, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under [STATUTE] and also the order dated 30.4.2008 passed by the Additional Sessions Judge, Fast Track Court No.III, Patna, dismissing the Criminal Revision No.808 of 2007 as preferred by the accused-petitioner against the aforesaid summoning order dated 14.11.2007. Patna High Court Cr.Misc. No.37331 of 2008 (9) dt.05-03-2012 2 / 6 2 2. In brief, the case is that the opposite party no.2, Vijay Kumar Sharma, filed the Complaint Case No.436(C) of 2007 in the court of the Chief Judicial Magistrate, Patna, against the accused-petitioner alleging therein that the accused-petitioner introduced him as a Managing Director of Awas Construction, further saying that he is constructing a residential complex in the name of B.S. Plaza at Chitragupt Nagar, Kankarbagh, Patna. Thereafter, the opposite party no.2, talked him about the price of the flat bearing no.204 of the second floor in Block-A in B.S. Plaza and the price of the same was fixed Rs.7,25,000/- and an agreement was executed on 14.2.2003 in that regard. The accused-petitioner induced him to take loan from the Life Insurance Corporation Housing Finance Limited and then he applied for the loan of Rs.5,00,000/- and the accused-petitioner fraudulently received Rs.5,00,000/- from the Life Insurance Corporation Housing Finance Limited without giving any information to him in collusion with the staff of the Life Insurance Corporation Housing Finance Limited. The opposite party no.2 further alleged that the accused-petitioner received Rs.5,03,500/- on different dates from him on the basis of false and fraudulent statements. As such, the accused-petitioner knowingly and with dishonest intention received Rs.10,03,500/- from the opposite Patna High Court Cr.Misc. No.37331 of 2008 (9) dt.05-03-2012 3 / 6 3 party no.2 and in spite of that the accused-petitioner started putting obstruction in various ways in his peaceful living in the flat. The further case of the opposite party no.2 is that he, time without number, asked the accused-petitioner orally and in writing, to account the amount and refund the excess amount but he did not pay any heed and lastly, on 17.2.2007, the accused- petitioner refused to return the excess amount of Rs.2,78,500/-. 3. After filing of the complaint petition by the opposite party no.2 in the court of the Chief Judicial Magistrate, Patna, the court of Sri S.P. Mishra, Judicial Magistrate, First Class, Patna, on enquiry under Section 202 of the Code of Criminal Procedure, summoned the accused-petitioner finding prima facie case under [STATUTE] through the order dated 14.11.2007. Being aggrieved and dissatisfied with the aforesaid summoning order dated 14.11.2007, the accused- petitioner preferred Criminal Revision No.808 of 2007 which was dismissed by the Additional Sessions Judge, Fast Track Court No.III, Patna, vide order dated 30.4.2008. 4. Learned counsel for the petitioner made submission that, in fact, while the agreement was executed in between the opposite party no.2 and the petitioner for purchasing the flat by opposite party no.2, fixing the price of the flat, as alleged in the Patna High Court Cr.Misc. No.37331 of 2008 (9) dt.05-03-2012 4 / 6 4 complaint petition, as Rs.7,25,000/-, which would appear from Annexure-‘5’ to the supplementary affidavit filed on behalf of the petitioner but as the cost of the construction of the said flat increased and on final measurement the total cost came to Rs.10,75,962/-, then as per clause 3.1 of the Agreement for Sale, a notice was sent to the opposite party no.2 to pay the rest amount of Rs.72,462/- as Rs.10,03,500/- was already paid by the opposite party no.2. After sending the notice by the petitioner to the opposite party no.2 to pay the difference consideration amount, the opposite party no.2 has filed this false case against the petitioner. Moreover, from the averments of the complaint petition, the dispute appears to be of civil in nature. 5. On the other hand, the learned counsel appearing on behalf of the opposite party no.2 made submission that the learned Magistrate has rightly summoned through the order dated 14.11.2007, on enquiry under Section 202 of the Code of Criminal Procedure, to the petitioner finding prima facie case under [STATUTE] , which was affirmed in Criminal Revision No.808 of 2007 vide order dated 14.11.2007 passed by the Additional Sessions Judge, Fast Track Court No.III, Patna, preferred by the petitioner. As such, the petitioner may raise his defence in the trial court at the appropriate Patna High Court Cr.Misc.

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.