Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.19692 of 2008 ===================================================== 1. Md. Sarmatt @ Gidra, son of Late Imam Mannowar. 2. Md. Iftekhar @ Guddu, son of late Imam Manowar, both are resident of village-Bidypur, P.S. Belia-Belone, District-Katihar. .... .... Petitioners. Versus 1. The State Of Bihar. 2. Md. Mojibur Rahman, son of Late Qutub Ali, resident of village- Bidepur, P.S. Bali Belone, District-Katihar. .... .... Opposite Parties. ===================================================== Appearance : For the Petitioners : Mr. Md. Helal Ahmad and Md. Anjum Akhtar, Advocates. For the State : Mr. Dashrath Mehta, A.P.P. ===================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL ORDER (Per: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA) --------------- 5 30-01-2012 This application under Section 482 of the Code of Criminal Procedure has been filed on behalf of the petitioners to quash the order dated 3.7.2007 passed in Complaint Case No.958 of 2007 by the court of Sri N. Prasad, Judicial Magistrate, First Class, Katihar, summoning the accused-petitioners under Section 204 of the Code of Criminal Procedure, on inquiry, finding prima facie case under [STATUTE] . 2. In brief, the case is that the opposite party no.2, Md. Mojibur Rahman, filed the Complaint Case No.958 of 2007 in the court of the Chief Judicial Magistrate, Katihar, alleging therein that Patna High Court Cr.Misc. No.19692 of 2008 (5) dt.30-01-2012 2 / 4 2 on 27.3.2007 both the petitioners, who are full brothers, came at his house and made request to give Rs.20,000/- to start the medicine shop which he refused. Thereafter, both the petitioners gave him allurement to execute the sale deed regarding plot nos.151 and 154 of Khata No.367 of village-Madhaipur on consideration of Rs.80,000/- per bigha. Then the opposite party no.2 became ready as the price of the land was high at that time and asked them to come in the evening of 28.3.2007. Thereafter, on selling the grains, the opposite party no.2 collected Rs.20,000/- and handed over the same to the petitioners to purchase 1/2 bigha of land at the rate of Rs.80,000/- per bigha. At that time it was also decided that the remaining consideration amount would be paid at the time of the registration of the sale deed and the date was fixed for execution of the sale deed as 3.4.2007. In spite of best efforts of opposite party no.2, the accused-petitioners did not execute the sale deed and fixed the next date for the same on one pretext or the other. Lastly, on 26.4.2007, the opposite party no.2 alongwith the witnesses went to the house of the accused-petitioners, who abused the opposite party no.2 and refused to execute the sale deed and also to return the cash Rs.20,000/- which was given to them by the opposite party no.2 as advance. 3. After filing of the complaint petition by the opposite Patna High Court Cr.Misc. No.19692 of 2008 (5) dt.30-01-2012 3 / 4 3 party no.2, on inquiry under Section 202 of the Code of Criminal Procedure, the court of Sri N. Prasad, Judicial Magistrate, First Class, Katihar, summoned the accused-petitioners finding prima facie case under [STATUTE] through the impugned order dated 3.7.2007. 4. Learned counsel appearing on behalf of the petitioners made submission that if the allegation, as made in the complaint petition, is taken to be true even then no criminal liability for the offence under [STATUTE] is made out rather the dispute, as emerges in the complaint petition, appears to be civil in nature. As such, summoning the accused-petitioners for the offence under [STATUTE] through the impugned order by the learned Magistrate amounts to an abuse of the process of the court and in support of his submission, he placed reliance on a decision of the Hon’ble Apex Court in the case of Ram Biraji Devi and another Vs. Umesh Kumar Singh and another {(2006) 6 Supreme Court Cases 669}. 5. On going through the complaint petition at a glance, the dispute appears to be of non execution of the sale deed by the petitioners in favour of the opposite party no.2 in spite of taking the advance Rs.20,000/- for 1/2 bigha of land at the rate of Patna High Court Cr.Misc. No.19692 of 2008 (5) dt.30-01-2012 4 / 4 4 Rs.80,000/- per bigha. The averments of the complaint petition, on the basis of which the impugned order has been passed, does not disclose the ingredients constituting the offence under [STATUTE] rather the averments would amount to civil liability inter se the parties. As such, the impugned order appears to be completely abuse of the process of the court. 6. Accordingly, the impugned order dated 3.7.2007 passed in Complaint Case No.958 of 2007 by the court of Sri N. Prasad, Judicial Magistrate, First Class, Katihar, is hereby quashed and the application is allowed. P.S./- (Rajendra Kumar Mishra, J.)

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.