IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5463 of 2007 KULDEEP YADAV @ KULDEEP PRASAD, Son of Late Mangal Yadav, resident of Waris Khan Ka Talab, Kumhrar, P.S. Agam Kuan, P.O. Lohia Nagar, District- Patna --------- Petitioner Versus 1. THE SATTE OF BIHAR 2. Ranjit Kumar @ Ranju , Son of Late Jagdish Prasad Yadav, resident of Mohalla-Karnalganj, Gaighat, P.S. Alamganj, District-Patna --------------------- Opp.Parties ----------- For the petitioner : Mr. Abinash Kumar, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2: Mr. Madhusudan Kumar, Advocate --------- O R D E R The petitioner ,who has been arrayed as the sole accused in Complaint Case No.630 of 2005, has prayed for the quashing of the order dated 6.2.2006 passed therein by Sri Rajesh Kumar, Judicial Magistrate, First Class, Patna City, whereby he has taken cognizance against the petitioner under Sections 406 and 323 I.P.C. The complainant, one Ranjit Kumar alias Ranju, impleaded herein as Opp.Party no.2, filed the aforesaid complaint on 3.8.2005 inter alia alleging that the accused had 5 kathas of ancestral lands appertaining to khata no.264 , khesra no.143 situated in Mohalla Kumrahar for the sale of which negotiations took place between the accused and the complainant and a price of Rs.2,70,000/- per katha was agreed upon. It is further alleged that on 17.1.2003 the accused agreed to sell the lands in question and while requesting for payment of Rs.2, 50,000/- as an advance for the bai beyana he assured to execute the sale deed within five months. It is said that the - 2 - complainant gave a sum of Rs.2,50,000/- as bai beyana amount in presence of witness whereupon the accused put his signature on the bai beyana and witness Amlesh Kumar signed thereupon as an attesting witness whereupon the accused assured to execute the sale deed within the stipulated period . It is also alleged that the accused took further sums of money on various dates totaling Rs.10, 84,000/- and in token thereof he put his signature on the bai beyana and reiterated his assurances to execute the sale deed after measurement of the lands. It is further alleged that the complainant requested the accused to execute the sale deed after receiving the balance amount but the accused avoided the same. It is also alleged that on 31.7.2005 at around 6.00 P.M. the complainant along with his witnesses went to the house of the accused with a request to get the lands measured and then execute the sale deed but the accused refused to execute the sale deed and also refused to return the money taken as advance. The accused allegedly also disclosed that he had already executed a sale deed in respect of part of the lands in question in favour of others and having allegedly abused and assaulted the complainant asked him to forget about the money as also the lands. The submission on behalf of the petitioner is that notwithstanding the fact that he had executed sale deeds, as per the terms of the agreement and wishes of the complainant, to different persons of his choice, yet he had unnecessarily been drawn into this litigation on false and concocted assertions. In this connection it has been submitted that the petitioner in the year 2002 had sold a piece of - 3 - his lands to one Amlesh Kumar, a friend of the complainant, and it was through this Amlesh Kumar that he had come into contact with the complainant, a property dealer, who coming to know of the desire of the petitioner to sell 5 kathas of his lands expressed his desire to purchase the same. It is said that in course of the negotiations, the complainant requested the petitioner to execute the bai beyana in his favour with the condition that the land shall be purchased either in his name or in the name of his friends or relatives and with the petitioner having agreed to the proposal , a bai beyana was executed on 17.1.2003 in favour of the complainant with a stipulation that the sale deed would be executed either in the name of the complainant or friend or relative or any other person of his choice. This stipulation, according to the learned counsel for the petitioner is available in clause 2 of the bai beyana , a copy whereof has been appended to the application as Annexure 2 . Another stipulation included in clause 2 was that permission from the Collector, Patna, for sale of the said lands would have to be taken by the petitioner. It is said that the complainant in the company of Amlesh and Rajesh Kumar came to the petitioner with a request to obtain the permission of the Collector to sell 15 dhurs out of the said lands in favour of one Yogendra Mahto and Sunita Devi and having obtained the requisite permission the petitioner executed the sale deed on 29.5.2003 in favour of Yogendra and Sunita in the presence of Amlesh and the complainant. Similarly on requests being made, after obtaining permission, sale deeds were executed in favour of Lalmuni - 4 - Devi on 29.5.2003 and Sanjeev Kumar Verma on 12.7.2003 in presence of Amlesh , Rajesh and the complainant. It is submitted that all these sale deeds were executed by the petitioner in presence of the complainant and Amlesh in keeping with the stipulation incorporated in clause 2 of the bai beyana and, therefore, it goes without saying that all the three purchasers of the said land were men of the complainant . Referring to Annexure 6 , which is the affidavit sworn by said Amlesh Kumar who was a witness to the bai beyana , it has been submitted that he has fully supported the submissions advanced by the learned counsel for the petitioner herein and the stand taken by him. On the aforesaid premise, it has been submitted that neither an offence under Section 406 nor 120 B I.P.C. is made out against the petitioner. It has also been submitted that an offence under Section 120B I.P.C. cannot be made out in isolation and there has to be another person with whom the main accused has entered into conspiracy, but no such person has been shown in the complaint petition. Finally, it has been submitted that from perusal of the complaint petition it would be apparent that the case is of a civil nature which would be apparent from the order dated 21.7.2006 passed by this Court in Cr.Misc.No.29613 of 2006 while granting anticipatory bail to the petitioner. The complainant- Opp.Party no.2 has appeared and filed a counter affidavit seeking to deny the allegations and submissions placed by the learned counsel for the petitioner. - 5 - From the individual case of the parties, it would be apparent that the dispute involves looking into disputed facts and documents which cannot be done in a proceeding under Section 482 Cr.P.C. Similarly, the submissions advanced by the learned counsel for the petitioner calls for the looking into the defence of the alleged wrong doer since those are matters to be considered at the trial and in such circumstances the High Court would not exercise its power under Section 482 Cr.P.C. as the High Court is required to see on consideration of the evidence available before it in the records as to whether prima facie case has been made out or not. In the facts and circumstances of the case and for the reasons stated above I find no merit in this application which is accordingly dismissed. The petitioner shall be at liberty to raise all these issues before the trial court at the time of framing charge. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 7th August,2009 Nawal Kishore Singh/A.F.R.