CRIMINAL MISCELLANIOUS No.15320 OF 2005 ******* In the matter of an application under section 482 of the Code Of Criminal Procedure. ******* KAMAL LATA SINGH---------------------PETITIONER Versus 1. STATE OF BIHAR, 2. RAM CHANDRA KUMAR. -----------0PP.PARTY ******* For the Petitioner : M/s Ashwani Kr. Singh, Radha Mohan Singh & Pankaj Kr. Singh For the State : Mr. Uma Shanker Pd. Singh, APP For the Informant : Mr. Mahendra Thakur Opp.Party no.2 ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard Sri Ashwani Kr. Singh, learned counsel for the petitioner, Sri U.S.P Singh, learned Additional Public Prosecutor for the State, and Sri Mahendra Thakur, for Opposite Party no.2. 2. This is an application under section 482 of 2 the Code of Criminal Procedure seeking quashing of order dated 02nd March, 2005 passed by the Chief Judicial Magistrate, Purnia, taking cognizance for the offences under Sections 406, 420 and 120B of the Indian Penal Code in Khazanchi Hat P.S. Case no. 229 of 1999. 3. The relevant short admitted facts of this case is that opposite party no.2 filed Complaint Case no. 730 of 1999 in the Court of Chief Judicial Magistrate, Purnia on basis whereof Khazanchi Hat P.S. Case no.229 of 1999 was instituted. In the complaint petition, which forms part of first information report, it is stated that the complainant was in search of suitable land to construct house for his residence, accordingly, house under construction of the petitioner was selected and the parties entered into an oral agreement for rupees two lacs and one thousand. Rupees fifty thousand was paid to the accused persons in cash followed by deposit of a sum of rupees one lac in the Bank account of the accused who delivered the possession with a direction to complete the construction and start residing therein. 3 The complainant towards completion of construction invested rupees ninety thousand and further invested rupees twenty thousand eight hundred in a function of griha pravesh and thereafter started residing therein. But, inspite of requests accused persons refused to execute sale deed in favour of the complainant and also started threatening etc. to get the house vacated. The complainant realized that intention of the opposite party petitioner is to digest the money advanced but do nothing more towards transfer of the land with house. The Police refused to lodge case finding the same related with land. Consequently the complain was filed which was sent to concerned Police Station under Section 156(3) of the Code of Criminal Procedure and after investigation Police submitted charge sheet. Cognizance was taken giving rise to instant case. 4. It is further relevant to mention that earlier also the petitioner invoked jurisdiction of this Court by filing Cr.Misc. no. 28943 of 1999 which was dismissed by order dated 19.7.2000 with the following relevant observation: “Learned counsel for the petitioners 4 submitted that even on the face of the F.I.R. no offence whatsoever is made out. It appears that the matter is still under investigation. The prayer of the petitioners at this stage, therefore, is premature as the Police may not file charge sheet against them. The petitioners in that view of the matter, may raise the questions after submission of final form. This application is, therefore, dismissed at this stage.” 5. Learned counsel for the petitioner submitted that the case is outright of a civil nature and there is no averment in the complaint petition attracting any criminal offence. The learned counsel further placed reliance upon Bhajan Lal’s case besides the case of Murari Lal Gupta V. Gopi Singh; (2005) 13 SCC 699, and Anil Mahajan V. Bhor Industries Ltd. : (2005) 10 SCC 228, and Uma Shankar Gopalika V. State of Bihar; (2005) 10 SCC 336. 6. Learned counsel for opposite party no.2 and learned Additional Public Prosecutor both tried to support the impugned order and submitted that the matter may be considered by the trial court at the time of hearing on the point of charge or at any appropriate stage but neither impugned order nor the first 5 information report deserve any interference. The case instituted against the petitioner, as stated, is nothing but out come of alleged non-performance of the contract, if any, entered into between the complaint and the accused person, that is the petitioner here, partly performing the agreement. On behalf of the complainant side majority of the consideration, as alleged, has been paid to the accused person, the owner of the subject matter of the case. Who, in compliance, delivered possession to the complainant, who, as stated, reside with the family in the house. The only things remains after the agreement is taken to be true execution of the sale deed by the accused persons on receipt of the remaining part of consideration, if any. 7. The case appears to be squarely covered under the decision of Apex Court in Murari Lal Gupta (Supra) wherein in paragraph 6 it has been held: “We have perused the pleadings of the parties, the complainant and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The 6 complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent.” 8. Two other decisions of the Apex Court in the cases of Anil Mahajan (Supra) and Uma Shankar Gopalika (Supra) also states almost same principle. 9. In view of the above, the impugned order and the first information report are hereby quashed. This application is allowed without affecting liberty of the complainant to agitate his claim before appropriate 7 authority. (Akhilesh Chandra, J.) Patna High Court, The 18th August, 2010. AAhmad/(N.A.F.R.)