IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37449 of 2007 MD.SABIR GANI @ RAJA, Son of Late Md. Manjur Alam, R/o Mohalla Nawab Gali, Khankat, P.O. Biharsharif, P.s. Laher, District Nalanda …….. Petitioner Versus 1. STATE OF BIHAR 2. Arvind Kumar, S/o Late Kedar Prasad, R/o Sugia, P.S. Sheikhopur Sarai, District Sheikhpura, Present Address – Muhalla – Patel Nagar, P.S. Biharsharif, District Nalanda, Bihar …… Opp. Parties ----------- For the petitioner : M/s Rajni Kant Pathak, Ajeet Kumar & Avinash Kumar, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : M/s Ashutosh Kumar & Chandra Mohan Jha, Advocate O R D E R One of the three persons impleaded as accused in Complaint Case No. 1086(C) of 2006 through this application has prayed for the quashing of the order dated 19.5.2007 passed therein by the learned Sub-Divisional Judicial Magistrate, Nalanda at Biharsharif, whereby he has taken cognizance under sections 420, 120B, 468, 471 IPC against all the accused including the petitioner. One Arvind Kumar, impleaded herein as O.P. No. 2, filed the aforesaid complaint alleging commission of offence under sections 468, 471, 420 and 120B IPC at the hands of the accused continuously in between the period 10.1.2004 and 23.3.2004. According to the complainant accused Md. Mubarak Hussain being in need of money approached him with the intention to sell some of his hands appertaining to khata no. 63 khesra no. 333. While showing the relevant documents in respect of the lands in question, he assured that the total lands measuring 1 acre 94 decimals had 2 been purchased legally by him and his wife and that they were coming in exclusive peaceful and continuous possession over the same and no other person had any concern with the said lands. It is said that while the negotiations were going on, one Md. Haroon arrived and impressed upon the complainant that he had seen the lands which were duly recorded in the names of accused nos. 1 and 2 and there was no hurdle in purchasing the said lands. Eventually it was agreed that the complainant would purchase 62 kathas of the said lands at the rate of Rs. 53,000/- per katha and accordingly on 23.3.2004 the complainant gave Rs. 4,00,001/- as advance to accused nos. 1 and 2 who got a bai-beyana prepared by scribe Sushil Kumar and signed on the same after affixing their photographs and the petitioner Md. Sabir Gani alias Raja accused no. 3, the brother- in-law of accused no. 1 figured as attesting witness thereupon. It is further alleged that a sum of Rs. 1 lakh and another sum of Rs. 2 lakhs was given to the accused by the complainant as further advance on 8.5.2004 and 27.5.2004 respectively. Thereafter, the complainant with the permission of the vendors started filling and levelling the lands purchased by him and as the work was nearing completion, the Circle Officer and his clerk arrived and prohibited him from filling and levelling the lands in question as the same was gair majarua – aam lands and if some one had sold the said lands then the complainant had been cheated. The further case of the complainant is that he went to the vendors and narrating the incident with the Circle Officer 3 demanded return of his money. The vendor promised to return the money advanced within a period of two months by which time he would be able to make necessary arrangements for the amount. It is alleged that notwithstanding the assurances and several visits by the complainant, the amount remained unpaid and finally on 9.10.2006 the vendors flatly refused to return the money received as advance. Assailing the impugned order, it was the contention of the petitioner that he had falsely been impleaded/implicated in this case on fabricated and concocted allegations. The further submission is that there is no specific allegation against him and apart from being an attesting witness in the bai-beyana he had no concern with either the negotiation, the receiving of money or refusal to pay back the amount advanced and as such he could not be fastened with any criminal liability. O.P. No. 2 though appearing by filing a vakalatnama has not filed any show cause or written statement and only oral submissions have been advanced on his behalf justifying the impugned order. I have had the occasion to peruse the impugned order and the complaint petition as also the other documents appended as Annexures to the application and am of the opinion that the submissions of the petitioner has sufficient force. It is apparent that the petitioner had only figured as an attesting witness of the bai-beyana and had no role to play either in the negotiation or 4 in receiving the advance consideration or even the refusal to return the same to the complainant. In that view of the matter the petitioner could not be made liable of any of the offences whereunder cognizance has been taken by the impugned order. Accordingly, the impugned order, so far as the petitioner is concerned, is set aside and the application is allowed. Patna High Court, Patna. Dated : The 30th of June, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)