IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39680 of 2009 SAYED EZAZ HUSSAIN ZAIDI @ EZAZ HUSSAIN ZAIDI, son of Syed Hussain Zaidi, Mohalla Khalifabagh, PS Kotwali, District Bhagalpur – petitioner. Vs. 1. The State of Bihar, 2. Mostt. Savitri Devi, wife of Late Cheddi Lal Rajak, Mohalla Gurudwara Road, PS Kotwali, District Bhagalpur – opp. parties. 3 22.4.2010 Heard learned counsel for the parties. This application has been filed for quashing the order, dated 24.1.2009 passed by the Judicial Magistrate, Ist Class, Bhagalpur in G.R. No. 2745 of 2003 by which the petition for discharge of the petitioner for the offences under sections 406 and 504 of the Penal Code has been rejected. This matter has come up for hearing in the admission matter after service of notice on opposite party no.2. An FIR has been filed in which it is alleged that the petitioner and opposite party no. 2 had entered into an agreement in the year 1995 by which the petitioner was to construct a three storied building on the land belonging to the informant which is Holding No.8, Ward No. 29, Khata No. 131 and Khesra No. 560. The said building was completed in three years i.e. 1998. The petitioner was also required to construct residential accommodation for the informant in the said building. The work remains incomplete and as such the FIR has been instituted in 2003. Annexure 2 is the agreement. The specific case of the petitioner is that the land in question does not belong to the informant and she only has 1/3rd share in the said property. A title suit has been filed on behalf of sister of the 2 informant claiming that informant has illegally entered into a contract and that according to the partition deed contained in Annexure 3, the informant did not have the right to enter into an agreement with the petitioner. Learned counsel for the petitioner submits that because of the litigation that has arisen on the lands in question between the informant and the petitioner, it was not possible to fulfill the agreement. It is submitted that the entire case is of a civil nature and there was never any intention on the part of the petitioner to cheat or misappropriate the property of the informant. It is categorically stated that the land belongs to the informant and the petitioner was only able to build the ground floor which is now rented out to the tenants. Unless the parties come to an understanding, it is virtually impossible for the petitioner to fulfill the contract and as such the offences as alleged are not made out against the petitioner as the informant had no legal right to enter into an agreement on the basis of which she has filed the present F.I.R. In the facts aforesaid no case is made out under sections 406 and 504 of the Penal Code. In such a case there must be dishonest intention on the part of the accused to convert the property to his own use. It is submitted that the petitioner is ready to discharge his agreement provided he gets free hand to make constructions on the said property. In the facts aforesaid I find that no case is made out against the petitioners under sections 406 and 504 of the Penal Code 3 as the case is based on civil dispute with respect to breach of agreement, in which there is a dispute with respect to ownership of the land and as such the order impugned is hereby quashed. This application is allowed. haque (Sheema Ali Khan, J.)