IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33051 of 2009 1. Jagdhari Rai, Son of late Sohan Rai. 2. Aditya Prasad, Son of late Ramdhani Rai. Both resident of Village Jaganpura, P.S. Ram Krishna Nagar, District Patna. ------ Petitioners Versus 1. State of Bihar. 2. Jitendra Kumar, Son of Shri Ramashish Sharma. -------- Opposite Parties ----------- 3 24.2.2010 Heard learned counsel for the petitioners and counsel for the State as also counsel for the opposite party no.2. The petitioners, seeking anticipatory bail for offence under Sections 406/420/120B of the Indian Penal Code, have their defence that this case is out and out a civil dispute, inasmuch as, it cannot be said with certainty that the petitioners were on the wrong side. In this context, it has further been submitted by the counsel for the petitioners that if there was an agreement for sale for Rs. 36,00,000/- with a time limit stipulated thereunder and the complainant opposite party no.2 did not deposit the amount, he cannot claim refund of the amount which in terms of the agreement stood forfeited. On the other hand, learned counsel for the opposite party no.2 has produced before this 2 Court an agreement for sale dated 27.12.2003 where there is an endorsement of the petitioner no.1 that he had received Rs. 1,50,000/-, 80,000/- by way of bank draft and Rs. 70,000/- by way of cash. Additionally this Court would find that the petitioner nos. 1 & 2 in the present bail application in paragraph nos. 11 & 12 have also accepted their liability for a further sum of Rs. 1,00,000/- in terms of the cheques dated 5.1.2005 and 10.1.2005 received by them from the complainant opposite party no.2. All these aspects therefore would lead to one and only conclusion that the petitioners had accepted certain money for conveying the land but the sale deed was not executed by them. Normally, in a case of this nature where the civil dispute could be adjudicated by the competent civil court, there would be normally no prospect for continuation of a complaint case but then if the allegation made in the complaint petition is taken on its face value, it becomes clear that the dispute does not remain confined only with regard to deposit of amount or execution of sale deed rather the petitioners 3 having with left no title or right of the land in questioned in view of by a sale deed dated 10.9.1990 in favour of some other persons had duped the complainant by executing agreement for sale and also receiving advance for executing sale deed. It is here that the element of cheating right from the inception would come into picture because if the petitioners despite knowledge of the fact that sale deed for the same land has already been executed in favour of some other persons had gone to accept the amount by way of advance at the time of executing agreement for sale, it cannot be said that the matter remains within the zone of civil dispute. Realizing this settled position in law, the counsel for the petitioners submits that the petitioners would pay the entire amount of Rs. 2,50,000/- within ten weeks for bringing the whole dispute including the complaint case in hand to an end. Such offer of the learned counsel of the petitioners is also acceptable to the learned counsel for the complainant opposite party no.2. That being so, if the petitioners, namely, Jagdhari Rai and Aditya Prasad would 4 surrender within a period of ten weeks from today and deposit an amount of Rs. 2,50,000/- (Rs. 2,00,000/- by the petitioner no.1 and Rs. 50,000/- by the petitioner no.2) by bank draft(s) in the name of the complainant opposite party no.2 for its being handed over to the latter, they would be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Patna in connection with Complaint Case No. 2949(C) of 2007, subject to the condition as laid down under Section 438(2) of the Cr.P.C. Rsh (Mihir Kumar Jha, J.)