CRIMINAL MISCELLANEOUS No.31874 OF 2007 -------- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. -------- SYED MATIN AHMAD WAKIL @ SYED MATIN AHMAD, SON OF LATE SYED AMIN AHMAD, RESIDENT OF MOHALLA LODIKATRA, POLICE STATION KHAJEKALAN, DISTRICT PATNA AT PRESENT RESIDING AT FLAT NO.301 A1- MAZHAR APARTMENT, ROAD NO.8, RAJENDRA NAGAR, P.S. KADAMKUAN, DISTRICT PATNA. … … PETITIONER. Versus 1. THE STATE OF BIHAR 2. ZAFER IQBAL SON OF ABDUL KHALIQUE, RESIDENT OF MOHALLA LODIKATRA, AMIN COLONY, P.S. KHAJEKALAN, PATNACITY, DISTRICT PATNA. … … OPPOSITE PARTIES. -------- For the Petitioner : M/S T.N. Maitin, Sr. Adv. Syed Raza Ahmad, Sr.Adv. Md.Anis Akhtar, Adv. Arif Siddiqui, Adv. For O.P. No.2 : M/S Sanjeev Kumar No.1, Adv. U.P.Singh No.1, Adv. Shyamal Prakash, Adv. For the State: Mrs.Indu Bala Pandey, Addl. P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. The sole petitioner, who is owner of a building where opposite party no.2 is a tenant, has approached this court while invoking its inherent jurisdiction under section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 20.2.2007 passed by Sri Deepak Kumar, Judicial Magistrate, Ist Class, Patna City in Complaint Case No.1012 of 2006 whereby learned Magistrate has taken cognizance of the offence under section 406 of the Indian Penal Code. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Additional Chief Judicial 2 Magistrate, Patna City which was numbered as Complainant Case No. 1012 of 2006 arraying three persons as accused including the petitioner as accused no.3. It was disclosed in the complaint petition that the complainant was a tenant of the petitioner since the year 1985. It has been stated in the complaint petition that the petitioner had entered into an agreement for sale with accused no.1 and 2 in respect of his land including the house where the complainant was residing as a tenant. Subsequently, accused no.1 and 2 persuaded the complainant to purchase the house in question and, thereafter, an agreement in between accused no.1 and 2 and the complainant was entered into. The complainant made payment of a sum of rupees two lakh and, as such, it was alleged that the complainant was cheated by the accused persons. In the complaint petition, of course, it has been alleged that on earlier occasion he had given a loan of Rs.20,000/- to the petitioner which was not returned and it was assured by the petitioner that in case of sale he will prefer to sell the said property to the complainant. After filing the complaint, the learned Magistrate conducted an enquiry and, thereafter, by the impugned order he has taken cognizance of the offence as mentioned above. 3. Mr. T.N.Maitin, learned senior counsel appearing on behalf of the petitioner, while challenging the order of cognizance submits that no case under section 406 of the Indian Penal Code can be made out against the petitioner. It was submitted that whatever amount was paid by the complainant 3 was paid to accused no.1 and 2. The petitioner had not at all even executed final sale deed in favour of accused no.1 and 2. It has further been submitted that it is not a case of breach of trust committed by the petitioner. It has further been submitted that the complainant admittedly was a tenant of the petitioner and he was also a defaulter. Accordingly, it has been prayed to set aside the order of cognizance. 4. Mr.Sanjay Kumar No.1 learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. Learned counsel, while referring to paragraph-9 of the complaint petition, submits that the fact regarding agreement to sale between opposite party nos.1 and 2 with the complainant was within the knowledge of the petitioner and, as such, the matter disclosed in the complaint petition constitutes an offence under section 406 of the Indian Penal Code even against the petitioner. Accordingly, He has prayed to reject the petition. I have also heard Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. 5. After going through the contents of the complaint petition particularly in view of the fact that the petitioner had entered into an agreement to sale only with accused nos.1 and 2, the court is of the opinion that it cannot be said that the petitioner was also a party with accused nos.1 and 2 in commission of offence under section 406 of the Indian Penal Code. The court is of the opinion that the petitioner cannot be 4 prosecuted on such allegation. The court feels that allowing prosecution against the petitioner on such allegation will amount to allowing an abuse of process of the court. With a view to prevent an abuse of process of the court, it is desirable to exercise inherent jurisdiction in favour of the petitioner. 6. Accordingly, the order dated 20.2.2007 passed by Judicial Magistrate, Ist Class Patna City in Complaint Case No.1012 of 2006 so far as this petitioner is concerned, is hereby set aside and the petition stands allowed. 7. It is made clear that the court has not recorded any opinion in respect of accused nos.1 and 2. Patna High Court The 23rd November,2010 Md.S/NAFR ( Rakesh Kumar, J.)