IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14556 of 2008 MASOODUL HAQUE, SON OF LATE HAZI AZIZUL HAQUE, RESIDENT OF SOUDAGAR PATTI ROAD, P.S.- KISHANGANJ, DISTRICT- KISHANGANJ. ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. ALI SAJJAD, SON OF LATE MD. AYUB, RESIDENT OF CHURI PATTI, PANIBAG, P.S.- KISHANGANJ, DISTRICT- KISHANGANJ. ----- OPPOSITE PARTIES ----------- 5 7.8.2009 This application has been filed challenging the order dated 4.3.2008 by which petitioner’s application for discharge has been rejected by the Judicial Magistrate, 1st Class, Kishanganj in Complaint Case No. C/1230/2005. By the same order, the petition filed on behalf of the complainant to take cognizance under Sections 323, 504, 471 and 472 of the Indian Penal Code has also been rejected. The facts are that a complaint case was filed on behalf of one Ali Sajjad against the petitioner Masoodul Haque. The allegations in the complaint petition makes interesting reading and is also important for the purpose of demonstrating that in fact no offence under Section 420 of the Indian Penal Code could be made out against the petitioner. - 2 - The case of the complainant is that he is the tenant of a shop since 1999 which appertains to Holding No. 4 measuring 20’x11½’ situated at South Churipatti Road, Kishanganj. It is said in the complaint petition that the petitioner collected rent for the shop aforesaid from the complainant and granted him receipt in lieu of the rent collected. The complainant came to know from some sources that the shop in question actually did not belong to the petitioner rather it belongs to someone else. The allegation is that the complainant confronted the petitioner with these facts which made the petitioner angry and it is alleged that he is said to have told the complainant that he would evict him from the shop. The petitioner has filed a case against the complainant numbered as Eviction Suit No. 3/04 for eviction on the ground of being a defaulter. It is said that on 1.6.2005 the petitioner got a notice from one Md. Khalid Ashraf that he is the actual owner of the shop in question and demanded - 3 - that the complainant should pay the rent to him. Having received the notice, the petitioner has filed this complaint petition alleging that the petitioner has cheated him by collecting rent from 1999 till 2004 from the complainant although the shop in question does not belong to the petitioner. On the plain reading of the complaint petition it is clear (a) that the petitioner used to collect rent from the complainant (b) the petitioner used to grant receipt in lieu of collection of such rent (c) that the petitioner had filed an eviction suit 3/04 for evicting the complainant from the shop and (d) that notice was sent to the complainant by Md. Khalid Ashraf informing him that he was the actual landlord of the said property. As far as the offence of cheating is concerned, the offence of cheating is defined under Section 415 of the Indian Penal Code. 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that - 4 - any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Admittedly the petitioner collected rent and granted receipts the allegation that he mis-represented himself to be the owner of the property would in fact be subject to several intervening factors. The parties appearing in this case have brought on record that the said Md. Khalid Ashraf has filed a suit for partition wherein the petitioner is a defendant. The petitioner claims that he is the purchaser of the said property. The question as to who is the actual owner of the property would therefore, be subject to the result of the Title Partition Suit No. 11/2005. If at all there is a conflict between the petitioner and Md. Khalid Ashraf that would necessarily have to be decided by way of a suit. Learned counsel appearing on behalf - 5 - of Opposite Party No. 2 submits that he is being made a scape goat by the petitioner and Md. Khalid Ashraf as each of them claim that the Opposite Party No. 2 should pay rent to them. As far as the position of Opposite Party No. 2 is concerned, it cannot be said that he has committed any criminal act by paying rent to the petitioner or that Md. Khalid Ashraf can threaten him with a criminal proceeding because he has not paying rent to Md. Khalid Ashraf. Md. Khalid Ashraf has his remedy in the suit by filing an appropriate application before the Trial Court. It is also apparent that Md. Khalid Ashraf before 2005 had not taken any steps to get rent from Opposite Party No. 2 who has remained in possession over the shop in question as tenant since 1999. This apprehension of the counsel appearing on behalf of Opposite Party No. 2 seems to be unfounded and if at all Md. Khalid Ashraf institutes a criminal proceeding on the ground that Opposite Party No. 2 has not paid rent to him it would again come within the purview of a civil proceeding and cannot - 6 - be resolved by filing criminal cases of such type. The facts of this case thus reveal that this is one of those cases which come within the purview of a civil dispute. The filing of the criminal case amounts to misuse of the provisions of law and has been instituted by the complainant opposite party perhaps to create a defence in the eviction suit. Having considered all the facts and the arguments on behalf of the parties, I find that no offence is made under Section 420 of the Indian Penal Code against the petitioner and the Court below has committed serious error in refusing the discharge of the petitioner. In the result the order dated 4.3.2008 and in fact the entire criminal proceeding arising out of Complaint Case No. C/1230/2005 is quashed. Sanjay (Sheema Ali Khan, J.)