IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31022 of 2007 1. SABYASACHI MITRA @ SBAYA SANCHI MITRA @ SATYA SAKSHI MISHRA SON OF LATE SUNIL KUMAR MITRA. 2. SOM NATH MITRA @ SHOM NATH MITTRA SON OF LATE SUBHASH KUMAR MITRA, BOTH RESIDENTS OF 226 „A‟ ACHARYA PAFULLA CHANDRA ROAD, SHYAM BAZAR, P.S.- UIDADGADLA, DISTRICT- KOLKATA. Versus 1. THE STATE OF BIHAR 2. SHRI SURENDRA SINGH, S/O- MAHESHWAR SINGH, R/O- VILLAGE- PUNABAR, P.S.- RISIYAP, DISTRICT- AURANGABAD AT PRESENT RESIDENT OF RAMSHARAN NIWAS, NEW AREA, P.S.- AURANGABAD(T). For the petitioners : Mr. Ashok Kumar No. 3, Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 9 03.11.2010 Heard learned counsel for the petitioners and the State. Petitioners are father and son. They are facing prosecution under Sections 406 and 34 of Indian Penal Code by reason of order passed by learned Judicial Magistrate, 1st Class, Aurangabad in Complaint Case no. 618/2002 whereby processes have been directed to be issued against them. The facts leading to the present application may be capsulised as under: O.P. no. 2 (complainant) filed a complaint in the Court of learned Judicial Magistrate, 1st Class, Aurangabad being Complaint Case no. 618 of 2002 alleging therein that the petitioners own and possess certain land in the village of the complainant. The accuseds agreed to sell the land and orchard of plot nos. 321 and 322 appertaining to khata no. 3 in village Punabar for a consideration amount of Rs. 1,11,000/-. Such deal 2 was struck in presence of certain witnesses on 19.10.2001. The complainant paid advance of Rs. 11,000/- against which a receipt was granted by the accused. It was further assured that the sale deed shall be executed on receipt of the balance of the consideration amount. The complainant thereafter approached the accused persons with demand draft but neither the amount/draft was accepted nor the land was conveyed in their favour. The accused persons assured the complainant that they would come to Aurangabad and execute the same on 14.1.2002. Subsequently, it was discovered that the accused persons had sold the lands in question in favour some other purchaser on 25.2.2002. On these allegations, the complaint was lodged which was supported by the inquiry witnesses. Convinced by the material that prima facie case having been made out, learned Magistrate by impugned order dated 28.7.2003 has taken cognizance and directed for issuance of process. On the last occasion, a stand was taken by learned counsel for the petitioners that he would be paying the amount of Rs.. 11,000/- to the complainant by depositing the same in the Court in the shape of a demand draft drawn in the name of the complainant. A supplementary affidavit has been filed stating therein that in the light of order dated 9.8.2010 passed by this Court, the petitioners have deposited a demand draft of Rs. 11,000/- in the name of O.P. No. 2 along with a petition in the Court of Sri 3 Ashutosh Khetal, learned Judicial Magistrate, 1st Class, Aurangabad on 27.8.2010. Xerox copy of the draft bearing no. 079036 and the certified copy of the order dated 27.8.2010 have been enclosed along with the said supplementary affidavit. On the previous occasion, when the case was heard, no body had appeared on behalf of the opposite party in spite of service of notice. Today also, no body has appeared on behalf of the opposite party (complainant). Learned counsel for the petitioner submits that going by the contents of the complaint, it would appear that the grievance is with regard to non-performance of the oral assurance given by the petitioners in respect of execution of sale deed in favour of the complainant on receiving certain consideration amount. It appears from Annexure-3 to the supplementary affidavit that the complainant has already lodged a title suit bearing Title Suit no. 49 of 2002 in the Court of learned Sub-Judge, Aurangabad seeking following relief(s): “A. A decree for enforcement of contract against the defendants be passed in the light of the receipt granted by the defendant on 19.10.2001 with respect to the suit property Schedule I and defendants be directed to perform the part of the contract by receiving the balance consideration of Rs. 1,00,000/- from the plaintiff and to execute the sale deed in favour of the plaintiff with the time fixed by the Court failing which the sale deed be executed and registered through the process of the Court and plaintiffs be put in possession. B) Cost of the suit be allowed. C) Any other relief of reliefs as Court think just and proper be allowed to the plaintiff against defendants.” It is the submission of learned counsel for the petitioners that in view of the facts obtaining in the present case, 4 continuance of the present criminal proceeding against the petitioners who reside in Kolkata shall be sheer abuse of the process of the Court. Learned A.P.P., on the other hand, submits that considering the confines of the jurisdiction exercised by learned Magistrate, the order impugned cannot be said to be illegal. Having considered the submission advanced on behalf of the parties, it is found that the amount allegedly received by the accuseds (petitioners) as per the complaint have since already been replenished. The complainant, having realised the intricacies of the case, has already approached a court of competent jurisdiction seeking appropriate relief(s) by filing Title Suit which is pending. In that view of the matter, it appears that the complainant has lost interest in pursuing the present criminal proceeding and that appears to be reason for his non- appearance in the present proceeding and resisting the claim made by the petitioners. For all these reasons, this Court is satisfied that the order impugned requires to be interfered with and quashed for the ends of justice. Consequently, the application is allowed. Impugned order dated 28.7.2003 passed in Complaint Case no. 618 of 2002 is quashed and set aside. pkj ( Kishore K. Mandal, J. )