IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42724 of 2009 Bhawesha Nand Rai, son of Sachitanand Rai, resident of Village- Laukahi, P.S.-Banmankhi, District- Purnea, at present residing at Mohalla-Shashtri Nagar, Kala Bhawan Road, P.S.- K. Hat, District- Purnea………….Petitioner. Versus 1. The State of Bihar. 2. Kamlesh Kumari, W/o Ranbijay Kumar Sinha, residing at 316, Patliputra Colony, P.S.-Patliputra, District-Patna. …….Opposite Parties. ----------- 10. 23. 2. 2011. Heard. 1. This criminal miscellaneous petition has been filed for quashing the F.I.R. of Patliputra P.S. Case No. 56/09 registered under Sections 406 and 420 of the Indian Penal Code. 2. The prosecution case as alleged that concerned Bhawesha Nand came with co-accused Mosami Mohammad Kausar Farookhi and impressed that Farookhi has three bighas two khatas land which he wants to sell through Bhawesha Nand Rai and has empowered him (Bhawesha Nand Rai) to receive the consideration money and execute sale deed. The agreement to sale entered upon for consideration of Rs. 9,30,000/- and entire consideration money was paid in installment. Some installment paid at the resident of the complainant at Patliputra Colony and the last payment made on 07. 12. 2007 by draft, but on payment of entire amount Bhawesha Nand Rai refused 2 to execute sale deed on pretext that original owner is not ready to execute the sale deed. The complainant went to enquire then learnt that Bhawesha Nand Rai has spent the consideration money on his wine shop. 3. A petition under Section 482 of Cr.P.C. filed to quash the F.I.R. on the ground that it is a case of contract for sale and cut off date of contract was 30.09.2006 and the matter is under dispute and money received has been paid hence is a case mainly of civil litigation and no offence is made out. 4. A counter affidavit filed to the effect that petitioner is required to release entire amounts an offence is made out. 5. A reply to counter affidavit has been filed to the effect that receipt of substantial consideration money is after cut off date and on receipt of entire amount even after cut off date, the original land owner refused to execute sale deed amounts to intention to cheat at the very inception. 6. The learned counsel for the petitioner submits that matter concern with contract for sale and cut off date is 30. 09. 2006 and hence the case is of civil nature and place reliance on 2006 (3) PLJR 190 and unreported decision in Cr. Misc. No. 15320 of 2005 and further contend the Patliputra Police Station has 3 no jurisdiction and the case was filed at Purnea but Purnea Police on enquiry found the case not true. 7. The Learned counsel for complainant however, contends that the plea taken that cut off date is 30. 09. 2006, but the payment was received even after the cut off date as rest part of consideration amount to the tune of Rs. 3,50,000/- out of total consideration amount of Rs. 9,30,000/- has been received by draft on 05. 12. 2007 even after the cut off date and after receipt of the full amount the plea taken that original land owner not ready to execute the sale deed is not tenable and apparently malafide in view of the fact that in agreement to sale at the outset, itself mentioned that the original owner has given the power to execute the sale deed and it was impressed that the original owner has given power to sell the land through Bhawesha Nand Rai and hence there was deception at the outset causing wrongful loss to the complainant and wrongful gain to the petitioner and further since payment made at Patliputra Colony residence and hence Patliputra Police has jurisdiction and enquiry by Purnea Police without lodging a case is unknown to law. 8. Hence on the respective submissions the question for consideration whether the F.I.R. is 4 required to be quashed. 9. However, taking into consideration the allegation that it was impressed that original owner will sell the land through Bhawesha Nand Rai and the contract for sale mentioning the cut off date 30. 09.2006 that Bhawesha Nand Rai has power to collect money and execute sale deed and money was received even after cut off date but plea taken that the original owner is not ready to execute the sale deed itself indicates that at the outset complainant was deceived. The original owner of the land along with Bhawesha Nand Rai impressed the complainant to sell the land through Bhawesha Nand Rai who has been given power to receive the money and execute the sale deed, but Bhawesha Nand Rai received the money even after cut off date but refused to execute sale deed and spent the money on his wine shop. Hence, having regard to the fact and circumstance the deception is apparent at the outset and the money is alleged to have invested in wine shop of Bhawesha Nand Rai, hence instead of giving the money to owner has misappropriated and his intention itself as such to deceive the complainant and hence liable for cheating as well. 10. The learned counsel for the petitioner relied upon decision reported in 2006 (3) PLJR 190 and 5 unreported decision in Cr. Misc. No. 15320/05 for proposition that breach of contract does not make out a case for an offence under Sections 406 and 420 of Indian Penal Code. In decision reported in unreported decision in Cr. Misc. No. 15320 of 2005 the contract entered into and possession delivered on payment of consideration money, but sale deed was not executed and there was threat to oust and hence complaint filed was quashed. In decision reported in 2006 (3) PLJR 190. Party orally agreed that on payment of Rs. 4,00,000/- the appellant would transfer, the complainant paid Rs. 80,000/-, but written agreement not executed and payment of Rs. 80,000/- due to the complainant. However, under the facts and circumstance of that case, it was found the complainant himself stated in complaint that oral agreement to sell plot took place in July, 2002, on the other hand it was alleged that he started paying consideration amount for purchase of plot between 15.07.2001 to 15. 12. 2002 and it was found version of the complainant self contradiction so held no prima facie case. Hence the ratio of the case decided in 2006 (3) PLJR 190 and Cr. Misc. No. 15320 of 2005 is not applicable. 11. However, contention that Patliputra P.S. 6 has no jurisdiction, but there is allegation that part of occurrence about payment of some money is under Patliputra P.S. and hence has jurisdiction. The next submission that Purnea Police enquire, but there is no mention of lodging F.I.R. and hence any enquiry without lodging F.I.R. is unknown to law. 12. However, under the facts and circumstance of the case the petition for quashing the F.I.R. The allegation that entire money was paid on deception that original owner will sell the land through Bhawesha Nand Rai who will received the consideration money and execute sale deed. The consideration money was received by Bhawesha Nand Rai after the cut off date and after receipt of the amount it was said that original owner is not ready to execute sale deed amount to deception and can well be inferred that the accused person had intention to cheat causing wrongful gain to Bhawesha Nand Rai and wrongful loss to the complainant, hence, prima facie makes out an offence. Moreover, case is amidst investigation. It is well settled that this Court in exercise of the inherent jurisdiction sparingly use the power to quash the F.I.R. and it is also well settle that before quashing the F.I.R. entire circumspect of the fact and circumstance required to be looked into. Hence taking into 7 consideration the entire facts and circumstance of the case, I find and held that the nature of allegation do not warrant to quash the F.I.R. 13. Hence this criminal miscellaneous petition is hereby dismissed. m.p. ( Gopal. Prasad, J.)