IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4926 of 2009 BANSHIDHAR SHARMA & ORS Versus THE STATE OF BIHAR & ANR For the petitioners: 1. Aushil Kumar Singh,Advocate 2. Vivek Kumar Singh, Advocate 3. S.N. Dubey, Advocate For the State : M. Deyal, A.P.P. For the O.P.-2 :Mr. Sunil Kumar, Advocate Mr. Ranjeet Kumar, Advocate ----------- 3. 6.12.2010 Heard this Criminal Miscellaneous application which has been filed for quashing the order taking cognizance dated 5.7.2008 passed in complaint Case No. 47 C of 2008 by which the learned Additional Chief Judicial Magistrate, Danapur has taken cognizance for the offences punishable under Sections 418, 423, 406 of the I.P.C. The prosecution case, as alleged, is that the accused persons, the owners and co-sharers of a piece of land bearing plot No. 1874 and 1875 approached the complainant expressing their desire to sell the said two plots at the rate of Rs. 38,000/- per katha with regard to 130 decimals of the land, and Rs. 2,50,001/- was paid as an advance consideration undertaking and contract for sale was executed with an amount that the rest amount would be paid within six months the agreement to sell was executed on 14.4.2007 and subsequently legal notice was sent on 15.9.2007 when the deed for registration was not executed and again legal notice was sent to their address on 3.10.2007 but the accused persons refused to register the document abused the 2 complainant and thereafter the instant complaint petition was filed on the complaint petition the complainant was examined on solemn affirmation and witnesses examined considering the statement of complainant and witnesses the cognizance has been taken under Sections 420, 406 and 120B I.P.C. The learned counsel for the petitioner submits that there was an agreement to sell the land for consideration of Rs. 16 laks at the rate of Rs. 38,000/- per katha out of which Rs. 2,50,001/- was paid at the time of an agreement for sale. It was agreed that rest amount shall be paid within six months. Hence, it is a case of breach of contract as the money was not paid within six months since the land was to be sold for treatment of the son of the petitioner but treatment of son could not be made for want of money and son died. Hence no offence made out. The learned counsel for the opposite party however, contends that it is a case of breach of trust and the cognizance has been taken. Since the money taken at the time of contract but the sale deed was not executed in terms of the contract and hence it amounts to cheating. In respect of submission of the parties the question for consideration whether the offence is made out and the impugned order is sustainable in law. The case of the complainant that there was an agreement to sell the land of Rs. 2,50,001/- was paid as consideration 3 money for the sale of the land and rest money was agreed to be paid within six months and hence if the money is paid as a part of consideration money for purchase of land in advance then it becomes the property of the person to whom it is paid and it is open to the vendor to utilize it in any manner and hence it does not amount to misappropriation nor a breach of trust and hence even taken the allegation to be true an offence under Section 406 is not made out for not returning the money however, the fact shows that the land was agreed to sell and money was taken for the treatment of the illing son and the and the illness of son died and there was need not to sell however, having regard to the fact and circumstance that this case for breach of contract and nothing to suggest about the dishonest or fraudulent intention and hence it is a case where is no allegation that the accused disclosed any fact which was false and no evidence of the dishonesty and deception made out in the F.I.R. rather it is a case of breach of contract for which civil remedy is provided and hence the order taking cognizance itself appears to have been passed without application of mind and allowing the prosecution to continue the prosecution is abuse of the process of the Court and hence the impugned order is set aside and the criminal proceeding is quashed and the petition is allowed. Amit ( Gopal Prasad, J.)