IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34350 of 2007 AKHILESH NANDAN SINGH & ORS Versus STATE OF BIHAR & ANR ----------- For the petitioners : M/S Nilesh Kumar and Tarkeshwar Prasad Verma, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2: Mr. M.S. Hoda, Advocate ________ The three petitioners herein who have been arraigned as accused in Complaint Case no.C-1/128 of 2007 have prayed for the quashing of the order dated 28.2.2007 passed therein by Sri Ram Bihari, Judicial Magistrate, First Class, Sitamarhi , whereby he has taken cognizance of offences under Sections 420,406 , 120B I.P.C. against the petitioners. The complainant , one Iftekhar Alam alias Munna Mian, impleaded herein as Opp.Party no.2 , claiming to be employed in the capacity of Dakpal in Mehsaul Post Office brought the aforesaid complaint case stating inter alia that in the year 2005 he had purchased 0.06 decimals of land appertaining to Ward no.22, Khesra no.312 from petitioner no.1 for a consideration of Rs.3 lacs whereupon he had constructed a house and had leased it out to a Computer Institute . It is said that on learning that petitioner no.1 was desirous of selling some more lands from the said Khesra, the complainant approached petitioner no.1 and it was agreed between them that another 0.04 decimals of land would be purchased by the 2 complainant for a consideration of Rs.two lacs and as per the agreement two post dated cheques, one for Rs.85,000/- and the other for Rs.95,000/- in the names of petitioner nos.2 and 3 respectively, whom petitioner no.1 represented as his relatives, was handed over to petitioner no.1 on 24.1.2006. However, notwithstanding the payment being made and as the land was not being transferred in favour of the complainant, he made several requests to petitioner no.1 to accept the balance amount of Rs.20, 000/- and execute the sale deed. It is alleged that petitioner no.1 was not ready for the execution of the sale deed and its registration. It is further alleged that the lands in question had been sold by petitioner no.1 to another person. Due regard being had to the situation, the complainant on 26.6.2006 gave instruction to his bankers to stop payment of the aforesaid cheques. As a consequence thereof , it is said, that petitioner no.1 sent a legal notice on behalf of petitioner nos.2 and 3 to the complainant under Section 138 of the Negotiable Instruments Act and attempted to extract Rs.1,80,000/- from him. From a bare perusal of the complaint petition, it is evident that the whole matter revolves round the fact that petitioner no.1 notwithstanding having received the consideration amount was not executing the sale deed as per the agreement arrived between the parties. It is also evident that the cheques given by the complainant had not been encashed as the complainant had directed his bankers to stop payment. Therefore, in fact no money part of the consideration money 3 had been paid to petitioner no.1 and as such the petitioner no.1 was in no case obliged to transfer the lands to the complainant. From the materials available on the record it is apparent that the ingredients constituting the offences under Sections 406,420,120B I.P.C. are conspicuously absent and no prima facie case appears to have been made out. At best, a cause of action for civil remedies is made out which can be persued in the civil courts. In the result the application succeeds and the impugned order taking cognizance is hereby quashed as continuing with the criminal proceeding would amount to an abuse of the process of the Court. ( Abhijit Sinha, J) Patna High Court, Patna Dated : the 20th August,2008 Nawal Kishore Singh/N.A.F.R.