IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45027 of 2007 1. MANI LAL @ PARMESHWAR PRASAD S/O LATE BHAGERU SAO 2. JAGDEO PRASAD S/O SRI MANI LAL @ PARMESHWAR PRASAD 3. JAI SHANKER PRASAD S/O SRI MANI LAL @ PARMESHWAR PRASAD --- PETITIONERS Versus 1. STATE OF BIHAR 2. SUNIL KUMAR S/O SRI RAM KISHORE PRASAD --- OPP. PARTIES. For the Petitioners : Mr. Tilak Sao, Advocate. For the OP.No.2 : None For the State : Mr. Jharkhandi Upadhyay, APP. ----------- 08. 23.08.2010 Petitioners are aggrieved by the order taking cognizance passed on 01.11.2006, in complaint case no. 799 (c) of 2006 by learned Chief Judicial Magistrate Ist Class, Patna. A complaint was lodged by the opposite party no. 2 alleging therein inter alia that petitioner No.1 was the owner in possession of the property. There was an agreement to sale between the complainant and petitioner Manilal @ Parmeshwar Prasad and accordingly an agreement to sale was entered into in respect of sale of holding no. 407, circle no. 50 A, Ward no. 18/34 situated in Chitragupta Nagar, P.S. Patrakar Nagar, within the township of Patna. The total consideration amount agreed between them was 08 lac out of which a sum of Rs. One lac was paid under receipt and Rs. One lac was paid without receipt. As per the terms of the agreement vendor had to execute sale deed within 04 months. He waited for about 02 years and subsequently the complaint was lodged on 28.03.2006 in which few witnesses were examined whereafter learned Court below took the cognizance under Sections 323,379, 406 and 420 of the Penal 2 Code having found that a prima facie case was made out. He relies on a judgment rendered by this Court in the case of 2003(1) PLJR 567 (Smt. Sakuntala Devi vs. State & ors.) and on 2003(4) PLJR 122 (Surendra Kapoor vs. Ram Prakash Khemka) In spite of valid service of notice nobody has appeared in the present case on behalf of the opposite party no.2. Learned counsel for the petitioners submits that the case made in the complaint reflects civil liabilities for which the complaint ought to have filed a suit. It is stated that in fact a suit has already been filed for Specific Performance of the Contract. It is stated that the present complaint has been lodged after 03 years for oblique reasons. It is thus contended that the continuance of the present criminal proceeding is nothing but sheer abuse of the process of the Court. Learned A.P.P., on the other hand, supported the impugned order. It is contended that considering the confines of the jurisdiction invoked by the Court the order seems to be justified. I have heard the submissions. A bare perusal of the complaint indicates that the rights and liabilities of the parties are determined by a written agreement. The complainant is said to have paid the amount on a promise that the accused no.1 shall transfer the title of the land in question. It is not the case of the complainant that subsequently the land/structure in question was transferred to somebody else. It further appears that a title suit has already been filed by the complainant seeking Specific Performance of Contract. For constituting an offence punishable under 3 Section 420 of the Penal Code, it has to be alleged and/or inferred from the materials on record that a dishonest intention existed from the very inception of the dealing between the parties. In the present case the same appears to be lacking. A learned Judge of this Court in the case of 2003(4) PLJR 122 ( Surendra Kapoor vs. Ram Prasad Khemka & Anr. ) held that if the allegations is non fulfillment of the terms of the agreement no criminal liability can be fastened on the strength of those averments/allegations. This Court from perusal of the complaint and the pleadings on the record is satisfied that there was no dishonest/fraudulent intention of the petitioners while part of the consideration money was allegedly paid to the petitioner under an agreement to sale. Furthermore, it appears that a suit has already been filed by the complainant seeking appropriate relief. That is why probably the opposite party no.2 has not appeared in the present proceeding to oppose the present application. In that view of the matter, I am inclined to interfere with the present order as continuance of the proceeding, in my view, in the facts and circumstances of the case, shall not sub serve the cause of justice. Accordingly, the application is allowed. Impugned order of cognizance dated 01.11.2006, passed by Judicial Magistrate Ist Class, Patna in complaint case no. 799 ( c) of 2006 stands quashed and set aside. Sym. ( Kishore K. Mandal, J.)