IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.46032 of 2008 1. Madan Mohan Prasad Narain Sinha, Son of late Shatrughan Prasad Sinha. 2. Ajay Kumar Sinha, Son of Sri Madan Mohan Prasad Narain Sinha. 3. Priyanka Sinha, Wife of Sri Ajay Kumar Sinha All are resident of Mohalla-Willams Town, Deoghar, District-Deoghar, Jharkhand. Versus 1. The State of Bihar. 2. Pawan Kumar Mishra, son of Sri Awadhesh Kumar Mishra, Resident of Village-Jagarnathpur, P.S.- Khalagaon, District-Bhagalpur. ---------------------------------- For the Petitioners: - Mr. Dhirendra Nath Jha, Adv. For the Opposite Parties: - Mr. Krishna Mohan, Adv. Mr. Praveen Kumar, Adv. For the State: - Mr. Ram Sevak Choudhary, A.P.P. --------------- 4. 20.12.2011 Heard learned counsel for the petitioners, learned counsel for the State as well as learned counsel for opposite party no. 2. At the very outset, learned counsel for the petitioners submits that petitioner no. 1 died on 24.3.2011 and the fact has been brought on record by supplementary affidavit. This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the criminal prosecution against the petitioners pursuant to institution of Kotwali (Tilkamanjhi) P.S. Case No. 657 of 2008 dated 7.10.2008. As per the allegation, petitioner no. 1 received certain money for transfer of land in the town of Bhagalpur in favour of opposite party 2 no. 2. The allegation is that the money though physically handed over to petitioner no. 1 was in turn handed over to petitioner no. 2 and who in turn handed it over to petitioner no. 3. Further allegation is that even after payment of Rs. 51,50,000/- when the transfer was not made and the complainant visited the house of the petitioners for such request, the petitioners misbehaved and also threatened him with dire consequences including taking of his life if in future he raised the question of transfer of property. Learned counsel for the petitioners has assailed lodging of the F.I.R. itself on the ground that even as per the admitted position, in the terms of agreement dated 31.8.2007 the time stipulated for such transfer was one year and it was also stipulated that if there was any legal or civil suit instituted with regard to the property then the time taken for the disposal of the same would be added to the one year period. Learned counsel submits that a title suit has indeed been filed by another son of petitioner no. 1 with regard to the same property after the agreement but before filing of the F.I.R and in that view of the matter because petitioner no. 1 was involved in civil litigation with regard to the property in question, no criminal act can be attributed to him. He further submits that as per 3 the legal notice given to petitioner no. 1 dated 22.9.2008, the demand made to refund the money was within one month and thus, in that view of the matter also the F.I.R. dated 7.10.2008 ought not to have been lodged and thus it is clearly a malicious prosecution. Learned counsel further submits that from the entire reading of the F.I.R. itself it is apparent that no criminal Act is attributed to petitioners no. 2 and 3 since admittedly the property belonged to petitioner no. 1 and the money was also taken by him even though it is said that the same was handed over to petitioners no. 2 and 3. Learned counsel for opposite party no. 2 submits that this application may not be maintainable for the reason that after investigation the police have submitted chargesheet based upon which cognizance has also been taken. He further submits that in December, 2010 a petition under Section 239 of the Cr.P.C. has been filed before the concerned Court for discharging the petitioners but the same is still pending. He submits that in that view of the same the petitioners ought to press the application for discharge and the present application for all practical purposes has become infructuous. Learned counsel for the State also supports 4 the contention of opposite party no. 2. Learned counsel for the petitioners in view of the stand taken by opposite party no. 2 and the State agrees to press the application filed under Section 239 of the Cr.P.C. for discharge before the Court below. He prays that this Court may observe that all his points including the defence raised by him be considered by the Court while deciding the said petition for discharge. In view of the aforesaid, this application stands disposed off with liberty to the petitioners no. 2 and 3 to press the application filed under Section 239 of the Cr.P.C. before the Court below for discharge. The petitioners will be at liberty to produce all the supporting documents in their favour before the Court concerned which shall take into consideration the stand of the parties and accordingly pass a reasoned order in accordance with law without being prejudiced by the fact that no positive order was passed by this Court on the present application. Anand Kr. (Ahsanuddin Amanullah, J.)