IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.22649 of 2002 In the matter of an application under Section 482 of the Code of Criminal Procedure. ---------- 1. SURENDRA PRASAD, son of late Ram Chandra Prasad, Resident of Mohalla-Tingachhia, P.S.-Katihar, District- Katihar, presently posted as D.G.M. (Commercial), Power Grid Corporation of India Ltd. Eastern Region, having its office at Alankar Place (5th Floor) Boring Road, Patna. 2. RAJIB KUMAR GUPTA @ GHANSHYAM @ RAJIB RANJAN RAJ, son of Guru Prasad, Resident of Mohalla- Nayatola, P.S.-Katihar, District-Katihar. ----------------Petitioners. Versus 1. THE STATE OF BIHAR 2. Dr. VISHWANATH GUPTA, son of Saryu Prasad Gupta, resident of Mohalla-Gamitola, P.S.-Katihar, District- Katihar ----------------Opposite Parties. Appearance: For the petitioners : Mr. Chakrapani Mr. Deepak Kumar For the opposite party no. 2. : Mr. Bimal Kumar For the State : Mr. Ansarul Haque, A.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE JYOTI SARAN Jyoti Saran,J. Heard Mr. Deepak Kumar, learned counsel appearing on behalf of the petitioner, Mr. Bimal Kumar, learned counsel appearing on behalf of opposite party no. 2 and Mr. Ansarul Haque, learned Additional Public Prosecutor, appearing on behalf of the State. This application under Section 482 of the Code of 2 Criminal Procedure is directed against the order dated 19.6.2002 passed in C.A. Case No. 319 of 2002 by Sri V.B. Yadav, Judicial Magistrate, Ist Class, Katihar, whereby he has taken cognizance of offences punishable under Sections 406 and 420 of the Indian Penal Code against the petitioners. Brief substance of allegation which is the subject matter of the complaint petition no. 319 of 2002 is that the petitioner no. 1 is owner of a landed property situated within Shafiganj in the district of Katihar. The complainant alleges that the petitioner no. 1 approached the complainant for sale of the said land and which proposal was accepted by the complainant. The complainant acting on the proposal made by the petitioner no. 1, advanced an amount of Rs. 5,20,000/- through different bank drafts as also by way of cash. The said total amount of Rs. 5,20,000/- was received by the petitioner no. 1 on different dates in the month of January, 2002. The complainant alleges that after having received the money, the petitioner no. 1 did not honour his commitment of executing the sale deed rather he made sale of the land in question in favour of other persons, namely, Anil Kumar Singh, Neelam Devi, Sunil Kumar Singh and Sandhya Devi on 14.2.2002. The complainant thus alleging criminal breach of trust and cheating against petitioner no. 1 and his brother-in-law, the petitioner no. 2 instituted the complaint in question praying for drawing appropriate proceedings against the petitioner under the 3 provisions of Sections 406 and 420 of the Indian Penal Code. The Judicial Magistrate, Ist Class, Katihar upon consideration of the complaint and examination of the complainant on solemn affirmation took cognizance for offences punishable under Sections 406 and 420 of the Indian Penal Code vide order passed on 19.6.2002 against the petitioners. Learned counsel for the petitioner while denying the allegations as set out in the complaint petition placed at Annexure-1 of the proceedings submits that no case either under Section 406 or Section 420 is made out against these petitioners. It is submitted that the complaint petition at no place contains any allegation against these petitioners of having either an intention to misappropriate the money advanced or to cheat the complainant. He submits that as the basic ingredients constituting the offence of criminal breach of trust or cheating is found missing in the present set of allegations, no offence is made out against the petitioners. Learned counsel submits that no doubt the oral agreement between the parties did not work out for some reason or the other and the land was sold in favour of third parties named hereinabove in this order but the petitioner soon thereafter returned the entire amount of Rs. 5,20,000/- to the complainant between the dates 25.2.2002 to 27.2.2002 and the balance amount of Rs. 50,000/- by way of cheque on 2.3.2002. He thus submits that the money having been returned to the complainant latest by 2.3.2002, no cause of action 4 survived in the present case. Learned counsel, with reference to the confirmation made by the bank on 5.3.2002 placed at page 39 and 41 of the present proceedings, submits that despite the drafts and the cheque having been encashed by the complainant, he chose to file the present complaint a few days thereafter on 7.3.2002 by making false statement. Learned counsel for the petitioner further with reference to the impugned order dated 19.6.2002, submits that the basis of initiation of the criminal prosecution is the incorrect statement of the complainant that the money was not returned by the petitioners. Learned counsel submits that in absence of any allegation made in the complaint regarding the intention of the petitioners to cheat the complainant right from the inception of the oral agreement entered into between the parties and in absence of the essential ingredients constituting an offence punishable under Sections 406 and 420 of the Indian Penal Code, the proceedings initiated on the basis of the complaint in question is not sustainable and its continuation would be an abuse of the process of the Court. Learned counsel further submits that the statement of the complainant was taken on solemn affirmation on 8.4.2002 i.e. about a month after the receipt of money by the complainant and yet he proceeded to mislead the court below by making a false statement that the money was misappropriated by the petitioner no. 1 and which was the basis for the Judicial Magistrate for having taken cognizance of the offence in question against the 5 petitioner. Learned counsel for the petitioners further submits that even for the sake of argument if it is assumed that the petitioners had retracted from their promise, yet it can at best be treated as a civil wrong, however, no criminal offence can be attributed on these petitioners. Learned counsel in support of his submission relied upon a judgment of the Supreme Court rendered in the case of Uma Shankar Gopalika Vs. State of Bihar & Anr. reported in (2005)10 SCC 336, paragraph-6. Learned counsel in support of his submission that the allegations as set out in the complaint do not constitute any offence punishable under Section 406 or 420 of the Indian Penal Code, relies upon a judgment of the Supreme Court rendered in the case of Mrs. Dhanalakshmi Vs. R. Prasanna Kumar & Ors. reported in A.I.R. 1990 SC 494 paragraph-3. Learned counsel in support of his submission that a proceeding based upon a fraud must fail, relies upon a judgment of the Supreme Court rendered in the case of Vijay Shekhar & Anr. Vs. Union of India & Ors. reported in (2004)4 SCC 666. Learned counsel for the petitioner concluding his argument submits that the order taking cognizance and the entire criminal prosecution having its foundation on a fraud, cannot be sustained and is fit to be set aside. Learned counsel for the opposite party opposing the submissions advanced by the learned counsel for the petitioners submits that this Court would not, in exercise of 6 power vested under Section 482 of the Code of Criminal Procedure, delve into the evidence which have come out during the course of enquiry before the court below. He further submits that the Judicial Magistrate was only required to consider the complaint and as to whether the statement made therein set out any commission of a criminal offence by the accused and the court below having tested the same and having taken cognizance of the offence, the petitioners should approach the court below and set out their defence. It is submitted that the admitted position is that there was an oral agreement between the parties in relation to transaction of land and in continuation whereof an amount of Rs. 5,20,000/- was advanced by the complainant to the petitioner no. 1 for sale of land. He submits that the petitioner no. 1 having accepted the amount, breached his promise and made the sale in favour of third parties. He submits that after making the sale to third parties on 14.2.2002, that the petitioner no. 1 chose to make return of the amount received from the complainant and which would not absolve the petitioner no. 1 of the breach committed by him punishable under Section 406 of the Indian Penal Code. He submits that the accompanying circumstances in the present case does make out a case punishable under Sections 406 and 420 of the Indian Penal Code. Learned counsel for the State also endorses the submission made by learned counsel appearing on behalf of the 7 opposite party no. 2 and submits that the present proceedings did not require any indulgence by this Court in exercise of power under Section 482 of the Code of Criminal Procedure. I have gone through the materials available on record of the proceedings and have considered the rival submissions advanced on behalf of the contesting parties. Undoubtedly the statement made in the complaint petition placed at Annexure-1 of the proceedings do not set out any allegation against the petitioner no. 1 of having an intention of cheating the complainant and/or of misappropriating the money advanced to him. Even if the statements as set out in the complaint is taken on its face value, it may at best lead to a civil wrong having been committed by the petitioners by not honouring his commitment, but non honouring of the commitment by the petitioner no. 1 in a plain manner does not fulfil the prerequisite constituting an offence punishable under Section 406 and/or Section 420 of the Indian Penal Code. In fact it was stated at the bar that the complainant having received back the amount advanced to the petitioner no. 1 of Rs. 5,20,000/-, went on to institute a money suit giving rise to Money Suit No. 7 of 2004 and which money suit after appearance of petitioner no. 1, stood dismissed for non- prosecution by the complainant on 9.12.2008. Considering the circumstances, I am of the firm opinion that the complainant has not disclosed the entire materials before the court below at the 8 stage of filing of the complaint. The submission made by him at the stage of solemn affirmation is contrary to the factual position and it was incorrectly stated that the accused persons had misappropriated the amount advanced by him. It is a matter of record as evinced in the complaint petition that an amount of Rs. 5,20,000/- was the amount which had been advanced by the complainant to the petitioners. It is again a matter of record that the entire amount of Rs. 5,20,000/- stood returned to the complainant between 25.2.2002 to 27.2.2002 and the balance amount of Rs. 50,000/- on 2.3.2002 and which position has also been placed on the record of the present proceedings. That being the position, it was perhaps the statement made by the complainant before the court below that the petitioners had misappropriated the amount which became the foundation for initiation of the proceedings in question. As held by the Supreme Court in the case of Vijay Shekhar (supra), a proceeding which has been initiated on the basis of an incorrect statement made by the complainant cannot be sustained and the continuation thereof would be an abuse of the process of the Court. Further in addition thereto, I am fully convinced that the complaint set out against these petitioners did not fulfil the ingredients constituting the offence punishable under Sections 406 and 420 of the Indian Penal Code. That being the position, the order taking cognizance dated 19.6.2002 passed in C.A. Case No. 319 of 9 2002 by Shri V.B. Yadav, Judicial Magistrate, Ist Class, Katihar together with the entire criminal prosecution initiated pursuant thereto is quashed and set aside. The application stands allowed. No order as to costs. Patna High Court Dated, 20th December, 2010 N.A.F.R./S.Sb/- (Jyoti Saran, J.)