IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.10782 of 2008 1. Rajendra Prasad Yadav, son of Late Shivnandan Yadav. 2. Jitendra Prasad Yadav, son of Late Shiv Nandan Yadav. 3. Vijendra Prasad Yadav alias Laloo Prasad Yadav, son of Late Shiv Nandan Yadav. All resident of village-Maharajpur, P.S. Sadar, District- Purnia. …………………………………………………Petitioners. Versus 1. The State Of Bihar. 2. Vinay Das, son of Jagdish Das, resident of Mohalla- Tatma Toli, P.S. K. Hat, District-Purnia. ………………………………………..Opposite Parties. ---------------------------------- For the Petitioners: M/s. Rajesh Kumar Singh and Rana Pratap Singh, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------------------------------- O R D E R 5. 13.09.2011. Vide order dated 2.9.2011, on the request made on behalf of the petitioners, this case was adjourned for 5th of September, 2011 but it appears that inadvertently the same has been typed as „ put up after one week‟. In that view of the matter, let the order dated 2.9.2011 be read as under: “As prayed for on behalf of the petitioners, post this matter under the same heading on 5th of September, 2 2011.” The order dated 2.9.2011 is modified accordingly. 2. This application, under Section 482 of the Code of Criminal Procedure, has been filed on behalf of the petitioners for quashing the order dated 24.8.2007 passed by Sri B.K. Mishra, Judicial Magistrate, First Class, Purnia, in Complaint Case No.1628 of 2006 (Trial No.2842 of 2007), summoning the accused-petitioners as well as the order dated 5.1.2008 passed by the learned Sessions Judge, Purnia, in Criminal Revision No.461 of 2007, dismissing the aforesaid Criminal Revision preferred by the accused-petitioners against the order dated 24.8.2007. 3. The facts leading to this application is that the complainant-opposite party no.2, Vinay Das, filed the complaint petition, numbered as Complaint Case No.1628 of 2006, in which it has been alleged that he alongwith his brother, Umesh Das and neighbour, Narayan Das, used to do the business of purchasing and selling the land. Smt. Bholeshwari Devi, the mother of the accused-petitioners was the owner of the land of 7.99 acres of Khasra Nos.515, 517, 522, 523, 525, 526, 516 and 524/525 of Khata No.40 3 of village-Madhopada, P.S. Khajanchi Hat, District-Purnia. It is also alleged that the accused-petitioners with the consent of their mother, Smt. Bholeshwari Devi, negotiated with the complainant-opposite party no.2 to sell the said land for consideration of Rs.9, 37,000/- and lastly, on 21.8.2002, taking advance of Rs.1,50,000/-, out of the aforesaid consideration amount Smt. Bholeshwari Devi executed the sale deed of the aforesaid land on which the petitioners no.2 and 3 put their signatures as witnesses while the accused-petitioner no.1, at the time of execution of the agreement to sale under conspiracy with his mother and other accused forcibly entered his name as purchaser. Being helpless, the complainant-opposite party no.2 and other purchaser accepted the same. For the execution of agreement to sale, the complainant-opposite party no.2, handed over Rs.4,85,000/- to the accused-petitioner no.1 on five different dates; Rs.1,00,000/- on 25.2.2003, Rs,1,50,000/- on 16.4.2003, Rs.80,000/- on 10.7.2003, Rs.85,000/- on 28.2.2004 and Rs.70,000/- on 4.8.2004. As such, the complainant-opposite party no.2, made payment of Rs.6,35,000/- out of the total consideration amount of Rs.9,37,000/-. 4 According to agreement to sale, the mother of the accused-petitioners on the instruction of the complainant- opposite party no.2 executed the sale deeds of the land of 96.04 Katha in the name of the different persons and on the sale deeds the complainant-opposite party no.2 put his signature as a witness. Since the rate of the land was finalized as Rs.50,000/- per Katha, as such, 134 Kathas of land were to be sold for Rs.6,35,000/- but the mother of the accused-petitioners on the instruction of the complainant-opposite party no.2 executed the sale deeds of the land only for 96 Katha 4 Dhoor. As such, Rs.94,500/- was still due for the land of 37 Katha 16 Dhoor. 4. It is further alleged that the accused-petitioners had given assurance to the complainant and got written in the agreement to sale also that that the whole land is clear and undisputed but after the execution of the aforesaid sale deeds, the complainant-opposite party came to know that the land measuring an area of 3.36 acres of Khasra Nos.515, 525, 526 and 516 is in the possession of Dhagarh Community. The mother of the accused-petitioners died on 28.7.2004 and, thereafter, the accused-petitioners jointly carried the liability of the agreement to sale and 5 when the complainant-opposite party no.2 asked the accused-petitioners to execute the sale deed of 37 Katha 16 Dhoor land for Rs.94,500/- on getting the possession of land from Dhagarh Community, the accused-petitioners started avoiding to execute the sale deed of the said land. Being helpless, the complainant-opposite party no.2 sent the registered notice to the accused-petitioners through Advocate to execute the sale deed for remaining amount but the accused-petitioner no.1, knowingly did not reply to the notice and the rest two accused-petitioners no.2 and 3, sent the reply to the notice through their Advocate, Dilip Kumar and in reply, while they admitted about the receiving of Rs.1,50,000/-, but denied the receiving of Rs.4,85,000/- after the execution of agreement to sale. As such, while the accused-petitioners were duty bound to execute the agreement to sale but under conspiracy with dishonest intention refused about the receiving of Rs.4,85,000/-. 5. After filing of the complaint petition, on inquiry the accused-petitioners have been summoned by the court of Sri B.K. Mishra, Judicial Magistrate, First Class, Purnia, finding prima facie case under Sections 406 6 and 420 of the Indian Penal Code vide order dated 24.8.2007. The accused-petitioners preferred the Criminal Revision No.461 of 2007 assailing the summoning order dated 24.8.2007, which has been dismissed by the court of learned Sessions Judge, Purnia on 5.1.2008. 6. Learned counsel appearing on behalf of the petitioners submits that admittedly agreement to sale of the land was entered into in between Smt. Bholeshwari Devi and the complainant-opposite party no.2, which was never registered and, in fact, the lands were to be sold by Smt. Bholeshwari Devi, on the instruction of the complainant- opposite party no.2 but as the complainant-opposite party no.2 did not pay the total consideration amount, and the complainant-opposite party no.2 has filed the false case only to put pressure upon the accused-petitioners and grab the money. Learned counsel for the petitioner further submits that on bare perusal of the complaint petition, it is clear that the dispute is of civil nature but the learned Magistrate illegally summoned the accused-petitioners for the offence under Sections 406 and 420 of the Indian Penal Code vide order dated 24.8.2007 passed in Complaint Case No.1628 of 2006 filed by the complainant-opposite party 7 no.2 and the learned Sessions Judge has also dismissed the Criminal Revision No.461 of 2007 preferred by the accused-petitioners against the said order vide order dated 5.1.2008. 7. On bare perusal of the complaint petition, the case appears to be breach of contract entered in between Smt. Bholeshwari Devi, the mother of the accused- petitioners and the complainant-opposite party no.2. Section 406 of the Indian Penal Code relates to the punishment for criminal breach of trust which is defined in Section 405 of the Indian Penal Code and Section 420 of the Indian Penal Code relates to the cheating and dishonestly inducing delivery of property. Sections 405 and 420 of the Indian Penal Code are read as under: “405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, 8 which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 8. From reading the averments made in the complaint petition in their entirety and accepting the allegations to be true, it appears that the ingredients constituting the offence under Sections 406 and 420 of the Indian Penal Code are lacking and the dispute about the fulfillment of contract is civil in nature. As such the order of summoning the accused-petitioners for the offence under Sections 406 and 420 of the Indian Penal Code appears to be abuse of the process of the court as the nature of the dispute is of civil. 9 9. Accordingly, the order dated 24.8.2007 passed by Sri B.K. Mishra, Judicial Magistrate, First Class, Purnia in Complaint Case No.1628 of 2006 and the order dated 5.1.2008 passed in Criminal Revision No.461 of 2007 by the learned Sessions Judge, Purnia, are hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)