IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37378 of 2007 SURANDRA PRASAD, S/o Raghu Nandan Pd., R/o Mahrajganj, Meena Bazar, P.S. Alamganj, District – Patna …. Petitioner Versus 1. STATE OF BIHAR 2. Rupa Devi, W/o Sri Sanker Prasad, r/o Farbishganj, P.S. Farbishganj, District Araria. … Opp. Parties ----------- 4 2.12.2008 Heard Mr. Tilak Sao, learned counsel for the petitioner and Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State. Although the complainant impleaded herein as O.P. No. 2 has been duly served with notice for reasons best known to him he has not appeared to contest this application. The grievance of the petitioner is against the order dated 5.6.2007 passed by Sri S.N. Ram, Judicial Magistrate, 1st Class, Patnacity, in Compliant Case No. 276 of 2007, wherein he has taken cognizance under section 420 I.P.C. against the petitioner. Briefly stated the facts in the complaint is that an agreement had been reached into between him and the petitioner for purchase of the land of the complainant and earnest money of Rs. 2,05,000/- was given to the accused by a baibayana deed dated 4.12.2006. However, the petitioner for the reasons best known to him could not register the land within the stipulated time as prescribed in the deed of agreement nor did he return the - 2 - amount of the earnest money. It is by now well settled by a catena of decisions of the Apex Court as well as this Court that to prove the offence under section 420 I.P.C. the complainant has to prove that he had entrusted any property in favour of the accused and that amount had been misused by the accused. In the instant case a sum of Rs. 2,05,000/- by way of earnest money was advanced by the complainant to the accused. In pursuance to the agreement which could not later be executed. Therefore, it cannot be said with certainty that the money so advanced was entrustment of property in the hands of the accused for a temporary period nor can it be said that the same had been obtained under fraud or even inducement. Even if the petitioner herein failed to execute the sale deed there obviously was no intention on his part right from the initial stage to misappropriate the earnest money given by the complainant. It also appears from paragraph 6 of the instant application that the petitioner is still ready and willing to execute the sale deed in favour of the complainant but the same has not evinced any interest or response from the complainant. From the facts stated above it appears that although the case has been given the trappings of a criminal case, at best the cause of action relates to a civil dispute and no criminal - 3 - liability can be fastened on the petitioner. Since the complainant - O.P. no. 2 has failed to appear in the Court and contest the application the submission advanced by the learned counsel for the petitioner remains uncontroverted and unrebutted . In view of the discussions made above this application is allowed and the impugned order is hereby quashed. Spd/- (Abhijit Sinha, J.)