IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.8389 OF 2008 1. SHYAM NANDAN PRASAD 2. RAM NANDAN PRASAD 3. ABHAY NANDAN PRASAD 4. JANARDAN PRASAD ALL ARE SONS OF LATE PARMESHWAR RAI, RESIDENT OF VILLAGE SHEIKHPURA, BIND TOLI, POST OFFICE AND POLICE STATION SHASTRINAGAR, DISTRICT PATNA ………………………………………………………………………..PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. M/S ANUBHAV CONSTRUCTION, G2, ANUBHAV VIHAR, RAJA BAZAR, SAMANPURA, POLICE STATION SHASTRINAGAR, DISTRICT PATNA THROUGH ITS PARTNER MR. RASHID HAYAT, SON OF LATE M.A.ASGHAR, RESIDENT OF MOHALLA RAJA BAZAR, SAMANPURA, POLICE STATION SHASTRINAGAR, DISTRICT PATNA …………………………………………………………………….OPPOSITE PARTIES ******** 4 26/02/2010 Heard learned Counsel for the petitioners and the A.P.P. appearing on behalf of the State. This application has been filed for quashing the order dated 02.03.2007 passed in Complaint Case No. 182 (C) of 2007 by which the Judicial Magistrate, 1st Class, Patna has taken cognizance for the offences under Sections406, 420, 468, 471 & 120B of the Indian Penal Code. M/s Anubhav Construction and its partners filed Complaint Case No. 182(C) of 2007. The allegation is that the petitioners had misled the complainant and entered into a deed of agreement to sell a particular piece of land claiming that there was already a partition between the family members of the petitioners and 2 annexing thereto a document of partition. The complainant learnt that infact the brothers of the petitioners had filed a partition suit No. 62 of 2005 which is pending before the Subordinate Judge I, Patna with respect to the entire family property as well as Plot No. 255 measuring 15.5 decimals. The petitioners had taken an advance of Rs. 1,51,000/- in lieu of the said agreement to sell. It is not disputed that the complainant had filed a suit for specific performance of contract which is numbered as 337 of 2007 also pending before the Subordinate Judge I, Patna. Learned Counsel for the petitioners submits that there was a partition between the family members and if one of the brothers, for one reason or the other, is not accepting the partition, it cannot be said that infact there was no partition. It was not the intention of the petitioners to defraud or cheat the complainant by entering into an agreement to sell with the complainant and on the basis of this fact, it cannot be said that the facts constitute any offence under Sections 406, 420, 468, 471 & 120 B of the Indian Penal Code. The Supreme Court in the case of Devender and others vs. State of Uttar Pradesh and another, reported in 2007 (7) SCC 495 has specifically held in similar facts that the facts do not constitute a criminal 3 offence. In the result, I quash the order dated 02.03.2007 taking cognizance against the above named petitioners. This application is accordingly allowed. Anand ( Sheema Ali Khan, J.)