IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36207 of 2007 AKHILESH NANDAN SINGH @ ANUPI BABU, SON OF LATE RAJ KUMAR MAHESH NANDAN SINGH, RESIDENT OF VILL- SHIVHAR, P.S. AND DISTRICT-SHIVHAR, AT PRESENT RESI- DENT OF MOHALLA DAMOCHAK, P.S.KAJIMOHAMMADPUR DISTRICT- MUZAFFARPUR ------ PETITIONER Versus 1. THE STATE OF BIHAR 2. SUBHASH PRASAD BUBNA, SON OF DELKI NANDAN PRASAD BUBNA, RESIDENT OF WARD NO.19, STATION ROAD, SITAMARHI, P.S. & DISTRICT- SITAMARHI ------- OPP.PARTIES ----------- For the petitioner : M/S Nilesh Kumar , and Tarkeshwar Prasad Verma,Advocates For the State : Dr. Mayanand Jha, A.P.P. For Opp.Party no.2 : None ---------- O R D E R 4 01-12-2008 The petitioner who along with another has been arrayed as accused in Complaint Case no.972 of 2006 has prayed for the quashing of the order dated 27.1.2007 passed therein by Sri Ram Bihari, Judicial Magistrate, First Class, Sitamarhi, whereby he has found a prima facie case to have been made out under Sections 406,417/34 I.P.C. and has issued process against both the accused. According to the complainant , impleaded herein as Opp.Party no.2 , the petitioner had negotiated with the complainant through accused no.2, for selling one Katha of land situated at Sheohar Chhavni, Sitamarhi , for a consideration of Rs.6 lacs and it was agreed that part of the consideration money would be paid in advance and the balance at the time of registration. Accordingly, the complainant is said to have paid a sum of Rs.3 ½ lacs through demand - 2 - drafts and cash on different dates in presence of witnesses. However, the petitioner did not execute the deed notwithstanding several requests being made on that behalf whereupon on 1.3.2006 the complainant with witnesses went to the residence of the petitioner at Muzaffarpur and requested for executing the deed. The petitioner is said to have informed the complainant that as his Manager, accused no.2, had gone out, the sale deed would be executed on his return. As there was no response thereafter, the complainant with witnesses again went to the residence of the petitioner and found both the accused talking to each other and when he requested for execution of the sale deed they refused point blank to comply. Request for return of money taken as advance was also refused. It was sought to be submitted on behalf of the petitioner that he was innocent and had been implicated in this case on false assertions and by misrepresentation of facts. In this connection it was submitted that a negotiation had been entered into by the complainant to purchase 10 dhurs of petitioner’s lands appertaining to survey plot no.312 , Ward no.22 for consideration of Rs.3 ½ lacs. The complainant being a business man wanted a lesser amount to be shown in the sale deed and that the deed be executed in the name of one of the female members of his family and accordingly, on 1.3.2006, on which date the last amount was paid , the sale deed was executed by the petitioner in favour of Sweta Bubna , wife of Vikram Kumar Bubna , the daughter-in-law of the complainant’s family . It was also submitted that the falsity of the complainant’s claim would - 3 - be apparent from the fact that the khata and khesra number of the land alleged to have been negotiated with have not been disclosed purposely nor was any paper produced to support the case of any agreement having been entered into. Finally, it was submitted, that even otherwise, the entire matter amounted to a civil dispute. The Opp.Party no.2 put in an appearance by filing a Vakalatnama but at the stage of hearing of this application, neither he nor his counsel is present to oppose the application. As such, the submission of the learned counsel for the petitioner remains unrebuttled. The complainant does not appear to have approached the courts with clean hands and has suppressed material facts. Even otherwise he has attempted to put a criminal tinge to an absolutely civil dispute which ought to have been settled in a civil suit. The instant prosecution is an abuse of the process of the court and has to be quashed. Accordingly, the impugned order so far as the petitioner is concerned is quashed and the application is allowed. ( Abhijit Sinha,J ) NKS/-