IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20169 of 2008 1. NAGINA DEVI, WIFE OF LATE JAGDISH KUMAR, RESIDENT OF 15, PARK STREET, P.S. MANDIR MARG, NEW DELHI-110001. 2. RAJEEV RAI, SON OF SHRI BISHAMBHAR RAI, RESIDENT OF A-149, PANDARA ROAD, P.S. TILAK MARG, NEW DELHI- 03. 3. PRABHA KUMARI, WIFE OF RAJEEV RAI, RESIDENT OF A-149, PANDARA ROAD, P.S. TILAK MARG, NEW DELHI-03. 4. UPENDRA KUMAR, SON OF LATE JAGDISH KUMAR, RESIDENT OF 15, PARK STREET, P.S. MANDIR MARG, NEW DELHI-110001. …………………………………………………….PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. MANOJ KR. SHARMA, SON OF LATE NARESH CHANDRA AZAD, RESIDENT OF AZAD BHAVAN, SHIVPURI, P.S. SHASTRINAGAR, DISTRICT-PATNA. ………………………………………………OPPOSITE PARTIES. ----------- For the Petitioners : Dr. S.K. Verma and Mr. Anil Kumar Singh, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2. : M/s. Rama Kant Sharma, Sr. Advocate and Lakshmi Kant Sharma, Advocate. ------------ O R D E R The four charge sheeted accused of Gardanibagh (Shastrinagar) P.S. Case No.156 of 2007 have prayed for the quashing of the order dated 26.3.2008 passed therein by the learned Chief Judicial Magistrate, Patna, whereby he has taken cognizance under Sections 406, 420 and 120(B) IPC against all the petitioners. The prosecution case is founded on the written report submitted on 7.3.2007 by one Manoj Kumar Sharma claiming to be the Chief Executive of Sundarnagar Grih Nirman Swablambi Sahkari - 2 - Samittee Ltd. Patna, wherein it was stated inter alia that on 4.4.2006 he had signed a development agreement with petitioner nos.3 and 4 on their persuasion in respect of 36 decimals of land appertaining to khata no.38, survey plot no.99 at the rate of Rs.6,50,000/- per katha and at the time of signing of the agreement a cheque of Rs.3,00,000/ and cash to the tune of Rs.4,65,000/- was paid to them. It is also stated that the balance amount was paid by cheques and cash on various dates making up the total amount of Rs.74,88,000/-. It is also stated that since some legal problems arose with the Government in respect of some portion of the lands in question a fresh development agreement was prepared on 29.6.2006 in respect of those areas after the problems were resolved and the payments were accordingly adjusted. It is alleged that a cheque of Rs.18,15,500/- was given to the petitioner no.4 and another cheque of Rs.7,80,000/- was given to petitioner no.3 by way of security on the understanding that when the amount in cash was paid to them by the Samiti the cheques would be returned but notwithstanding the payment of money by cash, the cheques were not being returned. Reminders sent had no effective response whereupon the informant got the payments stopped. It is alleged that legal notices dated 25.1.2007 and 14.10.2006 sent to them evoked no response and the petitioners kept postponing the registration of the lands in question on one pretext or the other. Apprehending foul play, the informant is said to have enquired at the registration office and came to know that the lands had already been sold to M/s. Tribhuwan Developer & Construction Pvt. Ltd. - 3 - Accordingly, it has been alleged that the petitioners had committed forgery and a breach of trust. On the basis of the said written report the aforesaid case was registered under Sections 406 and 420 I.P.C. against petitioner nos.3 and 4. Assailing the impugned order it has been submitted on behalf of the petitioners that they have been falsely implicated in this case although no offence either under Section 406 or 420 or 120(B) I.P.C. is made out against any of them, moreso, when the entire transaction between the parties is civil in nature and notwithstanding the same deliberate attempts have been made to give it the colour of a criminal case. In this connection, it has been submitted that the informant had approached petitioner no.4 at Delhi where he was employed in Government service and convinced him of his bonafides and the petitioner no.4 having no means to verify about the antecedents of the informant agreed to his proposal. Accordingly, non-judicial stamp paper of Rs.100/- valuation was purchased at New Delhi and the agreement dated 4.4.2006 was signed between the informant on one hand and petitioner nos.3 and 4 on the other and the informant agreed to pay the entire amount within six months from the date of signing of the agreement(4.4.2006). It is also submitted that at the time of signing of the agreement only a sum of Rs.4,65,000/- was paid by the informant to petitioner nos.3 and 4 for which they had duly granted a receipt. It has further been submitted that the petitioners never had - 4 - any occasion to visit the informant at his house or office and to the contrary it was in fact the informant who visited the petitioners’ several times at their residence/office at New Delhi, the truth whereof could be easily verified from the visitor’s registers maintained in the offices of petitioner nos.2 and 4. The further submission on behalf of the petitioners is that when even after a long period the informant failed to pay the balance amount as per stipulation, the informant approached petitioner no.4 on 29.6.2006 and convinced him of the reasons for such delay in making payment. He also gave out that some senior officials of the Government of Bihar who were financing and helping his project at Government level had asked him to get two separate agreements executed by both the land owners and he produced two typed agreements on Rs.2/- non judicial stamp papers purchased at Patna. They were executed at Delhi by both the parties. In the said agreement the informant undertook that the total consideration of Rs.36,27,000/- for petitioner no.4 and Rs.26,06,500/- for petitioner no.3 would be paid within a period of three months and it was only after receipt of the same that the petitioners would execute the sale deeds. It was submitted that after execution of the new agreement on 29.6.2006, the earlier agreement dated 4.4.2006 automatically got terminated and no case could be founded on the earlier agreement. In this context it was further submitted that it would be apparent from perusal of the agreement dated 29.6.2006 that the entire amount which was required to be paid by the informant to the petitioners was - 5 - Rs.62,33,000/- whereas in the F.I.R. the allegation was that an amount of Rs.74,88,000/- had already been paid by the informant. This, according to the learned counsel for the petitioners, clearly goes to show that the F.I.R. had been filed with malafide intentions and the petitioners cannot be made to suffer the trial by abusing the process of law. In respect of the legal notice purportedly sent to the petitioners, it has been submitted that a registered envelope was served upon petitioner no.4 containing two sheets of blank paper. The sender happened to be one Jitendra Kumar Bharti, Advocate. Apprehending foul play petitioner no.4 immediately informed of the incident to all concerned authorities including the Commissioner of Police, Delhi. This, according to the learned counsel, only indicates how the informant had resorted to malicious prosecution. It was also submitted that a Title Suit No.159 of 2007 had been filed by the informant for specific performance of contract and was pending in the court of Subordinate Judge, Patna. So far as the allegation of non-refunding of the money advanced by the informant is concerned, it has been submitted that when the informant failed to pay the money towards consideration in pursuance of the agreement dated 29.6.2006, he again approached the petitioners and expressing his inability to arrange the money made a request for refund of the amount paid by way of advance whereupon petitioner no.3 gave three cheques each of Rs.8,00,000/- to the informant who on receiving the same granted receipts and the - 6 - agreement was treated as having been revoked. Similarly, the cash amount paid by the informant was returned in cash and a cheque for Rs.3,00,000/- was also given to him on behalf of petitioner no.1 for which informant granted receipt dated 8.1.2007 and he also stated therein that the agreement stands revoked. On this premise it was submitted that once the agreement stood revoked the informant was estopped from making any claim on the basis of the said agreement and the filing of the instant case is only indicative of malicious and vexatious prosecution. The informant, impleaded herein as O.P. No.2, has put in an appearance but no show cause or counter affidavit has been filed on his behalf and only oral submissions have been advanced to justify the action of the informant and the court taking cognizance. As held by the Apex Court in Indian Oil Corporation Vs. NEPC Ltd. reported in (2006) 6 SCC 736, a commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings-the test is whether the allegations in the complaint disclose a criminal offence or not. The agreement initially entered into between the parties on 4.4.2006 apparently stood superceded by the second agreement - 7 - entered into between them on 29.6.2006 and as per the second agreement a sum of Rs.62,33,000/- was required to be paid by the informant within a period of three months and it was stipulated that it was only after receipt of the same that the petitioners would execute the sale deed. However, the money towards consideration does not appear to have been paid within the stipulated time framed and even otherwise whatever amount was given as advance was returned through cheque and cash for which the informant had granted receipts and had also stated of the agreement standing revoked. From perusal of the receipts granted by the informant which are Annexure-7 series, it is very much clear that the money has been received back by the informant and he has also accepted revocation of the agreement. In the aforesaid circumstances none of the offences whereunder chargesheet has been submitted and cognizance taken are made out and the prosecution of the petitioners would be an abuse of the process of the court. In the circumstances, the impugned order is set aside and the application is allowed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 29th of July, 2009. Pradeep Srivastava/A.F.R.