IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25668 of 2007 Sharfun Nabi, Son of Late Alay Nabi, resident of A-46, Alinagar Colony, P.S. Gardani Bagh, Anisabad, Town and District-Patna ----------------------- Petitioner -Versus – 1. The State of Bihar 2. Satish Singh, Son of Late Ramprakash Singh, resident of Prakash Cinema Complex ( Prakash Nagar), Mohalla-Nayta Tola, P.S. :hulwari Sharif, Town and District-Patna 3. Registrar, Danapur Civil Court,Patna ---------------------- Opp.Parties ------------- For the petitioner : M/S N.K.Agrawal, Sr. Advocate,and Sanjeet Kumar, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None. ------------ O R D E R The Complainant of Complaint Case No.407(C) of 2000 giving rise to Danapur P.S.Case No.378 of 2000 is the petitioner in this application and he has prayed for the quashing of the order dated 08.03.2007 passed therein by Sri A.L.Yadav, Judicial Magistrate, First Class, Danapur, whereby the petitioner’s prayer for release of the amount of Rs.1, 65,000/- in his favour , in terms of order dated 7.4.2004 passed therein has been rejected and he has been directed to file a compromise petition. The short facts giving rise to the present application may be noticed briefly. The complaint aforesaid filed by the petitioner herein was transmitted to the concerned Police Station under Section 156(3) Cr.P.C. by the learned Additional Chief Judicial Magistrate, Danapur and on the basis thereof Danapur P.S. Case No.378 of 2000 was registered under Sections 420, 467, 468 and 471 I.P.C. as also - 2 - Section 138 of the Negotiable Instrument Act ( hereinafter referred to as “the N.I.Act”). The prosecution case as made out in the complaint is that Opp.Party no.2 herein vide registered sale deed dated 16.11.1889 sold 3 kathas and 1 dhur of land in favour of Bibi Praveen, his daughter, and he assured at the time of the registration that the plot which he was selling is his own ancestral land and is not disputed. Influenced by the assurances of Opp.Party no.2, the informant and Bibi Praveen paid full consideration amount whereafter the deed was executed and registered. Subsequently the petitioner and his daughter learnt that the land registered in favour of Bibi Praveen did not belong to Opp.Party no.2 and was of some other person. The informant and Bibi Praveen then requested Opp.Party no.2 for refund of the consideration money, but the same was avoided by Opp.Party no.2 under one pretext or the other. Eventually, Opp.Party no.2 issued a cheque of Rs.50, 000/- in favour of Bibi Praveen on 7.6.2000 as advance and assured to pay the remaining sum by July, 2000. It is alleged that the cheque when presented was dishonoured due to insufficient funds in the account of Opp.Party no.2, whereafter the informant under a registered power of attorney from Bibi Praveen filed the aforesaid complaint. The police after due investigation submitted a chargesheet against Opp.Party no.2 under Sections 420,467,468 and 471 I.P.C. as also Section 138 of N.I.Act. It appears that a joint compromise petition was filed on 17.5.2003 , and in paragraph 3 thereof it was agreed between the - 3 - petitioner and Opp.Party no.2 that the amount of Rs.1,65,000/- deposited in court on 29.06.2001 be released in favour of the petitioner after disposal of the case. It appears that the aforesaid sum of Rs.1,65,000/- was deposited in the Sub-treasury , Danapur in pursuance of order dated 24.4.2001 passed by the learned Sessions Judge,Patna, in A.B.P.No.279 of 2001 . It further appears that the learned Judicial Magistrate in view of the compromise petition acquitted Opp.Party no.2 in Danapur P.S. Case No.378 of 2000 vide order dated 17.12.2003, and by further order dated 7.4.2004 directed for the amount of Rs.1,65,000/- to be released in favour of the informant/petitioner . Against order dated 7.4.2004 Opp.Party no.2 preferred Cr.Revision No.606 of 2004, which was dismissed by order dated 10.2.2005 , passed by the learned Additional Sessions Judge VI,Patna , with an observation that before withdrawal of amount the informant/ Bibi Praveen will have to file an application to the effect that they have acquired no right , title and interest in the said property by virtue of sale deed dated 16.11.1989. It appears that there was some mistake in the said order regarding Bibi Praveen which was subsequently rectified /modified by order dated 5.3.2005. It further appears that in pursuance of the rectified order dated 5.3.2005 the petitioner and Bibi Praveen filed an affidavit in the court of the learned Judicial Magistrate. It further appears that although the requirement in pursuance of the order in the revision was for the filing of a declaration only the learned court below as also Opp.Party no.2 - 4 - misinterpreted the order of the revisional court and proceeded in the matter assuming that the money shall be released only after the filing of a compromise petition in Title Suit No.108 of 1999 filed by Opp.Party no.2. Although notice was duly issued to Opp.Party no.2 in the admission matter but he refused to accept the same. Accordingly he did not appear to contest the application and the matter has been heard in his absence ex parte. On perusal of order dated 10.2.2005 as modified by order dated 5.3.2005 passed in the Criminal Revision, it would appear that the informant was required to file an application in the court below to the effect that they have acquired no right, title and interest by virtue of sale deed bearing no.6917 of 1989, and whatever title have been derived by such sale deed shall be relinquished. The revisionist was also directed to approach the court below with a draft of a compromise petition in Title Suit No.108 of 1999 and on such filing of such compromise the court below shall direct the informant to sign the compromise petition relinquishing the right, title and interest in said suit lands. A compromise petition was filed before the learned Judicial Magistrate and on the basis thereof Opp.Party no.2 has been acquitted but the money has not been released in favour of the petitioner. This only goes to show that the learned Magistrate has acted in part in respect of the compromise petition. The compromise petition (Annexre-2) clearly indicates that the complainant and accused do - 5 - not want to contest and proceed further in the above case. In view of the compromise arrived at between the parties and the sum of Rs. 1,65,000/- deposited in court may be released after disposal in favour of the complainant. Therefore while acquitting the accused-Opp.Party no.2 by order dated 17.12.2003 the court failed in its duty in recording an order in respect of release of the money deposited in court and when moved for release of the money the court unnecessarily sided with the accused on the basis of technical objection to refuse release of the money in favour of the informant. Apparently the learned Magistrate failed to take into account that the release of the money deposited in the criminal case was completely independent of the Title Suit and the said Title Suit had no bearing on the criminal case. In view of the discussion made above I am of the opinion that the learned Magistrate has completely misguided himself in refusing to release the money in favour of the informant and has only acted in part in respect of the compromise petition filed by the parties. Accordingly, the impugned order is set aside and the application is allowed. The learned Magistrate will now proceed to release the money in favour of the informant. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 25th June,2009 Nawal Kishore Singh/A.F.R.