IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1478 of 2008 NARESH YADAV, SON OF SRI MATHURA YADAV, RESIDENT OF MOHALLA- MARANPUR, P.S. CIVIL LINES, DISTRICT-GAYA……………………….PETITIONER. Versus 1. THE STATE OF BIHAR. 2. KUMARI SHOBHA SINHA, WIFE OF SRI JAWAHAR PRASAD, AT PRESENTLY RESIDING AT LADY ELGIN FEMALE HOSPITAL, P.S. CIVIL LINES, DISTRICT-GAYA. ……………………………………………………………………..OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Dharmendra Kumar Sinha, Advocate. For the State : Dr. Maya Nand Jha, A.P.P. For O.P. No.2 : Mr. Navin Kumar Singh, Advocate. ----------- O R D E R Through this application, the petitioner, the sole accused of Complaint Case No.717 of 2006 has prayed for the quashing of the order dated 8.9.2006 passed therein by Sri Sheo Chand, Judicial Magistrate, First Class, Gaya, whereby he has taken cognizance under Section 418 IPC against the petitioner. One Shobha Sinha, the complainant, impleaded herein as O.P. No.2, filed the complaint inter alia stating that the petitioner herein being an authorized agent of one Rajesh Sinha of Patna, had entered into an agreement with her for sale of a piece of land having an area of 1360 square feet appertaining to Khata No.102, Plot No.470 for a consideration of Rs.1,40,000/- and at the time of agreement a sum of Rs.80,000/- had been paid as advance on 21.11.2001 and it was agreed that the balance amount would be paid at the time of execution and registration of the sale deed. It is said that a further amount of Rs.15,000/- was paid on 13.7.2002 on a request being made by the 2 petitioner. It is alleged that when the complainant desired to see the original documents in respect of the lands to be vended, the petitioner avoided the request on one pretext or the other. The complainant suspecting foul play requested for return of the money advanced and it is alleged that although the petitioner returned Rs.15,000/- on 28.7.2002 with a promise to refund the balance amount within a period of three months, the same had not been returned by him although three years had passed by. A legal notice sent on 22.4.2006 was returned on 22.4.2006 and she allegedly was threatened not to make demands for refund in future. Accordingly, it was alleged that the petitioner had misappropriated her money. The learned Magistrate having considered the materials available at the inquiry held under Section 202 Cr.P.C. came to the conclusion that an offence under Section 418 I.P.C. only had been made out and accordingly took cognizance by the impugned order. The submission on behalf of the petitioner is that he had already returned Rs.95,000/- on 28.7.2002 in token whereof the complainant had given him a stamped receipt, a photo copy whereof has been appended to this application as Annexure-2, and the two witnesses in whose presence the aforesaid amount had been handed over to the complainant had put their signatures on the aforesaid receipt as attesting witnesses. On this premise, it was submitted that as a matter of fact no amount was now due. It was further submitted that even if the allegations are believed to be true, no offence under Section 418 I.P.C. can be said to have been made out since there was no overt act of 3 cheating inasmuch as the entire amount taken as advance had been returned to the complainant. The grievance of the complainant of non refund of the advance amount paid to the petitioner even if accepted at its face value would squarely fall within the ambit of a civil dispute. The petitioner has never denied executing or registering the sale deed and to the contrary it was the complainant who after entering into the agreement resiled from the agreement. Therefore, there was no question of the petitioner having cheated the complainant. No show cause or counter affidavit has been filed on behalf of the complainant who has merely entered appearance. However, the learned counsel for the complainant sought to justify the order and insisted that by his overt act the petitioner had cheated the complainant. It is admitted in the complaint petition itself that the accused petitioner had returned only Rs.15000/- of the total amount taken as advance. It is well settled that even if the accused returns a part of the money taken as advance it would be a case where the intention to cheating would not be made out. That apart as rightly stressed by the learned counsel for the petitioner the entire transaction has the trappings of a civil dispute since the ultimate goal behind filing of the complaint was to recover the alleged sum advanced towards purchase of land and from the very nature thereof the entire transaction, in my opinion, gives rise to a civil cause of action for which relief ought to be sought in a court of competent civil jurisdiction. There is yet another important issue which needs proper 4 consideration. It would be apparent from perusal of the impugned order that the cognizance taking Magistrate in the impugned order had been aware and had noticed that there had been large discrepancy in the version given out by the complainant as compared to the version stated by her witnesses and even there had been differences in respect of the dates and the witnesses in whose presence the alleged payment was made. It is unfortunate that having noticed these marked discrepancies the learned Magistrate had still taken cognizance ignoring them. To my mind, the entire criminal proceedings and the impugned order are a travesty of justice which could not be allowed to continue. The nature of allegation is civil arising out of a contractual relation in between the complainant and the petitioner and a criminal proceeding in respect thereof would be an abuse of the process of the court. Due regard being had to the facts and the circumstances of the case, I am of the opinion that the impugned order cannot be sustained in law and is required to be quashed. I accordingly, quash the impugned order and allow this application. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 22nd day of May, 2009. Pradeep Srivastava/A.F.R.