IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48455 of 2007 TRINETRADHARI SARAN @ T.SARAN & ANR Versus THE STATE OF BIHAR ----------- 3/ 20/2/2009 Heard learned counsel for the petitioners and learned counsel for the State as also learned counsel for O.P. No.2. The petitioners are aggrieved by the order of cognizance dated 31.6.2007 in Sahebganj P.S. Case No.210/01 passed by the Sub-divisional Judicial Magistrate, (East) Muzaffarpur under Sections-323, 406 and 420 of I.P.C. The allegations are that the petitioners approached the O.P. No.2, for a loan for purposes of their daughter’s marriage. The O.P. No.2 gave allegedly a loan of Rs.30,000/- when the value of their house property was assessed as Rs.50,000/-. The petitioners allegedly promised that immediately after the solemnization of the marriage, they would execute a title deed in favour of O.P. No.2. Believing in them, the O.P. No.2 gave them an advance of Rs.30,000/-. After the marriage was solemnized, they refused to execute the sale deed and abused the O.P. No.2 and assaulted him with slaps and fists and snatched Rs.250/- and a watch. 2 Learned counsel for the petitioners submitted that even if the allegations be accepted at their face value, they constitute a civil case for specific performance of contract. Learned counsel for O.P. No.2 urged that he was only interested in the return of his money. Having heard learned counsels for the parties, this Court is satisfied that the allegations on the face of it reflect a voluntary agreement between O.P. No.2 and the petitioners for sale of certain properties, receipt of certain advances. There are no allegations that at the time of entering into such agreement or receipt of the advance consideration, the petitioners had any foul intentions from the inception not to perform their part of the obligation. The allegations, therefore, quite simply constitute either a breach of the contract when the petitioners are refusing to perform their reciprocal obligations or a case for specific performance of a contract by execution of title deed in pursuance of the advance received by them. No offence under Section-406 or 420 of I.P.C. is made out in absence of the necessary ingredients with regard to the same being alleged in the complaint. The invocation of Section-323 of I.P.C. is 3 ornamental, as is apparent from the very nature of the assault alleged in the complaint, only with a view to lend a little gravity to the allegations. In view of the conclusion arrived at that the dispute was essentially of a civil nature, resort to criminal prosecution is clearly an abuse of process of court. The order of cognizance dated 31.6.2007 passed by the Sub-divisional Judicial Magistrate, (East) Muzaffarpur and the entire prosecution of the petitioners in Sahebganj P.S. Case No.210/01, G.R. No.1871/01, T.R. No.3644/07, pending before Sri Lal Bahadur, Judicial Magistrate, 1st Class, Muzaffarpur is, therefore, quashed. The application is allowed. KC ( Navin Sinha, J.)