Criminal Miscellaneous No.33144 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure --------- 1. Arun Kumar Tiwari , Son of Ram Julum Tiwari 2. Ram Barn Tiwary, Son of Ram Julum Tiwari 3. Mukesh Kumar Tiwari @ Mukesh Tiwari, Son of Arun Kumar Tiwari, All residents of Village- Malpur, P.S. Patepur, District- Vaishali( Hajipur) ------------ Petitioners. Versus 1. THE STATE OF BIHAR 2. Smt. Shiv Surat Devi, Wife of Ram Subodh Thakur, resident of Village-Malpur, P.S. Patepur, District-Vaishali ( Hajipur) ---------------- Opp.Parties. ----------- For the petitioners: Mr. Sunil Kumar Pandey, Advocate For the State : Mr. Braj Kishore Prasad, A.P.P. ---------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Three petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 23.6.1999 passed by the learned Sub Divisional Judicial Magistrate, Hajipur, Vaishali in Complaint Case No.C1 2352 of 1998. By the said order, the learned Magistrate has taken cognizance of offence under Section 420 of the Indian Penal Code. The petitioner has also prayed for quashing the entire proceeding in Complaint Case No.C1 2352 of 1998. 2. Short fact of the case is that Opp.Party no.2 filed a complaint vide Complaint Case No.C1 2352 of 1998 in the court of the learned Chief Judicial Magistrate, Hajipur alleging therein that one Vijay Kumar Thakur persuaded the complainant to purchase a 2 piece of land appertaining to Khata No.556, Khesra No.6403, C.S. Khata No.289 ,new Khesra Nos.3167 and 3168 , measuring 6 ½ decimals of land. It was alleged that in between the complainant and Vijay Kumar Thakur , an agreement to sale was entered and the complainant paid Rs.52,500/- of the total consideration money to Vijay Kumar Thakur. It has been disclosed that Vijay Kumar Thakur after taking the advance money asked the complainant to take possession of the land in question. Subsequently, the vendor Vijay Kumar Thkuar put his signature on the sale deed. However, from the Registry Office, he left without executing the final sale deed and thereafter the complainant pursued the vendor accused Vijay Kumar Thakur to execute the same. However it was never done. Subsequently, the complainant came to know that the land in question was already transferred to these petitioners. It was alleged that the petitioners in connivance with the vendor had purchased the land in question and thereafter complaint petition was filed. After filing the complaint, the complainant was examined on S.A. and in support of the complaint, three witnesses were examined as enquiry witnesses. Thereafter, the learned Sub Divisional Judicial Magistrate by its impugned order, i.e. order dated 23.6.1999 took cognizance of the offence under Section 420 of the Indian Penal Code and directed for issuance of process for securing the attendance of accused persons. 3. Aggrieved with the order of cognizance dated 23.6.1999, petitioners approached this Court by filing the present petition, which was admitted on 3.3.2000. While admitting , this 3 Court had directed for issuance of notice to Opp.Party no.2 and it was further directed that pending disposal of this application, further proceedings in Complaint Case No.C1 2352 /98 pending in the court of Sub Divisional Judicial Magistrate, Hajipur , Vaishali shall remain stayed . The order of stay is still continuing. 4. Subsequently, Opp.Party no.2 appeared in this case and filed an Interlocutory Application vide I.A.No.1115 of 2008 with a prayer to vacate the order of stay. However, by the order dated 9.1.2001 passed by this order, the said Interlocutory Application for vacating the stay order was rejected. 5. In this case at the time of hearing none has come forward on behalf of Opp.Party no.2 and, as such, after hearing learned counsel for the petitioners and learned Addl.Public Prosecutor, the case is being disposed of. 6. Sri Sunil Kumar Pandey, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance dated 23.6.1999 submits that the learned Magistrate in a mechanical manner has passed the order of cognizance. He submits that in the complaint petition, there is no element to indicate that the petitioners were in any manner involved in commission of offence of cheating. He further submits that the agreement to sale was entered in between the complainant and the vendor of the land, namely, Vijay Kumar Thakur. There is no material on record to indicate that at the time of said agreement to sale, the petitioners were present or they participated in the said transaction. He further argued that there is no 4 material on record to suggest that even petitioners were knowing prior to execution of the deed in his favour that the vendor Vijay Kumar Thakur had already executed an agreement for sale with the complainant. In absence of such material, it was argued that no case of cheating is made out against these petitioners. It was argued that being a bona fide purchaser, the petitioners after paying the consideration money had got a sale deed registered in their favour . It was further argued that in any event the fact indicated in the complaint petition does not constitute a criminal offence. It was said that the dispute is of civil nature and, accordingly, criminal prosecution may not be allowed to proceed further on such complaint. Accordingly, learned counsel for the petitioners has prayed for quashing of the order of cognizance. 7. Besides hearing learned counsel for the parties, I have also examined the materials available on the record as well as complaint petition and impugned order. On perusal of the complaint petition, it is difficult to come to conclusion that the petitioners were in any manner involved in the alleged crime. The only mistake, which has been committed by the petitioners, is that being a bona fide purchaser he purchased the land in question and, as such, I do not fine any material to suggest that the petitioners were directly or indirectly involved in the offence of cheating and accordingly, it appears that in a mechanical manner, the learned Magistrate has passed the order of cognizance, which is not sustainable in the eye of law. Accordingly, with a view to prevent abuse of the process of the Court , it is 5 necessary to interfere with the impugned order and, as such, the order of cognizance dated 23.6.1999 passed in Complaint Case No.C1-2352 of 1998 by the learned Sub Divisional Judicial Magistrate, is hereby set aside. 9. Petition stands allowed. Patna High Court,Patna Dated : the 19th May,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )