IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43337 of 2007 1. RANDHIR CHOUDHARY, S/o Late Shaligram Choudhary, 2. Shatrughan Choudhary, S/o Late Shaligram Choudhary 3. Sumitra Devi, W/o Late Shaligram Choudhary All r/o village Pipra Kothi, Barkurwa, P.S. Popra Kothi, District East Champaran at Motihari ….. Petitioners Versus 1. STATE OF BIHAR 2. Suresh Singh, S/o Jailal Singh, R/o village Pipra Kothi, Barkurwa, P.S. Pipra Kothi, District East Champaran at Motihari …. Opp. Party ----------- For the petitioner : Dr. Amrendra Kumar No. I, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : None O R D E R 3 15.1.2009 The three persons arrayed as accused in Complaint Case No. 1676(C) of 2006 have prayed for the quashing of the order dated 24.3.2007 passed therein by Sri D.K.Singh, Judicial Magistrate, First Class, East Champaran at Motihari, whereby he has taken cognizance of offences under sections 323 and 406 IPC against the petitioners. The complainant, one Suresh Singh, impleaded herein as O.P. No. 2, filed the aforesaid complaint stating inter alia that at about 8 A.M. on 11.5.2005 while he was sitting at the darwaza of Ganesh Rai, petitioner no. 3 approached him with a demand for some money as she was in dire need thereof and in lieu thereof she proposed to sell 2 kathas of her lands. When the complainant expressed his inability to pay due to paucity of funds, petitioner no. 3 is said to have proposed that she be given Rs. 10,000/- then and there and get the sale deed executed on condition that the sale deed and chirkut would be delivered after full payment of the consideration amount. It is said - 2 - that the complainant paid Rs. 10,000/- in front of the witnesses and on 13.5.2005 came to the Motihari Registration office and requested petitioner no. 3 to execute the sale deed in respect of the 2 kathas of hand. However, petitioner no. 3 suggested that she would execute sale deed for one katha land at the present and when the balance amount was paid she would execute the sale deed for the other katha of land. Accordingly, a beynama was prepared. It is said that a sum of Rs. 20,000/-was paid to her on 14.3.2006 followed by another sum of Rs. 12,000/- on 20.7.2006 and requested her to sign the chirkut and hand over the same to him and also execute the sale deed in respect of the remaining lands. However, she kept postponing the issue on various pretexts. It is alleged that when the complainant went to the house of petitioner no. 1 to renew his request, he was abused and assaulted by the accused. A panchayati was convened but the accused persons allegedly were not ready to follow the verdict of the punches. It has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case. In this context it was submitted that although petitioner no. 3 had executed a sale deed mentioning therein that she had received Rs. 10,000/- and the rest amount of Rs. 20,000/- would be paid to her at the time of delivery of papers but in fact no amount had been paid to her. It is also submitted that petitioner no. 3 had filed a complaint case against the complainant herein and his son. The further submission is that although it is alleged that payment has been made but no papers in respect of such payment has been brought on record and the only - 3 - purpose of filing the instant case is to grab the full amount of outstanding consideration. Admittedly, the subject matter or case no. of the complaint case filed by petitioner has not been disclosed nor has the complaint petition been brought on record. From the averments made in the compliant petition no offence under section 406 IPC appears to have been made out. For an offence under section 406 IPC the accused must have been entrusted with property or dominion over it and the accused must have misappropriated the property or disposed of that property in violation of such trust. From the submissions of the learned counsel for the petitioners and the averment in the complaint. It appears that the petitioner no. 3 had executed the sale deed in respect of 1 katha of land but as per the terms of the agreement the chirkut was to be handed over only after the balance consideration was paid. The complainant claims to have paid the full amount but the petitioners deny the same. Therefore, there can be no question of an offence under section 406 IPC as no property has been misappropriated or disposed of in violation of trust by the petitioners. However, the offence under section 323 IPC appears to have been made out. In the result the application is allowed in part and the cognizance taken under section 406 IPC is hereby quashed. The petitioners shall, however, face the charge under section 323 IPC. Spd/- (Abhijit Sinha, J.)