IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.260 of 2009 NARENDRA PRASAD SINGH & ANR Versus STATE OF BIHAR & ANR ----------- 4/ 2.4.2010 Heard Shri Rana Pratap Singh, learned senior counsel for the petitioners, Shri Achhaibar Singh, learned APP for the State and Shri Binayak Kumar Shrivastava, learned counsel for the Opposite party no. 2. The present petition has been filed seeking quashing of order dated 13.3.2008 passed by the learned Judicial Magistrate Ist Class, Danapur in Complaint case no. 1074 C of 2007 by which the petitioners were summoned for committing offence under sections 406 and 417 of the IPC. The short facts giving rise to the passing of the impugned order are that the petitioners approached the complainant with the proposal to sell the land described in the petition of complaint as they were in utter requirement of money. The offer was accepted by the complainant and accordingly, the agreement was reached that the petitioners had to sell the above land at the rate of Rs.16000/- per bigha. Rs.20000/- was paid as first premium of the full consideration money and a receipt was granted by the petitioners on the letter head of their father pointing out that they had received the money as the premium towards the payment of consideration money which was agreed to be paid on the sale of the land in dispute, which is described in the petition of complaint. It further appears that from 1991 to 1995, 2 different amounts of money were paid by the complainant to the petitioners which brought the full payment up to 17.5.1995 to Rs.56,800/-. The complainant further stated that the accused persons asked the complainant to purchase the stamp paper so that the accused persons could register the sale deed and, accordingly, on 19.5.1998, the required stamp papers were purchased of the value of Rs.35000/-. But, the accused persons did not execute the sale deed nor presented it for being registered before the Registry. Sri Rana Pratap Singh, learned senior counsel for the petitioner has drawn the attention of the court towards the statement made in the petition of complaint at page 4 that the accused persons granted receipt giving full details of the land and the consideration money which was agreed to be sold or paid by the complainant to them while receiving Rs.20,000/- as the first premium towards the payment of the consideration money. It was contended that the facts of the case could, at best, make out a fit case for filing an appropriately framed suit before the competent Civil Court for enforcing the performance of the part of contract on behalf of the accused persons. It was contended that the facts of the case may not constitute any offence. In support of his contention, Shri Singh has placed before me a decision of the Supreme Court in Murari Lal Gupta Vs. Gopi Singh (2005) 13 Supreme Court Cases 699. The facts of Murari Lal Gupta (supra) appear tallying with those of the present case. In that case also, part payment of 3 consideration money had been made by the seller to the buyer and balance amount was to be paid at the time of registration of the sale deed which was not executed. Admittedly, a legal notice was also issued by the complainant of Murari Lal Gupta’s case to the accused persons. The complaint petition was filed alleging that offences under sections 406 and 420 of the IPC were committed by the accused persons. It was held by the Supreme Court that merely because the accused had failed to honour the agreement which he had entered into with the complainant, it cannot be said that he had cheated the respondents. It was further held that under the facts of the case, the respondents in that case could enjoy the liberty to pursue other remedy under civil law, as may be available to him. Considering the facts and circumstances of the case, it is admitted that there was an agreement and a written acceptance of agreement was also granted by the accused persons while receiving the first premium of the consideration money on 20th June, 1991. The payment of other parts of the agreed consideration money appears made by the complainant on different dates and it is stated that in spite of repeated requests to scribe the deed and register the same, the petitioners were never ready. Lastly, the complainant allegedly sent a notice through an Advocate, Shri Chandsi Roy on 5.12.2006 and that also could not elicit the execution of the sale deed from the petitioners. In my considered view, the above incidents could be 4 giving rise to the causes for action for the complainant to be initiated against the accused persons before a competent Civil Court for enforcing the part of the contract which was to be performed by the accused persons. The elements of cheating or misappropriation of money does not appear existing in the present case inasmuch as the petitioners were granting receipts on all occasions of receiving payments. The facts of the present case appear fully covered by the fact of Murari Lal Gupta (supra). In the result, this petition succeeds. The prosecution initiation by order dated 13.3.2008 in the aforementioned case against the petitioners is hereby quashed. Anil/ ( Dharnidhar Jha, J.)