IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35945 of 2008 Prashant Kumar Verma, son of Bharat Prasad Verma, village Malipur, PS Shyampur Bhathan, Dist. Sheohar, at present Shanti Nagar, Dumra, PS and District Sitamarhi – Petitioner. Vs. 1) The State of Bihar, 2) Suresh Prasad Singh, son of Late Nilamber Pd. Singh, Ward No.5, New Ward No. 4, Dumra, PS Dumra, Dist. Sitamarhi – Opp. Parties. 5 27.7.2011 HeardMr. Dinesh Jha, counsel for the petitioner and Mr.Ramchandra Singh, learned A.P.P. representing the State. This application has been filed for quashing the order, dated 9.8.2008 passed in Complaint Case No. C1-789/2007 by the Judicial Magistrate, 1st Class, Sitamarhi by which cognizance for the offence under section 419 of the Penal Code has been taken. The allegation in the complaint petition is that the petitioner required some money for his son in lieu of which he took a sum of Rs.70,000/- from the complainant on 15.8.2006. The petitioner promised to transfer to the complainant six and half decimals of land of plot no. 2767, Khata no. 592. Notice was issued to opposite party no.2 and the counsel appeared on the previous date. However, today no body appears to oppose this application. Learned counsel for the petitioner submits that no offence is made out under section 419 of the Penal Code as there is no allegation in the entire complaint petition that the petitioner had pretended to be some other person or had substituted one person for another and misrepresented the identity of anyone, would be committing any offence of cheating by impersonation. It 2 is nowhere alleged that the petitioner had impersonated or put up another person in his place to cheat the complainant. Therefore, obviously section 419 of the Penal Code would not be applicable. As far as section 418 of the Penal Code is concerned, it reads as follows : “418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.- Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” It would appear that counsel for the opposite party when asked on the last date to substantiate / produce any document, showing receipt of Rs. 70,000/- , he was unable to do so. It is obvious that sections 419 and 418 of the Penal Code would not be made out in this case. There appears to be no document of contract regarding agreement to sale. It is alleged that there was an oral agreement. On behalf of the State it has been pointed out that the a case is made out under section 406 of the Penal Code. However, the court has not taken cognizance under this section. It would be difficult for the court to substantiate this aspect of the offence alleged viz-a-viz section 406 of the Penal Code. Considering all these aspects of the matter, this court 3 quashes the order impugned subject to the fact that charges have not been framed in this court. The matter is remanded back to the court below to pass a fresh order in accordance with law. It is made clear that if any order will be passed by the court, it will be after hearing both the parties. This application is allowed. haque ( Sheema Ali Khan, J.)