IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38108 of 2007 (1) Indu Devi, wife of Laxman Prasad, (2) Sampati Devi, wife of Late Daroga Rai, (3) Chhotu Rai @ Chhotu Prasad, (4) Binod Prasad, (5) Ramjee Prasad, (6) Laxman Prasad, all sons of Daroga Rai, village Nayachak, PS Chaurichak, Dist. Patna – Petitioners. Vs. 1) The State of Bihar, 2) Aniket Kumar, son of Late Ayodhya Pd. Singh, village Nandlal Chapra, PS Agam Kuan, District Patna – Opp. Parties. 4 20.12.2010 A complaint has been filed by Aniket Kumar who had advanced a sum of Rs. 1 lakh as part of payment in lieu of an agreement to sell a piece of land measuring 2 kathas 15 dhurs and 4 dhurkis. The agreement was made between Chhote Rai and the complainant. Counsel for the petitioners submits that it is a case of civil nature and the correct remedy for the opp. Party is to file a suit for specific performance of contract and the present case filed on behalf of the complainant is misuse of process of law. Besides this, it is submitted that the wife, mother and brother of Chhote Rai have been made accused although they were not the signatories on the agreement executed between Chhote Rai and the complainant. It is also alleged that Chhote Rai has executed a sale deed in favour of a third party and thereby has cheated the complainant of Rs. 1 lakh which he has paid by way of advance. Considering the fact that the case is of a civil nature, that the remedy of the complainant would have been to file a suit for specific performance of contract, the present complaint petition 2 is misconceived. It is well settled that the agreement to sell a particular property is subject to the condition mentioned in the document by which the parties have entered into an agreement. These aspects of the matter cannot be adjudicated in a criminal case. The execution of document in a case of agreement to sell would depend on fulfilling certain conditions. This aspect also cannot be adjudicated in a criminal case. Therefore, it is not quite correct to allege that there was an element of dishonest intention at the time of execution of Bainama between the parties and as such the element necessary constituting an offence under sections 420 and 406 of the Penal Code are not made out in the present facts of the case. This court further finds that on the plain reading of the complaint petition there does not appear to be any ingredients which would constitute an offence under sections 464, 465, 467, 468, 471 of the Penal Code i.e. offence relating to forgery. I further find that the cognizance under section 423 of the Penal Code is not at all warranted in view of the fact that the instrument which proposes the transfer of the property in question does not contain any false statement relating to the consideration amount to be paid with respect to the property concerned. I, therefore, quash the order, dated 16.1.2007 passed in Complaint Case No. 3087C/2006 by the Judicial Magistrate, Ist Class, Patna. This application is allowed. haque ( Sheema Ali Khan, J.)