IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50730 of 2007 RAM AYODHYA MAHTO, son of Jagdish Mahto, resident of village – Barajairam, Tola – Balua, P.S. – Chiraiya, District – East Champaran. -------------- Petitioner. Versus 1. STATE OF BIHAR 2. GAGANDEO PRASAD, son of Bhola Prasad, resident of village – Barajairam, Tola – Balua, P.S. – Chiraiya, District – East Champaran. ------------- Opposite Parties. ------- 4 31.03.2010 This is an application under Section 482 Criminal Procedure Code seeking quashing of entire proceeding of Complaint Case No. 33 of 2007, pending in the court of Sri Manoj Kumar, Judicial Magistrate, 1st Class, Sikrahana at Motihari, including the order dated 01.10.2007 passed by him taking cognizance for offence under Sections 420, 323 and 504 of the Indian Penal Code. Order for issuance of summons was passed against the accused persons including the petitioner who figured as accused no. 1 in the complaint petition filed by Opposite Party No. 2 Gagandeo Prasad, who was noticed but, in spite of personally receiving the notice, did not appear. Heard learned counsel for the petitioner and the State. Learned counsel for the petitioner placing reliance - 2 - upon decision of the Apex Court in a case of Madhavrao Jiwaji Rao Scindia and another, etc. Appellants v. Sambhajirao Chandrojirao Angre and others, etc., Respondents. Reported in AIR 1988 SC at page 709, submitted that Complaint Petition under reference was made with respect to alleged agreement between the parties for transfer of a piece of land but, subsequently, the complainant opposite party finding that the papers shown by the petitioner with respect to title over the land is not genuine so he demanded refund of the earnest money and on refusal filed complaint case. The dispute, even if taken to be true, is of civil nature. No criminal offence is made out but the court below has on the basis of the complaint petition and three witnesses examined during inquiry, taken cognizance. Learned counsel representing the State submitted that there is no illegality in the impugned order. On thoroughly going through the decision of the Apex Court and the materials available on record, it appears that the complaint was filed by the opposite party no. 2 stating therein that he is a cultivator having cycle shop also, well acquainted with the accused persons, who belonged to same family and approached him on - 3 - 01.10.2006, he transfers 5 Kathas of land and in support of their title one document and rent receipt of the Jamabandi no. 528 standing in the name of one Deodhari Mahto, grand father of the accused no. 1 with respect to Khata No. 471, Khesra No. 3581. The rate was fixed at Rs. 10,000/- per Katha in presence of the witnesses. In honour of the agreement Rs. 30,000/- was paid as advance on 05.10.2006 and remaining Rs. 20,000/- was to be paid within a month at the time of registration. Subsequently, the complainant could know that the documents are not correct he got the same verified at Anchal Office where he could know that the lands involved are not standing in the name of Deodhari Mahto, thereby he approached to the accused persons seeking refund of the earnest money so paid. After initial avoidance they finally refused to refund earnest money giving rise to the complaint petition. Statement of the complainant was recorded before the court below in Solemn Affirmation and three more witnesses were also produced. From the complaint petition itself it appears that the dispute between the parties only centres around with respect to entering into an agreement for sale of a particular piece of land, payment of earnest - 4 - money after inquiry about title of the alleged vendor and subsequent doubts against the title. The complainant sought refund of the money which was refused. Prima facie from nowhere it appears that any criminal offence is established rather it is altogether a civil dispute for which civil remedy is available. Law does not permit to bring the criminal proceeding in motion with respect to the dispute of civil nature. The Apex Court in the aforementioned case has clearly held that: “The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a - 5 - preliminary stage.” Taking into consideration on all such aspects it would not be safe to permit the complaint case before the court below to be continued. Accordingly, entire proceeding is hereby quashed. This application stands allowed. Rajeev/ (Akhilesh Chandra, J.)