Md. Kalam Anwar & Ors vs State Of Bihar & Anr on 17 May, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.45519 of 2013
Arising Out of PS.Case No. -31 Year- 2013 Thana -PIRBAHOR District- PATNA

1. Saifullah Khalid

2. Athar Shamim

3. Nadir Quiser

4. Babar Qaiser

5. Tarique Qaiser
All sons of Late Md. Abdullah Qaiser, resident of Mohalla- Shahganj, Post
Office-Mahendru, Police Station- Sultangaj, District- Patna.

…. …. Petitioner/s
Versus

1. The State of Bihar

2. Md. Saleem Raza son of Md. Naseem, resident of Mohalla- Dariyapur Bari
Road, Post Office- Bankipur, Police Station- Pirbahore, District- Patna.

…. …. Opposite Party/s
with

Criminal Miscellaneous No. 53326 of 2013
Arising Out of PS.Case No. -31 Year- 2013 Thana -PIRBAHOR District- PATNA

1. Md. Kalam Anwar son of Late Hafiz Imam Ali, resident of village – Sabji
Bagh Dariyapur Road, Police Station – Pirbahore, District – Patna

2. Md. Nezamuddin son of Hafiz Imam Ali, resident of village – Darji Tola, P.S.-
Pirbahore, District – Patna

3. Md. Ekram son of Late Haji Gulam Mohammad, resident of village –
Qutubuddin Lane, P.S.- Pirbahore, District – Patna

…. …. Petitioner/s
Versus

1. The State of Bihar

2. Md. Saleem Raja son of Md. Nasim, resident of Mohalla – Dariyapur, P.S.-
Pirbahore, District – Patna

…. …. Opposite Party/s

Appearance :

(In Cr.Misc. No.45519 of 2013)
For the Petitioner/s : Mr. N.K.Agrawal, Sr. Advocate
: Mr. Syed Maslehuddin Ashraf, Advocate
For the Opposite Party/s : Mr. Ajay Kumar Thakur, Sr. Advoacate
: Mr. Dhananjay Kumar, Advocate
For the State : Mr. Dilip Kumar, A.P.P.

(In Cr.Misc. No.53326 of 2013)
For the Petitioner/s : Mr. Shakil Ahmad Khan, Advocate
For the Opposite Party/s : Mr. Sanjeet Kumar, Advocate
For the State : Mr. Raj Ballabh Singh, A.P.P.

Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

2/11

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 17-05-2017

The order under challenge in these two applications filed

under Section 482 of the Code of Criminal Procedure (for short

‘CrPC‘) is dated 08.09.2013 passed in Pirbahore P.S. Case No.31 of

2013 by the learned Judicial Magistrate, 1st Class, Patna by which the

learned Magistrate has summoned the petitioners of these applications

after taking cognizance of the offences punishable under Sections 420

and 406/34 of the Indian Penal Code (for short ‘the Penal Code‘).

2. Since a common order is under challenge in these two

cases, they have been heard together and are being disposed of by a

common order.

3. Heard Mr.N.K.Agrawal, learned Senior Advocate and

Mr.Shakil Ahmad Khan learned Advocate for the petitioners, Mr.

Ajay Kumar Thakur and Mr.Sanjeet Kumar, Advocate for the

informant and Mr. Dilip Kumar and Mr. Raj Ballabh Singh, learned

Additional Public Prosecutor for the State.

4. Initially a complaint, vide Complaint Case No.160(c) of

2013 was filed on 18.01.2013 by the informant opposite party no.2

before the learned Chief Judicial Magistrate, Patna which was referred

to the police under Section 156(3) of the CrPC for investigation

pursuant to which Pirbahore P.S. Case No.31 of 2013 dated
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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24.01.2013 was registered under Sections 420 and 406 of the Penal

Code against the petitioners and investigation was taken up.

5. The prosecution case, in brief, is that the petitioners in

Cr. Misc. No.45519 of 2013, namely, Saifullah Khalid, Athar

Shamim, Nadir Qaiser, Babar Qaiser and Tarique Qaiser agreed to sell

a piece of land to the informant for a total consideration amount of

rupees sixty six lakh fifty thousand. The informant paid a sum of

rupees thirty five lakh seventy five thousand as advance pursuant to

which an agreement to sell dated 20.06.2011 was prepared in favour

of the informant but the said land was subsequently sold to other

persons.

6. On completion of investigation, the investigating officer

submitted charge-sheet on 31.07.2013 against the petitioners of these

two cases under Sections 420 and 406/34 of the Penal Code.

7. On perusal of the FIR, the materials collected in course

of investigation including statement of witnesses recorded under

Section 161(3) of the CrPC and the police report submitted under

Section 173(2) of the CrPC, the learned Chief Judicial Magistrate vide

impugned order dated 08.09.2013 took cognizance of the offence and

summoned the petitioners to face trial. It would be evident from the

record that the petitioners in Cr.Misc. No.53326 of 2013, namely, Md.

Kalam Anwar, Md. Nezamuddin and Md. Ekram are the persons to
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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whom the petitioners of Cr.Misc. No.45519 of 2013 had subsequently

sold the land in question after entering into an agreement to sell with

the informant of the case.

8. It is submitted by Mr. N.K.Agrwal, learned Senior

Advocate appearing in Cr. Misc. No.45519 of 2013 that the complaint

is an abuse of the process of the court as none of the ingredients of the

offences punishable under Section 420 or 406 of the Penal Code are

attracted. He contended that it is not the case of the informant that the

petitioners did not own and possess the property or that they are not

competent to enter into an agreement to sell or could not have

transferred title in property to the informant. He contended that simply

because an agreement to sell was entered into, which agreement the

petitioner failed to honour, it cannot be said that the petitioner has

cheated the respondent. In support of his submission he placed

reliance on the decisions of the Hon’ble Supreme Court in Murari Lal

Gupta vs. Gopi Singh, [(2005)13 SCC 699] and Dalip Kaur and

Others vs. Jagnar Singh and Another [(2009)14 SCC 696].

9. He contended that from perusal of the complaint it would

be evident that in compliance of the condition of the agreement to sell

dated 22.06.2011, the petitioners handed over possession of the

property to the informant and his brother, which goes to show that the

intent of the petitioners at the inception of transaction was bona fide.
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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He contended that since the informant failed to pay the rest amount

within the stipulated period, the petitioners sold the land in favour of

co-accused Md. Kalam Anwar, Md. Nezamuddin and Md. Ekram,

which act of the petitioners would not attract the ingredients of the

offences alleged.

10. Mr. Shakeel Ahmad Khan, learned counsel appearing

on behalf of the petitioners in Cr. Misc. No.53326 of 2013 submitted

that even if the entire allegations are accepted to be true, no offence is

made out against the petitioners. He contended that there is no

assertion in the entire complaint that the petitioners ever tried to

deceive the informant either by making a false or misleading

representation or by any other action or omission. He contended that

if the sale deed is executed conveying a property claiming ownership

over it after receipt of the sale consideration from the purchaser by no

stretch of imagination it can be said that the purchaser has either

committed any breach of trust or cheated any one.

11. Per contra, Mr. Ajay Kumar Thakur and Mr. Sanjeet

Kumar learned Advocates appearing on behalf of the informant

submitted that it is an admitted case of the parties that pursuant to an

agreement entered into between the parties, the informant paid a sum

of rupees thirty five lakh seventy five thousand, but subsequently the

land was transferred by the land owner in favour of some other
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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purchasers. He contended that such an allegation would certainly

attract the ingredients of the offences punishable under Sections 420

and 406/34 of the Penal Code. He contended that a given set of fact

may make out a civil wrong as also a criminal offence and only

because a civil remedy may also be available to the informant that

itself cannot be a ground to quash a criminal proceeding. In support of

his submission he placed reliance on the decision of the Hon’ble

Supreme Court in the matter of Vijayander Kumar and Others vs.

State of Rajasthan and Another [(2014) 3 SCC 389].

12. Learned Additional Public Prosecutors appearing on

behalf of the State have adopted the submissions made by the learned

Advocates appearing on behalf of the informant.

13. Having considered the rival submissions made on behalf

of the parties, I find force in the submissions made by the learned

Advocates appearing on behalf of the petitioners in these two cases.

14. The facts of the present case are exactly identical to the

facts of the case of Murari Lal Gupta vs. Gopi Singh (supra). In the

said case the accused had entered into an agreement to sell certain

property in Delhi for a consideration of Rs.4.50 lakhs out of which

Rs.3.50 lakhs was paid by the complainant to him. The balance

amount of Rs.1 lakh was to be paid at the time of registration of the

sale deed and delivery of possession. The complainant alleged that
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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inspite of three legal notices having been given, the accused failed to

honour the agreement and thus cheated him. He, therefore, filed a

complaint under Sections 406 and 420 of the Penal Code alleging that

the petitioner did not honour the agreement inspite of three legal

notices having been given. After recording of the statement of the

complainant and three other witnesses examined by him, the learned

Magistrate dismissed the complaint holding that it was pure and

simple case of breach of an agreement to sell creating civil liability

between the parties and the appropriate remedy for the respondent was

to file a civil suit for specific performance of agreement and not to file

a criminal complaint. The complainant challenged the order passed by

the learned Judicial Magistrate in the Court of Session and the learned

Sessions Judge allowed the revision application forming an opinion

that inspite of civil remedy being available, a criminal prosecution

was not barred. Thereafter, the accused filed a transfer petition under

Section 406 of the CrPC before the Hon’ble Supreme Court seeking

transfer of criminal case from the Court of Judicial Magistrate, 1st

Class in the State of Bihar to the competent court in Delhi. After

hearing the parties, a three-Judge Bench of the Hon’ble Supreme

Court in the said case observed as under:

“We have perused the pleadings of the parties,
the complaint and the orders of the learned
Magistrate and the Sessions Judge. Having
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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taken into consideration all the material made
available on record by the parties and after
hearing the learned counsel for the parties, we
are satisfied that the criminal proceedings
initiated by the respondent against the
petitioner are wholly unwarranted. The
complaint in an abuse of the process of the
court and the proceedings are, therefore, liable
to be quashed. Even if all the averments made
in the complaint are taken to be correct, yet the
case for prosecution under Section 420 or
Section 406 of the Penal Code is not made out.
The complaint does not make any averment so
as to infer any fraudulent or dishonest
inducement having been made by the petitioner
pursuant to which the respondent parted with
the money. It is not the case of the respondent
that the petitioner does not have the property or
that the petitioner was not competent to enter
into an agreement to sell or could not have
transferred title in the property to the
respondent. Merely because an agreement to
sell was entered into which agreement the
petitioner failed to honour, it cannot be said
that the petitioner has cheated the respondent.
No case for prosecution under Section 420 of
Section 406 IPC is made out even prima facie.
…………..”.

15. In Dalip Kaur and Others vs. Jagnar Singh and
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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Another (supra) the question for determination before the Hon’ble

Supreme Court was whether breach of contract of an agreement for

sale would constitute an offence under Section 406 or Section 420 of

the Penal Code. After examining the facts of the case and the relevant

sections of the Penal Code, the Hon’ble Supreme Court held that an

offence of cheating would constitute when the accused has fraudulent

or dishonest intention at the time of making promise or representation.

A pure and simple breach of contract does not constitute the offence

of cheating. It further held that if the dispute between the parties was

essentially a civil dispute resulting from a breach of contract on the

part of the appellant by non-refunding the amount of advance, the

same would not constitute an offence of cheating or criminal breach

of trust.

16. Coming back to the facts of the present complaint, it is

an admitted fact that the petitioners in Cr. Misc. No.45519 of 2013 did

own and possess the property for which negotiation is said to have

been held. It is not the case of the informant that any of the accused

tried to deceive him either by making a false or misleading

representation nor it is a case that they offered him any fraudulent or

dishonest inducement to deliver any property pursuant to which the

informant parted with the money.

17. In view of the ratio laid down by the Hon’ble Supreme
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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Court in the afore-stated cases, at best, it is a pure and simple case of

breach of contract, which would not attract ingredients of the offence

under Section 420 or 406 of the Penal Code.

18. I also find substance in the argument of Mr. Shakeel

Ahmad Khan, learned Advocate appearing in Cr.Misc. No.53326 of

2013 that by no stretch of imagination the purchasers could have been

summoned to face trial for the offences alleged. There is nothing

against the purchasers, which would even remotely attract the

ingredients of Sections 420 and 406 of the Penal Code against them.

19. So far as the contention of Mr. Ajay Kumar Thakur,

learned Advocate appearing on behalf of the informant that given set

of facts may make out a civil wrong as also a criminal offence and

only because a civil remedy may also be available to the informant

that itself cannot be a ground to quash the criminal proceeding is

concerned, there is no quarrel with the said proposition. However, if

the given set of facts do not attract any criminal offence, in that case

launching of criminal prosecution by the informant would certainly be

an abuse of the process of the court.

20. The reliance placed by the informant in the decision of

the Hon’ble Supreme Court in Vijayander Kumar vs. State of

Rajasthan (supra) is of no help to him, as the facts of that case are

quite different. The case of the petitioners is squarely covered by the
Patna High Court Cr.Misc. No.45519 of 2013 dt.17-05-2017

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decisions of the Supreme Court in Murari Lal Gupta vs. Gopi Singh

and Dalip Kaur and Others vs. Jagnar Singh and Another (supra).

21. In view of the discussions made above, allowing the

prosecution to continue any more would amount to an abuse of the

process of the court. Accordingly, the impugned order dated

08.09.2013 passed by the learned Judicial Magistrate, 1st Class, Patna

passed in Pirbahore P.S. Case No.31 of 2013, is hereby quashed. The

application stands allowed.

(Ashwani Kumar Singh, J)

Md.S./-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 20.05.2017
Transmission 20.05.2017
Date

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