IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.25931 of 2014
Arising Out of PS.Case No. -330 Year- 2012 Thana -PATNA COMPLAINT CASE District-
PATNA

1. Smt. Renu Devi wife of Shri Suresh Singh.

2. Suresh Singh son of Late Narayan Singh. Both are resident of village
Hinduni Tola, Nayanchak, P.S. Phulwari Sharif, District Patna.

…. …. Petitioners
Versus

1. The State of Bihar.

2. Shivgovind Ray son of Late Tunna Roy resident of village Alampur,
P.S. Phulwari, District Patna.

…. …. Opposite Party

Appearance :

For the Petitioner/s : Mr. Sachhidanand Choudhary, Advocate
: Mr. Sudhir Kumar, Advocate
For the Opposite Party : Mr. Lala Sachindra Kumar, Advocate
For the State : Mr. Mayanand Jha, Advocate

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 09-08-2017

Heard learned counsel for the petitioners,

learned counsel for the complainant-opposite party no.2 and

learned Additional Public Prosecutor for the State.

The petitioners, in the present case, are seeking

quashing of the order taking cognizance and issuance of

summon dated 03.07.2012 passed by learned Judicial

Magistrate, 1st Class, Patna by which cognizance for the

offences under Sections 420, 323 and 504 of the Indian Penal
Patna High Court Cr.Misc. No.25931 of 2014 dt.09-08-2017

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Code has been taken in Complaint Case No. 330(C) of 2012.

Learned counsel for the petitioners has placed

the statement made in the complaint petition, as contained in

Annexure-1. The complainant-opposite party no. 2 has

alleged that under an agreement to sell dated 22.11.2005, the

accused persons who are petitioners in the present case and

their mother namely, Devanti Devi, agreed to sell the land

bearing plot no. 642, Khata No. 129, Thana 37, Tauzi 5325 in

Mauza Abdul Rahmanpur measuring an area of 6 decimals.

It is alleged that the accused persons taking the

complainant in belief received a sum of Rs. 3,00,000/-, the

accused no. 1 signed the agreement to sell showing receipt of

advance and promised to execute a registered deed but they

kept on postponing execution of the deed on one pretext or

another.

The complainant-opposite party no. 2 claims that

he kept on believing the word of the accused persons, but the

accused persons did not execute the registered deed. It is

alleged that on 20.07.2011, complainant-opposite party no. 2

went to the house of the accused persons and requested

them to execute the registered deed, on which the accused
Patna High Court Cr.Misc. No.25931 of 2014 dt.09-08-2017

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persons allegedly became angry, abused the complainant-

opposite party no. 2 and ousted by pushing him and told him

that they will not execute the registered deed.

It is further alleged that the accused persons did

not execute the registered deed in respect of the land and

also did not reply to the legal notice.

In course of inquiry under Section 202 Cr.P.C.,

the complainant-opposite party no. 2 produced three

witnesses namely, Indradev Rai, Dina Nath Rai, and Ashok

Kumar who have supported the complainant’s case.

Learned counsel for the petitioners submits that

without adding or substracting anything out of the complaint

petition a bare reading of the same would show that no

criminal offence muchless an offence under Section 420, 323

and 504 I.P.C. would be made out. In his submission, the case

is at best that of a civil dispute which has been given colour of

criminal proceeding by making a story setting up the date of

20.07.2011 and 25.01.2012, where the complainant-opposite

party no. 2 alleged that the accused persons abused the

complainant and told him that the registered deed shall not

be executed.

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Learned counsel for the petitioners has placed

reliance upon judgment of the Hon’ble Supreme Court in the

case of Murari Lal Gupta Vs. Gopi Singh since reported in

(2006) 2 SCC (Cri.) 430; he has placed specific reliance upon

paragraph 6, which is quoted hereunder for ready reference:

“6. We have perused the pleadings of the parties, the
complaint and the orders of the learned Magistrate
and the Sessions Judge. Having 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 is 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 or Section 406 IPC
is made out even prima facie. The complaint filed by
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the respondent and that too at Madhepura against
the petitioner, who is a resident of Delhi, seems to be
an attempt to pressurize the petitioner for coming to
terms with the respondent.”

Further submission of learned counsel for the

petitioners would be that, in the present case, a mere

statement that the complainant had got an agreement to sell,

which was not honoured by the accused-petitioner, would

not be sufficient to constitute an offence of cheating.

According to learned counsel the very agreement to sell is a

forged and fabricated document and there is a complete

denial of the same by these petitioners. He would further

submits that the cognizance under Section 323 and 504 IPC

has also been taken in a routine and mechanical manner

without appreciating that those are ornamental allegations

made by complainant-opposite party no. 2 in order to make

out a case and to put pressure upon these petitioners. The

allegations are also vague and there was no material to

support the same.

On the other hand, learned counsel representing

the complainant-opposite party no. 2 submits that the

complainant-opposite party no. 2 has produced himself as
Patna High Court Cr.Misc. No.25931 of 2014 dt.09-08-2017

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well as three witnesses to support the allegation. The order

taking cognizance is based on the materials available on

record which need not be interfered with by this court at this

stage.

Learned counsel for the complainant-opposite

party no. 2 further submits that the petitioners had received

Rs. 3,00,000/- as advance in the name of execution of a

registered sale deed with respect to the land mentioned in

the complaint petition but the same was not honoured.

Learned counsel submits that the complainant-opposite party

no. 2 was waiting for execution of registered deed hence

there was some delay in filing the complaint petition.

I have heard learned counsel for the parties and

perused the materials on record. In order to appreciate the

rival contentions, it would be just and proper to quote the

relevant provision of Sections 420, 323 and 504 of the IPC,

whereunder cognizance have been taken by the learned

Magistrate, which reads as such:

S.420. Cheating and dishonestly inducing delivery of
property – Whoever cheats and thereby dishonestly
induces the person deceived to deliver any property to
any person, or to make, alter or destroy the whole or
any part of a valuable security, or anything which is
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signed or sealed, and which is capable of being
converted into a valuable security, shall be punished
with imprisonment of either description for a term
which may extend to seven years, and shall also be
liable to fine.

S.323. Punishment for voluntarily causing hurt –
Whoever, except in the case provided for by section
334, voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine which may extend
to one thousand rupees, or with both.

S.504. Intentional insult with intent to provoke breach
of the peace – Whoever intentionally insults, and
thereby gives provocation to any person, intending or
knowing it to be likely that such provocation will cause
him to break the public peace, or to commit any other
offence, shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both.

On perusal of the records particularly the

complaint petition, I have no iota of doubt that the entire

tone and tenor of the complaint petition would go to show

that it is at best a civil dispute which has been given colour of

a criminal proceeding. In the complaint petition, paragraph

nos. 1, 2 and 4 are entirely devoted towards the case of the

complainant that there was an agreement to sell under which

the petitioners had received the money but they have not

executed the sale deed. The allegation of abuse and pushing
Patna High Court Cr.Misc. No.25931 of 2014 dt.09-08-2017

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out the complainant from the house has been made vaguely

setting up the date of 20.07.2011 and 25.01.2012, which have

been apparently made in an ornamental manner to give it a

colour of criminal proceeding.

The relevant paragraph of the judgment relied

upon on behalf of the petitioner which has been quoted

hereinabove. In the said case, the complaint was filed under

Section 406 and 420 IPC on an allegation that the petitioner

of the said case despite having received a sum of Rs. 4.50 lacs

under an agreement to sell did not execute the sale deed. The

cognizance was taken by the learned Judicial Magistrate

which was set aside in revision by the learned Sessions Judge

(allowed by learned Sessions Judge).

The Hon’ble Apex Court having taken into

consideration the materials was satisfied that the criminal

proceeding initiated against the respondent was wholly

unwarranted and it was an abuse of the process of court.

The views expressed by Hon’ble Supreme Court in

the case of Inder Mohan Goswami and Anr. Vs. State of

Uttaranchal and Ors. since reported in (2007) 12 SCC 1 are

worth relying upon. The Hon’ble Apex Court has taken note of
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the cases in which in respect of a pure and civil dispute the

parties give it a colour of criminal proceeding. An extract from

paragraph ’23’ ’24’ of the said judgment is quoted

hereunder for ready reference : –

“23. This court in a number of cases has laid down the
scope and ambit of courts powers under section 482
Cr.P.C. Every High Court has inherent power to act ex
debito justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent
abuse of the process of the court. Inherent power under
section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under section 482 Cr.P.C. though
wide have to be exercised sparingly, carefully and with
great caution and only when such exercise is justified by
the tests specifically laid down in this section itself.
Authority of the court exists for the advancement of
justice. If any abuse of the process leading to injustice is
brought to the notice of the court, then the Court would
be justified in preventing injustice by invoking inherent
powers in absence of specific provisions in the Statute.”

The submission of learned counsel for the

opposite party no. 2 that this court should not interfere with

the order taking cognizance in the facts of the present case is

not acceptable.

This court is of the considered opinion that in the
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facts of the present case where agreement for sale is said to

have been executed in the year 2005 and the accused-

petitioners allegedly refused to abide by the agreement the

complainant would have at best a civil dispute in form of a

suit for specific performance of contract but he cannot be

allowed to turn the civil dispute in a criminal proceeding after

about 7 years. Learned counsel for the petitioners submits

that even otherwise a suit for specific performance of a

contract would be barred by limitation. It is his further

submission that after 7 years of the agreement the present

complaint was filed making a statement that the

complainant-opposite party no. 2 had gone to the police

station for lodging of an FIR but same was not registered.

According to him, this part of the statement is also not

believable and this court can take judicial notice of the fact

that it has become rhetoric to mention this fact in each and

every private complaint only in order to explain the delay.

This court having considered the totality of the

facts stated in the complaint would come to a conclusion that

it is at best a civil dispute and continuation of criminal

proceeding would not be just and proper. The learned
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Magistrate has taken cognizance in a routine and mechanical

manner.

In the facts and circumstances of the case, the

order taking cognizance dated 03.07.2012 passed by learned

Judicial Magistrate, 1st Class, Patna in connection with

Complaint Case No. 330(C) of 2012, is hereby quashed.

Accordingly, this application stands allowed.

(Rajeev Ranjan Prasad, J.)

Rajeev/-

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