Usha Devi & Ors vs State Of Bihar & Anr on 17 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.46180 of 2013
Arising Out of PS.Case No. -176 Year- 2012 Thana -K.Hat District- PURNIA

1. Usha Devi, W/o Arun Kumar Chaudhary,

2. Arun Kumar Chaudhary, Son of Late Hari Prasad Chaudhary,

3.Abhishek Chaudhary, Son of Arun Kumar Chaudhary
All are residents of Village-Rampur, P.S.-Mohanpur, District-Deoghar (Jharkhand)
…. …. Petitioners
Versus

1. The State of Bihar

2. Indradeo Parera, Son of Late Sukhdeo Parera, Resident of Mohalla-Purnea City,
P.S.- Sadar, District- Purnea
…. …. Opposite Parties

Appearance :

For the Petitioners :

Mr. Prahalad Kumar Bhagat, Advocate
Mr. Rounak Kumar Singh “Pankaj”, Advocate
For the Opposite Party No.1: Mr. Jharkhandi Upadhyay, APP
For the Opposite Party No.2: Mr. Bijendra Kumar Singh, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 17-08-2017

Heard Mr. Prahalad Kumar Bhagat, learned counsel

for the petitioners and Mr. Bijendra Kumar Singh, learned counsel for

the opposite party no.2.

2. The order under challenge in the present application is

dated 16.05.2013 passed by the learned Chief Judicial Magistrate,

Purnea in K. Hat P.S. Case No.176 of 2012 whereby the petitioners

have been summoned to face trial for the offences punishable under

Sections 419, 420, 406 and 504 of the Indian Penal Code.

3. The prosecution case is based on the written complaint of

the informant Indradeo Parera, who has alleged inter alia that he had

entered into an oral agreement with the petitioners for sale of land
Patna High Court Cr.Misc. No.46180 of 2013 dt.17-08-2017
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with one old pucca house situated at khata no.16, khesra no.293 and

422. Out of the total value of the said piece of plot and pucca house,

Rs. 2,50,000/- was paid by the informant through cheque drawn on

State Bank of India, Gulab Bag Branch to the petitioner Arun Kumar

Chaudhary and it was decided that the remaining amount of Rs.

1,00,000/- would be paid on the date of execution of the sale deed. It

is further alleged that the informant requested the petitioners for

execution of sale deed several times. Eventually, with great efforts,

the petitioners came to the Registry Office, Purnea at 10:00 a.m. on

14th March, 2012, but they did not execute the sale deed and when a

protest was made, they started abusing the informant.

4. On the basis of the aforesaid allegations, the informant

has alleged that the accused persons have deliberately cheated him.

5. The case was investigated upon by the police and, on

completion of investigation, a report under Section 173(2) of the Code

of Criminal Procedure (for short „Cr. P.C.‟) was submitted in the court

vide charge-sheet no.26 of 2013 dated 28.02.2013. Thereafter, the

learned Chief Judicial Magistrate, Purnea vide impugned order dated

16.05.2013 took cognizance of the offences punishable under Sections

419, 406, 420 and 504 of the Indian Penal Code and summoned the

petitioners.

6. The aforesaid order dated 16.05.2013 is under challenge
Patna High Court Cr.Misc. No.46180 of 2013 dt.17-08-2017
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before this Court.

7. It has been submitted by the learned counsel appearing

for the petitioners that the complaint, in question, is an abuse of the

process of the court, as none of the ingredients of the offences alleged

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

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

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

have transferred title in property to the informant. He has submitted

that simply because an agreement to sell was entered into, which

agreement the petitioners allegedly failed to honour, it cannot be said

that the petitioners have cheated the opposite party no.2 or cheated the

informant. In support of such submissions, he has placed reliance on

the decisions of the 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].

8. Learned counsel for the petitioners has further contended

that allegation of taking advance from the informant of the case

through cheque for the purpose of selling land and house is absolutely

false. He has submitted that there was neither any talk in this regard

nor any agreement was ever entered into between the parties. He has

submitted that the informant had taken Rs.2,50,000/- from the

petitioner no.1 for his treatment on 8th March, 2010 and, in this regard,
Patna High Court Cr.Misc. No.46180 of 2013 dt.17-08-2017
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the informant and petitioner no.1 had executed a loan agreement, as

contained in Annexure-2 to the present application wherein the

informant had promised to repay the loan amount on or before

November, 2010. The said amount of Rs. 2,50,000/- given as friendly

loan to the informant was returned to the petitioner no.1 through

demand draft in question on 06.09.2010.

9. On the other hand, learned counsel for the informant has

submitted that the defence taken by the petitioners cannot be made a

ground for quashing the criminal case at the stage of cognizance. He

has submitted that though there was no written agreement in respect

of sale of the land and house, there was an oral agreement to sell

between the parties and an advance payment to the tune of

Rs.2,50,000/- was also made by way of cheque. He has submitted that

the ingredients of the offences alleged are clearly attracted in the

present case. Hence, the impugned order taking cognizance of the

offences and summoning the petitioners to face trial does not suffer

from any illegality. He has 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.

10. Mr. Jharkhandi Upadhyay, learned Additional Public

Prosecutor for the State has adopted the submissions made by the
Patna High Court Cr.Misc. No.46180 of 2013 dt.17-08-2017
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learned counsel appearing on behalf of the informant.

11. Having considered the rival submissions made on behalf

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

counsel appearing on behalf of the petitioners.

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

facts of the case of Murari Lal Gupta (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 in spite 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 in spite 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
Patna High Court Cr.Misc. No.46180 of 2013 dt.17-08-2017
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learned Judicial Magistrate in the Court of Session and the learned

Sessions Judge allowed the revision application forming an opinion

that in spite 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
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
Patna High Court Cr.Misc. No.46180 of 2013 dt.17-08-2017
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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.”

13. In Dalip Kaur (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.

Patna High Court Cr.Misc. No.46180 of 2013 dt.17-08-2017
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14. Coming back to the facts of the present complaint, it is an

admitted case of the informant that the petitioners own and possess the

land and the house for which negotiation was made. The informant has

not made any allegation in the FIR that the petitioners intended to cheat

the informant right from the beginning. In that case, if the petitioners

failed to honour the promise or oral agreement made between the parties,

in the light of ratio laid down by the Supreme Court in Murari Lal

Gupta (supra) and Dalip Kaur (supra), the same would be a pure and

simple case of civil breach of contract and it would not constitute the

offences as alleged in the present complaint.

15. In that view of the matter, the impugned order dated

16.05.2013 passed by the learned Chief Judicial Magistrate, Purnea in K.

Hat P.S. Case No.176 of 2012 is quashed.

16. The application stands allowed.

(Ashwani Kumar Singh, J.)
Sanjeet/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.08.2017
Transmission 22.08.2017
Date

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