Ravindra Kumar Chaudhary vs State Of Bihar & Anr on 15 May, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.45359 of 2013
Arising Out of Complaint Case No. -2327 Year- 2011 Thana -null District- PATNA

1. Ravindra Kumar Chaudhary S/O Late Banwari Lal Chaudhary Resident Of F/4-
B, Pushpa Bihar Apartment, Exhibition Road, P.S- Gandhi Maidan, District
Town, Patna, At Present 58 Upper Ground Floor, Kailash Hill, East Of Kailash,
New Delhi- 65

…. …. Petitioner/s
Versus

1. The State Of Bihar

2. Rana Pratap Singh S/O Late Ram Swarup Singh Resident Of Shnkutlayan,
Akashwani Road, Khajpura, Bailey Road, P.S- Rajiv Nagar, District Town,
Patna.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Ramakant Sharma, Sr. Adv.

Mr. Rajesh Kumar, Adv.

For the State : Mr. Parmanand Prasad, APP
For Opposite Party No.2 : Mr. Jai Prakash Singh, Adv.

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 15-05-2017

This application under Section 482 of the Code of

Criminal Procedure has been filed for quashing the order dated

22.02.2012 passed by the learned Judicial Magistrate 1st Class, Patna

in Complaint Case No. 2327(C) of 2011 whereby the learned

Magistrate has summoned the petitioner to face trial for the offences

punishable under Sections 406 and 420 of the Indian Penal Code (for

short „IPC‟).

2. It is stated in the complaint that the accused being a

builder constructing Raunak Vatika Apartment at Patna became close
Patna High Court Cr.Misc. No.45359 of 2013 dt.15-05-2017

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to the complainant as his house was situated nearby the construction

site. The complainant negotiated with the accused Ravindra Kumar

Choudhary for purchase of a flat in the apartment measuring 1190

square feet. The total negotiation amount was fixed at Rs.31,15,000/-.

Thereafter, the accused directed the complainant to deposit 25% of

the consideration amount and believing his words the complainant

paid Rs.2,01,000/- by cheque no. 457958 on 22.03.2010 and

Rs.5,74,000/- by cheque no. 457959 on 05.05.2010. Since the

complainant had negotiated for purchase of the flat in the name of his

son, money receipts were issued in his name. After repeated request,

an agreement to sell dated 10.02.2011 was sent to the complainant

which was valid till 28.03.2011. The son of the complainant being

left with no choice signed the agreement. The agreement paper was

produced in the S.B.I., Judges Road Branch, Patna, which sanctioned

loan vide letter dated 28.03.2011. As the said agreement to sell was

valid upto 28.03.2011 the Bank vide letter dated 29.03.2011

READ  State vs Pintoo on 9 May, 2017

requested the accused to sign the agreement extending the agreement

to sell for a suitable period and the period was extended for a day

only. The Bank, thereafter, issued the required cheque on 29.03.2011

amounting to Rs.23,40,000/- in the name of accused and cheque

amounting to Rs.2,50,000/- towards fee for registration.

3. It is stated that rest Rs.57,454/- required for fees for
Patna High Court Cr.Misc. No.45359 of 2013 dt.15-05-2017

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registration was paid to the Bank by the complainant through cheque

dated 29.03.2011.

4. It is stated that, on 29.03.2011 while the accused was

present at Patna, when the complainant informed him that the cheque

for payment of the remaining amount of flat is ready and arrangement

for registration of sale deed has been done and now the accused has

only to sign the sale deed, the accused disbelieved the complainant.

Thereupon the son of the complainant sent the copies of cheque and

other relevant documents to the accused through email for his

satisfaction then the accused fled to Delhi on 29.03.2011 itself.

5. It is stated that thereafter the accused entered into an

agreement to sell in connection with the same flat with another

person, namely, Devendra Kumar and has received Rs.4,78,000/- on

06.04.2011. It is alleged that in this way the accused has defrauded

the booking amount paid by the complainant through cheque.

6. It is contended by the learned counsel for the petitioner

that since the complainant failed to fulfill the promise as per the

agreement to pay the balance amount within the stipulated period, the

execution of sale deed was not made by the petitioner in his favour.

He contended that at the time of consideration of bail, pursuant to the

order dated 03.07.2011 passed by the learned Sessions Judge, Patna

in A.B.P. No. 2128 of 2012 the petitioner has already paid back the
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entire amount advanced by the complainant for purchase of the flat in

question. He contended that in case the summoning order is quashed,

the petitioner would not lay any claim over the amount handed over

to the complainant pursuant to the order passed by the learned

Sessions Judge in the aforesaid A.B.P. No. 2128 of 2012.

7. On the other hand, learned counsel for the complainant

submitted that though the petitioner has returned the principal amount

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taken as consideration for sale of the flat, interest over the amount has

not been paid to the complainant. He contended that in any view of

the matter, a prima facie case is made out under Sections 406 and 420

of the IPC and thus the order passed by the learned Magistrate cannot

be faulted with.

8. I have heard learned counsel for the parties and perused

the record.

9. In view of the allegation made in the complaint, I am of

the view that it cannot be inferred that the petitioner had a guilty

intention at the time of booking the flat or entering into an agreement

to sell with the complainant. It is not the case of the complainant that

the petitioner did not own or possess the flat in question or that the

complainant was not competent to enter into an agreement.

10. In Nageshwar Prasad Singh alias Sinha Vs. Narayan

Singh Anr. [(1998) 5 SCC 694], a similar question fell for
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consideration before the Supreme Court and relying upon illustration

(g) of section 415 IPC, it was held that the agreement for sale of land

and the earnest money paid to the owner as part of consideration and

possession of land and the subsequent unwillingness of the owner to

complete the same, gave rise to a liability of civil nature and the

criminal complaint was, therefore, not competent.

11. In Murari Lal Gupta Vs. Gopi Singh [(2005) 13 SCC

699], a three-Judge Bench of the Supreme Court observed as under :-

“…Having taken into consideration all the
materials 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. …”

Patna High Court Cr.Misc. No.45359 of 2013 dt.15-05-2017

READ  Mohit Bansal vs State Of Haryana And Anr on 9 March, 2017

6/7

12. In Dalip Kaur Ors. Vs. Jagnar Singh Anr. [(2009)

14 SCC 696], the question for determination before the Supreme

Court was whether breach of contract of an agreement for sale would

constitute an offence under section 406 or section 420 IPC. After

examining the fact of the case and the relevant sections of the IPC,

the Supreme Court held that an offence of cheating would be

constituted when the accused has fraudulent or dishonest intention at

the time of making of 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

appellants by non-refunding the amount of advance the same would

not constitute an offence of cheating or criminal breach of trust.

13. Having regard to the facts and circumstances of the

present case and taking into consideration the ratio laid down by the

Supreme Court in the decisions quoted hereinabove, in my opinion, it

is a case of pure and simple breach of contract and the dispute is

essentially a civil dispute and the criminal complaint is, therefore, bad

in law.

14. Accordingly, the Complaint Case No. 2327(C) of 2011

including the order dated 22.02.2012 passed by the learned Judicial

Magistrate 1st Class, Patna is hereby quashed. However, in case the
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petitioner claims return of the amount from the complainant deposited

by him pursuant to the order dated 03.07.2011 passed by the learned

Sessions Judge, Patna, the order quashing the summoning of the

petitioner and complaint shall be deemed to be recalled and the

petitioner shall have to face trial.

15. With the aforesaid observation and direction, the

application stands allowed.

(Ashwani Kumar Singh, J)

Pradeep/-

AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 16-05-2017
Transmission 16-05-2017
Date

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