Shiv Narayan Yadav @ Supan Rai And ANR v. State Of Bihar And ANR
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.19282 of 2013 Arising Out of Complaint Case No. -754 Year- 2012 Thana -Maner District- PATNA ===========================================================
1. Shiv Narayan Yadav @ Supan Rai S/o Late Jagar Nath Yadav, resident of Sahalichak, P.S.- Maner, District- Patna.
2. Champa Devi W/o Late Jagar Nath Yadav, resident of Sahalichak, P.S.- Maner, District- Patna.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. Sohan Lal S/o Late Tetar Pal @ Kesari Pal, resident of village- Mohanpur, Police Station- Maner, District- Patna.
.... .... Opposite Party/s =========================================================== Appearance :
For the Petitioner/s : Mr. B.K. Singh, Advocate For the O.P. No. 2 : Mr. Mahtab Alam, Advocate For the State : Mr. G. Pd. Yadav, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR ORAL JUDGMENT Date: 06-09-2017
1. Heard learned counsel for the petitioners, the opposite party no. 2 and also learned Additional Public Prosecutor for the State.
2. This criminal miscellaneous application under section 482 of the Code of Criminal Procedure has been filed to quash the order dated 22nd November 2012 passed by the learned Judicial Magistrate 1st Class, Danapur in Complaint Case No. 754(C) of 2012 whereby and whereunder the learned Magistrate finding prima facie case for the offences under sections 406, 420 and 504 of the Indian Penal Code, ordered for issuance of summons against the petitioners
2/6 and co-accuseds.
3. The opposite party no. 2 filed a Complaint Case No. 754(C) of 2012 on the file of learned Additional Chief Judicial Magistrate, Danapur alleging therein that these petitioners along with other co-accused, entered into an agreement to sell 7 katha 10 dhur land at the rate of Rs.1,00,000/- per katha and paid an amount of Rs.5,75,000/- in total. The petitioners further agreed to sell another plot as per second agreement, agreed to execute sale deed at the rate of Rs. 1,65,000/- per katha. The complainant paid an amount of Rs.14,21,000/- for second agreement. The petitioners in spite of repeated demand, did not execute the sale deed and on the day of occurrence when the last demand was made, these petitioners abused and assaulted the complainant.
4. The learned counsel for the petitioners submits that the dispute between the parties is purely a civil dispute. It was the complainant who did not get the sale deed executed after paying the balance of consideration money. The dispute between the parties is out and out a civil dispute and the O.P. No. 2 has right to recover the money or get the conditions of agreement implemented by filing a suit for specific performance of contract. The allegation of cheating or committing breach of trust is omnibus and no offence as alleged, is made out. The learned Magistrate without applying judicial mind, has taken cognizance and summoned the petitioners and so, the order
3/6 taking cognizance is not sustainable and is fit to be quashed.
5. On the other hand, the learned counsel for the opposite party no. 2 as well as learned Additional Public Prosecutor vehemently opposed the submission.
6. On perusal of complaint petition, I find that the petitioners and the opposite party no. 2 and his partners entered into an agreement for sale and purchase of land. The copy of the said agreement is on record and from its perusal it appears that no specific date for performing the contract has been mentioned. The dispute between the parties appears out and out a civil dispute and the opposite party no. 2 has right to get the agreement enforced by filing a suit for specific performance of contract.
7. In a three-Judge Bench decision of the Supreme Court in Nageshwar Prasad Singh alias Sinha Vs. Narayan Singh & Anr. [(1998) 5 SCC 694], a similar question fell for consideration and relying upon illustration (g) of section 415 I.P.C., 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. 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
4/6 constitute an offence under section 406 or section 420 I.P.C.. After examining the fact of the case and the relevant sections of the Indian Penal Code, 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.
8. In State of Haryana v. Bhajan Lal, it was, inter alia observed as follows: (SCC pp. 378-79, 102): 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604.
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and
5/6 inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground
6/6 for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
9. In view of above principles laid down by the Hon'ble Supreme Court as discussed above, I find that criminal prosecution of these petitioners would be an abuse of process of Court. As such, this criminal miscellaneous application is allowed and the order dated 22nd November 2012 passed in Complaint Case No. 754(C) of 2012 as well as the criminal prosecution of these petitioners on the basis of said order, is hereby quashed. (Sanjay Kumar, J) Mahesh/- AFR/NAFR NAFR CAV DATE N/A Uploading Date 24.09.2017 Transmission Date 24.09.2017