Abdul Bari @ Abdul Barik and Others vs The State of Bihar and Others

I.P. Singh, J.—This application has been filed for quashing the complaint petition bearing C.A. Case No. 454 of 1999 filed for the alleged offences under Sections 120(B), 420, 467, 468 and 471 of the Indian Penal Code as also for quashing the order dated 7.12.1999 passed by the Chief Judicial Magistrate, Katihar by which summons have been issued against the Petitioners.

learned Counsel appearing on behalf of the Petitioners has submitted that the matter raised in the complaint petition is purely of civil nature and civil suit is pending in the competent court. It has been further submitted that the result of pending Title Appeal No. 1/95 will bearing on the complaint petition and as such continuance of this complaint will amount to an abuse of the process of the court. It has been further submitted that no prima facie case is made out against the Petitioners and even no money transaction has taken place between the complainant and the accused persons including the Petitioners. It has been further submitted that the Petitioners have been dragged in this case with malafide intention since there is admitted enmity between the parties.

In support of his contention learned Counsel has relied on a decision reported in P.C.C.R 2000 (1) 369 : [2000 (3) PLJR (SC) 136] (Hirdaya Ranjan Pd. Verma v. The State of Bihar and Ors.) in which the facts of the case was that a number of persons sold a piece of land to some one and executed sale deed and also gave possession of the land. They also executed seperate indemnity deed in favour of that person since one of the brothers of vendof of the land had filed a civil suit for partition of the land prior to execution of sale deed by them. The cheques issued by the vendee; were dishonoured and vendor lodged F.I.R. against the vendee and also filed suit for realisation of money from vendee. Shortly thereafter the vendee filed complaint against vendor for cheating and dishonestly inducing delivery of property and fraudulent execution of sale deed. It was held by the Apex Court that to fasten a person guilty of cheating it was necessary to? how that he had fraudulent and dishonest interest at the time of making promise. In that case the Apex Court found that ingredients of the offence as alleged was not made out and ingredients of intentional deception at the beginning of initiation for transaction has neither been directly started nor indi (sic) rectly suggested in the complaint petition Accordingly it was held by Apex Court that continuance of Criminal proceeding against the vendor would amount an abuse of the process of the court.

In the present case the complainant had paid advance to one late Balbhadra Pandit for purchase of land and for which he had executed registered agreement to sell the land on 17.5.1989. The land holder died leaving behind two sons who were legal heirs of late Balbhadra Pandit. But they refused to execute sale deed and the(sic) complainant had filed title suit for spec(sic) performance of contract in respect of lan(sic) in question. After contest the suit was de (sic) creed in favour of the complainant (sic) 30.11.1994 and remaining consideration money was also deposited in the court (sic) the meantime son of late Balbhadra Pan(sic) preferred an appeal in the competent co(sic) against that order and by order dated 18.3.1999 status quo till disposal of the (sic) appeal was ordered. It is alleged that (sic) defeat the order of status quo a day prior(sic) the order accused persons executed reg(sic) tered sale deed No. 2838 dated 17.3.1999(sic) respect of half of the suit land in favour of one Abdul Rajak. Both the Petitioners in the present case are not vendee and are witnesses of the sale deed. As such ingre-lilents of cheating i.e. fraudulent and dis(sic) honest intention at the time of making prom(sic)ise is not made out against these Petitioners since neither they are vendee nor they are vendor neither it was alleged that they had received money in the transaction.

In view of above, the order dated 7.12.1999 is not sustainable in the eye of jaw and is fit to be quashed. Accordingly, lie order dated 7.12.1999 is quashed and this application is allowed.