Manas Kumar Gupta vs State Of Jharkhand

Gautam Kumar Choudhary, J

This criminal revision petition has been preferred against the order dated 27.06.2019 passed in P.C.R. No.241/2015 by which the discharge petition of the petitioner has been rejected and the learned court below held that prima facie case is made out under Sections 418 and 406 of the Indian Penal Code.

As per the complaint petition filed on 24.06.2015 by opposite party no.2, the accused no.1 had wanted to sell his land as detailed in the complaint petition to the complainant for which an oral agreement was entered for sum of Rs.3,00,000/-. In pursuant to it, Rs.1,05,000/- was paid to the accused on 02.05.2011. It is also averred that on different dates, the balance amount was paid by the complainant in A/c No.30628253413. After full payment of consideration amount, a legal notice was served following which the instant case has been filed. During enquiry, statement of the complainant was recorded and four witnesses were examined, on the basis of which summoning order was issued and the summoning order was challenged in Cr.M.P. No.1548 of 2016 which was dismissed as withdrawn on 17.03.2017.

Petitioner preferred discharge petition under Section 245 of the Cr.P.C. dated 14.03.2019 which has been rejected against which the instant petition has been filed.

It is submitted by learned counsel on behalf of petitioner that part of the prosecution case has been falsified as the case was lodged against the entire family of the petitioner, but cognizance has been taken only against the petitioner who happens to be the accused no.1. A purely civil dispute has given a texture of criminal case by clever drafting of the complaint petition.

Even if it is assumed that the allegations are true, no offence will be made out. The oral agreement is allegedly said to have taken place on 02.05.2011 whereas the complaint has been filed on 24.06.2015. There is no material to remotely suggest that any step was taken by the complainant for specific performance of the said agreement. Instant case is a ploy to grab the land of the petitioner who is a Government employee who posted in the State of M.P. and now he has retired from the service. Enquiry witness no.1 is the son of the complainant and enquiry witness no.3 has stated to the court question that no document regarding monitory transaction took place in his presence, and the complainant has himself admitted in para 4 that he had not taken any money receipt with regard to the payment made.

With respect to the amounts deposited in the Account, it is submitted that the complainant was a care taker of the land of the petitioner and the amount that was collected by felling of trees, was deposited in the Account which is claimed to be the part of consideration amount. With regard to the offence involved under Section 406 of the IPC, will not at all be made out as there was no entrustment with the petitioner. Reliance is placed on Vinod Natesan Versus State of Kerala & Others, (2019) 2 SCC 401, Vikram Johar Versus State of Uttar Pradesh & Another, AIR 2019 SC 2109.

Learned A.P.P. assisted by learned counsel on behalf of informant defended the impugned order. It is submitted that P.W. 3 has stated in para 3 that in his presence neither any amount was paid not any document regarding it was prepared. As per the complainant’s case, this witness was present at the time when the payment was made, but he has himself refuted any such payment having been made.

Law is settled that while considering discharge petition the Court has to apply its judicial mind although a mini trial is not to be expected to be held at this stage. It has been held in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 the following principles for exercising power of discharge laid down in Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 were quoted with approval:

“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.”

This revision need to be allowed and the impugned order is fit to be set aside for the following reasons:

Firstly, technically a suit for specific performance of contract can be brought even on an oral agreement for sale, but such cases are practically unheard of in the present times. There is no material to show that the complainant ever filed any suit for specific performance of contract.

Secondly, the oral agreement was made on 02.05.2011 whereas the complaint has been filed on 24.06.2015 after more than five years of the said agreement.

Thirdly, not a chit of paper is in support of cash receipt has been filed although it is averred that Rs.1,05,000/-.

Fourthly, it is claimed that balance amount was also deposited in the account of the complainant, but again there is no material to show that the said amount was paid in pursuant to the oral agreement for sale of the land owned by the Petitioner. If such criminal prosecutions are allowed to continue, then it will make the field open for motivated and dubious litigants.

Impugned order is set aside and the Revision Petition is allowed.