R.R.PRASAD, J. - (1.) HEARD learned counsel appearing for the petitioner, learned counsel for the State and also learned counsel for the O.P. No. 2. This application has been filed for quashing the entire criminal case including the order dated 19.08.2011, passed in C.P. No. 116 of 2009, whereby and whereunder cognizance of the offences punishable under Sections 406, 420, 323 of the Indian Penal Code has been taken against the petitioner.
(2.) IT is the case of the complainant that the complainant entered into an agreement with this petitioner, who is the owner of the land, whereby, a sum of Rs. 33,18,750/ -was paid to the petitioner, on giving assurance that the complainant would sell the land and thereby, if he receives less amount than Rs. 33,18,750/ -, the petitioner would be returning that much of the amount which would be less of Rs. 33,18,750/ -. On such assurance, the complainant sold the land, but he could fetch a sum of Rs. 24,89,750/ - only and thereby he was under loss of Rs. 8,29,750/ -which amount was demanded by the complainant from the petitioner, but the petitioner refused to make payment of the said amount and thereby it was alleged that the petitioner has committed offence under Sections 420 and 406 of the Indian Penal Code. On such complaint, cognizance of offences punishable under Sections 420, 406 and 323 of the Indian Penal Code has been taken against the petitioner. That order is under -challenge. Mr. K. P. Deo, learned counsel appearing for the petitioner submits that even if, the entire allegations made in the complaint petition are taken to be true in its entirety, no offence of cheating or mis -appropriation is made out rather it would be a case of civil liability as it is the case of the complainant that when the complainant sold the land at the rate fixed by the petitioner, he suffered a loss of Rs. 8,29,750/ -. Thus, no allegation seems to be there that the petitioner made any mis -representation fraudulently or dishonestly to induce the complainant to part with the money and as such, question of committing offence of cheating and mis -appropriation does not arise.
(3.) LEARNED counsel further submits that in fact, the instant prosecution is actuated with malice as the petitioner had earlier lodged a case against the complainant which was registered as Chas P.S. Case No. 16 of 2009 under Sections 420, 406, 323 /34 of the Indian Penal Code alleging therein that at the instance of one Mritunjay Sharma, the petitioner had executed Power of attorney, in favour of complainant Shivji Sharma and Vinod Sharma who executed a registered sale -deed in favour of Mritunjay Sharma and his family members and thereby, they had received a sum of Rs. 35,55,000/ -though they had never been given power under the Power of attorney to receive the money. Since that transaction was quite illegal, petitioner as usual in exercise of his right came over the land in question, but it was objected by Mritunjay Sharma. When the petitioner raised protest, he got him boarded on a car forcibly. However, he anyhow got himself released from the clutches of the accused persons.;