D.G.R.PATNAIK, J. - (1.) THE petitioner in this application has prayed for quashing the entire criminal proceedings pending against them in C.P. Amit Ambar Kachhap Versus Union Of India Case No. 345 of 1998 as also the order dated 5.1.1999 passed by Sri D.K. Sharma, the learned Judicial Magistrate, Chas, whereby the learned Court below has taken cognizance against the petitioners of offences under Sec. 420/34 of the Indian Penal Code in the aforesaid proceedings. Primary grounds advanced in support of the prayer is that the order of cognizance passed by the learned Court below was without application of judicial mind and without proper appreciation of the nature of the allegations levelled by the complainant/opposite -party No. 2. Learned Counsel submits that on reading the entire allegations. It would transpire that at best, they constitute a dispute of civil nature arising out of breach of agreement and which could attract civil liability, but by no stretch of imagination, can any criminal liability be invoked against the petitioners. Learned Counsel adds further that the entire allegations of the complainant are false, concocted and Imaginary and, as a matter of fact, neither the petitioner had ever approached the complainant with any offer for sale of their lands, nor was there any occasion for them to receive any money whatsoever from the complainant by way of consideration money for any imaginary sale of property and the instant case against the petitioners has been instituted with mala fide motive for the purpose, of causing undue harassment to the petitioners and for seeking revenge against them.
(2.) OPPOSITE -party No. 2 has appeared through his counsel. Controverting the grounds urged on behalf of the petitioners, learned Counsel for the opposite -party No. 2 submits that the petitioners have not advanced any reasonable and sustainable ground for quashing of the order of cognizance in the criminal proceedings. Learned Counsel explains that the allegations contained In the complaint petition of the opposite -party No. 2 specifically accuse the petitioners of having cheated him of his money by dishonest means and on reading the allegations in the complaint as well as the statements of the complainant and his witnesses as recorded on solemn affirmation, the learned Court below has rightly found a prima facie case for offence under Sec. 420/34 of the Indian Penal Code against the petitioners and therefore, there is no infirmity much less any illegality in the impugned order of cognizance. For better appreciation of the grounds advanced by the petitioners, background facts of the case may be mentioned in brief: The case against the petitioners was registered on the basis of a complaint filed by the opposite -party No. 2 on 24.10.1998 before the learned Court below alleging inter alia that the accused persons, including these petitioners had approached the complainant at his house for a sum of Rs. 72,000.00 against which they had offered to sell their land to the complainant. Being induced by the offer, the complainant accepted the proposal and agreed to purchase the land. An oral agreement was entered into pursuant to which the complainant had paid a sum of Rs. 62,000.00 by way of advance payment to the petitioners on their assurance that they would execute a sale -deed in respect of the land in favour of the complainant after receipt of the balance consideration money. The land being situated at the native village of the parties at village Loharapar, the sale -deed was also to be executed and registered at the registry office of competent jurisdiction. It is further stated that the accused persons after having received the sum of rupees sixty two thousand had conveniently left the house of the petitioners during his absence taking the money with them and later when the complainant had approached them, they had instructed the complainant to come with the balance consideration amount to the registry office where the sale -deed would be executed and registered. The complainant went to the registry office, but despite waiting for the whole day, the accused -petitioners did not turn up. Later, the complainant served a legal notice demanding either execution of the sale -deed or refund of his money but the accused -petitioners did not respond to his demand and hence cause of action for filing the case.
(3.) LEARNED Counsel for the petitioners argued that even if entire allegations are taken to be correct in its entirety, it would be apparent that the complainant's case is based on an agreement between him and the petitioners for the sale of the land belonging to' the petitioners and as part performance of his obligation in the agreement, the complainant had paid advance consideration money and the petitioners were obliged to execute the sale -deed in favour of the complainant after receipt of the balance settled consideration money. Failure on the part of the petitioners to perform their part of the agreement would, in the circumstance, at best, invite a civil liability, and not a criminal liability, against the petitioners. To buttress his arguments, learned Counsel for the petitioners refers to the judgments of the Patna High Court in the case of Farhana Nasreen V/s. State of Bihar, 2001 2 EastCrC(Pat) 353 ; Keshav Kumar Roy V/s. State of Jharkhand and yet another judgment of this Court in the case of Tarkeshwar Nath Katariya V/s. State of Jharkhand . Amit Ambar Kachhap Versus Union Of India;