BENU KUMAR GHOSE Vs. HAREKRUSHNA MAHASUARA

JUDGEMENT

(1.) Petitioner, who is accused in I.C.C. No. 316 of 2007 instituted by opposite party-complainant in the Court of S.D.J.M., Puri, has filed this application under Section 482, Cr.P.C. for quashing the order dated 9.10.2007 by which cognizance of offences under Sections 406 and 420, I.P.C. was taken and process was issued for his appearance.

(2.) Complainant's case is that the accused executed an agreement for sale of his undivided share in the property as described in the schedule to the agreement and with regard to which Civil Suit bearing C.S. No. 148 of 2003 and I.A. No. 114 of 2003 for injunction on the ground of preferential right are subjudice in the Court of Civil Judge (Senior Division), Puri. In terms of the agreement, the complainant paid instalment of Rs. 50,000/ - to the accused. Thereafter, the complainant sent a letter to the accused to come to Puri to execute sale deed on receipt of balance consideration amount of Rs. 3,25,000/ -. The accused deliberately returned the letter. Therefore, the complainant sent pleader notice, which was received by the accused on 3.2.2006. Said letter was also cunningly returned by the accused. Thus, accused instead of complying with the condition in the agreement to execute sale deed within two months, has cheated the complainant for Rs. 50,000/ -. On the other hand accused in his reply to the pleader notice stated that advance amount of Rs. 50,000/ - has been forfeited. On the basis of such averments it was asserted by the complainant that the accused is liable to be proceeded for commission of offences under Section 406, 420 and 506, I.P.C. On receipt of complaint petition, statement of the complainant was recorded under Section 200, Cr.P.C. and enquiry was conducted under Section 202, Cr.P.C., in course of which one witness was examined. On the basis of averments made in the complaint petition, the statement of the complainant and the statement of the witness, the impugned order was passed.

(3.) It was contended by learned Counsel for the petitioner that the petitioner has a share in his ancestral property situated at Puri. By agreement dated 19.4.2004 the petitioner agreed to sale his undivided share over the property to the complainant for Rs. 3,75,000/ -. As per the terms and conditions of agreement, the opposite party paid Rs. 50,000/ - as first instalment and balance amount of Rs. 3,25,000/ - was payable on or before 18.6.2004. Despite repeated requests made by the petitioner, the opposite party failed to pay the balance amount for which the petitioner suffered loss. Instead of instituting appropriate proceeding in Civil Court, the petitioner has maliciously instituted I.C.C. 316 of 2007, though the dispute between the parties is civil in nature. It was argued that plain reading of the complaint petition clearly shows that petitioner's grievance relates to alleged violation of agreement for sale executed by the parties. Even if averments made in the complaint petition are accepted on face value, the same do not indicate commission of offence of either cheating or misappropriation. In support of his contentions, learned Counsel for the petitioner relied upon decisions of Hon'ble Supreme Court in V.Y. Jose and Anr. v. State of Gujarat and Anr., 2009 42 OCR 488 and Devendra and Ors. v. State of U.P. and Anr.,2009 43 OCR 680 and of this Court in Lilasons Breweries Limited and Anr. v. Sujata Manjari Pati,2009 1 OLR 826