FARHANA NASREEN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS petition has been filed under Sec. 482 of the Code of Criminal Procedure for quashing of the order dated 12 -10 -1999 passed by the Judicial Magistrate, Katihar in Complaint Case No. 13/99 taking cognizance of the offences under Secs. 120 -B, 406, 420 and 468 of the Indian Penal Code against the petitioners and notices have been sent to the petitioners.

(2.) PETITIONER No. 1. Farhana Nasreen is the wife of petitioner No. 2, Md. Mohiuddin. Petitioner No. 1, Farhana Nasreen owns and possesses land as depicted in the complaint case in the Katihar town. Petitioner No. 1 had executed a power of attorney in favour of her husband, petitioner No. 2 and that petitioners had appointed one Phool Khan (who happens to be accused No. 1 in the case and not the petitioner) as their caretaker at Katihar, since the petitioners reside at Docrdarshan Road -Rourkela, Orissa. As per the complaint petition, in the month, of May, 1998, the complainant entered into an oral contract at the instance of Phool Khan for sale of the land described in the complaint petition for consideration of Rs. 90,000.00 and an earnest money of Rs. 35,105.00 was paid through Phool Khan to petitioner No. 1 by a Bank draft drawn on State Bank of India, but then various attempts were made by the complainant to get the sale deed executed and registered but the accused -persons did not comply with the request, hence, the case was filed.

(3.) LEARNED Counsel for and on behalf of the complainant submitted that even if civil liability is there but criminal inability also cannot be ignored as from the circumstances it could be found that with the purpose of cheating such an agreement was made and an amount of Rs. 35,105.00 had been taken by the petitioners. But, it appears that although in the complaint petition it is stated that oral agreement was made with Phool Khan in presence of the petitioners but during the statement made, the complainant said that he had made agreement with Phool Khan alone. Again it has been submitted that Bank draft is in favour of petitioner No. 1 which has been made over to Phool Khan and the money must have been received by petitioner No. 1. The same has been totally denied from the side of the petitioners. Thus on the face of the records, it cannot be said that any ingredients of the penal provisions on which cognizance has been taken come to play in the present facts and circumstances of the case as narrated above. Thus, I find and held that the cognizance taken against the petitioners is bad in the eye of law with regard to the Complaint Case No. 13/99 and hence quashed in respect of the petitioners alone.