J P SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application u/s. 482 of the Code of Criminal Procedure (hereinafter the 'Code') the petitioners seek quashing of their criminal prosecution in a complaint case including the order dated 18.4.95 passed by the learned Chief Judicial Magistrate taking cognizance of the offences u/ss. 420 and 120 -B of the Indian Penal Code (hereinafter 'I.P.C.') and summoning the petitioners for trial.

(2.) ONLY such of the facts as are relevant may be recounted Dr. J.P. Sinha (petitioner no 1) is a retired Professor and Head of the Department of Radiology and is presently the Director, X -ray Institute, Patna. Ram Sewak Singh (petitioner no. 2) is a retired Director of Coal India Limited and Smt. Shashi Singh (Petitioner no. 3) and Smt. Sujata Singh (petitioner no. 4) are his two married daughters and all three reside in New Delhi. Dr. Umesh Prasad Singh (O.P. No. 2) is the Administrator of Chikitsa Nursing Home, Patna. O.P. no. 2 filed a complaint case no. 283(C) of 1995 on 17.4.95 alleging that on 3rd October, 1993 petitioner no. 1 dropped in his office and disclosed that petitioner no. 2 and his two daughters petitioner nos. 3 and 4 intended to sell their land measuring 8 kathas and the house standing over it situated at Srikrishnapuri, Patna, as also one flat situated at Basant Kunj, New Delhi, allotted by the Delhi Development Authority. On enquiry petitioner no. 1 told the complainant -O.P. no. 2 that the only son of petitioner no. 1 had already settled in America and hence he along with his daughters intended to settle there after disposing of their property in India. On learning that the approximate price of the property was Rs. 40,00,000/ - (forty lacs), O.P. no. 2 told petitioner no. 1 that he was not interested in purchasing the property whereupon petitioner no. 1 went on persuading him and suggested that he should give second thoughts to the proposal. Petitioner no. 1 allegedly continued to presuade O.P. no. 2 on phone in between 3.10.93 to 9.10.93. It is alleged that on the morning of 10th October, 1993 all the four petitioners visited the office of O.P. no. 2 and petitioner no. 1 introduced the other petitioners to him. They disclosed to O.P. no. 2 that out of 8 Kathas of land at Patna 4 kathas belonged to petitioner no. 2 and the remaining 4 kathas to his two daughters and that the flat at Basant Kunj, New Delhi, belonged to petitioner no. 3. Petitioner nos. 2, 3 and 4 narrated the urgency to dispose of the property as they had made up their mind to settle in America. O.P. no. 2 finally agreed to purchase the abovementioned properties for a consideration of Rs. 30,25,000/ - with vacant possession prior to the execution of the sale deed O.P. no. 2 was informed that the house at Patna was occupied by the Bihar State University Service Commission as a tenant and the period of tenancy was to expire in December, 1993 whereafter on the vacation of the land and house its possession would be handed over to him. It is further alleged that a deed of agreement for the same was executed on 4th November, 1993 and according to the agreement the opposite party paid to petitioner no. 2 Rs. 7,50,000/ - only in cash and gave a demand draft of Rs. 2,00,000/ - and a cheque for Rs. 50,000/ -. A further amount of Rs. 5,00,000/ - was given by the opposite party to petitioner no. 2 on 15.12.93 by two cheques one for Rs. 1,50,000/ - and another for Rs. 1,00,000/ - and Rs. 2,50,000/ - only in cash.

(3.) O .P no. 2 alleged that though he had been persuaded to part with total sum of Rs. 15,00,000/ - the sale deed was not executed by 30th April, 1994 nor vacant possession of the house at S.K. Puri at Patna and at Basant Kunj in New Delhi was handed over to him. O.P. no. 2 further alleged that petitioner no. 2 instead of getting the house at Patna vacated by the University Service Commission extended the terms of its lease and petitioner nos. 3 and 4 who were the owners of the flat at New Delhi did not execute any power of attorney in favour of petitioner no. 2 who executed the deed of agreement. When O.P. no. 2 did not receive any message from petitioner nos. 1 and 2 he wrote a letter on 4.3.94 to petitioner no. 2 and requested him to execute the sale deed by 30.4.94 as per the deed of agreement. When he did not receive any reply from petitioner no. 2 he contacted petitioner no. 1 on telephone who evaded reply on the ground of his failure to contact petitioner no. 2. O.P. no. 2. suspecting some fraud insisted petitioner no. 1 for a copy of the power of attorney dated 27.10.93 executed by petitioner nos. 3 and 4 in favour of petitioner no. 2. petitioner no. 1 sent a photo -stat copy of the power of attorney on 30.4.94 and O.P. no. 2 was surprised to find that petitioner nos. 3 and 4 had not executed any power of attorney in respect of the flat at Delhi. O.P. no. 2 claims to have been thereby cheated as petitioner no.2 had not produced the power of attorney on 4.11.93 and had given a false excuse that he forgot to bring it. O.P. no. 2 immediately contacted petitioner no. 1 alleging that he had been cheated. Thereupon petitioner no. 2 sent a letter on 27.4.94 annexing an ante dated letter dated 17.4.94 denying that the agreement included the Delhi property and expressed his intention to cancel the deed of agreement. When O.P. no. 2 informed petitioner no. 1 about all this petitioner no. 1 became nervous and promised to call petitioner no. 2 to Patna. O.P. no. 2 remained in contact with petitioner no. 1 who assured him that he had had a talk with petitioner no. 2 and petitioner no. 2 had assured him to complete the work after the marriage in his family. O.P. no. 2 thus alleged that the petitioners entered into a criminal conspiracy to cheat him and fraudulently and dishonestly induced him to part with Rs. 15,00,000/ - in between 3.10.93 to 15.12.93. A true copy of the complaint petition together with its enclosures including the agreement for sale has been filed as Annexure -1 to this application.