JYOTI PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Sri Uday Chand Prasad, learned counsel for the petitioner, Sri Jharkhandi Upadhaya, the learned A.P.P. for the State and Smt. Binita Singh, learned counsel for O.P. No. 2.

(2.) THROUGH this application the petitioner prays for quashing of the order dated 23.6.2006 passed in Complaint Case No. 274(C) of 2002 by learned Chief Judicial Magistrate, Kishanganj, whereby cognizance has been taken under Sections 384 and 389 I.P.C. against the petitioner. The complainant, one Haridas Ghosh, impleaded herein as O.P. No. 2, filed the aforesaid complaint on 9.4.2002 inter alia stating that an agreement had been arrived at between him and the petitioner for sale of 16 bighas of land for a consideration of Rs. three lacs and a sum of Rs. 11,000/ - was paid as advance with stipulation that the balance amount of Rs. 2,89,000/ - would be paid by 31.7.2001, whereupon the sale deed would be executed and if the petitioner did not appear to execute the deed the money advanced would be forfeited. It is alleged that the petitioner was requested to deposit stamps worth Rs. 1,64,800/ - but he instead of depositing the same, sent a legal notice on 28.7.2001 to the complainant mentioning that although the complainant entered into an agreement on 15.7.2001 with stipulation that on 27.7.2001 he will execute the sale deed of the lands in question but on the said date the petitioner waited at the Registry Office till 4 P.M. but the complainant did not come. It is said that on receipt of the notice the complainant immediately responded on 2.8.2001 through lawyer 'snotice stating that neither the balance amount of Rs. 2,89,000/ - was paid nor were the Registration Fee paid by chalan, even then, and as such he was requested to deposit the balance amount by bank draft by 21.8.2001 and pay the registration amount. It has further been said that the complainant contacted the petitioner on telephone several times but there was no response and thereafter the petitioner kept threatening the complainant over telephone requesting him to deposit the balance amount.

(3.) IT has been submitted by the learned counsel for the petitioner that he had committed no offence and all the allegations attributed to him were untrue forged and the real facts have been suppressed. Admitting the agreement between them and the payment of Rs. 11,000/ - as advance money it was sought to be submitted that the complainant had agreed to execute a proper sale deed after duly receiving the balance of the consideration of Rs. 2,89,000/ - up to 31.7.2001 but that notwithstanding the complainant changed his residence from Kishanganj to Birganj and began to reside there and notwithstanding the petitioner requesting the complainant several times to execute the sale deed after receiving the balance amount there was no response thereto. It has further been submitted that on 15.7.2001 the complainant promised the petitioner that he would visit the Registry Office to execute the sale deed on 27.7.2001 but he never turned up either to receive the balance consideration or to execute the sale deed and it was then that the legal notice was sent requesting him to execute the sale deed and receive the balance consideration. As the request by the petitioner was not being complied by the complainant the petitioner had filed Complaint Case No. 867(C)/2001 before the Chief Judicial Magistrate, Kishanganj on 29.8.2001 and after due inquiry under Section 202 Cr.P.C. cognizance was taken under Sections 323, 341, -406 and 504 I.P.C. against the complainant and it was in retaliation to the said complaint case that the instant complaint case had been filed on concocted grounds. It has further been submitted that when the complainant totally refused to execute the sale deed the petitioner filed Title Suit No. 26/2003 on 12.8.2003 to compel the complainant to execute the sale deed after receiving the balance consideration.