TARKESHWAR NATH KATARIYAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure is directed against the order dated 12.8.2003 passed in complaint Case No. 506 of 2003 whereby and whereunder the learned Judicial Magistrate, 1st Class, Hazaribagh took cognizance under Sections 406 and 420, IPC.

(2.) THE facts briefly stated are that O.P. No.2 complainant filed a complaint case in the Court of learned Chief Judicial Magistrate, Hazaribagh stating therein that she had expressed her desire to purchase a piece of land which was actually a rasta in Khata No. 366, plot Nos. 9357 and 9358 and price of the land was fixed at Rs. 25,000/ -. In pursuance of that, complainant O.P. No.2 entered into agreement with the petitioner for purchase of that piece of land. Thereafter, a sum of Rs. 10,000/ - was given to the petitioner in advance and the petitioner allowed her to construct latrine and tank over the same. She in pursuance of the agreement, constructed the latrine and tank over the same. But at the same time, there was agreement that balance amount of Rs.15,000/ - she (complainant) will pay to the petitioner -accused by April 2003 and when she reminded the petitioner to execute the sale deed in her favour but he avoided and ultimately, the petitioner executed the sale deed in favour of another person but the amount which was paid by the complainant by way of advance, was not returned to her in spite of several reminders she made to the petitioner and she even sent a notice to him through Advocate. Thereafter she has filed this case.

(3.) ON the other hand, learned counsel appearing for the complainant -O.P. No.2 submitted that there is no averment in the complaint petition that she was ready to make payment of Rs.15,000/ - to perform her part of the agreement; rather in this connection she met several times to the petitioner and requested him to execute sale deed, but he refused to execute the sale deed and ultimately executed the sale deed in favour of another person and this fact will be clear from the notice which she sent to the petitioner through Advocate wherein it is mentioned in Para 4 that she was ready to make payment of outstanding amount of Rs.15,000/ - and requested him to execute the sale deed, but neither he executed the sale deed nor returned the sum of Rs.10,000/ - which she had given to the petitioner by way of advance. In this connection, reliance has been placed upon 2001 (3) Supreme Court Cases 19 of which, Para 8 is quoted herein below: