KASHINATH MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings including order dated 15.5.1998 passed in Silli P.S. Case No. 23/98, G.R. No. 831/98, whereby and whereunder learned C.J.M., Ranchi took cognizance against the petitioner under Section 406 and 420 of the Indian Penal Code.

(2.) FACTS leading to filing of the application are that the complainant opposite party No. 2 filed a complaint case alleging, inter alia, therein that accused persons including the petitioner entered into an agreement for sale of 0.08 decimals of their land appearing to Khata No. 57 Plot No. 201 in village Chhota Muri, P.S. Silli, District -Ranchi on 30.11.1996. There was an agreement between the parties that complainant shall get the above land registered in his name after paying consideration amount of Rs. 32,000.00 to the accused persons and as per agreement the complainant opposite party No. 2 was supposed to pay the rest of the amount of consideration being Rs. 7,000.00 for the said land at the time of registration. It is further alleged that Rs. 25,000.00 was paid as advance money out of Rs. 32,000.00 to the accused persons by the complainant and receipt of which has been acknowledged by the accused persons in the agreement itself. It is further alleged that the accused persons after having received the amount at Rs. 25,000.00 gave position to the said land to the complainant and allowed him to construct his house over the said land but on 25th April, 1997 when the complainant opposite party No. 2 went to the accused persons with remaining consideration amount of Rs. 7,000.00 and requested them to get the above said land registered then accused persons went on postponing the date of registration of the said land till 16th March, 1998 and finally on 18.3.1998 the accused persons refused to register the said land in the name of complainant and at the same time also refused to pay back the money of Rs. 25,000.00 to the complainant.

(3.) FROM perusal of the complaint petition itself, it appears that an agreement was entered into between the parties for the sale of 0.08 decimals of land appertaining to Khata No. 57 Plot No. 201 in village Chhota Muri, P.S. Silli, District -Ranchi and complainant -O.P. No. 2 had paid Rs. 25,000.00 out of agreed amount of Rs. 32,000.00 as an advance and as per agreement, the petitioner -accused person had allowed him to take possession of the land and construct house. In pursuance of that agreement, complainant -O.P. No. 2 took possession over the land in question and constructed the house as per agreement and when he went to pay Rs. 7,000.00 , the remaining amount of Rs. 32,000.00 , then it is alleged that the petitioner -accused person avoided to take money and to execute the sale deed in favour of the complainant -O.P. No. 2. But one thing is clear that in pursuance of receipt of sum of Rs. 25,000.00 , the petitioner allowed the complainant -O.P. No. 2 to take possession and construct the house, therefore, it appears that part of the agreement was adhered to. But now the only thing is execution of sale deed in favour of the complainant -O.P. No. 2 in pursuance of that agreement. It is also clear that at one point of time, the entire amount was not paid and, therefore, the sale deed was not executed. But from perusal of the complaint petition, it also appears that part performance of contract is required to be done and for that petitioner should approach Civil Court and file Title Suit for part performance of the contract, so in the facts and circumstances of the case, no case under Sec. 406 or 420, Indian Penal Code is made out because it is not the case that the entire amount of Rs. 25,000.00 has been taken by the petitioner without giving possession to the complainant -O.P. No. 2 over the land and without allowing them to construct the house. It is clear that the petitioner -accused person have parted with the possession of the land and allowed complainant -O.P. No. 2 to construct the house and no disturbance was put up before the complainant -O.P. No. 2 for performance of those two things i.e. taking possession over the land agreed to be sold and construction of house over that land.