OM PRAKASH SHARAF Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) BY the Court. ''This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the order dated 24.2.2005 passed in Complaint Case No. C 659 of 2004 by Sri Dinesh Kumar, Judicial Magistrate, Ranchi whereby and whereunder learned Magistrate took cognizance of the offence under Section 417 of the Indian Penal Code against the petitioners.

(2.) THE facts giving rise this application are that complainant - opposite party No. 2 lodged the complaint stating therein that one Haribux Poddar died leaving behind his four daughters, namely, Durga Bai, Parmeshwari Bai, Sabitri Bai and Rampyari Bai and each of them got 1/4th share in undivided properties left behind by Haribux Poddar and that one Rajesh Kesera (accused No. 1) being son of Durga Bai got 1/4th undivided share of the property and he told the complainant that these two petitioners, sons of Sabitri Bai who do have l/4th share in the property are desirous of selling the same and then Rajesh Kesera took the complainant to the place of these two petitioners at Naugachhia, who also offered to sell their properties and then the complainant paid entire consideration amount of Rs. 19,99,000/ - on 3.8.2003 and then sale deed was drafted which was executed by these two petitioners and was handed over to the complainant for presenting it before the District Sub -Registrar, Ranchi and these two petitioners agreed to come on the date fixed so that they may remain present before the Sub -Registrar but the petitioners never turned up, as a result of which the sale deed could not be registered and when the petitioners were approached, they told that Rajesh Kesera has warned them not to execute the sale deed and thereafter when Rajesh Kesera was approached, he demanded Rs. 5,00,000/ - more for getting the sale deed registered. Thus, it has been alleged that accused persons cheated him and caused wrongful loss to him. Thereafter statement of the complainant was recorded on solemn affirmation and the matter was taken up for enquiry under Section 202 of the Code of Criminal Procedure and the Court took cognizance of the offence after recording that there appears to be prima facie case against the petitioners.

(3.) LEARNED counsel appearing for the petitioners submits that even if the entire allegation made in the complaint petition is taken to be true, no offence is made out under Section 417 of the Indian Penal Code as the petitioners on the basis of statement made in the complaint can never be said to have induced the complainant fraudulently and dishonestly to part with the money, nor the petitioners, in the facts and circumstances, can be said to have had any right from the beginning to cheat the complainant. It was also submitted that complainant has already approached the competent Court of law for the remedy of civil wrong alleged to have been committed by the petitioners by bringing a suit for specific performance which was right course for the complainant -opposite party No. 2 to adopt as this is an out and out a case of civil liability.