IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Misc. No. 3375 o”
1. Shambhu Nath Khaware 2. Digambar Nath Khaware ... Petitioners Versus 1. The State of Jharkhand 2. Dinesh Sarewar @ Dipu Sarewar … Opposite Parties --- CORAM : HONBLE MR. JUSTICE D. N. UPADHYAY --- For the Petitioners : Mr. Purnendu Kr. Jha For the State : A. P. P. For O.P. No. 2 : --- 06. 12.09.2013: This criminal miscellaneous petition has been filed for quashing of the order dated 27.2.2001 passed by learned Judicial Magistrate, Deoghar in connection with P.C.R. Case No. 676 of 2000, whereby and whereunder, the petitioners have been directed to face trial for the offences punishable u/s 406/420 IPC for which they were summoned. The case of the prosecution in brief is that an agreement took place between the parties against the sale of land, measuring 2 Acres 64.5 decimals for which different deeds were likely to be executed at the instance of complainant by the petitioners. It is disclosed that the petitioners have received Rs. 5,25,000/- as an advance and executed an agreement acknowledging the terms and conditions as well as the advance sums received by them. The complainant has further made out a case that the petitioners had executed some of the deeds complying the said agreement but thereafter they had executed sale deeds in favour of another persons after taking money from him and thus cheated the complainant and misappropriated the amount paid by him. The complainant had served with a legal notice but the petitioners in reply have refused to have received advance as indicated in the said agreement and hence he lodged a complaint vide P.C.R. Case No. 676 of 2000. It is submitted that as per the agreement, the complainant was under obligation to clear the total consideration amount of the land in question on or before 30.6.1999. There was a forfeiture clause in the agreement. When the complainant failed to comply with the terms and conditions and did not pay the balance consideration amount, as per the agreement, the 2. advance money was forfeited. Furthermore, in pursuant to said agreement, the petitioners executed 11 sale deeds in favour of the persons in whose favour the complainant had directed to execute sale deeds. Thus it is clear that the petitioners were not having deceptive intention and they have not cheated the complainant nor misappropriated the money paid to them. At best the complainant can seek remedy by lodging suits because it is purely a civil dispute between the parties. Learned counsel appearing for the State has opposed the prayer, whereas counsel of the complainant is absent. I have gone through the impugned order and material placed before me. The agreement executed by the petitioners in favour of complainant is not denied and the advance amount received by them stood acknowledged which is also not in dispute. The only contention of the petitioners is that the money which they had received in advance under the said agreement has been forfeited due to non-compliance of the terms and conditions mentioned in the agreement and for that the petitioners are not at fault. I do not find that the petitioners have served with any notice against forfeiture of the advance amount, rather the admitted fact on record is that they had proceeded to comply the terms and conditions of the agreement and executed few sale deeds. It appears that at the initial stage of the transaction deceptive intention of the petitioners was not apparent, but after performing part obligation they had sold the remaining property to other persons for wrongful gain and causing loss to the complainant. It is often seen in commercial translation that initially the parties might not have deceptive intention or it was not surfaced at that point of time, but the facts remain that in such transactions, the intention of the parties can only be judged when the occasion arises at the stage of performing their part of obligation under the contract and that has happened in this case too. The petitioners after performing part obligation, without having legal orders from any court or without taking legal 3. recourse to, had sold the remaining property to other purchasers after receiving consideration amount from them and thus prima facie committed the offences as indicated in the impugned order. Since the contention made in the complaint and the evidence adduced during inquiry, prima facie attracts ingredients of the offences for which the accused persons have been directed to face trial, I do not find any merit in this criminal miscellaneous petition. Accordingly, the same stands dismissed. The petitioners are directed to appear before the court below within 30 days and the court after receipt of the order shall issue notice against the complainant so that he may proceed further. (D.N. Upadhyay, J.) MK