Judgment:
ORDER
D.G.R. Patnaik, J.
1. The petitioner in this application has prayed for quashing the entire criminal proceedings pending against them in C.P. Case No. 345 of 1998 as also the order dated 5.1.1999 passed by Sri D.K. Sharma, the learned Judicial Magistrate, Chas, whereby the learned Court below has taken cognizance against the petitioners of offences under Section 420/34 of the Indian Penal Code in the aforesaid proceedings.
Primary grounds advanced in support of the prayer is that the order of cognizance passed by the learned Court below was without application of judicial mind and without proper appreciation of the nature of the allegations levelled by the complainant/opposite-party No. 2. Learned Counsel submits that on reading the entire allegations. It would transpire that at best, they constitute a dispute of civil nature arising out of breach of agreement and which could attract civil liability, but by no stretch of imagination, can any criminal liability be invoked against the petitioners. Learned Counsel adds further that the entire allegations of the complainant are false, concocted and Imaginary and, as a matter of fact, neither the petitioner had ever approached the complainant with any offer for sale of their lands, nor was there any occasion for them to receive any money whatsoever from the complainant by way of consideration money for any imaginary sale of property and the instant case against the petitioners has been instituted with mala fide motive for the purpose, of causing undue harassment to the petitioners and for seeking revenge against them.
2. Opposite-party No. 2 has appeared through his counsel.
Controverting the grounds urged on behalf of the petitioners, learned Counsel for the opposite-party No. 2 submits that the petitioners have not advanced any reasonable and sustainable ground for quashing of the order of cognizance in the criminal proceedings. Learned Counsel explains that the allegations contained In the complaint petition of the opposite-party No. 2 specifically accuse the petitioners of having cheated him of his money by dishonest means and on reading the allegations in the complaint as well as the statements of the complainant and his witnesses as recorded on solemn affirmation, the learned Court below has rightly found a prima facie case for offence under Section 420/34 of the Indian Penal Code against the petitioners and therefore, there is no infirmity much less any illegality in the impugned order of cognizance.
3. For better appreciation of the grounds advanced by the petitioners, background facts of the case may be mentioned in brief:
The case against the petitioners was registered on the basis of a complaint filed by the opposite-party No. 2 on 24.10.1998 before the learned Court below alleging inter alia that the accused persons, including these petitioners had approached the complainant at his house for a sum of Rs. 72,000/- against which they had offered to sell their land to the complainant. Being induced by the offer, the complainant accepted the proposal and agreed to purchase the land. An oral agreement was entered into pursuant to which the complainant had paid a sum of Rs. 62,000/- by way of advance payment to the petitioners on their assurance that they would execute a sale-deed in respect of the land in favour of the complainant after receipt of the balance consideration money. The land being situated at the native village of the parties at village Loharapar, the sale-deed was also to be executed and registered at the registry office of competent jurisdiction. It is further stated that the accused persons after having received the sum of rupees sixty two thousand had conveniently left the house of the petitioners during his absence taking the money with them and later when the complainant had approached them, they had instructed the complainant to come with the balance consideration amount to the registry office where the sale-deed would be executed and registered. The complainant went to the registry office, but despite waiting for the whole day, the accused-petitioners did not turn up. Later, the complainant served a legal notice demanding either execution of the sale-deed or refund of his money but the accused-petitioners did not respond to his demand and hence cause of action for filing the case.
4. Learned Counsel for the petitioners argued that even if entire allegations are taken to be correct in its entirety, it would be apparent that the complainant's case is based on an agreement between him and the petitioners for the sale of the land belonging to' the petitioners and as part performance of his obligation in the agreement, the complainant had paid advance consideration money and the petitioners were obliged to execute the sale-deed in favour of the complainant after receipt of the balance settled consideration money. Failure on the part of the petitioners to perform their part of the agreement would, in the circumstance, at best, invite a civil liability, and not a criminal liability, against the petitioners. To buttress his arguments, learned Counsel for the petitioners refers to the judgments of the Patna High Court in the case of Farhana Nasreen v. State of Bihar 2001 (2) East Cr C 353 (Pat); Keshav Kumar Roy v. State of Jharkhand and yet another judgment of this Court in the case of Tarkeshwar Nath Katariya v. State of Jharkhand .
5. Legal proposition as enunciated in the judgments cited by the petitioners is virtually settled. The scope and purpose of inherent power of the High Court under Section 482, CrPC reserves right to the Court to quash a criminal proceeding where it finds that the entire allegation in the complaint constitute purely a dispute of civil nature based on the breach of contract and continuance of the criminal prosecution would amount to an abuse of the process of the Court. The above proposition of law necessarily implies that quashing of the criminal proceedings can be resorted to only if the complaint discloses a dispute exclusively of civil nature. In cases, however, where a dispute arising out of breach of contract also attracts ingredients of penal offence; the above proposition of law will not sustain support.
6. Facts of the cases in the judgments referred to are distinguishable from the facts of the instant case. Though the dispute raised by the complainants in the aforementioned cases were based on breach of contract involving non-execution of the sale-deeds by the accused persons even after having received advance consideration money, but there was no denial made by the accused persons of having received money by way of advance consideration from the aggrieved complainant. The accused persons in each of the aforementioned cases had accepted the fact that agreement of sale was entered into between the parties and thereafter had taken the plea of that since there is provision in the Specific Relief Act for the aggrieved party for enforcement of the contract, the dispute relating to breach of contract is exclusively a civil dispute leaving no scope to attract penal liability.
7. In the instant case, on the other hand, it appears from the stand taken by the petitioners and the submissions made on their behalf that they have totally denied having ever approached the complainant or having ever made any proposal for sale of their lands to the complainant or having received money whatsoever from him on the plea that there is no documentary evidence to support the complainant's claim. The petitioners have totally denied the very existence of any contract between them and the complainant and have claimed that the entire allegations in the complaint petition are false and concocted and made to harass them. The complainant, on the other hand, has alleged that the petitioners being his co-villagers and acquainted with him, had approached him with their offer of sale of their land to the complainant and having induced him to purchase the land for a settled consideration money, they had induced him to deliver the sum of rupees sixty two thousand to them for execution of the sale-deed in his favour and they had left the complainant's house with the money without notice and have ultimately denied to have obtained any money from him at all; that the intention of the petitioners at the time they had induced the complainant to part with his money was dishonest from the beginning had transpired to him only after the petitioners had failed to turn up at the registry office for execution of the sale-deed and later despite repeated demands of the complainant, both oral and by way of legal notice, they failed to execute the sale-deed or refund his money. It is apparent that from the allegations in the complaint that there are elements therein which suggest, prima facie, the offences of which the cognizance was taken. Denial on the part of the petitioners of having ever entered into any agreement whatsoever with the complainant and their denial of having received any money from him constitute grounds by way of their defence which can be appreciated in proper perspective only at the trial.
8. In the present case, on reading the allegations in the complaint petition, it cannot be said that the dispute between the parties is exclusively a civil dispute, merely because, according to the complainant's own admission, there was an oral agreement, the condition of which the petitioners had breached by failing to perform their part of the agreement. The aspersion contained in the allegations is that on false promises and representations, the petitioners had induced the complainant to part with his money and that the petitioners had practiced deception and fraud upon the complainant by making false promises and assurances for deriving wrongful gain for themselves and to cause wrongful loss to the complainant. The ratio in the judgments cited by the petitioners do not apply to the facts and circumstances of the present case. In my opinion, where the facts alleged constitute penal offence, criminal liability can very well be maintained, even though, a civil liability also arises against the accused on the same set of facts.
9. For the reasons aforesaid, I do not find any merit in this application. The grounds advanced are not sufficient to interfere with the impugned order of cognizance taken by the learned Court below or for quashing the entire criminal proceedings pending against the petitioners in C.P. Case No. 345 of 1998.
This application is, therefore, dismissed.