Rakesh Kumar MalhotrA. Vs. State of Bihar, and anr. - Court Judgment

Excerpt:
[d. k. jain ; h. l. dattu, jj.] - hindu marriage act, 1955 - section 13b - divorce by mutual consent -- subsequently, in 2001, the parties filed a petition under section 13b of the act before the district court, gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. (b) whether the court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 13b. divorce by mutual consent. 6) admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. on the question of whether one of the parties may withdraw the consent at any time before the actual decree of.....1. learned counsel for the petitioner appearing in criminal misc. no. 38457 of 2007 is permitted to correct the complaint case number in paragraph 1 and prayer portion of the application.2. criminal misc. no. 38457 of 2007 has been filed for quashing the order dated 04.12.2006 passed in complaint case no. 2221 (c) of 2006 by which the sub divisional judicial magistrate, patna has taken cognizance for the offence under section 420 of the indian penal code.3. sujeet kumar singh has filed a complaint against the petitioner alleging therein that he has not been handed over the possession of the flat purchased by the opposite party no. 2, despite the fact that opposite party no. 2 had paid the entire consideration amount. the said flat is in a multi-storied building and there was an agreement.....

Judgment:
1. Learned Counsel for the petitioner appearing in Criminal Misc. No. 38457 of 2007 is permitted to correct the complaint case number in paragraph 1 and prayer portion of the application.

2. Criminal Misc. No. 38457 of 2007 has been filed for quashing the order dated 04.12.2006 passed in Complaint Case No. 2221 (C) of 2006 by which the Sub Divisional Judicial Magistrate, Patna has taken cognizance for the offence under Section 420 of the Indian Penal Code.

3. Sujeet Kumar Singh has filed a complaint against the petitioner alleging therein that he has not been handed over the possession of the flat purchased by the Opposite Party No. 2, despite the fact that Opposite Party No. 2 had paid the entire consideration amount. The said flat is in a multi-storied building and there was an agreement for the sale of the flat along with the parking slot. During the pendency of this case, this Court intervened and got the flat measured and also got the parties to settle the dispute. Counsel for the petitioners, the Opposite Party No. 2 and the State were all present at the time of measurement and the matter seem to be amicably settled between the parties.

4. Counsel for the Opposite Party No. 2, therefore, does not oppose the prayer for quashing of the order of cognizance dated 04.12.2006.

5. Accordingly, this Court quashes the order dated 04.12.2006 passed by the Sub Divisional Judicial Magistrate, Patna in Complaint Case No. 2221 (C) of 2006.

6. Criminal Misc. No. 13291 of 2009 which was heard along with Criminal Misc. No. 38457 of 2007, for the reason that the petitioner no. 1 is the same in both the cases and petitioner no. 2 is the wife of petitioner no. 1, whereas the Opposite Party No. 2 Sujeet Kumar Sinha is the complainant in both the cases.

7. Criminal Misc. No. 13291 of 2009 has been filed for quashing the order dated 05.02.2009 passed in Complaint Case No. 2078 (C) of 2008 by which the Judicial Magistrate, 1st Class, Patna has taken cognizance for the offences under Sections 406 & 420 of the Indian Penal Code.

8. It has been alleged in the complaint petition that the petitioner no. 1 had taken a friendly loan from Opposite Party No. 2, which was paid through cheques dated 04.07.2005 and 31.08.2005. The total amount of friendly loan was Rs. 85,000/-. The facts of the former case and this case are interlinked inasmuch as the parties are common and the fact that there is a money transaction between the parties in both the cases. After the petitioner filed Criminal Misc. No. 38457 of 2007, this Court issued notice to the complainant, Sujeet Kumar Sinha and stayed further proceeding of the case vide order dated 15.02.2008. Before that, while the petitioner has filed his anticipatory bail application, the Opposite Party No. 2 paid a sum of Rs. 61,000/- in Court on 11.06.2007. After payment of the said amount, the key of the flat in question was handed over to the Opposite Party No. 2. After the stay was granted, it is submitted that the Opposite Party No. 2 has filed this present complaint case, alleging that the petitioner no. 1 has taken a friendly loan which was not repaid to him and, therefore, he has committed offence under Sections 406 and 420 of the Indian Penal Code.

9. Learned Counsel for the petitioners submits that the allegations are completely false and the filing of the case amounts to a malicious prosecution. The arguments advanced on behalf of the petitioners are that if in fact the petitioner no. 1 had taken a friendly loan, then this aspect of the matter would have been mentioned in the Complaint Case No. 2221 (C) of 2006 filed by Opposite Party No. 2, if for no other reason, then to say that the Opposite Party No. 2 had already paid to the petitioner Rs. 85,000/- by way of a friendly loan and the petitioner no. 1, who is the builder, was not handing over the possession of the flat in question to Opposite Party No. 2 and could have easily claimed that not only should the petitioner no. 1 hand over possession of the flat but should also adjust the loan amount against payments due for the flat, rather than make further payments to the petitioner no. 1. Another circumstance which would show that the case was maliciously filed would be the fact that it was only after grant of stay in Complaint Case No. 2221 (C) of 2006 that the second complaint petition was filed. Lastly, it is submitted that even at the stage of grant of anticipatory bail, the Opposite Party No. 2 did not raise an issue that any dues were to be paid by the petitioner no. 1 to the Opposite Party No. 2 and willingly issued him the cheque of Rs. 61,000/- in lieu of the petitioner no. 1 handing over possession of the flat in question. Apart from all these facts, this Court also notices that the cheques were paid on 04.07.2005 and 31.08.2005, whereas the agreement between the petitioner no. 1 and the Opposite Party No. 2 for the purchase of the flat in question was taken place on 24.10.2005. Thus, the story that Opposite Party No. 2 had granted a loan becomes quite unbelievable and appears to be an afterthought and the case was filed after grant of stay of the further prosecution in Complaint Case No. 2221 (C) of 2006.

10. Normally, this Court would not interlinked the facts of both the cases but in the special circumstances and facts of these cases, it is obvious and important to consider the longstanding business relationship of the parties, who had entered into a contract to transfer a flat in a multi-storied building for which obviously the purchaser was bound to pay the consideration amount. Therefore, for the reasons mentioned in the order aforesaid and in the special facts of this case, this Court finds that the prosecution case is unbelievable and it amounts to a malicious prosecution. In any event, even if it was accepted for the sake of argument that there was a transaction in which a friendly loan was advanced by the Opposite Party No. 2, there could not be any intention to commit fraud or cheat the Opposite Party No. 2. The loan could have been recovered in an appropriate proceeding and the present complaint case is misplaced in the facts of this case.

11. I, accordingly quash the order taking cognizance under Sections 406 and 420 of the Indian Penal Code dated 05.02.2009 passed in Complaint Case No. 2078 (C) of 2009.

12. In the result, these two applications are allowed.