Jharkhand High Court
Arshad Neyaz Khan vs The State Of Jharkhand on 19 January, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 2384 of 2022
-----
Arshad Neyaz Khan ... .... Petitioner
Versus
1. The State of Jharkhand
2. Md. Mustafa ... .... Opp. Parties
-----
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
-----
For the Petitioner : Mr. Srijit Choudhary, Advocate
For the State : Mrs. Amrita Kumari, A.P.P.
For the O.P. No. 2 : Mr. Praveen Shankar Dayal, Advocate
-----
Oral Order
06 / Dated : 19.01.2023
1. The instant criminal misc. petition has been filed for quashing the entire criminal proceedings arising out of Complaint Case No. 619 of 2021 including the order dated 15.06.2022 by which the anticipatory bail earlier granted has been cancelled by the learned court below as the amount was not deposited as per the undertaking given by the petitioner.
2. The petitioner is the land owner and the complainant is the proposed purchaser of the land who entered into an agreement for sale of four Katha of land on 16.02.2013 for a total consideration amount of Rs. 43 Lakh. Out of the said amount, Rs. 17 Lakh was paid through cheque and Rs. 3 Lakh in cash as advance to this petitioner.
3. The main allegation of the complainant is that neither the said land was registered nor the amount taken in advance was returned.
4. It is submitted by learned counsel for the petitioner that in this case the petitioner was granted anticipatory bail by the court below in ABP No. 681 of 2021 subject to condition that the petitioner will return the amount in 5 installments. The said amount could not be paid because of financial hardship. However, the petitioner paid Rs. 5 Lakh. It is further submitted that assuming the allegation as it is there in the complaint petition, the offence under Section 420 of IPC will not be made out for the reason that the complainant did not take any step for execution of sale deed within the period of limitation of 3 years and did not pay the balance amount for execution of the said deed. After lapse of about 8 years the complaint petition has been filed only to force the petitioner to execute the deed for which no civil remedy is available to the complainant being time barred. There was no intention to deceive the complainant from very inception and it was the laches on the part of the informant in failing to get the sale deed executed within the period of limitation, or to file a suit for specific performance of agreement.
5. Learned counsel for the complainant submits that the condition for payment of the amount in the anticipatory bail was not imposed by the court, rather it was the petitioner who himself had given undertaking supported by affidavit to repay the amount acting on which the court below allowed the bail petition. Under that condition the undertaking given by the petitioner was not honoured and consequently, the anticipatory bail earlier granted was cancelled.
6. From rival submission it appears that Rs. 20 Lakh had been taken by the petitioner in advance in pursuance of the agreement of sale and the said amount has not been returned. The anticipatory bail was not granted on merit, rather it was a conditional order based on the undertaking given by himself which he failed to honour on account of the said financial hardship. The condition was imposed in pursuance to undertaking given by the petitioner himself.
On the assertion made in the complaint prima facie under Section 406 IPC is made out, as huge sum had been taken by the petitioner which has not been returned and misappropriated by the petitioner.
Taking into account the fact that earlier order of grant of bail was a conditional order, and not on merit, therefore, the impugned order of grant of bail and cancellation of anticipatory bail vide order dated 15.06.2022 is set aside. The petitioner is directed to move the Court below within two weeks, which will be decided by the learned Court below on merit without being prejudiced by the order of this Court.
Under the circumstance, the prayer for quashing the entire criminal proceedings of Complaint Case No. 619 of 2021 is rejected.
Instant Cr. Misc. Petition stands disposed of.
(Gautam Kumar Choudhary, J.) AKT