Patna High Court - Orders
Gulam Mujtaba Khan @ Gulam Mustafa Khan & ... vs State Of Bihar & Anr on 30 November, 2010
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. Misc. No.16889 of 2009
1. GULAM MUJTABA KHAN @ GULAM MUSTAFA KHAN, S/O
LATE GHULAM MURTABA KHAN
2. SHAMIM HMAD
3. NASEEM AHMAD, BOTH SONS OF GULAM MUJTABA KHAN
@ GHULAM MUSTAFA KHAN, ALL RESIDENTS OF
MOHALLA KALPANA REST HOUSE COMPOUND, SRI
KRISHNA ROAD, P.S. CIVIL LINE, DISTRICT GAYA
.. PETITIONERS
Versus
1. THE STATE OF BIHAR
2. MEENADEVI, W/O SRI RAJENDRA PRASAD, R/O VILLAGE
DANGRA, P.S. MOHANPUR, DISTRICT GAYA
.. OPPOSITE PARTIES
****
/4/ 30.11.2010 Heard the counsel for the parties.
2. This criminal miscellaneous petition has been filed for quashing the order, dated 22.04.2009, taking cognizance under Sections 406 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act passed by Judicial Magistrate, 2nd Class, Gaya, in Complaint Case No. 433 of 2009.
3. The case of the complainant is that the petitioners agreed to sell 2100 square feet of land for a consideration of Rs.4,50,000/-, which was paid, but, the sale deed was not executed and the petitioners avoided the execution of the suit land and then the complainant and her husband decided to 2 refund the amount and compelled to file the complaint case. In Complaint Case No. 690 of 2007 was compromised on payment of rupees two lacs with an assurance that rest rupees two lacs and fifty thousand will be paid in easy installments and when subsequently the amount was not paid for which another complaint case, being Complaint Case No. 1284 of 2008 was filed as the petitioners did not comply with the contract. Subsequently, cheque of rupees two lacs and fifty thousand was given to the complainant, but, said cheque was bounced back and so a Complaint Petition No. 433 of 2009 has been filed for offence of bouncing back the cheque under Sections 406 of the Indian Penal Code and 138 of the Negotiable Instrument Act. The cognizance taken against which this petition has been filed.
4. The learned counsel for the petitioners' submits that after the notice, within forty five days, the payment was made, but, the complainant deliberately did not receive the money. A Cr. Misc. No. 12034 of 2009 was filed in this Hon'ble Court against the order taking cognizance in Complaints Case No. 1284 of 2008 and in the said case by order, dated 05.10.2010, it was ordered that during the argument the learned counsel for the petitioners agreed to 3 pay two lacs and seventy five thousand through account payee draft to the complainant-opposite party positively by 30th October, 2010, before the Court below and it was observed that on the face of such offer and deposit further proceeding before the Court below is nothing, but, abuse of process of law observed that and on the event of deposit of Rs.2,75,000/- as ordered positively on or before 30th October, 2010, the proceeding before the Court below shall be quashed. A copy of the Hon'ble High Court's order has been annexed as Annexure 8 in the supplementary affidavit filed by the petitioners and subsequently Annexure 9 is the copy of the receipt of the amount by the opposite party no. 2, who is the complainant and Annexure 9 is the order of the Court in which the amount has been received and endorsement has been made by the complainant.
5. However, taking into consideration that the complaint was filed alleging therein that there was agreement to sell the land without house for a consideration amount of rupees four lacs and fifty thousand, which was paid, but, the sale deed was not executed on some pretext or the other and then the complainant decided to return back the amount. The allegation is regarding the breach of a 4 contract, which primarily appears to be a civil dispute.
6. Having regard to the further facts that the amount has already been paid, hence, allowing the proceeding to continue would amount an abuse of process of the Court, hence, in view of the supplementary affidavit filed by the petitioners asserting that they have already been paid the amount, criminal proceeding as well as the order taking cognizance is quashed and the criminal miscellaneous is allowed.
( Gopal Prasad, J.) S.A.