Patna High Court - Orders
Durga Prasad & Anr. vs The State Of Bihar on 30 July, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.1819 of 2013
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1.Durga Prasad son of Latet Lalu Sah.
2. Dipesh Kumar son of Sri Durga Prasad.
Both residents of Mauza Gopalpur Balllua Chowk, P.S. Motihari Town,
Dist. East Champaran..
.... .... Petitioner/s
Versus
1.The State Of Bihar.
2.Om Prakash Srivastava son of Late Ram Narayan Prasad, Resident of
Ward No.8, Raghunathpur P.S. Turkaulia, District East Champaran.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mrs. Mahasewata Chatterjee, Adv.
For the State : Mr. J.K.Singh No.1, APP.
For the O._P. : Mr. Vijay Shankar Srivastava, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
8 30-07-2013Heard learned counsel for the petitioners, for the State and O.P.No. 2.
In t his case, petitioners are challenging the order dated 10th August 2011 passed by the Chief Judicial Magistrate, Motihari in Turkaulia P.S.Case No. 280 of 2010 for the offences u/s 341, 323, 504, 506, 420, 406/34 IPC.
A complaint case vide Complaint Case No. 372 of 2010 was filed by the O.P.No.2 making an allegation that on 31st October 2009 at about 10:00 A.M. both the accused persons went to the business premises of complainant and proposed to sell their land appertaining to Khata No. 126 Plot Nos. 972, 973, 974 measuring an area of 3 Khata since they were in need of money for treatment. The complainant had shown his inability to purchase the same individually but had shown desire to purchase Patna High Court Cr.Misc. No.1819 of 2013 (8) dt.30-07-2013 2/6 the land by 4-5 persons. The complainant called his associates, after discussion it was agreed to purchase the land for Rs.9,14,000/-. It was on next date, both accused persons again came to the shop, the complainant informed eight lac rupees has been arranged and rest money they would pay on the day of registration and explained who will purchase of what dimension of land and paid the said amount of rupees eight lac. After payment of the said amount on 4th November 2009 the accused persons were to execute the sale-deed but refused to execute on the plea of payment of rest amount and it was agreed that on the day of execution of the sale-deed, rest amount would be paid. Accordingly, the rest amount was paid on 5th November 2009 but unfortunately the accused persons slipped away from the Registry Office and did not execute the sale-deed. It has been alleged that the accused persons neither execute d the sale-deed nor returned the amount paid to them. The O.P.No.2 appeared before the trial court and made a statement on S.A. supported by other witnesses. The court of Judicial Magistrate vide order dated 21st June 2010 dismissed the complaint petition u/s 203 Cr.P.C. A revision application, vide Cr. Revn. No. 223 of 2010 has been filed by the O.P.No.2 before the Sessions Judge, East Champaran which is pending. During the pendency of the revisions petition, the present FIR has been lodged by the O.P.No.2 stating the fact that on 8th Patna High Court Cr.Misc. No.1819 of 2013 (8) dt.30-07-2013 3/6 July 2010 at about 9:00 A.M. he was digging foundation for construction of boundary wall in plot Nos. 972, 973 and 974, accused persons/petitioners along with 4-5 unknown persons arrived and started abusing the informant and resorted to firing and threat was given for dire consequence. It has been alleged that Durga Sao tried to strangulate with scarf caused him unconsciousness and allegation of snatching of gold chain has been alleged. When he regained consciousness, he got himself treated in Primary Health Centre. It has been alleged that the accused persons had taken Rs.9,00,000/ for the aforesaid plot but refused to execute the sale-deed and for that Case Nos. 10 of 2009/ 11 of 2009 has been instituted for the offences u/s 447, 341, 323, 379, 504, 406/34 IPC.
Counsel for the petitioners submitted that for the same cause of action, O.P.No.2 had filed a complaint case which was dismissed by the Judicial Magistrate which is under challenge before the Sessions Judge and, as such, there is no justification for lodging the present case and on the basis of submission of charge- sheet, the court has wrongly taken cognizance. It is completely a malicious prosecution. At t he same time, when the complaint petition was r ejected, there was no justification for the Police to institute the case for the same cause and the court to take cognizance.
Patna High Court Cr.Misc. No.1819 of 2013 (8) dt.30-07-20134/6
Counsel for the petitioners submitted that the story that has been given in the complaint petition or the FIR is inherently improbable as no one will pay money without having any receipt, so much so that there was no justification for the O.P.No.2 without having the land execute td would go to t he place of dispute and try to construct the boundary wall. Counsel for the petitioners submitted that the present FIR has been lodged after long delay and out of vengeance in order to create pressure so that the petitioner would execute the sale-deed. The Sections leveled against the petitioners did not apply to the facts of the case.
Counsel for the St ate and O.P.No.2 submitted that the complaint petition was filed on quite different story that the non-execution of the sale-deed which is under consideration before the Sessions court and this Court is not required to give any opinion with regard to justifiability of the matter. It has further been submitted that here allegation has been made about assault and threat to the life when the informant on the basis of payment of Rs.9,00,000/- had gone to the place for construction. Both are quite different story and both constitute different offences.
It has further been argued that the Police investigated the case and collected evidence of witnesses and thereafter found material against the petitioner and filed charge-sheet. Court on the Patna High Court Cr.Misc. No.1819 of 2013 (8) dt.30-07-2013 5/6 basis of materials on record was justified in taking the cognizance.
So far the point of vengeance is concerned, the other side submitted that there is no question of any vengeance as it is claim of the O.P. that he along with others had paid Rs. 9,00,000/- but it is the petitioners who developed dishonest intention and even after taking money did not execute the sale-deed.
Having considered the contention of both the parties, this Court at this stage is not required to give opinion on the merit of the order passed by the court below or on the merit of the complaint petition as that matter is pending before the Sessions Court. This Court is only confined to its consideration with regard to merit of the present case when specifically it has been alleged of using force by the petitioners when they tried to construct the boundary wall making allegation of having taken Rs.9,00,000/- and the Police after investigation found truth in the story found material against the petitioners and there is no case of petitioner that there is nothing in the case diary indicating allegation against him. When materials are available on record constituting offence and as such it cannot be said that the court has committed error in taking cognizance. There is no foundational facts to show that the present case has been filed due to mala fide reasons, merely because the O.P. No.2 has filed a complaint case which is before revisional court. However, this order will not prejudice the Patna High Court Cr.Misc. No.1819 of 2013 (8) dt.30-07-2013 6/6 petitioners. They will be at liberty to raise all the points at the time of framing of charge.
With this observation and direction, this petition is dismissed.
Jay/- (Shivaji Pandey, J)