Patna High Court
Shishir Kumar Chakraborty And Ors. vs State Of Bihar And Anr. on 26 March, 1990
Equivalent citations: 1990(38)BLJR1304
JUDGMENT L.P.N. Shahdeo, J.
1. This is an application under Section 482 of the Code of Criminal Procedure for quashing the order of taking cognizance, dated 26-6-1986, pawed by the Chief Judicial Magistrate, Ranchi whereby and where-under he had taken cognizance of the offence under Section 420 of the Indian Penal Code in the following circumstances:
2. It appears that opposite party No. 2 had filed a case under Sections 420 and 120-B of the Indian Penal Code which was registered as complaint case No. 43 of 1986 on an allegation that these petitioners, in conclusion with accused No. 1 who is not a petitioner, had committed the alleged offence. The allegation was that accused No. 1 Jyoti Prakash had agreed for selling of plot No. 424 of village Tiril and in consideration of that he had received Rs. 3,000 as consideration amount and had executed an agreement on 22-2-1984 and thereafter in spite of his offering full consideration of Rs. 12,000 he declined to execute the sale deed and contracted with other party and ultimately sold the land to some other person and therefore, he was cheated and as such a petition of complaint was filed by him. The learned Magistrate by the impugned order has taken cognizance under Section 420 of the Indian Penal Code which is being challenged in this application.
3. Mr. P.K. Bhowmik, learned Counsel for the petitioner has submitted that these petitioners had neither anything to do with it nor they have been named specifically either in the solemn affirmation or in the petition of complaint as having committed the offence and as such the criminal prosecution against them is bad in law.
4. On reading the compliant petition which is Annexure-1, it appears that he has made a definite allegation in paragragh 1 that by a virtue of the agreement he wanted to sell him share. There is no mention that any of these petitioners had agreed to sell his land or share or they had done anything in consideration of sale of that land. The learned Magistrate on consideration of the facts took cognizance under Section 420 of the Indian Penal Code only. Therefore, the allegation that they bad conspired is not borne out from the complaint petition or by the order taking cognizance.
5. In Anncxure-2 the solemn affirmation of opposite-party No. 2 he has made allegation directly and squarely holding one Jyoty Prakash who is not the petitioner before me, to have committed breach of that agreement or had committed cheating in spite of the amount advanced by the complainant. In this solemn affirmation (Annexure-2) there is absolutely no allegation whatsoever neither anything said about any of these petitioners. Simply the petitioners being share holders or co-sharers of that land, that cannot make them liable for what has been done by Jyoti Prakash and what Jyoti Prakash entered into with the complainant. Therefore, on mere reading of the complaint petition and solemn affirmation, there is absolutely no allegation of anything either remotely or specifically against any of these petitioners. Therefore, the criminal prosecution against the petitioners for thin nature of offence is wholly uncalled for, unwarranted and bad in law.
6. In the result, this application is allowed. The criminal prosecution and the impugned order so far those petitioners are concerned, are quashed. However it is made clear that so far the criminal prosecution against Jyoti Prakash is concerned, that will proceed in accordance with law.