The central legal point established in the judgment is that a dispute over an agreement of sale, lacking the intention to cheat, constitutes a civil matter and does not attract criminal liability under Section 420 and Section 406 of the Indian Penal Code.

Heard learned counsel for the petitioner as well as learned counsel appearing for opposite party no. 2 on the point of admission and, in my view, this petition can be disposed off on admission stage itself.

2. Petitioner has preferred this quashing petition under Section 482 of the Cr.P.C. for quashing order dated 06.03.2009 passed by Sri Kanhaya Lal, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 3528 of 2008 as well as entire subsequent proceeding of the aforesaid complaint case. By the impugned order dated 06.03.2009, learned Judicial Magistrate, 1st Class, Patna having found prima facie case under Sections 420 and 406 of the Indian Penal Code against the petitioner ordered to issue process against him.

3. The brief fact, which lies to file the quashing petition, is that opposite party no. 2 filed complaint case bearing Complaint Case No. 3528 of 2008 against the petitioner alleging therein inter alia that on 28.11.2007 petitioner executed an agreement of sale in favour of the opposite party no. 2 in respect of his certain lands in presence of the witnesses and agreed to sale his lands to the opposite party no. 2. The petitioner took Rs. 51,000/- as advance and opposite party no. 2 agreed to make payment of balance amount within a period of seven months. Furthermore, it is alleged that petitioner received balance amount on different dates and accordingly, he took Rs. 4,41,000/- from the opposite party no. 2 till 31.05.2008 but later on when opposite party no. 2 asked the petitioner to take remaining amount, the petitioner refused to take the remaining amount and also refused to execute the sale deed in favour of opposite party no. 2. Thereafter, opposite party no. 2 send a legal notice on 05.08.2008 but no reply was made by the petitioner and thereafter opposite party no. 2 filed the above stated complaint case.

4. In course of inquiry, witnesses were examined under Section 202 of the Cr. P.C. and after that learned Judicial Magistrate passed the impugned order against which this petitioner has been filed.

5. Learned counsel appearing for petitioner submits that even if the story, as propounded by the opposite party no. 2, is accepted in toto, then also no criminal liability is made out against the petitioner and it is a case of civil nature and opposite party no. 2 may take steps in Civil Court. Learned counsel appearing for petitioner relied upon a decision reported in (2006) 6 SCC page 669 (Ram Biraji Devi and Anr. V. Umesh Kumar Singh and Anr.) in which the Apex Court of this country has held that even if a party agreed to sale some lands and later on refused to execute sale deeds, the aforesaid fact does not construe an offence under Sections 406 and 420 of the Indian Penal Code. Another decision cited on behalf of the petitioner is 2008 (1) PLJR 422 in which relying upon the above stated decision (Ram Biraji Devi and Anr. v. Umesh Kumar Sinch and Anr.), this court has held that if the allegation does not disclose an offence under Section 420 of the Indian Penal Code, the continuance of the prosecution is nothing but only an abuse of the process of the Court.

6. On the strength of the aforesaid two decisions, learned counsel for the petitioner prayed for quashing the impugned order dated 06.03.2009 as well as entire subsequent proceedings of Complaint Case No. 3528 of 2008.

On the other hand, learned counsel appearing for opposite party no. 2 submits that the averments made in complaint petition constitute an offence under Sections 420 and 406 of the Indian Penal Code because according to complaint case, the petitioner took Rs. 4,41,000/- as earnest money and in spite of legal notice, he did not execute sale deed nor returned the aforesaid amount to the opposite party no. 2. He further submits that in 2001 (2) PCCR 448 (Anil Kumar and Anr. v. The State of Bihar), it has been held by this court that civil and criminal liability cannot be said to be mutually exclusive rather there are co-extensive