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2019 Supreme(Pat) 741
IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Darshana Singh daughter of Dr. Rameshwar Prasad Singh and wife of Narendra Prasad Singh & Anr. - Petitioner
Versus
The State Of Bihar & Anr. - Respondent
Criminal Miscellaneous No.228 of 2018
Decided On : 26-09-2019
For the Petitioners:Mr. Rajendra Narayan, Sr. Adv. Mr. Vijay Kumar Singh, Advocate For the Respondent: Mr. Jharkhandi Upadhyay, APP, Mr. Vikash Kumar Sharma, Adv.
Headnote:
Indian Penal Code, 1860 – Sections 406, 420, 379 and 120B – Criminal Procedure Code, 1973 – Section 239 – Refusal to discharge – Criminal breach of trust – After receipt of police report under Section 173(3) Cr.P.C., Magistrate took cognizance for offences under Sections 406, 420, 379 and 120B of IPC – Dispute is, in reality, a pure civil dispute – Petitioners are pursuing civil remedies according to law before competent civil court from date prior to filing of criminal complaint – Agreement to sale between petitioner No.1 and owners of Flat is not disputed – There is allegation and counter allegation as to who is defaulter in non-performance of his part of contract – This issue would be decided in civil suit – Complainant/informant has attempted, by filing of present criminal prosecution, to settle score arising out of civil dispute between parties which cannot be allowed to prevent miscarriage of justice and abuse of process of law – Even if petitioners were non-performer of contract of their part, legal remedy was there with the Flat owners but they adopted illegal method of unilateral cancellation of agreement – Petitioners have not gained anything from transaction; rather they are still loser in the sense that admitted consideration money paid by petitioners to Flat owners is still to be realized and Flat has already been sold by Opposite Party No.2 to some other person – Impugned order and entire criminal proceeding stand quashed. (Paras 5, 13, 14 and 22)
Criminal Procedure Code, 1973 – Section 156(3) – Direction for Police investigation – Power under Section 156(3) Cr.P.C. cannot be exercised by Magistrate in a routine manner; rather it requires application of judicial mind – Prior applications under Section 154(1) and 154(3) Cr.P.C. have to be in existence while filing a petition or exercising power under Section 156(3) Cr.P.C. – In present case, statutory provision had not been followed while filing complaint petition without affidavit or in referring the matter for police investigation under Section 156(3) Cr.P.C. – Initiation of criminal proceeding was itself in violation of law and if allowed to stand would lead to miscarriage of justice. (Paras 19 and 21)
JUDGMENT :
Heard learned counsel for the parties.
2. In this application, under Section 482 Cr.P.C., the petitioners have sought for quashment of the order dated 12.09.2017 passed in connection with Sri Krishnapuri P.S. Case No.206 of 2011 whereby the learned Judicial Magistrate, 1st Class, has refused the prayer of the petitioners to discharge.
3. The challenge is on the ground that the facts alleged makes out a case of out and out a civil dispute. However, to settle the score Opposite Party No.2 has abused the process of Court by filing a criminal proceeding. Consistent judicial pronouncements are there that civil disputes should not be allowed to be settled through a criminal proceeding. The impugned order has further been challenged on the ground that initially Complaint Case No.2379(C) of 2011 was filed by Opposite Party No.2 without making statement on oath regarding compliance of the requirement of Section 154(3) Cr.P.C. and the learned Magistrate acted in a mechanically way without application of judicial mind; and without going through the complaint petition which discloses a pure civil dispute between the parties, send the matter for police investigation in exercise of power under Section 156(3) Cr.P.C. As such, there is non-compliance of the mandate of law and the guidelines of the Hon’ble Supreme Court in Priyanka Srivastava and Another Vs. State of Uttar Pradesh and others reported in (2015) 6 Supreme Court Cases 287.
4. The challenge is on the ground that a bare perusal of the complaint petition does not make out the ingredients of any of the offences for which cognizance has been taken. As such, the criminal proceeding is manifestly attended with mala fide to wreak vengeance.
5. It is worth to mention that after receipt of police report under Section 173(3) Cr.P.C. the learned Magistrate took cognizance for offences under Sections 406, 420, 379 and 120B of the Indian Penal Code by order dated 12.02.2014. The petitioners challenged the order of cognizance before this Court in Cr. Misc. No.45148 of 2015. Since there was no order of stay of the proceeding before the Court-below the stage of hearing on charge came and prayer for discharge was refused and the same is challenged in this application. In the circumstance, Cr. Misc. No.45148 of 2015 was disposed of as withdrawn on 20.09.2019.
6. Undisputed fact of this case is that one Dr. Ragini Singh was owner of Flat No.2 in Apurva Radha Complex situated in Mohalla Sri Krishnapuri in the town and district of Patna. She gifted the said Flat to her daughter Smt. Shalini Verma and Sri Jay Vishal, the husband of Shalini Verma.
7. According to complaint petition, petitioner Narendra Prasad Singh entered into a written agreement on 22.07.2010 to purchase the said Flat in the name of his wife petitioner Darshana Singh from Shalini Verma and Mr. Jay Vishal. A copy of the written agreement dated 22.07.2010 at Annexure-2 reveals that total consideration money of the Flat was rupees thirty lacs. The entire consideration money was to be paid in different installments mentioned in the agreement latest by 31.12.2010. In the complaint petition it is alleged that the total consideration money of the Flat was rupees fifty lacs, which is contrary to the terms of the agreement. The allegation is that the petitioners did not pay the entire consideration money within time granted. Therefore, the said Shalini and Jay Vishal unilaterally cancelled the agreement and executed a power of attorney on 14.05.2011 in favour of Opposite Party No.2.
8. The claim of the petitioners is that the petitioners had already paid through cheque and bank draft Rs.21,50,000/-and thereafter the vendors started evading receipt of the remaining consideration money and execute the sale deed because Opposite Party No.2 persuaded and induced them that the Flat would be sold on a higher price. Being frustrated with the act of Smt. Shalini and Mr. Jay Vishal, the petitioners filed Title Suit No.458 of 2011 on 01.07.2011 befor
