JUDGMENT :

Heard learned counsel for the petitioner and learned A.P.P. for the State.

2. This application under Section 482 of the Code of Criminal Procedure has been preferred for quashment of order of summoning dated 28.06.2013 passed in Complaint Case No.811 of 2012, whereby the learned Judicial Magistrate 1st Class, Vaishali at Hajipur has asked the petitioner to face trial for the offence under Section 420 of the Indian Penal Code.

3. The challenge is on the ground that a bare perusal of the complaint petition would show that the case is purely of civil dispute and the complainant (opposite party herein) has deliberately attempted to give it a colour of criminal offence, just to wreck vengeance. In other words, the complaint petition does not disclose commission of any offence and makes out no case against the petitioner.

4. According to complaint petition, opposite party No.2 entered into an agreement with the petitioner on 03.08.2003 to purchase 02 Kathas of plot No.3388 under Khata No.761, situated in Mohalla– Dighi Kala in the town and district of Hajipur. The rate of the land agreed between the parties was Rs.1,35,000/- (Rupees One Lac and Thirty Five Thousand) per Katha, total cost Rs.2,70,000/- (Rupees Two Lacs and Seventy Thousand). The petitioner received the total consideration money and gave receipt of the same and promised to execute sale deed after the marriage of her daughter. Thereafter, petitioner went to Delhi. Opposite party No.2 tried to contact the petitioner but the petitioner was evading execution of the sale deed. Ultimately, legal notice dated 02.08.2006 was sent to the petitioner. On telephone, the petitioner replied that her sister Siddhi Sahi has brought a suit for partition bearing Partition Suit No.197 of 2003 in the court of learned Sub-Judge, Hajipur.

A copy of the plaint at Annexure- A would reveal that the plot under agreement has total area of 84 Kathas and is also subject matter of the suit for partition, wherein half share of the petitioner was admitted.

5. The petitioner further informed in reply to the legal notice that the petitioner has already filed a petition before the trial court in the partition suit aforesaid, praying therein for permission to sale the suit property and permission to execute sale deed in respect of 09 Kathas of the said plot No3388. A copy of the petition is at Annexure- 6.

6. By order dated 22.08.2003 passed in the aforesaid suit, the learned trial judge restrained both the parties to not to transfer the suit land without permission of the court.

7. According to complaint petition, the said partition suit was dismissed for non-prosecution on 21.11.2011 and request of opposite party No.2 to execute the sale deed was finally turned down by the petitioner on 22.03.2012. Hence, allegation is that even after no judicial order was in existence, restraining the parties to the suit from executing the sale deed, the petitioner did not execute the sale deed, as such committed criminal breach of trust and misappropriation.

8. Contention of learned counsel for the petitioner is that from the narration of the fact above , it is evident that there is lack of culpable intention of the petitioner at the time of making initial promise and even thereafter. Hence, offence under Section 415 of the Indian Penal Code is apparently not made out.

Learned counsel contends that after the dismissal of the partition suit, with the intervention of the well wisher of the family and under pressure of the sister, the plot which was subject matter of the agreement to sale was compelled to be given to the share of the sister. However, even during pendency of this proceeding, the petitioner was ready to refund the consideration money along with interest. The petitioner had produced Bank Draft of Rs.5,50,000/- (Rupees Five Lacs and Fifty Thousand) in the name of the complainant along with supplementary affidavit. The amount was double the consideration money. On the basis of aforesaid material,