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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHANDRA SHEKHAR JHA, J.
Criminal Misc. No. 51234 of 2024
(28.3.2025)
Chandra Prakash ... Petitioner
vs.
State of Bihar & Anr. ... Opp. Parties
Code of Criminal Procedure, 1973 – Section 482 [BNSS – Section 528) – Quashing of cognizance – Offence alleged to have been committed under Sections 420 IPC – To establish an offence of cheating, three essential legal components all required, which are (i) there must be inducement; (ii) that inducement must lead to promise; this promise must lead to delivery of property; and (iv) at the time of making the promise the maker of the promise must have a dishonest and fraudulent intention – In the present case, it cannot be said that there was dishonest intention on the part of petitioner – both parties are well acquainted with each other prior to lodging this case as they are business partners – Admittedly, due to death of the husband of O.P. No. 2 out of financial hardship, the payment was not made on time – O.P. No. 2 raised all such issues before RERA and the matter is sub-judice before the Real Estate Appellate Tribunal again the dismissal order of RERA where O.P. No. lost her case – In same and substance, dispute between the parties are civil in nature out of contractual obligation, where remedy is available with civil side which the O.P. No. 2 is already availing – Apparently, the cognizance has been taken only against the petition and not against the company to which the payment was made – The complaint is not supported by the affidavit – In such circumstance, continuing with the criminal proceeding is an abuse of the process of Court – Impugned order taking cognizance quashed – However, in view of the undertaking of the petition, he is directed to refund the amount received with 5% interest within 4 weeks to the O.P. No. 2 failing which 10% interest would be payable. (Paras 27 to 34)
In this case, the proceedings were initiated as a criminal case, specifically under the offence of cheating as per Section 420 of the Indian Penal Code (IPC) (!) (!) . However, the court's analysis and ultimate decision reflect that the matter was primarily of a civil nature, involving contractual disputes and issues related to property and refund of amounts paid. The court observed that the dispute between the parties is essentially civil in nature and that the criminal proceedings were being used to give a criminal color to what is fundamentally a civil matter (!) .
The court further noted that the complaint was not supported by an affidavit sufficient to invoke the jurisdiction of the Magistrate for criminal proceedings, and that the ingredients necessary to establish a criminal offence of cheating were not convincingly present (!) (!) .
Ultimately, the court treated the case as a civil dispute and quashed the criminal proceedings, emphasizing that the remedy for the parties lies in civil courts and proceedings, and that continuation of criminal proceedings in such circumstances would constitute an abuse of process of law (!) .
Therefore, although the case was initially treated as a criminal case, it was ultimately recognized by the court as a matter more appropriately addressed through civil remedies.
Chandra Shekhar Jha, J. – Heard Rana Vikram Singh, learned counsel appearing for the petitioner and Mr. Sunil Kumar, learned counsel for the complainant/opposite party no. 2.
2. The present petition has been preferred for quashing the order dated 31.08.2023 passed in connection with Complaint case No.4049(c)/2023, whereby the learned Chief Judicial Magistrate, Patna has been pleased to take cognizance of offence under Section 420 of Indian Penal Code vide order dated 31.08.2023 and issued summons against the petitioner.
3. The Complaint case in brief is that the complainant executed an agreement for sale on 03.02.2020 for booking of 3 flats and car parking space in 'Sunit Ambrosia Project', which is the housing project of M/s Sunit Housing Private Limited, a Company incorporated under the provisions of the Companies Act, 1956 (hereinafter referred to as "Company") for total consideration amount of Rs. 29.25,000/- Rs. 27,75,000/- and Rs. 27,37,500/- total Rs.88,59,375/- for which the payment was made in 2020. The complainant alleged that due to death of her husband she could not repay the balance amount. The husband of the complainant and the accused/petitioner knew each other. The accused petitioner did not give clear picture about payment and refused to hand over the flat taking advantage of the death of husband of the complainant. It is further alleged that despite lapse of two years and payment of 40% of total consideration amount, the possession was not handed over to the complainant/opposite party no.2. Even legal notice could not bring result and the Police has not lodged FIR. The complainant has paid total amount of Rs.53,41,000/-.
4. In furtherance of aforesaid complaint, the complainant was examined on solemn affirmation, wherein he has supported the averments made in the complaint petition. The witnesses have also deposed before the learned Court on 15.05.2023 and 29.05.2023. Consequent upon, vide order dated 31.08.2023, the learned Chief Judicial Magistrate, Patna has taken cognizance of offences under Section 420 of I.P.C. and issued summons against the accused/petitioner.
5. Mr. Rana Vikram Singh, learned counsel appearing for the petitioner submitted that flats in question have been booked by the complainant on 27.01.2020 and paid booking amount Rs. 2,00,000/- for each of the flat i.e. Rs. 6,00,000/- through cheque No. 731693 dated 27.10.2020 drawn on J & K Bank, Sector 18, Noida (U.P.) by her husband, late Arvind Kumar Sharma, whereafter three separate un-registered agreements for sale (on Stamp paper of Rs. 1000/-) had been executed between the complainant and company on 03.02.2020 for proposed building under the name and style of "Sunit Ambrosia" for three flats. Later on, in the month of July, 2020, Rs. 20,00,000/- was also received by the company from the husband of the complainant, which makes the total receiving amount of Rs. 26,00,000/-. It appears from the complaint that on 16.07.2020 for each of the flat No. 101, 102 and 213 total of 27,00,000/- was transferred to the Company's account and also above that a transfer of Rs. 20,00,000/- was also made making total transfer to petitioner Rs. 53,41,000/-. The amount, as aforesaid paid by the complainant and her husband was not disputed by the petitioner.
6. It is submitted further submitted by Mr. Singh, that on 21.10.2021, a letter of intimation to clear dues against complainant's booking flat nos. 101, 102 & 213 in the project 'Sunit Ambrosia, Danapur, Patna has been issued by the Company, but no response was made by the complainant. The another intimation was made on 22.11.2021 as to clear dues within next 15 days, failing which the booking of flat may lead to its cancellation in the aforesaid project. Subsequently, final reminder was also issued by way of notice on 26.12.2021 to the complainant with a caveat that any further failure may lead to cancellation of complainant's booking of flat Nos. 101, 102 & 213 in the project namely, Sunit Ambrosia, Danapur, Pa
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