The absence of deceptive intention and the lack of realization of money against the agreement were crucial in quashing the criminal proceeding.

1. This Cr. M.P. has been filed for quashing of the entire criminal proceeding including order dated 25.09.2003 passed by Shri A.K.Dubey, Judicial Magistrate, 1st Class, Dhanbad in connection with C.P. Case No. 155 of 2002 whereby the learned Magistrate has directed the petitioners to face trial under Sections 417/420/34 I.P.C.

2. The prosecution case as it appears from the complaint in brief is that the petitioners had executed a deed of agreement in favour of the complainant on 28.11.97 for the sale of a piece of land appertaining to Plot No. 241, Mauza Udaypur, Khata No. 8 area measuring 93 decimals for a sum of Rs.1,22,000/-and received a sum of Rs. 10,000/as an advance vide cheque No. 377630 dated 28.11.1997. The further averment of the complainant is that the accused persons returned the said cheque and demanded the said amount in cash which request was conceded and a sum of Rs. 10,000/was paid to the petitioners/accused. The sale deed was to be executed within 11 months from the date of agreement. The complainant when enquired, he found that the land for which the agreement was executed was not owned by the petitioners and therefore, he demanded his money back but he was threatened, assaulted and the money was not refunded to him. As a result, he filed C.P. Case No. 155 of 2002 in the Court of C.J.M., Dhanbad in which enquiry under Section 202 Cr.P.C. was conducted and then impugned order was passed by the learned Magistrate Shri A.K. Dubey.

3. It is submitted that the complainant in his S.A. has admitted that the cheque which he had given in advance stood dishonoured due to insufficiency of fund in his account. It is further contended that the complainant had not come with fair hand because in the complaint he shows that he had received the said cheque back and paid Rs. 10,000/in cash, therefore, these two contentions of the complainant is contradictory which indicates that not a single coin was parted with on any assurance. 2. The next point which the learned Counsel has raised is that it is well mentioned in the agreement that in the sale deed by which they had acquired the said plot has wrongly been mentioned as 255 instead of 241 which is to be rectified.

4. Since this fact has already been disclosed in the agreement itself, the contention of the complainant that the petitioners had executed an agreement for a land which they do not possess is incorrect. From the documents referred to above, it is clear that the petitioners did not have deceptive intention and they had not realized a single coin for giving any promise. It is the complainant, who did not pursue the said agreement within the prescribed time when no sale deed was executed. He kept silent for a long period and filed this complaint in the year 2002 only to create pressure and to harass the petitioners. Even assuming that there was an agreement in existence and there was a valid contract between the parties, they should have taken recourse to civil suit. No criminal offence is made out on the basis of the averment made in the complaint or the statement of complainant or the evidences recorded during enquiry.

5. On the other hand, learned Counsel appearing for the Opposite Party has vehemently opposed the argument and submitted that Plot No. 241 of said Khata was never owned by the petitioners and they did not have any document to show their right, title, interest and possession over the said land but they had induced with deceptive intention and realized money from the complainant. Since the petitioners had proposed to sale a land of which they did not have any title or possession, the deceptive intention was well present at the time of initiation of that agreement. The proceeding launched by the complainant-Opposite Party cannot be considered maliciously and therefore, there is no merit in this petition and the same is liable to be dismissed.

6. I have gone through the documents referred to above by both sides and the materials available on record.