Patna High Court
NAND KUMAR SINGHversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The criminal complaint is an abuse of process and must be quashed as the matter is a civil breach of contract.
Summary
The petitioner, Nand Kumar Singh, was charged under IPC sections 406, 420 and 504 following a complaint by Binay Kumar alleging that the petitioner failed to execute a sale deed after receiving full payment for land. The petitioner contended that the dispute was purely contractual and that the appropriate remedy was a civil suit for specific performance, not criminal prosecution. He also highlighted a pending criminal case against the complainant under Section 138 of the Negotiable Instruments Act, suggesting the present complaint was filed with malafide intent to harass. The High Court, relying on the Supreme Court’s decision in Murari Lal Gupta v. Gopi Singh, held that a breach of contract does not constitute an offence under the cited IPC provisions. Consequently, the court quashed the order taking cognizance and allowed the petition to dismiss the criminal proceedings.
Issues considered
- Whether a breach of contract relating to the execution of a sale deed can give rise to criminal liability under IPC sections 406, 420 and 504.
- Whether the criminal complaint constitutes an abuse of process of law.
- Whether the order taking cognizance of the offence should be quashed.
Legislation cited
- Indian Penal Code — s. 406, 420, 504
- Negotiable Instruments Act — s. 138
Subjects
- breach of contract
- civil dispute
- criminal complaint
- abuse of process
- specific performance
- IPC 406
- IPC 420
- IPC 504
- Negotiable Instruments Act 138
- quash order
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.72304 of 2019
Arising Out of PS. Case No.-814 Year-2019 Thana- ROHTAS COMPLAINT CASE District-
Rohtas
======================================================
Nand Kumar Singh Son Of Late Vishwanath Singh Resident Of Village -
Khurnu, P.S.- Agarer, District- Rohtas, At Present Ward No. 34, Mohalla -
New Area Gayatri Mandir, P.S.- Sasaram, District- Rohtas
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Binay Kumar Son Of Bishwanath Singh Resident Of Village - Nahauna,
P.S.- Sasaram Muffasil, District- Rohtas, At Present Mohalla - Kailash
Nagar, Sararam, Gali No. 1, P.S.- Sasaram Town, District- Rohtas
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Prasad Singh
For the Opposite Party/s : Mr. Jharkhandi Upadhyay
Mr. Rahul Rathour
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
4 27-01-2026 Heard the learned counsel for the petitioner, learned
APP for the State and the learned counsel for the O.P. No. 2.
2. This application has been filed for quashing the
order dated 19.9.2019 passed by the learned Additional Chief
Judicial Magistrate, Sasaram in Complaint Case No.814 of 2019
by which cognizance has been taken against the petitioner under
Sections 406, 420, 504 of the Indian Penal Code and summons
have been issued.
3. The brief facts of the case are that the Opposite
Party No. 2 filed a complaint, bearing Complaint Case No. 814
of 2019, on 19.08.2019 before the learned Chief Judicial
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Magistrate, Rohtas, alleging that on 15.01.2015, the petitioner
came to his residence and expressed his willingness to sell the
land situated at Mauza Dilia, within Sasaram Municipality. The
petitioner allegedly stated that he was in urgent need of money
for the education of his son. Pursuant to a mutual settlement
between the parties, the price of the land was agreed upon at Rs.
16,43,000/-. It is further alleged that the complainant paid Rs. 4
Lakhs to the petitioner on 20.01.2015 in the presence of
witnesses. Subsequently, the complainant issued two cheques,
each for Rs. 4 Lakhs, in favor of the petitioner. The complainant
claims that one of the cheques was encashed by the petitioner,
but the payment of the second cheque was stopped by the
complainant when the petitioner failed to execute the sale deed
as agreed. However, it is alleged that the complainant
subsequently paid the entire amount of Rs. 16,43,000/- in full, in
the presence of witnesses, but the petitioner has failed to
execute the sale deed in favor of the complainant, despite the
full payment being made. The complainant further alleges that
when a request was made to the petitioner for the execution of
the sale deed, the petitioner allegedly threatened the
complainant with dire consequences if any legal action was
taken or a case was filed.
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4. The learned counsel for the petitioner submits that
after filing of complaint, the statement of the complainant was
recorded and two enquiry witnesses have been produced by him
in support of his case. The learned Magistrate after enquiry
took cognizance of the offence under section 406, 420 and 504
of the I.P.C. against the petitioner vide his impugned order dated
19.9.2019 and summons have been issued against the petitioner.
He further submits that from perusal of the complaint and
statement of the witnesses produced during the course of
enquiry it appears that present dispute relates to execution of
sale deed with respect to land in question on the basis of
agreement between the parties for which the complainant has
legal remedy to file a title suit before the competent civil court
for specific performance of contract.
5. The learned counsel for the petitioner further
submits that in view of the fact that matter relates to civil
dispute for execution of sale deed, no offence is made out under
section 406, 420 and 504 of the I.P.C. therefore order taking
cognizance as well as entire prosecution against the petitioner is
an abuse of the process of law. He further submits that prior to
the present prosecution, petitioner has already filed a complaint
case no.37 of 2019 against the complainant (opposite party
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no.2) on 5.1.2019 in the court of learned Chief Judicial
Magistrate, Sasaram for dishonor of cheque as well as other
illegal act of the opposite party no.2 in which cognizance has
been taken vide order dated 24.5.2019 under section 138 of the
Negotiable Instrument Act.
6. The learned counsel for the petitioner further
submits that in the complaint case filed by the present petitioner
cognizance has been taken on 24.5.2019 and at present case is
pending in the court of learned Additional Chief Judicial
Magistrate-VI, at Sasaram in which opposite party no.2 has
been granted bail on 31.7.2019 thereafter present complaint has
been filed against the petitioner on 19.8.2019. He further
submits that in view of the aforesaid fact and circumstances, it
is crystal clear that present prosecution has been filed with
malafide intention in order to harass and humiliate the
petitioner. It has been filed in order to grab the money of the
petitioner and to put pressure upon him to execute the sale deed
in favour of complainant without payment of full and final
consideration money.
7. The learned counsel for the State and the learned
counsel for the O.P. No. 2 have opposed the prayer of the
petitioner.
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8. I have considered the submissions of the parties and
perused the materials on record.
9. It would be apposite to refer to a judgment of the
Hon’ble Three Judge Bench of the Hon’ble Supreme Court in
the case of Murari Lal Gupta Vs. Gopi Singh [(2005) 13 SCC
699], wherein the Hon’ble Court had held as under:-
“…Having taken into consideration all the
materials made available on record by the parties and
after hearing the learned counsel for the parties, we
are satisfied that the criminal proceedings initiated by
the respondent against the petitioner are wholly
unwarranted. The complaint is an abuse of the process
of the court and the proceedings are, therefore, liable
to be quashed. Even if all the averments made in the
complaint are taken to be correct, yet the case for
prosecution under Section 420 or Section 406 of the
Penal Code is not made out. The complaint does not
make any averment so as to infer any fraudulent or
dishonest inducement having been made by the
petitioner pursuant to which the respondent parted
with the money. It is not the case of the respondent that
the petitioner does not have the property or that the
petitioner was not competent to enter into an
agreement to sell or could not have transferred title in
the property to the respondent. Merely because an
agreement to sell was entered into which agreement
the petitioner failed to honour, it cannot be said that
the petitioner has cheated the respondent. No case for
prosecution under Section 420 or Section 406 IPC is
made out even prima facie. …”
10. Having regard to the facts and circumstances of
the present case and taking into consideration the ratio laid
down by the Supreme Court in the decisions quoted herein-
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above, in my opinion, it is a case of pure and simple breach of
contract and the dispute is essentially a civil dispute and the
criminal complaint is, therefore, bad in law. From the perusal of
the records, it appears that the present prosecution has been filed
with mala fide intention only to wreak vengeance. The present
prosecution is nothing but a counter blast to the complaint case
filed by the petitioner against the O.P. No. 2 in which
cognizance was taken under Section 138 of the NI Act.
11. Accordingly, the order dated 19.9.2019 passed by
the learned Additional Chief Judicial Magistrate, Sasaram in
Complaint Case No.814 of 2019 is hereby quashed.
12. In view of the aforesaid, the application stands
allowed.
(Sandeep Kumar, J)
Shishir/-
U T
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