Page No.# 1/6 GAHC010241472019 2025:GAU-AS:6732 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1171/2019 ENARA BEGUM AND ANR D/O EMRAN ALI, R/O VILL-KRISNAI JYOTINAGAR, P.S.-KRISHNAI, DIST- GOALPARA, ASSAM 2: TAHIDUL ALI S/O FULUDDIN AHMED R/O VILL-KAMAR MANIKPUR P.S.-KRISHNAI DIST-GOALPARA (ASSAM VERSUS State Of Assam Represented By PP,Assam 2:Minuara Bibi W/O ABDUL RAHIM R/O KAMAR MANIKPUR P.O.-KRISHNAI DIST-GOALPRA (ASSAM) PIN-78312 Advocate for the Petitioner : MS. R CHOUDHURY, MR D. CHAKRABORTY,MR. A WAHAB Advocate for the Respondent : PP, ASSAM, MR. A ALAM,MR. A ALAMGEER Page No.# 2/6 BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND JUDGEMENT AND ORDER (ORAL) Date : 26-05-2025 Heard learned counsel Ms. R. Choudhury for the petitioners Enara Begum and Tahidul Ali, learned Additional Public Prosecutor Mr. B. Sarma for the State of Assam, respondent No. 1 and learned counsel Mr. A. Alam for Minuara Bibi, respondent No. 2. 2. This petition was initially filed by Emran Ali along with other petitioners but as the petitioner Emran Ali passed away on 18.02.2020, his name was struck off and the present petitioners are before this Court as petitioners No. 1 and 2 respectively. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC for short) challenging the judgment and order dated 02.09.2019 passed by the learned Additional Sessions Judge, Goalpara in Criminal Revision No. 74/2018, whereunder revision filed by the present petitioners was dismissed affirming the order dated 30.11.2018 passed by the Execute Magistrate, Goalpara in Misc Case No. 63/2018. 3. It is submitted that the wife of Emran Ali, Sorifa Begum was the original owner of a parcel of land ad-measuring 6 Bigha 4 Katha 4 Lecha appertaining to Patta No. 319(Old)/493(New) under Dag No. 64(Old)/95(New) under Matia Revenue Circle, Village – Harimura of Goalpara district. 4. I have considered the submissions at the bar. 5. It is submitted on behalf of the petitioners that an agreement for sale was executed between the original owner/ Sorifa Begum and the respondent No. 2’s Page No.# 3/6 husband/Abdul Rahim for sale of the aforementioned land on 31.03.2007 for a consideration of Rs.1,40,000/- (Rupees One Lac and Forty Thousand). On the date of execution of the Deed, the land was handed over to the purchaser Abdul Rahim after payment of Rs.70,000/- (Rupees Seventy Thousand) in part. It is however alleged that the remaining amount of Rs.70,000/- (Rupees Seventy Thousand) has been paid to Emran Ali, husband of the original owner Sorifa Begum on 15.04.2008 but the petitioners’ side instead of handing over the absolute possession over the plot of land, took back the possession of the aforementioned plot of land and handed over the possession to Tahidul Ali. 6. On the contrary, it is submitted on behalf of the petitioners that the respondent No. 2 as well as respondent No. 2’s husband failed to pay the remaining part of Rs.70,000/- (Rupees Seventy Thousand) and this is why the possession of the aforementioned parcel of land was taken back from the respondent No. 2 and the land was sold to Tahidul Ali. It is further submitted that the submissions that the remaining amount of Rs.70,000/- (Rupees Seventy Thousand) was handed over to Emran Ali cannot be accepted as at the time when the amount was handed over to Emran Ali, the original owner Sorifa Begum was alive and Annexure-1 clearly reveals that the original owner Sorifa Begum was alive at the time when the part payment was allegedly handed over to Emran Ali on 15.04.2008. 7. The date of death of Sorifa Begum is clearly reflected as 07.04.2017 in Annexure-1 of this petition. 8. It is further submitted that when the respondent No. 2 could legally claim for her right for specific performance of contract at the strength of any alleged agreement executed between the vendor and the vendee, it was the duty of the Page No.# 4/6 respondent No. 2 to bring up a title suit for specific performance of contract. However, the respondent No. 2 has preferred to bring up a proceeding under Section 145 of CrPC which is clearly an abuse of the process of the Court. 9. The learned Executive Magistrate, Goalpara vide the impugned order dated 30.11.2018 in connection with Misc. Case No. 63/2018 attached the aforementioned plot of land after apprehending breach of public peace and tranquility. 10. Against this order, the petitioners preferred Criminal Revision No. 74/2018 but the Criminal Revision was dismissed vide the impugned judgment dated 02.09.2019 in connection with Criminal Revision No. 74/2018 by upholding a view that there is indeed apprehension of breach of public peace and tranquility in the locality. 11. Per contra, learned counsel for the respondent No. 2 has submitted that there was indeed an Agreement for Sale and the aforementioned plot of land was attached after recording the evidence of one witness and on the basis of police report. 12. Learned counsel for the petitioners has relied on the decision of the Hon’ble Supreme Court in Mitesh Kumar vs. The State of Karnataka and Others reported in 2021 0 Supreme (SC) 628 wherein it has been observed that :- “37. Although, there is perhaps not even an iota of doubt that a singular factual premise can give rise to a dispute which is both, of a civil as well as criminal nature, each of which could be pursued regardless of the other. In the instant case, the actual question which requires consideration is not whether a criminal case could be pursued in the presence of a civil suit, but whether the relevant ingredients for a criminal case are even prima facie made out. Relying on the facts as discussed in previous paragraphs, clearly no cogent case regarding a criminal breach of trust or cheating is made out. Page No.# 5/6 38. The dispute between the parties, could at best be termed as one involving a mere breach of contract. Now, whether and what, is the difference between a mere breach of contract and an offence of cheating has been discussed in the ensuing paragraphs.” **** ***** ***** “41. Having considered the relevant arguments of the parties and decisions of this court we are of the considered view that existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has been rightly emphasised upon by this court, by way of an observation rendered in the case of M/s Indian Oil Corporation vs. M/s. NEPC India Ltd & Others, (2006) 6 SCC 736 as under :- “14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law.” **** ***** ***** “45. Applying this dictum to the instant factual matrix, it can be safely concluded that the present case clearly falls within the ambit of first, third and fifth category of the seven categories enlisted in the above said judgment. The case therefore warrants intervention by this Court, and the High Court has erred in dismissing the petition filed by the Appellants under section 482 Cr.P.C. We find that there has been attempt to stretch the contours of a civil dispute and thereby essentially impart a criminal color to it.” 13. I have also relied on the decision of the Hon’ble Supreme Court in Mitesh Kumar’s case (supra). In this case, the dispute is relating to the aforementioned plot of land. It is not clear who is the owner of the plot of land vis-à-vis who is the purchaser of the aforementioned plot of land. It is clear that the respondent No. 2 ought to have approached a Civil Court for relief, if so advised. 14. Thereby, the judgment dated 02.09.2019 passed by the learned Additional Page No.# 6/6 Sessions Judge, Goalpara in Criminal Revision No. 74/2018 whereby the revision filed by the present petitioners was dismissed affirming the order dated 30.11.2018 passed by the learned Executive Magistrate, Goalpara in Misc Case No. 63/2018 whereunder a proceeding under Section 145 (1) was drawn up and the disputed land was attached under Section 146(1) of CrPC is set aside. Consequently, the order dated 30.11.2018 passed by the learned Executive Magistrate, Goalpara in Misc Case No. 63/2018 15 is also set aside. 15. In terms of the above observations, this petition stands disposed of. 16. Send back the Trial Court Records. JUDGE Comparing Assistant