Judgment 1. All the three Criminal Miscellaneous application i.e. Cri. Misc. No. 35482 of 2005, Cri. Misc. No. 35457 of 2005 and Cri. Misc. No. 36139 of 2005 are being taken up together for disposal as the same have been preferred against the order dated 5.4.2000 passed in Complaint Case No. 1591 (c) of 1999, whereby the learned Judicial Magistrate, Patna, has taken cognizance against the petitioners for the offence under Sections 418,465,467,471 and 120-B of the Indian Penal Code. 2. The order is being passed in Cri. Misc. No. 35482 of 2005 which will dispose of all the three applications. 3. The case of the complainant, in brief, is that the complainant is a private limited company and its main business is to develop/ construct apartments. 4. Further case is that late Rameshwar Pd. Singh and his brothers i.e. accused nos. 1 to 3 approached the complainant in 1995 and made offer to the complainant to develop and construct apartments on their joint family land bearing Municipal Khesra survey plot No. 793, Tauzi No. 389, Khata no. 91, Survey Thana no. 07, situated at New Punai Chak, PS. Shastri Nagar within the district of Patna measuring 17.6 decimal of land. All the accused persons and their family members participated in the negotiation with the complainant and assured that the land is free from all encumbrance. Thereafter, on 29th October, 1995, late Rameshwar Pd. Singh and alll the accused persons excluding accused no. 4 signed the agreement with the complainant in respect of the aforesaid land and executed power of attorney in favour of the Director of Company. According to the agreement, the share of the accused was 34% of super built up area and the share of the complainant was 66%of the super built up area. 5. It is alleged that after execution of the agreement and power of attorney the complainant started his work for development of the aforesaid land and came to know that some part of the land has been encroached by others and major parts of the lands were acquired by the authority for the purpose of an approach road to plot no. 792 and the accused persons intentionally concealed the said facts from the complainant and entered into the agreement and thereby committed fraud and criminal breach of trust. 6. 792 and the accused persons intentionally concealed the said facts from the complainant and entered into the agreement and thereby committed fraud and criminal breach of trust. 6. It is further alleged that the complainant asked the accused persons to cancel the agreement and to pay the expenses incurred by him and aiso to return the money given by the complainant, whereupon, the accused persons assured the complainant that they would compensate and repay all the expenses done by the complainant towards removal of encroachment and release of land from acquisition. The complainant invested huge amount in getting the land free from all encumbrances and while doing so the complainant had to fight litigation also. In order to meet the acquisition problem, the complainant paid the additional cost of acquisition to the land owner of plot no. 792 and had to make an agreement with the land owner of plot no. 792 also and the accused persons assured that the amount spent would be adjusted from their share. 7. It is the further case of the complainant that as per the Development Agreement, the complainant prepared the map for the land of accused and of plot no. 792 and handed over the said map to late Rameshwar Prasad Singh and Saryug Singh for submitting the same in PRDA Office after getting the signatures of all accused.Thereafter, Late Rameshwar Prasad Singh and Saryug Singh submitted that map in - PRDA purported to be signed by all accused excluding accused no. 4. The map was approved by the PRDA on 15.7.96. The accused persons on the basis of the map signed a Memorandum of Understanding dated 13.11.96, according to which the share of accused in built up area was 5064 sq. ft. which consisted of 8 flats which were marked with numbers.The accused persons entered into in another Development Agreement with the complainant on 27.7.1997 and executed power of attorney in favour of the company on the terms and conditions incorporated in the Development Agreement dated 27.7.97 for development and construction of apartment on their lands on which the complainant started developing R.D. Tower Block-AI. Late Rameshwar Pd. Singh and accused no. 3 were the representative of land owners for Block-AI for R.D. Tower and after the death of Rameshwar Pd. Singh., accused nos. 1 and 2 had taken the cost of their share through cheques and cash on different dates. 8. Late Rameshwar Pd. Singh and accused no. 3 were the representative of land owners for Block-AI for R.D. Tower and after the death of Rameshwar Pd. Singh., accused nos. 1 and 2 had taken the cost of their share through cheques and cash on different dates. 8. It is further alleged that the complainant much prior to the agreed time handed over the finished flats to the accused persons as per the Memorandum of Understanding dated 13.11.96 and possession of the same was taken by Late Rameshwar Prasad Singh and accused no. 6 in writing on behalf of the accused and they sold Flat No. 1-35 and A-46 on the agreed rate and they accepted the payment of Rs. 4,50,000.00 on account of sale of said two flats and rest amount was with the complainant which was to be paid after calculation of final measurement of the flats given in the share or accused and after adjustment of additional expenses in getting the land free from encroachment etc.The accused persons out of their remaining six flats changed the Flat No. A-25 with Flat No. A-22 from the complainant and the accused persons have given all the six flats on monthly rent. 9. it is the further case of the complainant that the complainant received a legal notice dated 20.5.99 from the accused as per which he was asked to substitute accused nos. 4, 5, 6 and one Manoj Kumar Singh as the legal successor of late Rameshwar Pd. Singh and the complainant had no authority to allow/ declare the legal successor to any one. The complainant sent the reply of the notice on 16.6.99 and asked the accused to take proper legal steps in this regard. The accused persons in order to cheat the complainant and grab the additional expenses started terrorising the flat owners in Block-A & B and A-l and putting pressure on the complainant. 10. It is further stated that the accused persons particularly accused nos. 2, 5, 6 and 7 created terror and panic among the resident of R.D. Tower Block-A, B and A-l and to avoid such situation the complainant under pressure accepted the accused no. 1 as the representative of all land owners in respect of Block-A of R.D. Tower. On 22.8.99, final negotiation had taken place with the accused nos. 2, 5, 6 and 7 created terror and panic among the resident of R.D. Tower Block-A, B and A-l and to avoid such situation the complainant under pressure accepted the accused no. 1 as the representative of all land owners in respect of Block-A of R.D. Tower. On 22.8.99, final negotiation had taken place with the accused nos. 1 and 6 in presence of flat owners of R.D. Tower and other witnesses and it was finally settled that in lieu of the share of land owners of Block-A of R.D. Tower, the complainant will pay Rs. 1,55,000.00 to accused and 533 Sq. ft. built up area preferably in Block-AI and, if not, then in any other project of the complainant in New Punaichak Area and an agreement to this effect was made on 22.8.99. Accused nos. 1 and 6 started pressure for payment of Rs. 1,55,000.00 on behalf of all the accused but the complainant asked them to bring authority letter of all the land owners in this regard. On 10.9.99, accused nos. 1 and 6 came to the complainant with an authority letter dated 24.8.99 purported to be signed by all land owners and accused no. 1 signed the said authority letter in presence of witnesses. The complainant believing the said authority letter issued three post dated cheques for Rs. 1,55,000.00 in favour of accused no. 1, who withdrew the said amount from the bank. 11. It is further alleged that on the very next day accused no. 3 came to the complainant for verification of a payment and when he saw the said authority letter, he disclosed that his signature on the authority letter is forged and manufactured by accused nos. 1 and 6. Thereafter, the complainant decided to lodge a criminal case against accused nos. 1 and 6 but the accused nos. 2 to 5 and 7 to 8 requested the complainant through various persons not to lodge any complaint against accused nos. 1 and 6 and they will brought them before the complainant for final accounting. The complainant believed them but they never brought accused nos. 1 and 6. It is further stated that all of a sudden accused nos. 1 and 6 in the night of 21.10.99, forcibly captured one flat of the complainant situated on the fifth floor of R.D. Tower, Block-A, which was under the occupation of State Bank of Bikaner and Jaipur. The complainant believed them but they never brought accused nos. 1 and 6. It is further stated that all of a sudden accused nos. 1 and 6 in the night of 21.10.99, forcibly captured one flat of the complainant situated on the fifth floor of R.D. Tower, Block-A, which was under the occupation of State Bank of Bikaner and Jaipur. Thereafter, the complainant approached the police but the police after much persuasion only lodged the case with regard to the occurrence occurred on 21.10.99 and thereafter this complaint was filed in the Court. 12. It is further alleged that in the daily news paper "AAJ" dated 1.11.99, a news was published under the heading Guhar at the instance of the accused persons that the map of R.D. Tower Block-A contains the forged signature of owners. From the above publication, it is clear that the accused persons had ulterior motive from very beginning and due to that they submitted the map in PRDA with the forged signatures and never disclosed this to the complainant, they take the share in the apartment, sold two flats constructed on the basis of that map and they are getting the rent of six flats and to pressurise the complainant they published the news about the forged signature on the map. The complainant was not knowing whether the signature was genuine or forged and only on 1.11.99 the complainant came to know about this forgery through the news paper. 13. It is further alleged that the accused persons had the intention to cheat the complainant from very beginning.The complainant on the assurance of the accused persons has invested huge amount which has not been returned by the accused. The accused persons committed forgery, prepared forged documents on the basis of which had taken money and cheated the complainant and, thus, committed offence punishable under Sections 420, 406, 465, 467, 468, 471, 500 and 120-B of the Indian Penal Code. 14. It has been submitted by the learned Advocate of the petitioners that the present case is pure and simple case of breach of agreement and, therefore, no criminal liability can be fastened against the accused persons. 14. It has been submitted by the learned Advocate of the petitioners that the present case is pure and simple case of breach of agreement and, therefore, no criminal liability can be fastened against the accused persons. Learned Advocate further submitted that for breach of agreement the petitioners have already instituted a civil suit against the complainant bearing Titie Suit No.447 of 1999 and in order to pressurise the petitioners not to proceed with the civil suit the complainant has filed this false case against the petitioners. Learned Advocate further submitted that the learned Magistrate without applying his mind has taken cognizance against the petitioners although in fact the sections applied by the learned Magistrate do not apply in this case. In support of his argument that where the case is based on agreement only civil suit will lie, the learned Advocate has referred the decision in the case of Patliputra Builders Pvt. Ltd. & Anr. vs. State of Bihar & Anr. reported in 2005(1) PLJR page 89. Further, in support of his argument that a civil suit is pending between the parties with regard to the breach of agreement, the learned advocate has annexed the plaint of Title Suit No. 447 of 99 (Annexure-3). 15. As per the admitted facts the complainant is a builder, whereas, the accused persons are the owners of land. It is also admitted fact that the complainant started work of development of land of the accused and constructed apartments over the same on the basis of agreement but on the basis of the allegation in the complaint petition, it can not be said that it is a simple case of breach of agreement and, so, only civil remedy is available to the complainant, rather, the allegation levelled in the complaint petition establishes that from the beginning the petitioners-accused persons have not come with clean hands and they handed over the land to the complainant for development and construction which was not free from encumbrance and encroachment. It further transpires from the allegation made in the complaint petition that the accused persons also handed over some documents and map to the complainant with the forged signatures which definitely makes out a criminal offence. 16. It further transpires from the allegation made in the complaint petition that the accused persons also handed over some documents and map to the complainant with the forged signatures which definitely makes out a criminal offence. 16. I am of the view that on the basis of the allegation levelled in the complaint petition, a prima facie case under Sections 418,465 and 471 is made out against the accused persons and, therefore, I do not find any illegality in the order of the learned Magistrate taking cognizance against the accused persons. 17. In the result, I do not find any merit in all these three applications which are hereby dismissed with observation that the petitioners may raise all the points taken in this application before the Trial Court at an appropriate stage. 18. Stay granted vide order dated 20.10.2005 passed in Cri.Misc. No. 35482 of 2005 stands vacated.