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2007 DIGILAW 1337 (PAT)

Dhanraj Singh v. State Of Bihar

2007-08-13

SADANAND MUKHERJEE

body2007
Judgment 1. This is an application for quashing the Complaint Case No. 59(c) of 2005 as well as the order dated 16.6.2005 passed by Sri Premchand Anal, Judicial Magistrate, 1st Class, Patna summoning the petitioner to stand trial in the said complaint under Sections 147, 148 and 380 of the I.P.C. 2. The complainant filed a complaint case before the Chief Judicial Magistrate, Patna on 7.1.2005 alleging that on 29.12.2004 at 8.30 P.M. all the accused persons named in the complaint petition carrying firearms came to the shop premises of the complainant and took away all the articles. Thereafter loading the articles on a tractor they went away. The petitioner is accused No. 3 in this case. Accused persons are M/s Contract Carriers Limited a Company registered under the Companies Act having its registered office at 14/3 Chhatawali Gali, Calcutta through its Director, Sri Dhanraj Singh (petitioner) in this case and the Branch Office of M/s Contract Carriers Limited as well as the present petitioner Accused No. 3, apart from other accused persons who were also Directors of the aforesaid Contract Carriers Limited. Accused No.1 entered into a development agreement with M/s Brahmanand Developers Private Ltd. on 28.3.2001 for getting the disputed land developed. The developer entered into an agreement for sale for collecting fund with the first party on 28.10.2001 in respect of shops/offices in terms of the development agreement. The development agreement authorises the Developer Company to retain 50% of the constructed portion of Dhanraj Tower in lieu of the construction cost. In order to arrange the necessary fund for the construction of Dhanraj Tower, the Development Agreement further empowers the Developer Company to enter into agreement for sale with the intending purchasers in respect of its share being developers share. 3. The complainant, Opposite Party No. 2, after having come to know about the construction of the Dhanraj Tower over the scheduled land, entered into the agreement for sale dated 28.10.2001 with the Developer after paying proper consideration money. The complainant came in peaceful physical possession over the aforesaid premises in the month of January, 2002. In course of doing the business, the complainant used to keep and possess goods amounting to Rs. 1,50,000.00 approximately. The complainant had taken appropriate legal steps before the authority of law and the court of law. 4. The complainant came in peaceful physical possession over the aforesaid premises in the month of January, 2002. In course of doing the business, the complainant used to keep and possess goods amounting to Rs. 1,50,000.00 approximately. The complainant had taken appropriate legal steps before the authority of law and the court of law. 4. The case of Opposite Party No. 2 complainant is that on 29.12.2004 at about 8.30 P.M. all the accused persons armed with firearm entered into the Dhanraj Tower after breaking the lock of the said premises. All of them entered into the said premises and looted away all the articles kept in the premises. The accused persons set fire in the premises in which the fixture and furniture as well as other valuable documents were burnt. All the accused persons threatened the staff and security guard of the complainant and forced them to leave the said premises in order to save their lives and informed the complainant on telephone about the incident. The complainant came to the local police station and complained in writing. But the local police appears to be under undue influence of accused No. 3, petitioner in this case. The cognizance of offence was taken under Sections 147, 148, 389, 452, 384, 436, 341/34 and 120B of the I.P.C. on complaint petition. 5. It is submitted that the order of the learned Magistrate is bad in fact and in law and he has failed to apply his judicial mind to find out the prima facie case against the petitioner. It is submitted that the order of summoning the petitioner is abuse of the process of the law and there is no material on record to justify the order of learned Magistrate. 6. The case of petitioner is that it is not a fact that the premises in question was ever purchased by the Complainant Anil Kumar Sharma and he had occupied the same for opening the office there and put any material which was looted away by the accused persons. The Complainant has not agreed to enter into the agreement with the vendor who has no right to enter into such agreement on account of letter dated 14.9.2001 issued by the P.R.D.A. stopping further construction in plan case No. 292 of 1995. The Complainant has not agreed to enter into the agreement with the vendor who has no right to enter into such agreement on account of letter dated 14.9.2001 issued by the P.R.D.A. stopping further construction in plan case No. 292 of 1995. As per Clauses 14 and 15 of the Development agreement developer cannot give possession over the booked area without written consent of M/s" Contract Carriers Ltd. of which the petitioner is the Director. It is further submitted that after stopping of construction work in view of the letter of P.R.D.A., Dhanraj Tower could not be completed and as per rules of P.R.D.A. no one can occupy and use incomplete building. The Development agreement became dead because of stipulated passage of time and as per terms of the agreement the property reverted back to Contract Carriers Ltd. under the directorship of this petitioner. The complainant and his henchmen have filed several false criminal cases against the petitioner and his family members only with a view to put unnecessary pressure upon him to abdicate his claim over the property. In pursuance of the order of the S.D.M., Sadar Patna, armed police force was deputed at the place of occurrence to maintain law and order. It is submitted that the learned Magistrate failed to consider that judicial process should not be an instrument of oppression or needless harassment. It has also been submitted that the learned Magistrate failed to take notice of legal maxim "ex-debito justitiae" under which courts are meant to do real and substantial justice for the administration of which the court exists to prevent abuse of the court process. Hence, this application for quashing. 7. A counter affidavit has been filed on behalf of Opposite Party No. 2, the complainant. The case of Opposite Party No. 2 is that in order to purchase the business premises, this Opposite Party executed an agreement for sale dated 28.10.2001 with Brahmanand Pvt. Ltd.. copy of the agreement is Annexure-1. Hence, this application for quashing. 7. A counter affidavit has been filed on behalf of Opposite Party No. 2, the complainant. The case of Opposite Party No. 2 is that in order to purchase the business premises, this Opposite Party executed an agreement for sale dated 28.10.2001 with Brahmanand Pvt. Ltd.. copy of the agreement is Annexure-1. Prior to execution of agreement for sale, the opposite party inspected the relevant documents including the Development Agreement dated 28.3.2001 executed between M/s Contract Carriers Ltd., and M/s "Brahmanand Developers Private Ltd. The petitioner of this quashing application executed the Development Agreement dated 28.3.2001 on behalf of M/s Contract Carriers Ltd. Prior to entering into the agreement for sale dated 28.10.2001; the opposite party met the petitioner in order to ascertain the true facts, and the petitioner and his other associates advised the opposite party for entering into the agreement for sale dated 28.10.2001. The opposite party, prior to and after the execution of agreement for sale, paid a sum of Rs. 28,00,000/- only in the hand of the petitioner who assured the opposite party that after full payment, the sale deed in respect of portion of the opposite party would be registered. The agreement of sale was entered into by the petitioner with M/s Brahmanand Developers Private Ltd. and latter on the said M/s Brahmanand Developers Pvt. Ltd. came in peaceful physical possession over the piece of land and started construction of the Dhanraj Tower. The M/s Brahmanand Developers had to construct the Dhanraj Tower by arranging the fund from its own sources, and he has right to retain 50% of the built-up area of the said Tower, and he has also right to sell out its share in the said tower. Litigations were going on between the petitioner and the M/s Brahmanand Developer Pvt. Ltd. The petitioner tried to evict the opposite party forcefully from the Dhanraj Tower, for which the opposite party lodged an information dated 29.6.2004 before the C.J.M., Patna. Litigations were going on between the petitioner and the M/s Brahmanand Developer Pvt. Ltd. The petitioner tried to evict the opposite party forcefully from the Dhanraj Tower, for which the opposite party lodged an information dated 29.6.2004 before the C.J.M., Patna. The proceeding u/s 107 Cr.P.C. was also initiated and the kotwali police also recommended for taking action against the petitioner and his associates under section 116(1) of the Cr.P.C. It is further stated in the said counter affidavit that in order to falsely implicate the opposite party, the petitioner got instituted Kotwali P.S. Case No. 303/2004 with the help of one Gopal Saran Dubey, but the said Gopal Saran Dubey filed a petition in the court that his signature on the F.I.R. was obtained by force. The said Gopal Saran Dubey was also threatened by the petitioner, as a result of which he also filed a complaint, being Complaint No. 123(C)/ 2005 against the petitioner and his associates in the court of C.J.M., Patna. It is stated that the opposite party also filed a written complaint No. 59(C)/2005 stating therein about threatening and forceful eviction from Dhanraj Tower. It has been submitted on behalf of the opposite party that construction of the Dhanraj Tower was not possible without the fund of the allottees including the opposite party, as such the petitioner should have refunded the consideration money to all the allottees including the opposite party, and the petitioner had no right to loot the articles of the opposite party. It has been submitted that the opposite party requested the petitioner and builder to refund his consideration money, but both of them did not want to return the same and always threatened the opposite party to evict him forcibly from the Dhanraj Tower. It has further been submitted that the opposite party had come in possession in the month of January, 2002, in pursuance of agreement for sale dated 28.10.2001 after paying proper consideration money, and the opposite party was in possession of the premises in the Dhanraj Tower at the relevant time when the petitioner got his goods looted away. 8. On behalf of the petitioner it has been contended that there was an arbitration and if the case of the complainant is believed, this can be at the most civil dispute. 8. On behalf of the petitioner it has been contended that there was an arbitration and if the case of the complainant is believed, this can be at the most civil dispute. Attention also has been drawn in this regard towards the settled principle of law by the Apex Court in which there is no urgency in the business to convert purely into civil dispute into criminal dispute because of the belief that civil law remedy consumes time, with a view to apply pressure. It has been submitted that in several decisions of the Hon ble Apex Court this tendency has been deprecated. It has also been submitted on behalf of the petitioner that in view of the fact that there was civil dispute and that the complainant has not agreed to enter into any agreement with the vendor who has no right to enter into such agreement on account of the P.R.D.A, direction for stopping further construction, the complainant who is in habit of filing false criminal cases dragged the petitioner in a false allegation to put pressure upon him to leave his claim over the property. Besides that, there was a development agreement and in view of the same, no criminal liability can be attached. Allegation has been made regarding mala fides of the complainant. 9. It is submitted however on behalf of opposite party-complainant that in view of the settled principle of law that this Court would not ordinarily embark upon an enquiry where evidence in question is reliable or not, or whether on reasonable appreciation of it, accusation would not be sustained and the same is the function of the trial Judge, hence at this stage the case has to be looked into purely on the complainants point of view. 10. It has also been submitted on behalf of the complainant-opposite party that in view of the settled law, the complaint can be quashed where the allegation made in the complaint even if they are taken on their face value and accepted their entirety do not prima facie constitute offence. 10. It has also been submitted on behalf of the complainant-opposite party that in view of the settled law, the complaint can be quashed where the allegation made in the complaint even if they are taken on their face value and accepted their entirety do not prima facie constitute offence. It is settled principle of law that merely because a case involves civil liability, the mere fact that the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been availed of, is not itself a ground to quash the criminal proceeding, and the test is whether the allegation in the complaint disclosed a criminal offence or not. 11. It is further submitted that in view of the settled principle of law and in view of the criminal complaint regarding criminal act, the case has to be seen from the complainants point of view. 12. Now coming to the facts of the case, there is no doubt that there was a development agreement between Brahmanand Developers Private Ltd. and the petitioner. As it is pointed out the case has to be looked into on the bare facts of the complaint whether offence has been constituted or not in view of the settled law in this behalf is referred to in the foregoing paragraphs that the complainant entered into an agreement for sale with the Developers Company after paying consideration money and came in peaceful possession over the premises, keeping in possession the goods amounting to Rs. 1,50,000/- approximately and doing the business and on 29.2.2004, the accused persons including the petitioner armed with firearm entered into the premises by breaking the lock, looted away all the articles kept in the premises and after looting the articles they loaded the same on tractor or trekker, and forced the office staffs and security guards to leave the premises, causing forceful eviction. 13. The petitioner has also advanced his case as stated above. The facts stated above by the petitioner are defences that may be available to the petitioner in an appropriate stage of the case and not at this stage. At this stage, this Court is only concerned with the question whether the averment made in the complaint makes out the ingredients of the criminal offence. Hence, this is not among the categories of the cases which can be quashed at this stage. At this stage, this Court is only concerned with the question whether the averment made in the complaint makes out the ingredients of the criminal offence. Hence, this is not among the categories of the cases which can be quashed at this stage. The petitioner may make the aforesaid pleas, defences, state facts and assertion, at the appropriate stage. 14. With the above observation, this application is dismissed.