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2007 DIGILAW 66 (PAT)

Md. Abu Quaiser v. State Of Bihar

2007-01-10

MRIDULA MISHRA

body2007
Judgment 1. Heard the counsel for the petitioner. 2. No one appears on behalf of the opposite parties. 3. Since 4.9.2006, this matter was being adjourned at the prayer of the parties as some talk of compromise was going on between the parties. It seems that it has failed. 4. This application has been filed by the petitioners for quashing the order, dated 8.8.2005, whereby cognizance has been taken under Sections 420 and 506/34 of the Indian Penal code against the petition ers in Pirbahore P.S. Case No. 345 o 2004. Petitioners 1 to 8 are the builders and developers doing their business in the name of M/s Abu Construction Private Lim ited. Petitioner no. 4 is the brother of petitioner no. 1 and has also purchased a separate flat in this apartment, namely no 2. Smt. Shyama Srivastava, sent a writter complaint to the Senior Superintendent of Police, Patna, and it was forwarded to the Officer-in-Charge for instituting a case treating the letter as written report. Pirbahore P.S. Case No. 346 of 2004 was instituted under Sections 406, 420 and 506/34 of the Indian Penal Code. It is alleged in the written that in the year 2001 her land situated in Mohalla Nayatola was handed over to builder, Md. Abu Qaiser for development under in agreement. As per the agreement sixty per cent (13 flats) with car parking space was to be kept by the builder and forty per cent with car parking space was to be given to the land owner but the key of only three flats have been given to her (owner). On several occasions she approached the accused persons personally and telephonically, but her entire share, as per agreement, has not been handed over to her. Instead of handing over her share of area, registered letter has been sent by the accused persons demanding Rs, 8,06,850/- although there in no such term in the agreement entered into between the parties. 5. Counsel for the petitioner submit that the contents of the first information report clearly discloses that there is an agreement executed in between the accused and the informant. As per the terms of the agreement informant has go get forty per cent share and the builder/petitioners 1, 2 and 3 will get sixty per cent share. 5. Counsel for the petitioner submit that the contents of the first information report clearly discloses that there is an agreement executed in between the accused and the informant. As per the terms of the agreement informant has go get forty per cent share and the builder/petitioners 1, 2 and 3 will get sixty per cent share. Share of owner of has already be handed over to her which is apparent from Annexure 2/1, i.e., deed of declaration. This deed of declaration is being admitted by the opposite party/informant. In this circumstances, the allegation do not make out offence under Sections 406 and 506/34 of the Indian Penal Code. If the allegations made in the first information report is taken it appears that it is a pure and and simple case of breach of agreement, even if it is presumed to be correct. This gives rise to civil liability only ant it cap, not make out an offence under Sections 420 and 506/34 of the Indian Penal Code. The agreement and deed of declaration has been annexed. As per the agreement total nine flats were to be handed over to the complainant. Annexure 2/1 is the deed of declaration from which it transpires that the share of the informant has been handed over to her. Counsel for the petitioners states that letter, dated 22.8.2004 (Annexure 3) is the reason behind filing of first information report. By Annexure 3, a demand of Rs. 8, 06,850/- was made by the developers (petitioners) for doing some development work in the flats of the informent per her wishes, for such work there is provisions in the agreement. In case petitioners demanded money for such additional work that can not make out an offence under Sections 406, 420 and 506/34 of the Indian Penal Code. Reliance has been placed by the petitioner decisions reported in 200591) P.L.J.R., (Patliputa Builders Pvt. Ltd. & Anr. The State of Bihar & Anr.) as well as 2006(3) P.L.J.R., 331 (M.L. Dalima & Company Ltd. Vs. The State of Bihar & Anr.). It has been held in the first decision that, "complaint against the accused persons that they did not construct the apartment building as per the standards stipulated in the agreement. A pure and simple case of breach of agreement, giving rise to civil liabilities, no case under Sections 420, 406 of the Indian Penal Code made out. It has been held in the first decision that, "complaint against the accused persons that they did not construct the apartment building as per the standards stipulated in the agreement. A pure and simple case of breach of agreement, giving rise to civil liabilities, no case under Sections 420, 406 of the Indian Penal Code made out. Criminal proceeding quashed". In the next decision it has been held that now a days even for a civil liability criminal proceeding are being initiated by people though matter but and out falls within purview of civil disputes choosing the forum of criminal courts for settlement of civil dispute should be discouraged, if it is initiated for coercing the accused to pay disputed dues. The lower Courts without applying judicial mind and examining the facts disclosed in complaint petition should not take cognizance and proceed to prosecute the accused. 6. Present case is also one of such cases. The facts disclosed in complaint petition, as detailed above, clearly go to show that the sole purpose of launching the criminal case is to coerce the petitioners to yield to the demand of complainant though it is out and out a civil dispute arising out of contractual relationship in between petitioners and the informant. 7. Facts of the present case is completely covered by the facts of the decisions referred. Relationship between the petitioners and the informant is pure and simple contractual relationship and breach of terms of the contract which gives rise to a civil liability, no criminal proceeding should be initiated. 8. Considering the facts the order, taking cognizance, dated 8.8.2005, passed in Pirbahore P.S. Case No. 346 of 2004 is quashed. 9. Accordingly, this application is allowed.