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Patna High Court · body

2008 DIGILAW 251 (PAT)

Ashok Kumar v. State of Bihar

2008-02-05

body2008
ORDER The petitioner, one of the accused of Complaint Case No. 838(C) of 2003, has prayed for quashing of the entire criminal proceedings including the order dated 11.8.2003 passed therein whereby Shri Manoj Kumar Singh, Judicial Magistrate, 1st Class, Patna, has taken cognizance of the offence under Section 406 I.P.C. 2. The complainant, one Arvind Kumar Sinha, Accounts Manager and Constituted Attorney of Karpur Construction Private limited, impleaded as O.P. No.2 herein, filed the aforesaid complaint case alleging inter alia that the petitioner alongwith others had entered into an agreement dated 17.7.2001 for development of a piece of land at Boring Canal Road and two written development agreements were executed on 17.7.2001 and a sum of Rs. 6,02,000/- were paid by the complainant's company by way of agreement money to the accused persons by four cheques on that day itself. It is said that under one of the terms of the agreement the accused persons fully authorized the complainant's company with absolute freedom to do all acts, deeds, materials and things necessary for and connected with the development of the land in question and to construct the proposed multi-storeyed building. It is also said that under another term the complainant's company was given power and authorised to process/submit the plan for approval and sanction from the P.R.D.A. on behalf of the accused persons at developer's own cost and also to appoint technical persons, architects, engineers and managerial persons for development and construction and other allied jobs. The accused persons had also assured to deliver the vacant possession of the entire land within a month. It is said that accordingly the complainant's company engaged Architects, Structural Designer, Engineer, Managerial Staff, got map prepared and also got sanction from the P.R.D.A. in their names by spending substantial amount towards those heads. However, in contravention of the terms of the agreement, the accused persons failed to handover the entire vacant possession of the land and gave possession only of the back portion. It is said the believing the assurances of the accused persons that they will give possession of the front portion shortly, the complainant's company made investment of substantial amount towards development of the back portion. As a result the complainant's company had incurred a huge liability of substantial amount of approximately 50 lacs in anticipation of completion of its project upon the land in question. 3. As a result the complainant's company had incurred a huge liability of substantial amount of approximately 50 lacs in anticipation of completion of its project upon the land in question. 3. However, on 3.10.2002, the accused persons sent a notice to the effect that they were not interested in the development and on inquiry it was learnt that the accused persons had pre-planned the entire matter to cheat and commit criminal breach of trust after getting all arrangements finalized as well as after development of the land. It is also said that for the said purpose the accused persons had conspired with 1-2 tenants who were occupying small shops in the premises. The complainant's company tried to persuade the accused persons to allow then to start the construction work at least within the area which was vacant but due to their criminal intention to misappropriate the major portion of the amount and to negotiate with other developers they did not handover the property in question. A registered legal notice was sent on 6.1.2003 but the same did not evince any response. 4. It has been submitted on behalf of the petitioner that as per the agreement the petitioner was to give vacant possession of the plot to the complainant since there were 10 shops on rent on the said plot. The petitioner had approached the tenants to vacate the premises but instead of vacating the premises the said tenants entered into litigation and a proceeding under Section 144 Cr.P.C. was initiated and the petitioner was prohibited from committing any overt act on the said shops. It has further been submitted that since the petitioner was to given vacant possession of the lands in question within a period of one month from the date of agreement and the same was not possible due to the litigation by virtue whereof he could not get the premises vacated, he, therefore, informed about the development to the complainant and prayed for the agreement to be treated as cancelled and asked the complainant to collect the money which had been advanced. It has also been submitted that no piece of land of the said plot had ever been given in possession to the complainant. It has also been submitted that no piece of land of the said plot had ever been given in possession to the complainant. The petitioner has also questioned the statement of the complainant of having spent 50 lacs of rupees over the said plot as no possession of the plot had been given to the complainant. 5. The learned counsel also sought to point out that in the evidence before charge before the court below the complainant in his cross-examination had stated that the complainant had brought this complaint case to recover the expenses which the company had incurred and that of the face value the entire case appeared to be one of civil dispute for which there was specific provision under the other laws. The learned counsel for the petitioner also sought to point out that none of the ingredients of an offence under Section 406 I.P.C. appeared to have been made out from the averments in the complaint petition or the evidence led at the inquiry under Section 202 Cr.P.C. 6. It is true that a sum of Rs. 6 lacs and odd had been advanced by the complainant to the accused persons towards agreement money which was refundable and a sum of Rs. 5 lacs by two cheques of Rs. 2.5 lacs each had been returned by the accused persons. It is also true that the landlord was required to give vacant possession of the land within a period of one month which could not be carried out as the tenants having shops were not ready to vacate the premises and entered into a litigation. In that view of the matter the terms of the agreement could not be complied with by the accused persons. In effect the whole case appears to revolve round money transaction and violation of the terms of the contract. 7. To constitute an offence under Section 406 I.P.C., there must be a dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which breach of trust is charged. The ingredients of criminal breach of trust are that the accused must have been entrusted with property or dominion over it and the accused must have misappropriated the property or disposed of that property in violation of such trust. The ingredients of criminal breach of trust are that the accused must have been entrusted with property or dominion over it and the accused must have misappropriated the property or disposed of that property in violation of such trust. None of these ingredients are available in the instant case and in the absence of these ingredients no offence of criminal breach of trust is made out. The non-refund of the money advanced is a disputed question of fact which cannot be looked into in a proceeding under Section 482 Cr.P.C. 8. Due regard being had to the facts and the circumstances of the case, the instant case appears to be one of purely civil dispute for which remedy lies in a Court of competent jurisdiction and criminal prosecution of the petitioner would be an abuse of the process of the court. Accordingly, the order taking cognizance as also the entire criminal proceedings, so far as the petitioner is concerned, is hereby quashed and the application is allowed.