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2012 DIGILAW 1603 (JHR)

Chandra Nath Banerjee v. State of Jharkhand

2012-11-06

R.R.PRASAD

body2012
Judgment This application has been filed for quashing of the order dated 15.2.2010 passed by the learned Sessions Judge, Jamshedpur in Cr. Rev. No.143 of 2009 whereby and whereunder learned Sessions Judge having set aside the order dated 18.3.2009 passed in C-1 case no.2107 of 2008 dismissing the complaint, remanded the case to hold further enquiry and to pass a fresh order. 2. The case of the complainant as it appears from the complaint petition is that the complainant having came to learn that M/s. Loknath Builders Pvt. Ltd., to which petitioner is the Director, has been proposing to construct a multi storied building consisting of residential flat, parking space etc. over a piece of land, approached the petitioner for purchasing one residential flat, upon which petitioner also agreed to give a front facing residential flat measuring 2000 sq.ft. @ Rs.850/-per sq.ft. Such offer being accepted, the complainant paid a sum of Rs.15 lacs in advance to the petitioner so as to have a flat as promised within six months. The building was never constructed within the time as promised. When construction got started, a letter was received by the complainant whereby it was intimated that one flat in the first floor having an area of 1690 sq.ft. has been allotted to him, though at the time of entering into an agreement, the accused persons had promised to allot a flat measuring 2000 sq.ft. 3. Further case is that had it been made clear at the time of agreement that they would not allot a flat measuring 2000 sq.ft, he would not have booked the flat. Thus, on the allegation that the accused persons had cheated, the complainant filed a complaint which was registered as complaint case no.407 of 2008. 4. On filing of the complaint, learned Magistrate held enquiry and after holding enquiry, when it was found that no case is made out he dismissed the complaint. 5. Against the order dismissing the complaint, Cr. Rev. No143 of 2009 was filed before the learned Sessions Judge. Learned Sessions Judge having heard counsel for the partied did find that learned Magistrate has committed illegality in dismissing the complaint as the allegation made in the complaint does constitute offence. Accordingly, order passed by the learned Magistrate was set aside and the matter was sent again before the Magistrate for holding enquiry and to pass a fresh order. Learned Sessions Judge having heard counsel for the partied did find that learned Magistrate has committed illegality in dismissing the complaint as the allegation made in the complaint does constitute offence. Accordingly, order passed by the learned Magistrate was set aside and the matter was sent again before the Magistrate for holding enquiry and to pass a fresh order. That order is under challenge. 6. Learned counsel appearing for the petitioner submitted that accepting the entire allegation to be true, no case of cheating is made out, rather it makes out a case of civil liability as according to the allegation made in the complaint, the petitioner simply failed to keep promise and thereby in absence of any culpable intention on the part of the petitioner, the petitioner can never be said to have committed any offence of cheating. 7. Learned counsel in this respect has referred to a decision rendered in a case of V.Y. Josh and another vs. State of Gujarat and another [ (2009) 3 SCC 78 ] and also the cases of Abhijit Das @ Babu @ Narayan Das and Nikhil Sen Gupta vs. State of Jharkhand and another decided by this Court in Cr. M.P. No. 280 of 2010 with Cr. M.P. No. 806 of 2010. 8. As against this, Mr. Sumeet Gadodia, learned counsel appearing for the opposite party no.2 submitted that from the allegation made in the complaint, one can easily come to conclusion that it is not a case of mere breach of contract, rather culpable intention was there right from the beginning to cheat the complainant as at the time of entering into an agreement, it was promised/represented that a flat measuring 2000 sq. ft. would be allotted and only on such promise, the complainant booked the flat and paid Rs.15 lacs which comes to 88% of the total consideration amount and thereby case of cheating is made out. 9. The principle of law in this regard has been well settled and has also been reiterated in the case of V.Y. Josh and another vs. State of Gujarat and another (supra) referred to on behalf of the petitioner that in order to prove the offence of cheating, the complainant or the prosecutor is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case where allegations are made with regard to failure on the part of the accused to keep his promise, no case of cheating is made out in absence of culpable intention at the time of making initial promise. 10. Here in the instant case, learned Sessions Judge having taken into account the allegation made in the complaint that at the time of entering into agreement when representation was made that he would be selling a flat to complainant having an area of 2000 sq. ft., a sum of Rs.15 lac was paid on such assurance but a flat measuring an area of 1690 sq. ft. was allotted did find that the Magistrate has committed illegality in dismissing the complaint by holding that no offence of cheating is made out. I do not intend to express any opinion at this stage as the petitioner, without waiting for the order to be passed by the Magistrate, pursuant to the order passed by the Sessions Judge, has come to this Court whereas learned Magistrate has still to pass order on the point of cognizance but keeping in view the allegation made in the complaint, this much can be said easily that the learned Sessions Judge has not committed any illegality in passing the impugned order and as such, it never calls for any interference by this Court. 11. Accordingly, this application stands dismissed.