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2012 DIGILAW 751 (PAT)

Sanjay Prasad v. State of Bihar

2012-05-08

ASHWANI KUMAR SINGH

body2012
ASHWANI KUMAR SINGH, J.:–The petitioner by invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has prayed for quashing the order dated 9.1.2007 passed in Complaint Case No. 1384(C)/2006 by Sri Bharat Tiwari, the learned Judicial Magistrate, Ist Class, Patna whereby and whereunder finding a prima facie case to be made out under Sections 406 and 420 of the Indian Penal Code, he has summoned the accused persons including the petitioner to face trial. 2. The complainant-opposite party no. 2 filed a complaint on 22.5.2006 in the court of the learned Chief Judicial Magistrate, Patna, alleging therein that the accused persons are the land owner, title holder and owner in possession of a piece of land bearing plot no. M/32 (new) and M/09 (old), Road No. 25, situated at Srikrishna Nagar, P.S.-Budha Colony, Town & District-Patna. The complainant claims to be the Managing Director of M/s. Makan Developers (I) Pvt. Ltd. He entered into Development Agreement on 14.4.2005 with the accused persons and by virtue of the said agreement, the complainant was under obligation to construct a multi-storied building over the said plot under the terms and conditions incorporated in the said Development Agreement. 3. It has further been alleged that at the time of execution and signing of the Development Agreement the complainant paid a sum of Rs. 1,04,000/- (One Lakh Four Thousand) to the accused as signing amount which was refundable at the time of delivery of possession of the super structures erected and constructed by the complainant. It is stated that after execution of the Development Agreement the complainant, in good faith, spent and invested a sum of Rs. 10.00 lacs approximately over the project. The complainant, thereafter, requested the accused persons orally and in writing to submit form for sanction of map from Patna Regional Development Authority, Patna, permission from Housing Board and other documents/papers but the accused persons did not submit the required documents and papers with mala fide intention. 4. It has further been alleged in the complaint petition that the accused persons gave an advocate’s notice dated 25.3.2006 in which it was informed to the complainant that the Development Agreement has been cancelled. 4. It has further been alleged in the complaint petition that the accused persons gave an advocate’s notice dated 25.3.2006 in which it was informed to the complainant that the Development Agreement has been cancelled. The complainant claims to have replied the advocate’s notice dated 8.4.2006 through advocate in which it was stated that the Development Agreement in question cannot be cancelled in view of the fact that the complainant believing upon the accused, in good faith, proceeded with the project of super construction and spent more than Rs. 10,00,000/- (Ten Lakhs) over it. The complainant, thereafter, received another advocate’s notice on 25.4.2006 along with banker’s cheque for Rs. 61,000/- (Sixty One Thousand) only bearing cheque no. 001188 dated 25.4.2006 drawn on HDFC Bank, Patna. 5. It is lastly alleged in the complaint that the petitioner who is accused no. 2 in the complaint used to visit office of the complainant and demand money illegally to the extent of Rs. 10,00,000/- (Ten Lakhs). He is also alleged to have threatened the complainant not to enter into the land in question. 6. After institution of the case the complainant was examined on oath on 23.6.2006. In his examination on oath the complainant stated that the agreement was entered into between the Company and co-accused Manjul Prasad but the petitioner who was not even a party to the contract demanded Rs. 10,00,000/- (Ten Lakh) only from the complainant in January, 2006 and told that if payment would not be made to him, he would not allow the construction work to commence. On 25.4.2006 along with a banker’s cheque of Rs. 61,000/- an advocate’s letter was sent to him on behalf of co-accused Manjul Prasad. The said banker’s cheque has yet not been encashed. In reply to the court’s question, the complainant stated that he paid the signing amount to the extent of Rs. 1,04,000/- (One Lakh Four Thousand) only by cash and cheque to the accused persons. 7. In course of inquiry under Section 202 of the Code of Criminal Procedure, three witnesses being Inquiry Witness No. 1 Mahfuj Raja Mallik, I.W.-2 Gopal Kumar Singh and I.W.-3 Anant Kumar Tiwari were examined in the court. 8. E.W.-1 Mahfuj Raja Mallik has stated in paragraph no. 7. In course of inquiry under Section 202 of the Code of Criminal Procedure, three witnesses being Inquiry Witness No. 1 Mahfuj Raja Mallik, I.W.-2 Gopal Kumar Singh and I.W.-3 Anant Kumar Tiwari were examined in the court. 8. E.W.-1 Mahfuj Raja Mallik has stated in paragraph no. 7 of his deposition that even before the construction work could commence, the petitioner created hurdle and told that he does not want the construction work to be carried out by the complainant. 9. It is submitted on behalf of the petitioner that from a bare reading of complaint petition and statement of the complainant on oath, it would appear that no offence, whatsoever, is made out against the petitioner. The complaint is too vague and has been filed with a mala fide intention to put pressure upon the petitioner and his mother. The mother of the petitioner has already expired. Admittedly, the Development Agreement was executed between the mother of the petitioner and the complainant-opposite party no. 2 on 14.4.2005 which was later on cancelled by the mother of the petitioner. The Development Agreement entered into between the complainant and co-accused Manjul Prasad has been brought on record and marked as Annexure-3 to the petition. 10. It has further been submitted on behalf of the petitioner that the mother of the petitioner, during her life-time cancelled the said Development Agreement, vide Advocate’s notice dated 25.3.2006 and she also sent a banker’s cheque of Rs. 61,000/- to the complainant towards refund of the signing amount received by her. Apart from the ocular statement of making payment to the extent of Rs. 1,04,000/-, no document has been filed in support of the claim. As a matter of fact, the mother of the petitioner had received Rs. 61,000/- only as signing amount from the complainant and she returned the said amount in the manner stated above to the complainant and admittedly the banker’s cheque has been received by the complainant and has never been returned to the mother of the petitioner. The petitioner has also brought on record the Advocate’s notices dated 25.3.2006 and 8.4.2006 which have been marked as Annexure- 4 & 5 to the petition. 11. The petitioner has also brought on record the Advocate’s notices dated 25.3.2006 and 8.4.2006 which have been marked as Annexure- 4 & 5 to the petition. 11. Referring to the aforesaid notices, it is submitted that from a bare perusal, it would crystal clear that so far as the petitioner is concerned, he has neither executed the agreement nor he was owner of the land during the relevant time. The mother of the petitioner was the sole owner of the land, hence, all transactions in relation to the said land were done between the mother of the petitioner and the complainant. 12. It has also been submitted that so far as the allegation against the petitioner is concerned, the same is patently false, fabricated and baseless. The complainant in his deposition on oath stated that the petitioner demanded Rs. 10,00,000/- (Ten Lakhs) from him in January, 2006 and threatened that if he would not be paid the demanded money, he would not allow the construction to commence. This means that till January, 2006, the construction work had not commenced. Advancing the argument, my attention is drawn towards advocate’s notice dated 8.4.2006 by which a reply to the cancellation notice sent on behalf of the mother of the petitioner was given. In that reply notice dated 8.4.2006 issued on behalf of the complainant, there is no whisper much less allegation against the petitioner about illegally demanding Rs. 10,00,000/-. My attention is further drawn towards paragraph 7 of the deposition of inquiry witness no. 1, namely, Mahfuj Raja Mallik, wherein he has categorically stated that even before the work could commence, the petitioner created hurdle and told the complainant that they should not execute the construction work. Thus, it is submitted that neither the petitioner demanded any money nor the complainant spent any amount over construction work. The agreement in question was terminated by the co-accused under a valid notice and the signing amount given by the complainant was already refused to him. 13. The further contention of the petitioner is that in the given facts and circumstances of the case if there is any dispute at best it would be a case of dispute of civil nature and that too against mother of the petitioner who by now is already dead. There is nothing on record to constitute any offence against the petitioner. 14. Learned counsel for the opposite party no. There is nothing on record to constitute any offence against the petitioner. 14. Learned counsel for the opposite party no. 2 defends the order taking cognizance and submits that even though the Development Agreement was between the complainant and the mother of the petitioner, he being son of the main accused cannot escape the legal and moral obligation of a valid contract entered with his mother. 15. Having heard the parties, I find from the record of the case that the petitioner was not in any manner entrusted with property or with any dominion over property and thus in no circumstance it can be said that he dishonestly misappropriated or converted any property to his own use or dishonestly or willfully caused any loss to the complainant in violation of any direction of law prescribing the mode in which such trust or legal contract was to be discharged. In absence of any such allegation, the petitioner cannot be held liable for the offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code. 16. The other offence for which he has been summoned is Section 420 IPC, which reads as under:– “420. Cheating and dishonestly inducing delivery of property.–Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 17. It is apparent from the record that none of the ingredients of the offence of cheating and dishonestly inducing delivery of property is attracted against the petitioner and as such the offence under Section 420 IPC is also not attracted against him. Thus, on the basis of discussions made hereinabove, I am of the view that allowing the present prosecution to continue as against the petitioner would be a gross abuse of the process of court. When a probable abuse of the process of the court is brought to the notice of the court, it is paramount duty of the court to prevent such abuse at its threshold. 18. When a probable abuse of the process of the court is brought to the notice of the court, it is paramount duty of the court to prevent such abuse at its threshold. 18. In that view of matter, I have no option but to allow the petition and quash the impugned order dated 9.1.2007 passed in Complaint Case No. 1384(C)/2006 summoning the petitioner to face trial by Sri Bharat Tiwari, learned Judicial Magistrate, Ist Class, Patna and the same is quashed accordingly. 19. The application stands allowed.