Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 854 (JHR)

Adi Burjorji Godrej v. State of Jharkhand

2013-07-17

R.R.PRASAD

body2013
ORDER 1. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State. In spite of notice being served, the opposite party no.2 did not chose to appear in this case. 2. Learned counsel appearing for the petitioners submits that it is the case of the complainant that when the Company known as 'Godrej Properties Limited' came forward with announcement that it will be constructing flats under the name of 'River Scapes' at Godrej Hill. Complainant's mother offered to purchase one flat (2 BHK) on a consideration amount agreed upon. Thereafter the part payments were made. Even on passing off so many years when possession of flat was not given, legal notice was given which was replied with wherein it was stated that in anticipation of receiving clarification from the company flats were booked. At the same time, an offer was made to have two flats (1 BHK each) which proposal was accepted by the complainant. After completion of the flats, the complainant was put to possession of those two flats. In spite of that, a complaint was lodged which was registered as Complaint Case No.2159 of 2010 under Sections 406, 420 and 403 of the Indian Penal Code on the allegation that the complainant's mother had booked one 2 BHK flat which had never been constructed and instead of that, possession of 2 flats (each being 1 BHK) were given. Upon it, cognizance of the offence was taken under Section 406/34 of the Indian Penal Code, vide order dated 24.8.2011. 3. Being aggrieved with that order, this application has been filed. 4. Learned counsel appearing for the petitioner submits that accepting the entire allegation to be true, the petitioners cannot be said to have committed any offence punishable under Section 406 of the Indian Penal Code as the petitioners have not been alleged to have dishonestly misappropriated any property or converted to its own house. 5. 4. Learned counsel appearing for the petitioner submits that accepting the entire allegation to be true, the petitioners cannot be said to have committed any offence punishable under Section 406 of the Indian Penal Code as the petitioners have not been alleged to have dishonestly misappropriated any property or converted to its own house. 5. In this regard it was further submitted that it is nowhere the case of the complainant that the complainant's mother who had booked the flat was never given possession of the flat, rather the grievance of the complainant appears to be that she was not given possession of 2 BHK flat, rather two flats (each 1 BHK) have been given which are having more areas than the area of the flat of 2 BHK and even the cost was more but it was never charged and in this set of events, the petitioners cannot be said to have committed offence punishable under Section 406 of the Indian Penal Code particularly when no overt acts constituting ingredient of offence has been attributed against any of the petitioners. 6. In the context of the submissions, one may look to the provision as contained in Section 405 of the Indian Penal Code which reads as under: “405. Criminal breach of trust – Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discouraged, or of any legal contract, express or implied, which he has made touching the discharge off such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. 7. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. 7. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. (a) a person should have been entrusted with property or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 8. Keeping in view the allegation made in the complaint, none of the ingredients gets attracted. In this regard it be stated that on account of some reason, 2 BHK flat was not handed over to the complainant . Instead of it possession of two flats (each 1 BHK) was given when complainant agreed to purchase it. 9. Under such situation, I failed to understand as to how the petitioners have committed offence of criminal breach of trust. 10. Accordingly, the order taking cognizance is hereby set aside. 11. In the result, this application stands allowed. Application allowed.