ORDER : Heard Mr. Anil Kumar, learned senior counsel appearing for the petitioner and learned A.P.P. for the State as well as Mr. A.K. Kashyap, learned senior counsel for the opposite party no. 2. 2. In this application petitioner has prayed for quashing of the entire criminal proceeding including the order dated 25.04.2013 passed by learned Judicial Magistrate, Dhanad in C.P. Case No. 699 of 2013 whereby and whereunder cognizance had been taken against the petitioner for the offence punishable under Section 406/420/34 of the Indian Penal Code. 3. The complaint case was instituted being complaint case no. 699 of 2013 in which it was alleged that the accused persons had induced the complainant to purchase two flats in Ashish Kiran Apartment Phase-II at Luby Circular Road, Dhanbad, pursuant to which the complainant had agreed to purchase two flats in the name of his children and a consideration amount of Rs. 25,00,000/- has been given. It has been alleged that before execution of the agreement complainant had paid entire amount of Rs. 25,00,000/- to the accused persons in installment for which money receipts were also given. Allegation has been made that the legal notices were served to the accused persons through their lawyer and false and frivolous plea has been given for cancellation of the flats alloted to the son and daughter of the complainant. It has also been alleged that the valuation of the flats has been inflated and the accused persons are going to sell the flats to the other purchasers on higher price. After institution of the complaint case an inquiry was conducted by enquiring the complainant under solemn affirmation as well as the witnesses vide order dated 25.04.2013 the learned Judicial Magistrate, Dhanbad was pleased to take cognizance for the offence punishable under Section 406/420/34 of the Indian Penal Code. 4. It has been submitted by the learned senior counsel for the petitioner that the petitioner is also one of the partner of M/s Ashish Kiran Construction and when the complainant has shown his intention to purchase two flats an agreement was entered into between them in which various terms and conditions were required to be completed both on the part of the purchasers as well as by the builders. Learned senior counsel for the petitioner submits that clause 2 of the said agreement gives out the terms and conditions and clause 3 deals with the other fixed charges to be deposited by the purchaser. It has been submitted that at the time of booking of the flat an amount of Rs. 12,50,000/- was deposited for each flat and apart from the said deposit various installment as has been enumerated in the agreement were also required to be deposited but the complainant had only deposited Rs. 12,50,000/- per person and so far as the rest amount was concerned the same were never deposited which led to cancellation of the allotment which was intimated to the allottees by legal notices. Learned senior counsel for the petitioner has submitted that since the condition in terms of the agreement were not fulfilled by the allottees the allotment has rightly been canceled. Learned senior counsel has also referred to 'The Jharkhand Apartment (Flat) Ownership Act, 2011' and has referred to Section 8 of the Act which includes the fact that the payment has to be made at the proper time and at the proper place. Learned senior counsel has also referred to Section 11, 17 and 32 of the Act and has submitted that no case under Section 406/420/34 of the Indian Penal Code is made out against the petitioner as there was no deposit on the part of the petitioner from the institution of the transaction that only on account of non-fulfillment of the terms and conditions of the agreement the allotment of the flats were canceled. It has been submitted that in 'The Jharkhand Apartment (Flat) Ownership Act, 2011' the complainant had a remedy instead of filing a complaint case for prosecuting the petitioner. Lastly, it has been submitted that in view of the entire facets of the case it seems that the dispute is purely civil in nature and it relates to non-fulfillment of the terms and conditions of the agreement and in such circumstances therefore no criminal proceedings against the petitioner can be allowed to continue. 5. Mr. A.K. Kashyap, learned senior counsel for the opposite party no. 2 has stated that perusal of the complaint petition as well as solemn affirmation of the complainant reveals that there was an intention on the part of the petitioner to receive the complainant's amount. 5. Mr. A.K. Kashyap, learned senior counsel for the opposite party no. 2 has stated that perusal of the complaint petition as well as solemn affirmation of the complainant reveals that there was an intention on the part of the petitioner to receive the complainant's amount. It has been submitted that neither in the legal notice nor at any point of time it was ever asserted by the petitioner that there ware successive defaults on the part of the allottees leading to cancellation of the allotment. Learned senior counsel for the opposite party no. 2 further submits that petitioner has got several criminal antecedents. It has also been submitted that one of the Apartments constructed by the petitioner has been seized as the Bank instituted a case under SARFAESI Act, 2002. So far as the provisions with respect to 'The Jharkhand Apartment (Flat) Ownership Act, 2011' is concerned it has been submitted that neither Section 8 nor Section 11 of the Act is applicable in the facts and circumstances of the case. Learned senior counsel also submits that the Apartment was never completed and infact the petitioner did not fulfill his duties and obligation with respect to giving full possession of the flat after completion of the construction. It has therefore been submitted that a prima facie case being in existence, the order for taking cognizance does not necessitate any interference and the present application is liable to be dismissed. 6. The perusal of the complaint petition reveals that purchase of two flats by the complainant in the name of his son and daughter for which an amount of Rs. 25,00,000/-had been deposited with the firm at the time of booking of flat. It appears from the agreement which has been brought on record by the learned senior counsel for the petitioner and which is an admitted document that an amount of Rs. 12,50,000/-was paid for each flat at the time of booking of the flat. The complainant has stated that an amount of Rs. 25,00,000/-was paid to the firm. It would thus appear that for both of the flats Rs. 25,00,000/-only was given to the accused person at the time of booking and in the complaint petition it has been admitted that Rs. 25,00,000/-only was made as payment to the accused person. The complainant has stated that an amount of Rs. 25,00,000/-was paid to the firm. It would thus appear that for both of the flats Rs. 25,00,000/-only was given to the accused person at the time of booking and in the complaint petition it has been admitted that Rs. 25,00,000/-only was made as payment to the accused person. The agreement in Schedule B in payment schedule demarcates the various installments which has to be paid by the allottees and that shall depend on the completion of the phase wise construction of the Apartment as has been mentioned therein. The legal notice which has been brought on record in the counter affidavit filed by the opposite party no. 2 reveals that since the terms of the payment schedule were never fulfilled the allotment of the respective flats to the son and daughter of the complainant had been canceled with a liberty to return the deposited amount with permissible deduction under the condition of the agreement. 7. Section 8 of 'The Jharkhand Apartment (Flat) Ownership Act, 2011', deals with the general liabilities of the allottees and which states as below:- “8. General Liabilities of Allottee.-(1) The promoter would execute an agreement with an Allottee setting out the terms and conditions of construction, payment schedules and other requirements under Section 7 of the Act and even Allottee who has executed an agreement to take an Apartment (Flat) shall pay at the proper time and place the price, his proportionate share as amended time to time of the Municipal taxes, water and electricity charges, ground rent (if any) and other public charges in accordance with his agreement with the promoter; and where a co-operative society or a company of persons taking the Apartment (Flat) is to be constituted, co-operate in the formation of such society or company, as the case may be.” 8. Apart, from the other proportionate charges, Section 11 of the said Act deals with the ownership of Apartment subject to certain conditions and one of the condition is that the allottee shall not be entitled to the ownership and possession of the Apartment till payment has been made of the consideration thereof together with interest. Apart, from the other proportionate charges, Section 11 of the said Act deals with the ownership of Apartment subject to certain conditions and one of the condition is that the allottee shall not be entitled to the ownership and possession of the Apartment till payment has been made of the consideration thereof together with interest. The provisions which has been referred to above pre supposes that the agreement entered into between M/s Ashish Kiran Construction as well as the son and daughter of the complainant would lead to a conclusion that the allottee has to follow the terms of the payment schedule as has been depicted in the agreement by making timely payment of the installments. Although it has been strenuously argued by the learned senior counsel for the opposite party no. 2 that nowhere it has been stated by the petitioner that there has been two successive default on the part of the allottees in making payment of installments but the fact remains that an amount of Rs. 25,00,000/- was only paid to the firm which fact has been admitted by the complainant in his complaint petition. Even otherwise the dispute which is existing between the parties is purely civil in nature as no dishonest intention could be revealed on the part of the petitioner on recital of the complaint petition or the surrounding circumstance which can be deduced from the agreement as well as the legal notice served upon the petitioner. 9. Thus on consideration of the complaint petition and the materials available on record no case under Section 406/420/34 of the Indian Penal Code has been made out against the petitioner and if the criminal proceedings are allowed to continue the same would lead to miscarriage of justice. 10. Accordingly, in view of the discussions made hereinabove, this application is allowed and the criminal proceeding in connection with C.P. Case No. 699 of 2013 passed by learned Judicial Magistrate, Dhanad including the order dated 25.04.2013 by which cognizance had been taken for the offence punishable under Section 406/420/34 of the Indian Penal Code is hereby, quashed and set aside.