Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 1395 (JHR)

Y. N. Yadav v. State of Jharkhand

2023-11-29

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Ranjan Kumar, learned counsel appearing for the petitioner, Ms. Nehala Sharmin, learned counsel for the State and Mr. Praveen Shankar Dayal, learned counsel for opposite party no.2. Nobody has responded on behalf of opposite party nos. 3 and 4 on repeated calls. 2. Notices issued upon opposite party nos. 3 and 4 have not been effected as they have already left the place. The petitioner has also not complied with the order dated 18.09.2023 for paper publication in local newspaper, however, affidavit has been filed on behalf of the petitioner stating therein that he has tried to serve the notice upon opposite party nos. 3 and 4, but they have left the place. In spite of the order of paper publication, the said order has not been complied with by the petitioner and he is enjoying the stay. Further, in view of nature of allegation, in absence of opposite party nos. 3 and 4, this matter can be disposed of. In view of that, this matter has been heard on merit in absence of opposite party nos. 3 and 4. 3. This petition has been filed for quashing of the order taking cognizance dated 27.01.2016 passed in C/1 Case No.1289 of 2015, whereby, cognizance has been taken against the petitioner for the offence under Sections 406, 420, 120B and 34 of the Indian Penal Code, pending in the Court of the learned ACJM, Jamshedpur. 4. The complaint case has been filed alleging therein that on 04.02.2008, an agreement was executed between the complainant and the accused persons to transfer and handover the flat with car parking space in Adarsh Classic at Ground Floor situated in Jyoti Nagar, Ghorabanda, Telco, Jamshedpur with all basic amenities which has to be provided by Adarsh Sahkari Grih Nirwan Swalambi Samiti Limited in respect of all flat being constructed by the said society in terms of share laid down in deed of guarantee dated 18.05.2007 executed between M/s Om Electrical Accessories Private Limited, Pranab Kumar, Santosh Kumar and M/s Adarsh Sahkari Grih Nirwan Swalambi Samiti Limited, Sonari, Jamshedpur. It was further alleged that as per the mutual understanding and the agreement, the complainant paid a sum of Rs.4,67,500/-to the accused persons with assurance that after construction and getting share the accused persons will execute registered deed of said flat in favour of the complainant, however, when the complainant inquired the spot of the construction area where Adarsh Classic Apartment is there, that has been almost constructed, completed and ready to reside and, thereafter, the complainant approached the accused persons to fulfil their promise and execute a deed of sale, but they all with dishonest intention is not ready to fulfil their promise. It was further alleged by the complainant that she approached the Builder with whom the accused persons executed deed of guarantee dated 18.05.2007 and on the strength of the said document promised that they will get the share from the constructed area and on believing deed of guarantee dated 18.05.2007, an agreement dated 04.02.2008 the complainant entrusted her hard earned money upon the accused persons, but the accused persons deceived the complainant with dishonest intention and converted her hard earned money of Rs.4,67,500/-for their own use and still retained the same which amounts of breach of trust and cheating. It was also alleged that the complainant having no alternative, sent a legal notice dated 18.05.2015 demanding to fulfil the promise, failing which, the complainant will take shelter of law and said legal notice was also sent to the society, who is the builder and has executed deed of guarantee between the society and the accused persons on 18.05.2007, but both the builder as well as the accused persons after due service of notice failed to fulfil their promise and, accordingly, they have committed offence under Sections 406, 420, 120B and 34 of the Indian Penal Code. On the basis of the said allegations, the complainant prayed for taking cognizance against the accused persons. 5. Mr. Kumar, learned counsel appearing for the petitioner submits that the petitioner is the Chief Executive Officer of M/s Adarsh Sahkari Grih Nirwan Swalambi Samiti Limited, Jamshedpur. He further submits that the allegations are there that the amount of Rs.4,67,500/- was taken from the complainant and in spite of that, the flat has not been handed over to her. He also submits that the said allegations are false. He further submits that the allegations are there that the amount of Rs.4,67,500/- was taken from the complainant and in spite of that, the flat has not been handed over to her. He also submits that the said allegations are false. He submits that no case of cheating is made out and in view of that, the impugned order may kindly be quashed. 6. Mr. Dayal, learned counsel for opposite party no.2 resisted the said argument on the ground that the intention of cheating was there from the very inception. He submits that the money taken from opposite party no.2 has been used by the accused persons for their own purpose. He submits that the case of cheating is made out and the allegation is already there and in view of that, Section 406 of the Indian Penal Code is made out. 7. Ms. Sharmin, learned counsel for the State submits that on the complaint petition, the learned Court has been pleased to take cognizance against the petitioner. 8. The Court has perused the complaint petition and finds that the allegations are there that the accused persons entered into an agreement with the complainant and she has paid the amount of Rs.4,67,500/-. In the complaint petition, it has also been disclosed that the accused persons have not given reply to the legal notice sent by the complainant. Thus, it is clear that the case of cheating is made out as from very inception, the intention of cheating was there as amount has been taken and the flat has not been handed over to the complainant and in view of that, Section 406 of the Indian Penal Code is made out. 9. This is not a case of deficiency of service. Opposite party no.2 is a lady and she has been cheated by the accused persons. 10. Further, the order taking cognizance dated 27.01.2016 is a well reasoned order. The learned Court has applied his judicial mind and, thereafter, he has been pleased to take cognizance against the petitioner. There is no illegality in the impugned order. 11. In view of the above facts, no case of interference is made out. Accordingly, this petition is dismissed. 12. Interim order, if any granted by this Court, stands vacated.