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2023 DIGILAW 434 (JHR)

Mahendra Kumar Ruia v. State of Jharkhand

2023-03-28

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Inspite of valid service of notice, O.P. No. 2 has not appeared. On 21.06.2022 and 21.03.2023 the matter was adjourned with a view to provide one more opportunity to the O.P. No.2. 2. Today on repeated calls, nobody appeared on behalf of the O.P. No.2 that is why the matter is being heard on merit. 3. Heard Mr. Prashant Pallav, learned counsel for the petitioner and Mrs. Shweta Singh, learned counsel for the State. 4. This criminal miscellaneous petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 17.09.2008 passed in connection with P.C.R. Case No. 416 of 2006, pending in the Court of learned Chief Judicial Magistrate, Deoghar. 5. The complaint petition has been filed alleging therein that the complainant to have entered into a sale with the accused persons namely, Shiv Kumar Ruiya and the present petitioner the Mahendra Kumar Ruiya for a property known as Ruiya Dharmshala Building. It was alleged that the accused persons were appointed as a receiver by the Hon’ble High Court of Kolkata and in the capacity of being receiver the accused persons made proclamation and advertisement to sell the vacant land of Ruiya Dharmshala and pursuant to such proclamation the complainant entered to an agreement for sale for an agreed consideration amount of Rs. 1.05 crores and the complainant and his associates paid Rs. 7.00 lakh through cash and draft but thereafter the accused persons are alleged to have avoided and executing the sale deed nor have refunded back the advance consideration amount. On these allegations, the complaint was filed. 6. Mr. Prashant Pallav, learned counsel appearing for the petitioner submits that the petitioner has unnecessarily been made accused in the complaint case. He submits that the petitioner was appointed as a receiver for administering the suit property in a suit no. 70/1996 by the order of the Hon’ble Calcutta High Court vide order dated 19.08.1997 and thereafter vide order dated 20.02.2003 the Hon’ble Calcutta High Court appointed one Shiv Kumar Ruiya as joint receiver for administering the suit property. He further submits that the petitioner has not signed any agreement in favour of the complainant nor he received any single farthing from the complainant and hence the whole case against the petitioner is ill founded and illegal. He further submits that the petitioner has not signed any agreement in favour of the complainant nor he received any single farthing from the complainant and hence the whole case against the petitioner is ill founded and illegal. He submits that the main allegation is against Shiv Kumar Ruiya who is not petitioner in the present petition. He further submits that the money alleged to have been paid by the complainant appears to have been received by Shiv Kumar Ruiya. He further submits that detail of amount of Rs. 7.00 lakh through bank draft suggests that it has been received by Shiv Kumar Ruiya. He submits that none of this draft has been credited in the account of the receiver and therefore, fastening any liability against the petitioner will amount abuse of process of law. He further submits that notice has been received by the petitioner on 17.10.2005 for executing sale deed in favour of the complainant which has been replied by the petitioner denying all the claim of the complainant against the petitioner. He further submits that the learned court has been pleased to dismiss the complaint by order dated 28.03.2007 under section 203 of the Cr.P.C. observing that the matter is civil in nature. He further submits that the said order was challenged before the learned Sessions Judge in criminal revision and the learned Sessions Judge has been pleased to set aside the order dated 28.03.2007 and the remanded the matter to make further enquiry. Thereafter, the learned court has taken cognizance against the petitioner. He submits that once the order of the learned Sessions Judge was there the learned court was having no option and has taken cognizance. 7. Learned counsel for the respondent-State submits that on the remand the learned court has taken cognizance and there is no illegality in the cognizance order. 8. In view of above submission of the learned counsel for the parties, the Court has gone through the materials on record and finds that the complaint case was filed for non execution of sale agreement. It is an admitted fact that the petitioner was appointed as receiver with regard to said property by the Calcutta High Court thereafter Calcutta High Court appointed another receiver as Shiv Kumar Ruiya. The amount in question has not been received by this petitioner nor the amount in question has been credited in the receiver’s account. It is an admitted fact that the petitioner was appointed as receiver with regard to said property by the Calcutta High Court thereafter Calcutta High Court appointed another receiver as Shiv Kumar Ruiya. The amount in question has not been received by this petitioner nor the amount in question has been credited in the receiver’s account. Admittedly, the learned court has dismissed the complaint petition by order dated 28.03.2007. Thereafter criminal revision was filed and the learned Sessions Judge has been pleased to allow that criminal revision thereafter the learned court has taken cognizance. The question remains once the learned court has already come to the conclusion that the matter is civil in nature what are the new materials before the learned court to take cognizance, has not been disclosed in the order which is impugned herein. Once the order is passed to further proceed under section 203 Cr.P.C. it was incumbent upon the learned court what are the new materials to take cognizance, which is lacking in the case in hand. 9. In view of aforesaid reasons and analysis the entire criminal proceeding including order taking cognizance dated 17.09.2008 passed in connection with P.C.R. Case No. 416 of 2006, so far as this petitioner is concerned, is set aside. So far as other accused persons are concerned, the cognizance order and entire criminal proceeding is kept intact. 10. This petition stands allowed and disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated. 11. It is made clear that if any civil proceeding is brought the same shall be decided on its own merit without being prejudiced by this order.