SOBHIT GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) THE order dated 18-2-2003 having been challenged in criminal misc. application No. 2053 of 2q03 and criminal Revision no. 935 of 2003, both the cases are being decided by a common judgment.

(2.) THE applicant Shobhit Gupta and revisionist gulab Gupta are accused in the criminal Case No. 1784 of 2002 L. N. Agarwal v. Focus Trading Pvt. Ltd. and others. The allegations made in the complaint are that in pursuance of an advertisement made in the National newspaper, the complainant came to know that City and industrial Development Corporation of maharashtra (hereinafter referred to as cidco) owned land in Nerul Mumbai over which Focus Trading Pvt. Ltd. accused No. 1 was authorised to construct flats for the purchaser of the plot. Induced by the advertisement the complainant approached the accused persons and offered to purchase plot No. 180 Sector No. 21 Nerul Mumbai for the construction of duplex flat No. 5 in proposed Om cottages. The letter of intent for reservation was signed on 2-2-1995 by the complainant and accused No. 2 the revisionist with the approval of accused No. 3 and a sum of Rs. 3, 15,250/- was paid by the complainant to Focus Trading Pvt. Ltd. through demand draft issued by the State bank of India, Varanasi. The amount of Rs. 4,16,005/- was to be paid by the complainant as per payment schedule on completion of plinth but accused demanded the said amount before the completion of plinth. The nephew of the complainant after visiting the site informed that no constructions were raised on plot No. 180. The accused vide letter dated 1-9-1997 reiterated that construction of plinth had started and demanded amount of payment. The accused by their letter dated 1-12-1999 informed the complainant that the building was ready for possession in sector No. 21 and required him to visit Mumbai for discussion about alternative building though the complainant had never expressed his willingness for alternative building. The accused by their latter dated 6-12-2000 again asked the complainant to take possession of the building without reference to any plot. On enquiry from cidco the complainant came to know that focus Trading Pvt. Ltd. had surrendered plot no. 180 to them and said plot was allotted to M/s. National Construction Company. The CIDCO despite full knowledge that complainant had lien over the plot in question accepted its surrender. After recording the statement of the complainant under Section 200 Cr. P. C. , and of witnesses under Section 202 Cr. P. C. the applicant and revisionist were summoned for the offence under Section 406, 420 I. P. C. vide order dated 18-2-2003.

(3.) THE contention of the applicant is that he is the director of Focus Trading Pvt. Ltd. , a construction company of Mumbai State of maharashtra. The applicant admitted that the opposite party No. 1/complainant offered to purchase duplex flat constructed by the applicant's company and an agreement was executed on 2-2-1995 between the applicant and opposite party No. 1. The payment of Rs. 3,15,250/- through bank draft by the complainant to the construction company is not disputed. It is alleged that due to slump in the market value of the flats having decreased the opposite party No. 2 was not interested in purchasing the same and failed to pay second instalment despite repeated demands. On account of default in payment of second instalment applicant could not meet the demand of CIDCO and had to surrender the land and suffered loss of Rs. 18 lacs. There was condition in the agreement Dated 2-2-1995 that the amount in full with interest shall be refunded if the construction was abandoned or drawing was changed. There was no penal clause in the agreement nor any offence of breach of trust or cheating is made out. It is a case purely of civil nature. The jurisdiction of Court at varanasi has been challenged on the ground that agreement/intent letter was signed at mumbai, amount was deposited in the bank of Mumbai and property in dispute was situated at Mumbai. According to the applicant the Court below has acted without jurisdiction in summoning the applicant and co-accused.