ASHOK KUMAR PADHY Vs. ICFAI FOUNDATION AND ANOTHER

JUDGEMENT

(1.) The petitioner Ashok Kumar Padhy who is the Managing Director of M/s. Auro Constructions, Bhubaneswar has filed this application under section 482 of Cr.P.C. for quashing the impugned order dated 05.09.2013 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.4995 of 2013 in taking cognizance of offence under section 420 of the Indian Penal Code and issuance of process against him.

(2.) The opposite party no.1 ICFAI Foundation for Higher Education through its Addl. Registrar Mr. Samad Noorus filed the complaint petition stating therein that the complainant is a registered trust having its registered office at Hyderabad. The complainant was in search of fifty acres of contiguous land in and around Bhubaneswar for establishing a University for imparting higher education. The petitioner came to know about the requirement of the complainant and approached him and represented himself as the Managing Director of M/s. Auro Constructions, a Partnership firm and power of attorney holder of M/s. Sofia Study Circle, Cuttack and promised to facilitate and arrange minimum fifty acres of contiguous land with clear title and free from encumbrances within mouza Similipatna and Anlapatna villages near Bhubaneswar. After several negotiations between the parties, an agreement for sale was executed between the parties on 12th May 2009 in the office of the petitioner for arranging fifty acres of contiguous land with clear title @ Rs.20,00,000/- per acre. The agreement contained certain terms like providing minimum fifty acres of land to ICFAI by the petitioner, for registration of the land and giving its physical possession to the complainant. It was also provided in the agreement that the petitioner will settle all the issues and subsequent litigation with respect to the lands transferred to the complainant and that the complainant will withhold 10% of the amount due towards the cost of the land from every payment during registration process which would be returned within fifteen days of completion of registration of fifty acres of land to the complainant and on completion of the formalities like registration of land, conversion of land use, handing over of physical possession of land and completion of boundary wall. The agreement was notarized at Bhubaneswar on 12.05.2009. It is the further case of the complainant that after entering into the sale agreement, the petitioner started acquiring the land and informed the complainant that the land acquired by him was free from litigations, encumbrances and having clear and marketable title. Believing the version of the petitioner to be true, the complainant purchased the land to an extent of Ac.34.815 decimals and got it registered in its name in mouza Similipatna and Anlapatna of Bhubaneswar. The complainant invested more than seven crores of rupees but though on paper, the land was shown to be in possession of the complainant but the petitioner never handed over the physical possession of the land to the complainant and it was under the care, control and supervision of the petitioner holding for the complainant. It is the further case of the complainant that when the complainant asked the petitioner to construct a boundary wall around the purchased land, one contractor was appointed on the request of the petitioner. While the work of leveling was under progress, the local people started obstructing the construction of boundary wall over the land purchased through the petitioner and dislodged the contractor and the workers from the site stating that they were the prior purchasers of the land and that they had prior title to such land. When the complainant contacted the petitioner, he was told by the petitioner that the dispute would be resolved and physical possession of the land would be handed over after completion of construction of the boundary wall for the entire land. One 144 Cr.P.C . proceeding was instituted against the locals for interfering with peaceful possession of the complainant and an F.I.R. was also lodged against the local persons with the police authorities. It is the further case of the complainant that the petitioner breached the trust and cheated the complainant by inducing him to purchase land with clear and marketable title but from the Sub-Register's Office, it was ascertained that some of the land purchased by the complainant was earlier sold to several purchasers and sale deeds were cancelled unilaterally without informing the said purchasers and subsequently the land was fraudulently transferred to the complainant. It is the further case of the complainant that the petitioner in order to gain personally from the amount which was received by him from the complainant, caused irreparable loss and injury to the complainant and gained immensely by wrongful and illegal means. It is the further case of the complainant that transferring of land without clear title amounts to dishonest intention on the part of the petitioner and right from the beginning i.e. from the date of entering into the sale agreement, receiving the amount from the complainant and executing fraudulent sale deeds were all with dishonest intention to cheat the complainant and gain wrongfully.

(3.) After filing of the complaint petition on 20.08.2013, initial statement of the complainant Samad Noorus, Addl. Registrar of ICFAI Foundation who was authorized to file the complaint petition was recorded and the case was posted for inquiry under section 202 of Cr.P.C. After one date, the complainant filed a memo to close the evidence and accordingly, on 05.09.2013 the learned Magistrate after going through the case records, statement of the complainant recorded under section 200 of Cr.P.C., the documents filed on behalf of the complainant has been pleased to hold that dishonest intention is prima facie made out against the petitioner from his conduct and accordingly passed the impugned order.