RAJ NARAIN VERMA Vs. RAKESH KUMAR SINGH

JUDGEMENT

(1.) This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 28-2-1996 passed by the Judicial Magistrate in case No. 753(C)/1995 dismissing the complaint petition filed by the present petitioner under Section 208 of the Code.

(2.) From the prosecution case it appears that in response to an advertisement published in local dailies the petitioner booked a Flat (No. 505) measuring 1026 sq.ft. in a multi storeyed complex known as Shashi Place, R. K. Avenue (Raod) Patna by making an initial payment of Rs. 1,00,000/- to the opposite party who is the Managing Director of Arpana Housing and Construction (P) Ltd. The multi storeyed complex known as Shashi Place was being constructed by Arpana Housing and Construction (P) Ltd. Subsequently a shop was also booked by the presentpetitioner in Shashi Place. However, the opposite party very inteligently prepared a document of this transaction which was found to be false, illegal and with intention to commit forgery for the purpose of cheating. The further case of the present petitioner is that the opposite party tampered with the area of plot No. 505 and raise it to 1086 sq.ft. without consulting the petitioner or his wife. This act of the opposite party was illegal and amounted to cheating, forgery and breach of trust. The opposite party had undertaken to handover the possession of this Flat before December, 1992 which was, however, not done. The petitioner send a legal notice to the opposite party in reply to which the opposite party took a stand which amounted to cheating and breach of trust for which he was liable to be punished under criminal law. For the purpose he also tampered with the agreement executed by the parties for this Flat.

(3.) The petitioner filed a complaint petition in the court of the Chief Judicial Magistrate on 21-9-1994 under Sections 420, 406, 418, 426, 464, 465 468 and 120B of the Indian Penal Code. The matter was referred to the police for investigation in which final form was submitted on 11-8-1995. The petitioner filed a protest petition against this final form which was referred to a Judicial Magistrate, 1st Class under Section 192 of the Code by the learned Chief Judicial Magistrate. The Judicial Magistrate examined the present petitioner on solemn affirmation on his protest petition. He also examined two witnesses in support of the allegations made in the complaint petition. The learned Judicial Magistrate, 1st Class, Shri Jagarnath Rai dismissed the complaint petition under Section 203 of the Code by the impugned order.