GUPTA HOMES PVT. LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed for quashing the order dated 25.04.2009 passed by the Judicial Magistrate, 1st class, Patna in Complaint Case No. 415C of 2009 by which the Court below has taken cognizance for the offences under Sections 406 & 420 of the Indian Penal Code.

(2.) A contplaint was filed by Maman Kumar Agrawal alleging that they had booked a flat in a multi-storied building which is known as Deep Leela Residential Complex, consisting of six floors for residential purposes. The construction of the building started in the month of November, 2006 and was to be completed in December, 2008. It is said that Flat No. 509 having a total built area of 1154 sq. feet being total worth of Rs. 12,11,700/- would be the cost of the said flat. The complainant by various cheques, drafts and cash paid a total sum of Rs. 9,87,000/-. It has specifically been stated at paragraph 14 that the complainant in the aforesaid manner paid a total sum of Rs. 9,87,000/- by the month of November, 2008 both by way of cash and instruments duly received and recorded by accused No. 2 in the scheduled of payments against Flat No. 509, allotted to the complainant. The allegation is that the complainant upon examining the draft agreement was surprised to find that the sale price of the aforesaid flat was mentioned as Rs. 7,50,100/-whereas in the allotment letter, the said price was mentioned as 12,11,700/-. It is alleged that the complainant did not deliver the flat in question and has misappropriated Rs. 9,87,000/-

(3.) Certain facts are accepted by the complainant. Firstly, that there was an agreement between the parties dated 16.11.2008 which is annexed as Annexure-I to the counter affidavit filed on behalf of the complainant. It is also admitted by the petitioner that the petitioner has received Rs. 9,87,000/- from the complainant.