DR. ASHOK KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner, one of the accused of Complaint Case No. 838(C) of 2003, has prayed for quashing of the entire criminal proceedings including the order dated 11.8.2003 passed therein whereby Shri Manoj Kumar Singh, Judicial Magistrate, 1st Class, Patna, has taken cognizance of the offence under Section 406 I.P.C. The complainant, one Arvind Kumar Sinha, Accounts Manager and Constituted Attorney of Karpur Construction Private Limited, impleaded as O.P. No. 2 herein, filed the aforesaid complaint case alleging inter alia that the petitioner alongwith others had entered into an agreement dated 17.7.2001 for development of a piece of land at Boring Canal Road and two written development agreements were executed on 17.7.2001 and a sum of Rs. 6,02,000/ - were paid by the complainant's company by way of agreement money to the accused persons by four cheques on that day itself. It is said that under one of the terms of the agreement the accused persons fully authorized the complainant's company with absolute freedom to do all acts, deeds, materials and things necessary for and connected with the development of the land in question and to construct the proposed multi -storeyed building. It is also said that under another term the complainant's company was given power and authorized to process/submit the plan for approval and sanction from the P.R.D.A. on behalf of the accused persons at developer's own cost and also to appoint technical persons, architects, engineers and managerial persons for development and construction and other allied jobs. The accused persons had also assured to deliver the vacant possession of the entire land within a month. It is said that accordingly the complainant's company engaged Architects, Structural Designer, Engineer, Managerial Staff, got map prepared and also got sanction from the P.R.D.A. in their names by spending substantial amount towards those heads. However, in contravention of the terms of the agreement, the accused persons failed to handover the entire vacant possession of the land and gave possession only of the back portion. It is said that believing the assurances of the accused persons that they will give possession of the front portion shortly, the complainant's company made investment of substantial amount towards development of the back portion. As a result the complainant's company had incurred a huge liability of substantial amount of approximately 50 lacs in anticipation of completion of its project upon the land in question.

(2.) HOWEVER , on 3.10.2002, the accused persons sent a notice to the effect that they were not interested in the development and on inquiry it was learnt that the accused persons had pre -planned the entire matter to cheat and commit criminal breach of trust after getting all arrangements finalized as well as after development of the land. It is also said that for the said purpose the accused persons had conspired with 1 -2 tenants who were occupying small shops in the premises. The complainant's company tried to persuade the accused persons to allow them to start the construction work at least within the area which was vacant but due to their criminal intention to misappropriate the major portion of the amount and to negotiate with other developers they did not handover the property in question. A registered legal notice was sent on 6.1.2003 but the same did not evince any response.

(3.) THE learned counsel also sought to point out that in the evidence before charge before the court below the complainant in his cross -examination had stated that the complainant had brought this complaint case to recover the expenses which the company had incurred and that on the face value the entire case appeared to be one of civil dispute for which there was specific provision under the other laws. The learned counsel for the petitioner also sought to point out that none of the ingredients of an offence under Section 406 I.P.C. appeared to have been made out from the averments in the complaint petition or the evidence led at the inquiry under Section 202 Cr.P.C.