DHARMA NAND JHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS writ petition (criminal) has been filed for quashing the F.I.R. including entire criminal prosecution arising out of Doranda (Argora) P.S. case No. 446 of 2011 dated 2.11.2011 corresponding to G.R. No. 5513 of 2011 registered u/s. 420, 467, 468, 471/34 I.P.C. pending in the Court of learned S.D.J.M., Ranchi.

(2.) THE facts in brief is that Minakshi Sahkari Grih Nirman Samiti Ltd. (hereinafter to be referred as the 'MSGNSL') had taken a loan of Rs. 1,50,00,000/ - (Rupees one crore fifty lacs) from the Bihar State Housing Cooperative Federation Ltd., Patna (hereinafter to be referred as the 'Federation'), from its regional office situated at Indira Palace, Hinoo, Ranchi, P.S. Doranda against their project i.e. for construction of apartment at Kaju Bagan, West End Park, Hehal, Sukhdeo Nagar, Ranchi and the property was put under mortgage with the Federation. An agreement was also executed between the MSGNSL and the Federation and as per the agreement, the flats constructed can only be sold after seeking No Objection Certificate from the Federation. It was revealed that writ petitioners who are the President and the Secretary of MSGNSL, without seeking no objection certificate, sold the flats to different persons for their wrongful gain and loan amount was not repaid, as a result an outstanding of Rs. 4,21,28,611 has become due. Since the writ petitioners have committed forgery and misappropriated the property for their wrongful gain, a written report was lodged by the Assistant Manager (Law) of the Federation, Patna with Argora P.S., Ranchi and on the basis of written report, Doranda (Argora) P.S. case No. 446 of 2011 dated 2.11.2011 u/s. 420, 467, 468, 471/34 I.P.C. has been registered.

(3.) ON the other hand, learned counsel, appearing for the respondent Federation has submitted that it is not a case in which the borrowers have failed to repay the loan, but it is a case in which facts available indicate that the writ petitioners have intentionally with mens rea misappropriated the property for their wrongful gain and wrongful loss to the Federation and committed criminal breach of trust and sold the property which was under equitable mortgage with the Federation in utter violation of the terms and conditions mentioned in Para -1 of the agreement dated 24.5.1997 which is very clear that borrowing society (MSGNSL) shall not transfer the land and property furnished in security to any other persons till redemption of loan without written consent of Federation. It is apparent from the F.I.R. that the writ petitioners instead of depositing the sale proceeds in loan account, misappropriated the same. The agreement dated 24.5.1999 held between the parties was extended and supplemented by other agreements in order to help the borrowing society, but they were having deceptive intention from before in their mind and it would reveal from the facts available that the Federation on further occasion extended the loan amount but the writ petitioners cheated the Federation and committed criminal breach of trust and sold the flats constructed on the land which was under mortgage and misappropriated the sale proceeds. The law as well as the terms and conditions of the agreement are very clear on each and every point. When the writ petitioners failed to abide by the conditions laid down in the agreement and failed to repay the loan amount, the Federation, as per the terms of the agreement, lodged certificate case for recovery of the loan amount. When the writ petitioners by taking advantage of interim order passed in C.W.J.C. No. 1785 of 2003, sold the property without seeking consent of the Federation, F.I.R. was lodged for proper action against them. The writ petitioners never approached the Federation for One Time Settlement under the Scheme, 2005 floated by the Federation, but in order to create defence, they had written letter No. 15 dated 18.10.2011 (Annexure -5 to the writ petition) after institution of the F.I.R. and the contention of the aforesaid letter is nothing but statement of untenable grievances. Lastly it was submitted that jurisdiction of the criminal courts in inquires and trials is envisaged under Chapter XIII of the Code of Criminal Procedure.