SWAMI MAHIMANAND SARASWTI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) M /s Sanjay Prasad andKamdeo Pandey 7/ 02.01.2013. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State and also learned counsel appearing for the opposite party no.2.

(2.) THIS application has been filed for quashing of the order dated 12.10.2011 passed by the then Chief Judicial Magistrate, Giridih in Bagodar P.S case no.227 of 2010 whereby and whereunder cognizance of the offence punishable under Section 406 of the Indian Penal Code has been taken against the petitioner.

(3.) AS against this, learned counsel appearing for the opposite party no.2 submits the complainant as well as one witness had entered into an agreement with the petitioner whereby the petitioner had agreed to hand over the possession of flats each of them on the consideration amount of Rs.2,50,000/ - which amount was paid by each of them. In spite of that, possession of the flats was not given either to the complainant or to the witness and therefore, the complaint was lodged. Since the possession had not been given in spite of receiving of the consideration amount, the petitioner can certainly be said to have committed an offence of criminal breach of trust. Learned counsel further submitted that it is true that under the order of the court passed in anticipatory bail application, possession of the flat has been given to the complainant but not to the witness and therefore, the petitioner cannot take any advantage of the fact that the possession of one of the flats has been given to the complainant and thereby order taking cognizance never warrants to be interfered with.