Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.202 of 2011 ====================================================== 1. Sangita Sinha wife of Sri Sanjai Kumar Sinha, 2. Sanjai Kumar Sinha son of Late Dwarika Nath Sinha, Both resident of 104, Mundeshwari Rajeev Apartment, Budha Colony, PS-Budha Colony, District-Patna. .... .... Petitioner/s The State Of Bihar And Anr. Versus .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s :Mr. Anshuman Jaipuriar and Praveen Jaipuriar, Advs. For the Opposite Party/s : Mr. Navin Kumar Pandey, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 09-01-2013 Heard learned counsel for the petitioners and learned counsel for the State. No one appears on behalf of the O.P. No. 2, even though the notice was served upon him but he has decided to remain absent. 2. In this view of the matter, this Court has no other alternative but to decide the case on the assistance of the counsel for the petitioners and the State. 3. In this case, petitioners are challenging the order dated 3rd August 2010 passed by the Judicial Magistrate 1st class, Patna in connection with Complaint Case No. 1911(C)/2010 whereby and whereunder the court below has taken cognizance for offence under sections 406, 423, 424 and 426 of the Indian Penal Code. 4. In the present case, the complainant, being a
Legal Reasoning
Patna High Court Cr.Misc. No.202 of 2011 (5) dt.09-01-2013 2/6 builder, has fundamental grievance against being impleaded in the present case as they have purchased the land from Shankar Singh and Ajay Kr. Singh vendors of the present petitioners, purchased the land from them on valuable consideration amount in the year 2006. These petitioners cannot be harassed by impleading them in the criminal case. 5. In the present case, allegation has been made, the complainant/O.P. No. 2 is a Company, under the Company Act, had entered into an agreement with accused Nos. 1 and 2 who are vendors of the present petitioners on 13th February 2004 in connection with Survey Plot No. 1834 (part) Jamabandi No. 1073 situated at Mauza-Mainpura within Patliputra Police Station in the district of Patna. 6. As per the terms of agreement, the accused Nos. 1 and 2, expressly, had undertaken that from the date of execution of the deed, they put developers, the complainant in actual, possession of the entire said premises to plan, construct, develop and sale the proposed multi-storeyed residential building and as such, the possession of the developer on the land will be deemed to be final and conclusive. 7. It has further been averred that the title would pass after the execution of registration of sale deed or deeds of release Patna High Court Cr.Misc. No.202 of 2011 (5) dt.09-01-2013 3/6 and owner shall only be entitled to the consideration amount in the shape of agreed constructed area. 8. As per the terms of conditions, the complainant has approached Patna Regional Development Authority for getting sanction of plan and deposited required fees on 20th February 2005, 11th March 2005, 23rd November 2006 and 28th March 2007 as provided under the law. 9. From paragraph 4 of the complaint petition it appears that as per clause 6 of the terms of the agreement, the developer would complete the construction in two years with a grace period of six months from the date of getting the plan sanctioned by the P.R.D.A. and further condition has also been more particularly stated that if the project would not be completed, the developer will pay Rs. 10,000/- as rent for four flats of the owner share. It has been alleged that the complainant had already invested more than two lakhs for the purpose of constructing the boundary wall and out-house over the plot in question. 10. In the complaint petition it has been mentioned that on 18th May 2010 accused Nos. 1 to 4 were seen along with some anti social elements armed with weapons inside the premises which was instantly informed to the concerned police station and the Senior Superintendent of Police, Patna accordingly, a Patna High Court Cr.Misc. No.202 of 2011 (5) dt.09-01-2013 4/6 proceeding u/s 107/144 Cr. P.C. was initiated but everything evaporated due to money and muscle power of the present petitioners. It has further been alleged that in 144 proceeding, the S.D.M., Patna passed the order of status qua in connection with plot in question. 11. In the paragraph 8 of the complaint petition it has been alleged that the Police submitted the report on 18.6.2010 in which the local inspection was said to have been done. It has been found that land in question was transferred by accused Nos. 1 and 2 to the accused Nos. 3 and 4 i.e. petitioner Nos. 1 and 2 on 18.11.2006 by virtue of registered sale deed which led to filing of the present case. 12. The counsel for the petitioners submits that it is basically a civil dispute and that too, the petitioners are the purchaser of the land, they have nothing do with complainant. Petitioners have purchased the disputed land on payment of valuable consideration amount, there cannot be any grievance against these petitioners. If the complainant has any grievance that can, at best, be a grievance against vendor of the petitioners who are accused Nos. 1 and 2. In the complaint petition so much so, he has further submitted that there cannot be complaint case against petitioner for the valid transaction by the accused Nos. 1 and 2 in Patna High Court Cr.Misc. No.202 of 2011 (5) dt.09-01-2013 5/6 favour of these petitioners rather instead of filing criminal case the complainant ought to have gone for civil suit as per the Specific Relief Act. 13. The counsel for the petitioners submits that from the complaint petition it does not show that the petitioners had committed any fraud against the complainant rather they are purchasers from the accused Nos. 1 and 2. Petitioners have wrongly been implicated in the present case. 14. As no one appears on behalf of the O.P. No. 2 and as such, this case is being decided without his assistance. The counsel for the State, however, stated that the complainant, instead of filing complaint case/present case, ought to have gone for a suit for specific performance of contract. From the complaint petition does not show that these petitioners were any way involved in committing fraud or any way cheated or any money of the complainant is lying with the present petitioners. 15. Having considered the rival contention of the parties, from the record it appears that there cannot be any grievance against the petitioners who are purchaser of the land in question, from their vendors who are accused Nos. 1 and 2, on valuable consideration amount, whatever the money was paid, whatever the money was invested, it was done at the instance of Patna High Court Cr.Misc. No.202 of 2011 (5) dt.09-01-2013 6/6 the accused Nos. 1 and 2 and it appears that the petitioners have wrongly been framed in the present case. 16. In this view of the matter, the order of cognizance arising from Complaint Case No. 1911©/2010 against the present petitioners is quashed. However, the court below will have a liberty to proceed with the case against rest accused persons. 17. With this observation and direction, this petition is allowed. (Shivaji Pandey, J) Mahesh/-