IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39306 of 2009 K.K.DUTTA @ KAUSHAL KISHOR DUTTA, SON OF LATE KASHI BALLABH DUTTA, GENERAL MANAGER OF M/S BANSAL CORPORATION LTD. REGD. OFFICE AT SANTOSH COMPLEX BANDAR BAGICHA, P.S. KOTWALI, DISTRICT PATNA, PRESENTLY RESIDENT OF A/303-304, SAKET PLAZA, P.S. GANDHI MAIDAN, DISTRICT PATNA. ---- PETITIONER Versus 1. THE STATE OF BIHAR. 2. VISHNU AGRAWAL, SON OF SRI JAIDEO AGRAWAL, RESIDING AT FLAT NO. 404, ABHISHEK PLAZA, EXHIBITION ROAD, P.S. GANDHI MAIDAN, DISTRICT PATNA. with Cr.Misc. No.39307 of 2009 ABHISHEK BANSAL, SON OF SUDARSHAN BANSAL, MANAGING DIRECTOR OF M/S BANSAL CORPORATION LTD. REGD. OFFICE AT SANTOSH COMPLEX BANDAR BAGICHA, P.S. KOTWALI, DISTRICT PATNA, PRESENTLY RESIDENT OF 153, NEW FRIENDS COLONY, NEW DELHI-110 065 ---- PETITIONER Versus 1. THE STATE OF BIHAR. 2. VISHNU AGRAWAL, SON OF SRI JAIDEO AGRAWAL, RESIDING AT FLAT NO. 404, ABHISHEK PLAZA, EXHIBITION ROAD, P.S. GANDHI MAIDAN, DISTRICT PATNA. with Cr.Misc. No.39308 of 2009 SUDARSHAN BANSAL @ SUDARSHAN KUMAR BANSAL, SON OF SRI KARORIMAL BANSAL, DIRECTOR OF M/S BANSAL CORPORATION LTD. REGD. OFFICE AT SANTOSH COMPLEX BANDAR BAGICHA, P.S. KOTWALI, DISTRICT PATNA, PRESENTLY RESIDING AT 153, NEW FRIENDS COLONY, NEW DELHI- 110 065 Versus 1. THE STATE OF BIHAR. 2. VISHNU AGRAWAL, SON OF SRI JAIDEO AGRAWAL, RESIDING AT FLAT NO. 404, ABHISHEK PLAZA, EXHIBITION ROAD, P.S. GANDHI MAIDAN, DISTRICT PATNA. For the Petitioner:- Mr. Rana Pratap Singh, Sr. Advocate Mr. Birendra Kumar, Advocate For the State :- Smt. Indu Bala Pandey, A.P.P. For Complainant :- Mr. Ajay Kumar Thakur, Advocate ----------- 6 31.3.2010 These applications have been filed on behalf of Sudarshan Bansal @ Sudarshan Kumar Bansal, the Director, K.K. Dutta @ Kaushal Kishor Dutta, the General Manager and Abhishek Bansal, the Managing Director of M/s Bansal Corporation Limited (hereinafter referred to as ‘the Corporation’) for quashing of the order of cognizance dated 2.6.2009, passed by the Judicial Magistrate, 1st Class, Patna in Complaint Case No. 224 of 2009 by which the Court has taken cognizance for offences under Sections 406, 420 and 120(B) 2 of the Indian Penal Code. The complainant is one Vishnu Agrawal who had booked a flat in the commercial-cum-residential complex in the name and style of Bansal Towers on 27.11.1999. The claim of the complainant is that he was allotted flat no. 503 on the payment of Rs. 13,01,000/-. It has also been stated that the complainant fell seriously ill in the month of January, 2000 and as such could not meet the petitioners for finalization of the deal. Thereafter the complainant paid Rs. 51,000/- by cheque on 1.11.2003 for which a certificate was issued on 14.11.2003 and he was told that another flat along with servant quarters and car parking would be available on payment of remaining amount. The second project which was being developed by the petitioners is known as ‘Saket Towers.’ The amount paid by way of advance in Bansal Towers was to be adjusted against flat no. 604 and it is said that the petitioners agreed to return the amount of Rs. 17,15,000/- through cheque. The complainant was issued an allotment letter with respect to flat no. 604. It is said that the complainant spent Rs. 4,64,000/- for beautifying the flat and the land lady found the flat very good and, therefore, she opted for flat no. 604. The complainant was told that the said flat fell in the share of the land lady and the money paid to them would be returned alongwith bank interest. The complainant made requests on several occasions for return of the advance paid which according to the complainant was not done and ultimately he has filed this case under Sections 406, 420 and 120(B) of the Indian Penal Code. 3 Several documents have been annexed with the complaint petition. They are agreement for sale, a handwritten account, ledger account of Vishnu Agrawal, receipt for a sum of Rs. 51,000/-, allotment letter dated 18.11.2003, estimates of amount allegedly paid for beautification of the flat, legal notice alongwith acknowledgement and bank statement dated 26.5.2005. The main argument on behalf of the petitioners is that the matter arises out of an agreement between the parties and the case is based on this agreement and as such no criminal offence is made out. Besides this it has been argued that the complainant has not been able to show that the money was paid to the petitioners or that they were handed over possession of the flat. It is submitted that the documents of the complainant would show that the amount that was paid as an advance has been returned to the complainant and he has not abided by the terms of the agreement and as such he cannot claim that he is entitled to the refund of the advance amount. Clause 3.3 specifically states that total consideration shall be paid by the buyer to the vendor/company authorized representatives in the manner set out in Schedule C. It has also been agreed between the parties that all such payments shall always be made by cross A/C payee cheques or pay orders or demand draft drawn on any bank in Patna in favour of the company. The clause in the agreement further stipulates that in case the buyer fails to pay two consecutive instalments within the stipulated time, the company shall have the right to terminate this agreement and refund the advance money received by the company 4 after deducting administrative charges without any prior notice to the buyer. Clause 4 provides that as soon as the said unit agreed to be acquired by buyer is completed the vendor company or its authorized representative shall notify the buyer of the said unit having been completed. 4.1 clarifies that within fifteen days of the date of notice given to the buyer by the vendor company or its representative, the buyer shall take possession of the said unit after full payment and/or deposit of all amount become due by the buyer to the company in this agreement. It is submitted that the agreement is clear inasmuch as it sets out the manner of payment and the manner in which possession is to be handed over. Schedule C of the agreement which has not been annexed to these documents further specifies the manner in which the payment is to be made by cheques. The complainant has not even prima facie been able to demonstrate that he had paid the said amount by cheques and if so whether they were issued a letter to show that possession of the flat was handed over to the complainant. Here I may clarify that letter of allotment is different to the letter of possession. Letter of allotment merely speaks of allotting a flat to the buyer after payment of advance of Rs. 51,000/- whereas the letter of handing over possession would necessarily mean that the company or its authorized representative would inform the buyer that the flat is ready and he is to take possession of the flat within a specified time. The question therefore, that the complainant had made 5 payments is not at all clear and specified in the complaint petition or the annexures to the complaint petition. In fact it appears that same amounts were returned in the account of the complainant and his wife Manju Agrawal sometime in the year 2005 itself which is a document annexed by the complainant and, therefore, the complainant cannot allege that the advance if any was not paid to them by the vendor company. The complaint on the other hand has been filed demanding the refund of 17,00,000/- odd and also the amount of Rs. 4,64,000/- which was allegedly spent by the buyer after the said possession was handed over. On the other hand Mr. Ajay Thakur counsel appearing on behalf of the complainant submits that the company knew that flat no. 604 fell in the share of the land holder and as such ought not to have made the allotment to the complainant and, therefore, the petitioners had the intention from the very beginning to dishonestly misappropriate or convert the property to his own used and thereby liable to be punished under Section 406 of the Indian Penal Code. The facts are clear. The complainant entered into an agreement to purchase flat at Bansal Towers and admits that he could not honor the commitment because he fell sick and could not make complete payment. The money was allegedly adjusted and allotment of flat no. 604 was made at Saket Towers. The complainant accepts that payment of Rs. 12,50,000/- was made through cheque for Bansal Towers but he could not make further payments as he fell sick in 6 January, 2000. Therefore, the question of misappropriation would hardly arise in this case and, it cannot be said that because the complainant failed to fulfill his part of the agreement, the petitioners would be liable for offences under Section 406 of the Indian Penal Code. As far as the facts concerning payment of flat no. 604 is concerned, there is an allegation that Rs. 17,00,000/- was paid by the petitioner which includes the sum of Rs. 4,64,000/- spent on renovation of the said flat 604 at Saket Towers. The complainant has not been able to prima facie show that he was handed over possession of the flat in question or explain the manner in which 13,00,000/- odd was paid. Cheque or draft nos. etc. have not been specified anywhere in the complaint petition. To come to a finding that the complainant had paid certain amount of money by cheque to the petitioners, there must be at least prima facie an assertion in the complaint petition regarding the details and the manner in which the payments were made which are apparently missing in the allegations is set out by the complainant. Even the statement annexed to the complaint petition goes to show that certain amounts were returned by the petitioners in favour of either the complainant or his wife Manju Agrawal. Counsel for the opposite party on the other hand disputes with this aspect although the document has been annexed by the complainant. Whatever be the position, it cannot be stated in the facts of this case that an offence has been committed under Sections 406, 420 and 120(B) of the Indian Penal Code. In the result the impugned order is set aside and the 7 order dated 2.6.2009, passed by the Judicial Magistrate, 1st Class, Patna in Complaint Case No. 224 of 2009 taking cognizance is quashed. These applications are allowed. Sanjay (Sheema Ali Khan, J.)