IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.21140 OF 2009 NIRAJ CHANDRAYAVI, SON OF SHRI NAWAL KISHORE PRASAD, PARTNER CHANDRAYAVI CONSTRUCTION AND DIRECTOR, CHANDRAYAVI CONSTRUCTION PRIVATE LIMITED, OFFICE 404 AND 410 ASIANA PLAZA, BUDHA MARG, PATNA-1 VERSUS 1. THE STATE OF BIHAR 2. NIRANJAN PRASAD, SON OF LATE JADUNANDAN PRASAD, RESIDENT OF MOHALLA MAULABAG IDGAH ROAD, ARA NAWADA, DISTIRCT BHOJPUR ………………………………………………………………..OPPOSITE PARTIES ********* FOR THE PETITIONER :- MR. MD. KHURSHID ALAM, ADVOCATE MR. SANJAY PRASAD, ADVOCATE FOR THE COMPLAINANT:- MR. MAITIN, ADVOCATE MR. ANOOP KUMAR, ADVOCATE FOR THE S T A T E :- MR. M. DAYAL, A.P.P. ********** 6 03/02/2010 This application has been filed challenging the order dated 13.03.2009 by which the Court below has taken cognizance under Sections 406, 420, 468, 465, 467, 504 and 506 of the Indian Penal Code. The complainant is a relation of Smt. Pallavi Prakash, who resides at Singapore, has filed this application alleging that Pallavi Prakash has paid a sum of Rs. Thirty Seven lacs and odd for purchase of one flat at Ranchi and two flats at Patna but she has not been handed over the flats at Patna and the money has also not been refunded to her. After notice, the Opposite Party No. 2 has appeared and filed a counter affidavit. The objections raised on behalf of the petitioner are as follows:- 2 (a) The complaint has been filed without proper power of attorney. (b) Pallavi Prakash has not paid the entire amount required to be paid and as such her allotment of the flats at Patna has been cancelled. (c) As per the agreement, the dispute ought to have been decided by the Patna Court and the case filed at Ara is without jurisdiction. (d) The case is of civil nature, covered by an agreement and as such the criminal proceeding would not be maintainable. This Court tried to make attempts to solve the disputes between the parties, but apparently there are differences with respect to the transactions of the amount and as such the dispute could not be solved. With respect to the first point i.e. question of power of attorney, prima facie it appears that the power of attorney was delivered to the complainant before filing of the complaint petition, which was authenticated on 23.02.2009 at Singapore and as such it cannot be said that the complaint is not maintainable on that ground. I have to agree with the complainant on this aspect of the matter and as such the complaint petition cannot be thrown out on the ground that it was filed without the authority of Pallavi Prakash. 3 It is a fact that there was an agreement between Pallavi Prakash and the petitioner who is a builder with respect to purchase of these three flats, one at Ranchi and rest two at Patna. It is also a fact that the agreement specifies that if there is any dispute with respect to the delivery of possession, date of possession between the builder and the buyer, the interpretation of any of the terms and conditions, then the same shall be referred to the arbitration of the architect. It is further stated that the courts having original jurisdiction in the town of Patna alone shall have the jurisdiction in all matters relating to or arising out of this agreement. Ordinarily, the question of jurisdiction is a mixed question of fact and law and at this stage this Court can only say that Clause 23 would necessarily mean that any dispute with respect to `delivery of possession’ or `date of possession’ , or interpretation of any clause would be a matter of civil dispute. But here the issues are different. It has been alleged that the money paid for the two flats have been misappropriated. There is also discrepancy with respect to the amount paid. Counsel for the petitioner submits that no case under Section 420 of the Indian Penal Code is made out as there was no intention on behalf of the petitioner to chit the complainant and because of the fact that the entire amount was not paid to the petitioner, the allotment of the 4 flats at Patna was cancelled which has resulted in the filing of this case alleging offences under Section 406 & 420 of the Indian Penal Code. Counsel for the Opposite Party No. 2, on the other hand, submits that the statement given with respect to the amount received is an out and out false statement and in the counter affidavit, the complainant has given the correct figures with respect to the payment made in lieu of all the three flats which is Annexure-18. There are disputed questions of facts involved in this case and there are allegations and counter allegations which cannot be considered by this Court at the stage of taking cognizance. I, therefore, dismiss this quashing application with liberty to the petitioner to raise the questions which have been raised in this application at an appropriate stage. Anand ( Sheema Ali Khan, J.)