IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.32371 of 2006 MASUMA ZAKI @ MASOOMA GHANI, wife of Syed Arshad Ghani, at present residing at B/39, Zakir Nagar, Peoples Co-operative Colony, Kankerbagh, P.S.- Kankerbagh, P.O. Lohia Nagar, District Patna. ...Petitioner Versus 1. THE STATE OF BIHAR & 2. M/s Abu Constructions Private Limited, Builder and Developer, at 204, Ashiana Tower, Exhibition Road, P.S. Gandhi Maidan, Patna-800001 through Mr. Md. Abu Qaiser, Chairman cum Managing Director 3. Mr. Mohd. Abu Qaiser, Chairman-cum-Managing Director, M/s Abu Construction Pvt. Ltd. Builder & Developer at 204, Ashiana Tower, Exhibition Road, P.S. Gandhi Maidan, Patna-800001 …Opposite Parties ----------- For the petitioner: Mr. Jitendra Singh, Sr. Advocate with Mr. Biswjeet Singh & Tej Pratap Singh, Advocates For O.P. No.2 : Md. Waliur Rahman, Advocate For the State : Mrs. Pushpa Sinha, APP ------------ 6/ 06.07.2010 Learned counsel for the petitioner is permitted to make amendment in paragraph 1 as well as prayer portion of the petition. The petitioner seeks quashing of the entire complaint bearing no. 2200 © of 2005 instituted for the offence under sections 406, 420 and 120-B Indian Penal Code so far as it concerns the petitioner and the order of cognizance dated 6.9.2005 passed by the Sub-Divisional Judicial Magistrate, Patna. The complainant-opposite party no.2 filed a complaint on 01.08.2005 alleging that the accused persons persuaded the complainant to enter into the development agreement dated 17.4.2005 for construction of multistoried building to proportionate share of 60% to the complainant for his investment and 40% share to the accused - 2 - persons in lieu of the price of the land. It was alleged that all the accused persons took active part in the negotiation process. However, it was accused no.1, who accepted cash of rupees twenty lacs which she distributed to the other two accused persons including the petitioner who happens to be her daughter. As per the development agreement, accused no.1 executed a power of attorney to facilitate the construction and the project was inaugurated on 21.4.2005 in presence of the accused no.1 as the Chief Guest. However, after the complainant spent a substantial amount in the development of the said plot suddenly accused no.1 approached the complainant that her daughters, meaning also the petitioner, were not agreeable to the development agreement and sought cancellation of the same. Since the complainant did not agree to the cancellation, he was persuaded to enter into a fresh development agreement with the terms that amount handed over to the accused no.1 would be adjusted in the same. Thereafter, a fresh development agreement was entered into between accused no.1 as self and as a power of attorney holder of accused no.2 on 4.6.2005. However, soon thereafter the complainant received legal notice from accused no.1 that the second agreement was a fraud upon her since she had not been able to read the contents of the same. For this reason, the complainant alleged that the accused persons in conspiracy with each other had caused loss to the complainant by cheating him and in the process caused wrongful gain to themselves. During enquiry, three witnesses were examined on behalf of the complainant and thereafter cognizance for the offence under - 3 - sections 406, 420, 120-B Indian Penal Code was taken. The plain and simple argument on behalf of the petitioner, who has been arrayed as accused no.3 in the complaint, is that there is total absence of any act or omission on her part which would make her liable for prosecution for any offence whatsoever much less under section 406 and 420 Indian Penal Code. Counsel for the opposite party no.2 insisted that the narrative of the complaint discloses that by virtue of relationship between the accused persons they were in conspiracy with each other and, therefore, the petitioner is equally liable for prosecution as accused no.1. On going through the contents of the complaint, I find that apart from the petitioner having been mentioned in paragraph 2 and 3 stating that she was the part holder of the property and the relationship between the three and the vague allegation in paragraph 4 that she also took part in negotiation with the complainant, there is absolutely no allegation that the petitioner in any way induced the complainant to deliver any property since neither she is one of the signatories of the development agreement nor is there any allegation that the complainant had handed over money to the petitioner in proof of financial transaction between them. Furthermore, as there is no averment that the petitioner was holder of any property which was in fact due to the complainant, there could be no prosecution under section 406 Indian Penal Code since the essential ingredients of entrustment was missing. - 4 - In view of such, this application is allowed and part of the complaint case i.e. Complaint Case No.2200 © of 20005 and the order dated 6.9.2005 taking cognizance, in so far as it pertains to the petitioner is hereby quashed. Application stands allowed. JA/- (Anjana Prakash, J.)