IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.39582 OF 2009 M/S GUPTA HOMES PRIVATE LTD. THROUGH ITS MANAGING DIRECTOR RABINDRA PRASAD (MANAGIND DIRECTOR OF GUPTA HOMES PRIVATE LIMITED), SON OF SHRI MEVA LAL, RESIDENT OF MOHALLA FLAT NO. 505, VASUNDHARA APARTMENT, POLICE STATION KADAM KUAN, DISTRICT PATNA VERSUS THE STATE OF BIHAR ********** 6 05/04/2010 This application has been filed for quashing the order dated 25.04.2009 passed by the Judicial Magistrate, 1st class, Patna in Complaint Case No. 415C of 2009 by which the Court below has taken cognizance for the offences under Sections 406 & 420 of the Indian Penal Code. A complaint was filed by Maman Kumar Agrawal alleging that they had booked a flat in a multi- storied building which is known as Deep Leela Residential Complex, consisting of six floors for residential purposes. The construction of the building started in the month of November, 2006 and was to be completed in December, 2008. It is said that Flat No. 509 having a total built area of 1154 sq. feet being total worth of Rs. 12,11,700/- would be the cost of the said flat. The complainant by various cheques, drafts and cash paid a total sum of Rs. 9,87,000/-. It has specifically been stated at paragraph 14 that the complainant in the aforesaid manner paid a total sum of 2 Rs. 9,87,000/- by the month of November, 2008 both by way of cash and instruments duly received and recorded by accused no. 2 in the scheduled of payments against Flat No. 509, allotted to the complainant. The allegation is that the complainant upon examining the draft agreement was surprised to find that the sale price of the aforesaid flat was mentioned as Rs. 7,50,100/- whereas in the allotment letter, the said price was mentioned as 12,11,700/-. It is alleged that the complainant did not deliver the flat in question and has misappropriated Rs. 9,87,000/- Certain facts are accepted by the complainant. Firstly, that there was an agreement between the parties dated 16.11.2008 which is annexed as Annexure-I to the counter affidavit filed on behalf of the complainant. It is also admitted by the petitioner that the petitioner has received Rs. 9,87,000/- from the complainant. The case of the petitioner is that the complainant did not pay his instalments in time and as such he issued a letter canceling the allotment on 25.12.2008 vide Annexure-6. In the said letter of cancellation, it has been mentioned that the complainant has not paid the entire 85 per cent of the consideration amount by 30.11.2008 and he has given a 3 cheques dated 24.11.2008 of a sum of Rs. 1,00,000/- in favour of the accused no. 1 i.e. M/s Gupta Homes Private Limited but the said cheque could not be encashed from the concerned bank because of the insufficient balance in the concerned bank account and as such a letter canceling his allotment was issued by the petitioner. This fact has been accepted by the complainant in the counter affidavit wherein he has stated that the Builder ought to have given 15 days time for clearing the payment with a fine of Rs. 1,000/- for every instalment in which the cheques was dishonored. Thereafter, the letter of cancellation ought to have been issued. Therefore, from the facts aforesaid, it is also quite apparent that the complainant/Opposite Party No. 2 accepts that his allotment was cancelled. The reason for cancellation, according to the Opposite Party No. 2, was not justified, however, the cancellation of the allotment would not amount to an offence as it is claimed by the petitioner that he was quite justified in cancelling the allotment. Counsel for the Opposite Party No. 2 submits that the accused/petitioner is facing several criminal proceedings because of this fact. In the said building which contains 52 flats apart from this case, one another person has filed a case against the 4 petitioner. Learned Counsel for the complainant has also submitted that this Court has dismissed the case of this petitioner in which Punam Chandra Jhawar had filed a case against Rabindra Prasad, Managing Director of M/s Gupta Homes Private Limited. This Court has dismissed the case on the ground that the prayer was made for quashing of the First Information Report of Kadam Kuan Police Station Case No. 136 of 2009 dated 11.05.2009. This Court did not think it proper to quash the First Information Report as the investigation was still pending in the matter and as such dismissed the application filed by Rabindra Prasad. Counsel for the petitioner, in reply, submits that the petitioner is a builder and has been acting with bonafide intention. The parties have defaulted in making payments or have not paid the entire amount and on default have filed cases against the petitioner. Each case filed against the petitioner will have to be examined on the facts stated therein. In this case, it is apparent that the petitioner accepts that they have been paid Rs. 9,87,000/- and are ready to return the amount to the complainant as per the stipulation made in the agreement. Infact, on the last occasion when the matter was heard, this Court also asked the 5 complainant to consider this offer. The complainant, however, has refused the offer perhaps for the reason that the complainant has filed Title Suit No. 147 of 2009 for specific performance of contract and a case in the district forum which is numbered as Case No. 51 of 2009. In the facts of this case, this Court finds that infact no offence is made out under Sections 406 and 420 of the Indian Penal Code. Section 405 of the Indian Penal Code defines the criminal breach of trust. It entails that to constitute criminal breach of trust, the following ingredients should be apparent on the facts of the case. (i) entrusting a person with property or with any dominion over property (ii) That person entrusted (a) dishonestly misappropriates or converts the property to his own use or (b) dishonestly using or disposing of that property or willfully suffering any other person to do so in violation of (i) any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made touching the discharge of such trust. It is apparent that in this case there is no element of deception or misappropriation. It is simply a case where the petitioner has cancelled the allotment of 6 a flat as it violates the agreement. The petitioner also is not running away from the liability of paying the amount which has been received by them and have stated so on affidavit and also in the letter of cancelling the allotment which has been admitted by Opposite Party No. 2 and as such there is no element of cheating involved in this particular case. Accordingly, the impugned order dated 25.04.2009 passed in Complaint Case No. 415 (C) of 2009 is quashed. In the result, this application is allowed. Anand ( Sheema Ali Khan, J.)