- (1.) M /s Sanjay Prasad andKamdeo Pandey 7/ 02.01.2013. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State and also learned counsel appearing for the opposite party no.2.
(2.) THIS application has been filed for quashing of the order dated 12.10.2011 passed by the then Chief Judicial Magistrate, Giridih in Bagodar P.S case no.227 of 2010 whereby and whereunder cognizance of the offence punishable under Section 406 of the Indian Penal Code has been taken against the petitioner. The case of the complainant as it appears from the complaint petition is that the petitioner being General Secretary of Ananda Bhawan Ashram, Sarriya got an apartment constructed for selling it out to the resident members of Ananda Bhawan Ashram. The complainant entered into an agreement for purchasing one of its flats for a consideration amount of Rs.2,50,000/ - for himself. Likewise one witness, namely, Madhab Krishna Ghose Moulic also entered into an agreement for purchasing a flat on the same consideration amount which were paid by the complainant and also by the aforesaid witness. Under the agreement it had been stipulated that as soon as construction would be completed, the flats would be handed over to them. But the possession of flats was not given even after its completion on the pretext that some body has come forward to purchase the flat at higher price and thereby it has been alleged that the petitioner has committed criminal breach of trust .On such allegation a case was registered as Complaint Case no.1496 of 2010 in which cognizance of the offence was taken under Section 406 of the Indian Penal Code against the petitioner which is under challenge. Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits that it is true that the complainant and witness had entered into an agreement with the petitioner whereby it had been agreed that after construction of the apartment, possession of the flats would be given to the complainant and the witness at a consideration amount of Rs.2,50,000/ - but as the price of the building materials increased, cost of the apartment also got escalated and therefore, the complainant and the witnesses were asked to make further payment but they failed to make payment and then lodged the case on the allegation that the petitioner has failed to give possession of the flats and thereby he has committed an offence of criminal breach of trust though it is a simple case of breach of trust for which remedy lies elsewhere. In this regard, it was further submitted that the petitioner when had moved an application for anticipatory bail, the anticipatory bail was granted to the petitioner upon imposing the condition to hand over possession of one of the flats to the complainant and in terms of the order passed by the Court possession of one of the flats was given to the complainant. Learned counsel submitted that accepting the entire allegation to be true, no offence is made out under Section 406 of the Indian Penal Code as the petitioner has never been alleged either to have misappropriated the amount dishonestly or has converted the amount to his own use or the petitioner has dishonestly dispose of the property in violation of agreement and thereby the order taking cognizance is fit to be quashed.
(3.) AS against this, learned counsel appearing for the opposite party no.2 submits the complainant as well as one witness had entered into an agreement with the petitioner whereby the petitioner had agreed to hand over the possession of flats each of them on the consideration amount of Rs.2,50,000/ - which amount was paid by each of them. In spite of that, possession of the flats was not given either to the complainant or to the witness and therefore, the complaint was lodged. Since the possession had not been given in spite of receiving of the consideration amount, the petitioner can certainly be said to have committed an offence of criminal breach of trust. Learned counsel further submitted that it is true that under the order of the court passed in anticipatory bail application, possession of the flat has been given to the complainant but not to the witness and therefore, the petitioner cannot take any advantage of the fact that the possession of one of the flats has been given to the complainant and thereby order taking cognizance never warrants to be interfered with.;