Vikash Agarwal vs State of Jharkhand and Another

R.R. Prasad, J.—This application has been filed u/s 482 of the Code of Criminal Procedure for quashing the entire criminal Proceeding of Complaint Case No. 206 of 2007 including the order dated 25.7.2007 whereby and whereunder cognizance of the offences under Sections 406/409/417 and 420 of the Indian Penal Code has been taken against the petitioner.

The facts giving rise this application are that the complainant-opposite party No. 2 lodged a case stating therein that he being a land owner of a piece of land, measuring 20 decimal, bearing plot No. 679 (sub plot No. 769/E), under khata No. 85, situated at village Kathargonda, Kanke Road along with five other land owners entered into an agreement, vide deed of agreement dated 23.6.1995 with a Developer M/s. Satyabhama Developers to which petitioner is a Director, whereby it was agreed upon to develop the land by constructing apartments to be sold to different purchasers and to give proportionate share in the built up portion to the land owners. Under the said agreement, developer (petitioner) was authorised to enter into an agreement for sale of the portion or portions of the proposed building and to receive amount of advance from the prospective purchasers and to grant receipt for the same and at the same time it was also agreed that the share of the land owner shall be delivered prior to execution of sale or agreement to sell with the intending purchaser or purchasers. Subsequently the complainant executed a deed of joint power of attorney along with five land owners in favour of the petitioner whereby he was authorised to do various acts, inter alia to receive advance or advances and also the balance of purchase money for such sale or sales and grant valid receipt on their behalf and to deposit the same to the principal. Pursuant to that, petitioner and other accused persons started selling the apartments to the purchasers but by violating the terms of power of attorney, as they failed to deposit the said amount to the principal and even failed to hand over requisite area of the apartment, as agreed upon, to the complainant and hence there was no option for the complainant but to cancel the power of attorney executed in favour of the petitioner and, accordingly, it was cancelled, vide registered deed of cancellation dated 4.7.2005 and this fact was communicated to the accused persons and even the said information was published in the daily newspaper "The Ranchi Express" but to utter surprise of the complainant, the accused persons went on having agreement for selling the apartment with intending purchaser and thereby the accused persons not only committed criminal breach of trust but also cheated the complainant by not paying the money received from the intending purchaser and by not handing over the built up area due to be given as per the agreement.

The Court having recorded statement of the complainant on solemn affirmation and holding enquiry in terms of Section 202 of the Code of Criminal Procedure took cognizance of the offences under Sections 406/409/417 and 420, IPC against the petitioner.

Being aggrieved with that order, the petitioner has preferred this application.

Learned Counsel appearing for the petitioner submits that the allegations made in the complaint are not only factually incorrect but it also do not constitute any criminal offence rather the dispute is civil in nature. In this regard, it was submitted that after completion of construction of the apartment, developer allotted a plot to the complainant, as agreed upon, of an area of 1500 sq. ft., bearing flat No. 106/B but before the petitioner could enter into an agreement for selling the other flat to intending purchaser, as per the agreement, the complainant started making unreasonable demand of money and as the complainant did not agree to that, the complainant allegedly cancelled the power of attorney on 4.7.2005, but before that, the complainant had entered into an agreement for sale of flats with intending purchaser and that the petitioner had no knowledge that power of attorney has been cancelled.

It was also submitted that so far allegation of non-payment of advance amount received from the intending purchaser is concerned, that is wholly misconceived as there had been no such stipulation either under the developers''s agreement or under the power of attorney and similarly, allegation of not giving complainant''s share in the building is quite false which would be evidently clear from the record of this case. However, it was submitted that even if the entire allegations made in the complaint petition are taken to be true, no offence is made out under Sections 406/409/417 and 420 of the Indian Penal Code as the allegations lack requisite ingredients for constituting those offences.

Learned Counsel appearing for the petitioner further submits that otherwise also the case, on account of the subsequent development whereby parties have settled their dispute purely a personal one arising out of business dealings not involving public policy have failed a joint compromise petition, criminal proceeding is fit to be quashed, in view of the ratio laid down by the Hon''ble Supreme Court in a case of Union of India (UOI) and Another Vs. Narendra Singh, notwithstanding the fact that some offences are non-compoundable.

Learned Counsel appearing for the opposite party No. 2 also submits that parties have resolved their dispute amicably and hence, have filed a joint compromise petition.

Straightway coming to the last submission warranting this Court to exercise extraordinary power u/s 482 of the Code of Criminal Procedure for ends of justice as the dispute being personal in nature not involving public policy ended in a compromise, I may refer to a case of Union of India (UOI) and Another Vs. Narendra Singh, wherein the Hon''ble Supreme Court taking note of the fact that the dispute being purely a personal one not involving public policy was resolved by way of compromise did hold that it is perhaps advisable that In dispute where the question involved is purely of personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceeding as keeping the matter alive with

no possibility of a result in favour of the prosecution is a luxury which the Court grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation.

Keeping in view the aforesaid observation it may be reiterated that in the instant case, parties seem to have settled their dispute which was purely a personal one not involving any public policy by way of memorandum of settlement filed with the joint compromise petition and in that view of the matter, no useful purpose would be served in allowing the criminal proceeding to continue with as there would be no possibility of any conviction being recorded.

Under the situation, the entire criminal proceeding in complaint case No. 206 of 2007, pending in the Court of Judicial Magistrate, Ranchi including the order dated 25.7.2007 taking cognizance of the offences under Sections 406/409/417 and 420 is hereby quashed.

In the result, this application is allowed.