Pranay Kumar Verma vs State Of Jharkhand

Gautam Kumar Choudhary, J

This criminal revision petition has been preferred against the order dated 19.02.2019 by which the discharge petition of the petitioners have been rejected by the learned court below in G.R. No.2003/2001 arising out of Ranchi Kotwali P.S. Case No.383/2001.

As per the case of informant-Rekha Bose, petitioners had entered into a development agreement with her to develop multi storied building on M.S. Plot No.1777 and 1778 of Municipal Holding No.1435 on 15th May 1991. As per the terms of agreement, they had agreed to provide following facilities to the undersigned:-

i. One flat each measuring 1000 Sq. Ft. to each shareholders.

ii. Parking space, each of 200 Sq. Ft. to each shareholders and flat owners.

iii. Lift and generator.

They handed over the said flats on 17th June, 1997, but did not provide parking space, lift and generator and made illegal construction on the parking space which was in complete derogation of the building plan. Aggrieved by this, the informant moved this Court and illegal construction was removed by the order of this Court. However, it came to her knowledge that 4th floor was constructed without sanction of RRDA.

On the basis of written report, FIR was lodged against the petitioners. The police, on investigation, submitted charge sheet and by dismissing the discharge petition, the learned court below has held that a prima facie case was made out under Section 406 and 420 of Indian Penal Code.

It is submitted by learned counsel on behalf of petitioners that as per the terms of agreement Petitioners had constructed the multistoried building and handed over the flats to the shareholder. There is no complain on this score. From the FIR itself, it will manifest that parking space has been restored to the informant and there is nothing to suggest that the informant or any of the shareholders suffered any loss due to any act of the petitioners. Even if it is assumed that 4th floor was constructed without sanction by RRDA, no offence will be made out rather it will be amount to violation of RRDA Act and no penalty was paid by the informant. As a matter of fact, the petitioners were noticed to deposit requisite court fees for sanction of modified building plan no.177/99 and the said fees has been paid by the petitioners. These material facts are not sufficient to make out an offence under Section 420 of the IPC.

It is also argued that Section 406 of the IPC will not at all apply in this case as there is no averment of criminal breach of trust. The land was handed over to the petitioners under an agreement and four storied building plan has been constructed as per the terms of agreement and the portion of flats have already been allotted to the informant.

Learned A.P.P. has defended the impugned order.

Having considered the submissions advanced on behalf of petitioners, it appears that there is no material to suggest that informant suffered any wrongful loss due to breach of term of agreement committed by the petitioners. Law is settled that unless there is a dishonest intention from very inception, offence of cheating will not be made out. The main grievance as disclosed in the FIR was with respect to illegal construction made over the parking space which has already been removed. As far as the deviation from the sanction plan is concerned, it will not be the informant, but the builder or the petitioners in the present case shall be responsible therefore, the question of loss to the informant does not arise. On these materials, this Court is of the view that no prima facie case is made out of criminal breach of trust or cheating.

Accordingly the impugned order is set aside and the criminal revision petition is allowed.