Jharkhand High Court
Kanti Kumari vs The State Of Jharkhand on 26 September, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 3017 of 2018
with
Cr.M.P. No.2897 of 2018
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3017 of 2018
1. Kanti Kumari, W/o Samrendra Prasad, aged about 50 years, resident of
H/95, Harmu Housing Colony, P.O. Harmu, P.S. Argora, District- Ranchi
2. Namita Jha, wife of Vinay Kumar Jha, aged about 49 years, resident of
behind Yuvraj Palace, Flat No.B-302, Sidhi Vinayak, Doranda, P.O. &
P.S. Doranda, District- Ranchi
3. Baidehi Sinha, aged 51 years, W/o Binod Kumar, Shivalaya, 127, Near
Bijli Board, Guest House, Doranda, P.O. & P.S. Doranda, District-
Ranchi
4. Rakesh Ranjan, Son of Jagdish Prasad, aged 43 years, resident of Flat
No.402, Shanti Vihar Apartment, Veer Basawan Singh Nagar, Near
Patliputra Station, Rukanpura, P.O., P.S. & District- Patna (Bihar)
5. Poonam Prabhakar, wife of Rajnikant Prabhakar, aged 49 years, 1111,
Sector 4/F, Bokaro Steel City, Sector-IV, P.O. & P.S. Sector-IV, District-
Bokaro
6. Lalita Pandey, wife of Balram Pandey, aged about 52 years, resident of
Krishnapuri, Road No.2, Panki Road, Redma, P.O. & P.S. Daltonganj,
District- Palamau
7. Upendra Prasad, son of Jagdish Prasad, aged 55 years, resident of F-
55, P.C. Colony, Kankarbagh, P.O. & P.S. Kankarbagh, District- Patna
(Bihar)-800020 ... Petitioners
-Versus-
1. The State of Jharkhand
2. Siddharth Haldhar, son of Late G.K. Haldhar, resident of Flat No.403/R,
Ekalavya Tower, Dipa Toli, P.O. Pundag, P.S. Jagarnathpur, District-
Ranchi ... Opposite Parties
With
Cr.M.P. No. 2897 of 2018
Samrendra Prasad, aged about 52 years, son of Shri Jagdish Prasad,
resident of H-95, Harmu Housing Colony, P.O. Harmu, P.S. Argora,
District- Ranchi ... Petitioner
-Versus-
1. The State of Jharkhand
2. Siddharth Haldhar, son of Late G.K. Haldhar, resident of Flat No.403/R,
Ekalavya Tower, Dipa Toli, P.O. Pundag, P.S. Jagarnathpur, District-
Ranchi ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Indrajit Sinha, Advocate (In both cases) Mr. Rishav Kumar, Advocate For the State : Mr. Sanjay Kumar Srivastava, A.P.P. (In Cr.M.P.-3017/18) Mr. Pankaj Kumar, P.P. (In Cr.M.P.-2897/18) For O.P. No.2 : Mr. Birendra Kumar, Advocate (In both cases)
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09/26.09.2022. Heard Mr. Rishav Kumar, learned counsel for the petitioners, Mr. Sanjay Kumar Srivastava, learned counsel for the State and Mr. Birendra 2 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 Kumar, learned counsel for opposite party no.2.
2. In both the petitions, common questions of fact and law are involved and that is why both the petitions have been heard together with consent of the parties.
3. These petitions have been filed for quashing of entire criminal proceedings including the order dated 11.07.2018 passed in connection with Complaint Case No.1082 of 2018, pending in the court of the learned Judicial Magistrate, Ranchi.
4. The complaint case has been filed by opposite party no.2 alleging therein that the accused no.1 is a Sudo Managing Director of Ekalavya Estate Pvt. Ltd., Dipatoli, Pundag, Ranchi, but business in the name and style of Ekalavya Estate Pvt. Ltd. is being carried on by accused no.2 being a Government employee. The accused no.2 is running the business in the Benami of his wife, the accused no.1 to avoid any penal action by the Government against him. The accused no.1 being the Developer and Managing Director of Ekalavya Estate Pvt. Ltd., Ranchi entered into a development agreement with the land owner namely Gopichand Mahto, Ramchandra Mahto, Pusuwa Mahto, Mahendra Mahto and Likhu Mahto in respect to the land of R.S. Plot No.892, 893 (part) and 891 under Khata No.139 of village Pundag, Mouza Pundag, P.S. Jagarnathpur, District- Ranchi. In pursuance to the said development agreement, the accused nos. 1 and 2 on the assistance of accused nos. 3 to 8 hereof constructed the building complex comprising of G+9 over the said land. On the assurances and representation of the accused persons that they would provide all modern amenities including the lift of good quality (OTIS or KONE make), 3 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 smokeless generator and one standby generator and all other modern amenities, the complainant and the other purchaser including the witnesses hereof paid to the accused persons substantial amount, but they have installed absolutely low quality of lift and other amenities and they have not installed generators. It was further alleged that the complainant asserts that by the false assurances and representation, the accused persons have cheated the complainant and other purchasers of the flats including the witnesses hereof and rendering the accused persons themselves liable for criminal prosecution by committing cheating, forgery and criminal breach of trust under the criminal conspiracy with each other with the purpose to illegal gain and put the complainant and the other purchasers including the witnesses hereof loss and damages. The accused persons promised that they would regularly and properly maintain the building complex and will attend to all effects which may crop up at any time in the flats and the building complex of Ekalavya Tower and on such assurances the accused persons have realized from the complainant and each of the other purchasers including the witnesses hereof Rs.54,000/- as onetime payment for three years maintenance and in this manner, the accused persons have realized from the complainant and other purchasers of the flat including the witnesses hereof crores of rupees, but no arrangement or provision has been made by the accused persons and they are not maintaining the building complex due to which the condition of the complex is every day deteriorating. The accused persons do not even attend to the defects or problem that often crop i.e. electricity, supply water, damage and plumber work etc. As per the terms of the agreement and the assurances made by 4 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 the accused persons, there are so many deficiencies in the complex on their part which they are bound to remove. The accused persons have installed three lifts which are so bad quality that they do not function properly and due to that the users of the lift i.e. the complainant and the other purchasers including the witnesses hereof and their family members facing immense difficulties and sometimes their life also became endangered. In one occasion, the complainant was using the lift and the lift was completely locked due to which he got stuck off for more than one hour in the lift. He was about to collapse due to suffocation and nervousness due to negligent conduct with respect to the machinery on the part of the persons. With many efforts the shutter of the lift was broken out and the complainant was taken out from the lift. The accused persons assured the complainant and the other purchasers of the flats including the witnesses hereof that the construction of the building in the ground floor will be above the road level, but the accused persons only to save money and to cheat the complainant and other purchasers of the flat constructed the complex below the road level due to which the rain water and the drain water from the road enters into the complex causing much inconvenience to the complainant and other purchasers of the flat including the witnesses hereof. There is no drainage facility for outlet of water from the complex and even the drain that has been made by the accused persons in the complex is open drain which is most unhygienic which clearly amounts to cheating, forgery and criminal breach of trust. The accused persons illegally constructed two rooms on the roof top and gave the same on rent. The accused persons have not made any arrangement for the fire fighting and no Fire Fighting equipment has 5 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 been installed in the complex which is essential under the law. The accused persons have also not provide all the owners of the flat sufficient parking space for the vehicles, but in order to make wrongful gain, they have arranged too small parking space which is not sufficient even to properly park a vehicle and the drive way is also too small. The proportionate area which the complainant and the other owners of the flats are entitled to get is being used by the accused persons illegally for commercial purpose for wrongful gain. The accused persons converted two flats being nos. 201 and 906 of Ekalavya Tower as guest house and they are using it for commercial purposes, which is absolutely illegal and the visitor of the guest house cause disturbance to the complainant and the other owners of the flats. It was also alleged that the electric wiring is not made concealed wiring, therefore, the same is not proper. The accused persons assured that they would built a temple in the ground floor and a hall for the meeting and also for other social gathering and function on the upper roof in the complex, but the same has not been done. The accused persons illegally taken Rs.1,50,000/- for lift of good quality and smokeless generator and one standby generator from the complainant and each of the other flat owners and wrongfully gained crores of rupees from the flat owners. They have also not made "Water Harvesting" system in the campus which is against the terms and condition of the sanctioned plan of the building complex. They have also let out the portion of their share of the flat for marriage purpose to the outsiders which cause much inconvenience to the owners and occupiers of the flats. As per terms, they have also not engaged paper Guards and Gatekeepers and even they have not provided the completion certificate of 6 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 the building. In spite of the terms of the agreement and assurances, the accused persons have also not taken any steps for the mutation of the names of the owners of the flat including the complainant. It was further alleged that there is a parking area in the ground floor of the apartment which is used by the flat owners to park their vehicles, the vehicles go through the pathway which runs to north to south in the western side of the parking area, the said parking area and the pathway appertain to the apartment and jointly held by the owners of the flat for the purpose of safety, the complainant and other flat owners fixed a gate at the end of the pathway which was under lock and key of the complainant and other flat owners. The accused persons and their associates of questionable identity illegal broke open the lock on 10.02.2018 and since thereafter illegally driving the heavy vehicles through the pathway. This illegal act of the accused persons has also endangered the safety of the complainant and other flat owners. When the complainant and other flat owners protested against the illegal act, the accused no.2 and his associates threatened the complainant and the witnesses in dire consequences, if any obstruction is made in the movement of their heavy vehicles through the parking area. The complainant on 12.11.2017 gave legal notices to the accused nos. 1 and 2. He also informed the concerning Police of Jagarnathpur Police Station including high authorities of the Police and Administration on 21.02.2018 and in spite of receipt of the same, no action has been taken as yet. It was further alleged that in spite of the assurances of the accused persons they under the criminal conspiracy with each other and with their malafide objects and for making wrongful gain and put the complainant in 7 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 wrongful loss and damages, they have not fulfilled the terms and condition of the agreement and the assurances made by them to the complainants and other purchasers of the flats and have cheated the complainant and the others and the accused persons have under criminal conspiracy committed cheating, forgery and criminal breach of trust and put the complainant and other purchasers in wrongful loss and damages.
5. Mr. Rishav Kumar, learned counsel appearing for the petitioners submits that petitioner no.1 in Cr.M.P. No.3017 of 2018 is the Managing Director of Ekalavya Estate Pvt. Ltd. According to him, the Company is not made accused, however the petitioner in Cr.M.P. No.2897 of 2018 who is the Government employee and husband of petitioner no.1 in Cr.M.P. No.3017 of 2018, is made accused. He further submits that so far as other petitioners i.e. petitioner nos. 2 to 7 in Cr.M.P. No. 3017 of 2018, are concerned, they are not the signatory in the agreement, however the learned court without any material taken cognizance against the petitioners. He also submits that the allegation in the complaint is with regard to non maintaining the building in question and deficiency in service. He further submits that in terms of the agreement and for maintenance of the building in question, the Company has taken every care and building has been properly constructed and other amenities including the lift has been installed. He further submits that in a civil case, criminal case has been lodged against the petitioners. He also submits that opposite party no.2 is having remedy before the Jharkhand Real Estate Regulatory Authority as well as Consumer Forum if any deficiency is there. However, criminal colour has been given. He further submits that the Ranchi Municipal Corporation has given occupancy 8 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 certificate. On these grounds, he submits that no criminality is made out.
6. On the other hand, Mr. Birendra Kumar, learned counsel for opposite party no.2 submits that on the assurance of the Company, the opposite party no.2 and others have purchased the flat, however the said building is not being properly maintained in spite of the fact that maintenance was being charged from the petitioners and others. He further submits that in the complaint petition, it has been disclosed that on the assurance of the accused persons, opposite party no.2 and others have invested their money in the flat in question. He further submits that if criminality is there, both civil and criminal case can go together. He relied upon the judgment passed by the Uttarakhand High Court in Manish Kumar Agarwal & others v. State of Uttarakhand & others , decided on 10.09.2020 in Criminal Miscellaneous Application No.559 of 2020.
7. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that for non-maintenance of flat in question, the case has been lodged. Admittedly, petitioner no.1 in Cr.M.P. No.3017 of 2018 is the Managing Director and the petitioner in Cr.M.P. No.2897 of 2018 is having no role in the agreement, who happened to be the Government employee. Moreover, petitioner nos. 2 to 7 in Cr.M.P. No.3017 of 2018 are not the signatory of the agreement, however the learned court has taken cognizance against the petitioner nos. 2 to 7 in Cr.M.P. No.3017 of 2018. It prima facie shows that there is non-application of judicial mind. What are the materials before the learned court, that was required to be disclosed in the order, however the learned court has not done so. Moreover, the Company is not made an 9 Cr.M.P. No. 3017 of 2018 with Cr.M.P. No.2897 of 2018 accused. How the cognizance has been taken against Kanti Kumari (petitioner no.1 in Cr.M.P. No.3017 of 2018) and Samarendra Prasad (petitioner in Cr.M.P. No.2897 of 2017), that is also lacking in the impugned cognizance order. Accordingly, the cognizance order dated 11.07.2018 passed in connection with Complaint Case No.1082 of 2018, pending in the court of the learned Judicial Magistrate, Ranchi is, hereby, set aside. The matter is remitted back to the learned court to pass fresh order, in accordance with law.
8. Accordingly, these petitions stand disposed of.
9. Consequently, I.A. No.6011 of 2021 filed in Cr.M.P. No.3017 of 2018 also stands disposed of.
10. Interim orders passed in respective cases stand vacated.
(Sanjay Kumar Dwivedi, J.) Ajay/