Alok Kumar Singh vs The State Of Jharkhand
2022 Latest Caselaw 747 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3425 of 2017

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Alok Kumar Singh, son of late Rajkishore Singh, resident of Village Ashok Nagar, PO Hinoo, PS Argora, District Ranchi ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Rajesh Kumar Ray, son of Sri Deonath Ray, resident of village Hesal, Barhai Tola, Ratu Road, PO Hehal, PS Sukhdeo, Nagar, District - Ranchi ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Jitendra Shankar Singh, Advocate For the State :- Mr.Azeemuddin, A.P.P For the O.P.No.2 :- Mr. Pandey Ashok Nath Roy, Advocate

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10/28.02.2022 Heard Mr. Jitendra Shankar Singh, the learned counsel

appearing on behalf of the petitioner and Mr. Pandey Ashok Nath Roy, the

learned counsel appearing on behalf of the O.P.No.2.

This petition has been filed for quashing the entire criminal

proceeding arising out of Kotwali (Pandra O.P.) Case No.261 of 2015,

corresponding to G.R. Case No.1769 of 2015 including the order dated

05.09.2017 whereby cognizance has been taken, pending in the court of

learned Judicial Magistrate, Ranchi.

The O.P.No.2 has filed the complaint stating therein that the

O.P. No.2 the informant along with his two brothers and father has

entered into an agreement with M/s Rajmani Properties (Pvt.) Ltd. on

05.01.2005 for development of their property situated at Piska More,

Village Hesal, Ratu Road, Ranchi for construction of any apartment which

shall consist maximum of G+4 having approx. area of around 22,435

sq.feet. As per the agreement the developer has agreed to deliver 38%

of super built up area. It is alleged that the complainant was given

possession of five flats having total area of 7,550 sq.ft and the accused

has withheld about 975 sq.feet built up space. It is further alleged that

the accused has provided only three car parking space in place of six car

parking space with an assurance that other three parking will be provided

soon. The complainant has further alleged that the accused has

committed in ordinate delay in handing over said flats and parking space

which has caused serious loss to the complainant and in view of under

taking given by the accused, he was to pay Rs.10,000/- per day as

penalty which was demanded through legal notice dated 27.09.2012 but

the accused failed to comply the same. The complainant was threatened

by the accused and was forcibly being taken away and was forced to sign

some blank paper.

Mr. Jitendra Shankar Singh, the learned counsel appearing

on behalf of the petitioner submits that as per the development

agreement the constructed area will be 19,800 sq.ft. and it was agreed

that 38% of the same i.e. 7524 sq.ft. will be the share of the

complainant. He draws the attention of the Court to paragraph no. 6 of

the said development agreement. He further submits that the petitioner

has filed the complaint case before the District Consumer Forum, Ranchi

wherein at paragraph no.6 of the complaint before the Consumer Forum

the super built up are disclosed 7550 sq.ft. He further submits that as the

petitioner has also chosen the forum under the Consumer Protection Act,

there was no requirement to file the complaint and start a criminal case

against the petitioner. He further submits that the case is purely of civil in

nature for which criminal case has been instituted against the petitioner.

He further submits that the complaint filed by the O.P.No.2 before the

concerned court was not supported with any affidavit.

Mr. Pandey Ashok Nath Roy, the learned counsel appearing

on behalf of the O.P.No.2 submits that in the anticipatory bail application

filed by the petitioner one mediation was taken place wherein

independent architecture was appointed and the area was found by the

independent architecture to the tune of super built up area 21513 sq.ft.

He submits that it is well settled that if the ingredients of criminal case is

made out, civil case as well as criminal case can go simultaneously. He

relied in the case of "Priti Saraf and Another v. State of N.C.T. of Delhi

and Another" reported in AIR 2021 SCC 1531.

In view of the above fact and the arguments advanced by

the learned counsels appearing on behalf of the parties, the Court has

gone through the materials on record. It is an admitted fact that the

complaint filed by the O.P.No.2 before the concerned court was not

supported by any affidavit. The O.P.No.2 has already approached the

District Consumer Forum for redressal of his grievance. The grievance

with regard to certain area of the flat in question and for that, he has

already availed the remedy under the Consumer Protection Act. It is well

settled that once Forum is chosen, the parties are not allowed to chose

the new forum. How the criminal case is made out against the petitioner

has not been disclosed in the complaint petition. In the case relied by the

learned counsel appearing on behalf of the O.P.No.2, the fact was that

the property was mortgaged with State Bank of Patiala and in order to

clear the said dues, 2nd respondent hatched a conspiracy with broker

Ashok Kumar so as to cheat and defraud the appellant/complainants and

to further misappropriate the amount paid by the complainants as part of

the deal, which is lacking in the case in hand. Moreover, in paragraph

no.38 of the said judgment, the Hon'ble Supreme Court has observed

that whatever has been observed therein it is only for the purpose of

disposal of that appeal and this judgment is not helping the petitioner.

There is no case of cheating has been made out against the petitioner. It

is agreed to allot certain area of the flats which is already subject matter

of Consumer Forum. The case is purely of civil in nature. A reference

may be made to the case of "Indian Oil Corporation v. N.E.P.C India

Limited and Others" reported in (2006) 6 SCC 736.

In view of the above reasons and the analysis, the Court

comes to the conclusion that there is no criminality in the complaint

petition and particularly considering that the complaint was not

affidavited, the entire criminal proceeding including the order taking

cognizance dated 05.09.2017 arising out of Kotwali (Pandra O.P.) Case

No.261 of 2015, corresponding to G.R. Case No.1769 of 2015, pending in

the court of learned Judicial Magistrate, Ranchi is hereby quashed.

Cr.M.P. No. 3425 of 2017 is allowed and disposed of.

( Sanjay Kumar Dwivedi, J)

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