Kanti Kumari vs The State Of Jharkhand
2022 Latest Caselaw 3938 Jhar

                                                     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
                                             -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                             -----

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)

-----

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

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),

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

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

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

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

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

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

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/