HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.4633 OF 2013
ORDER:
1. The petitioners are aggrieved by the registration of Crime No.149/2012 by Panjagutta Police Station for the offences under Sections 420 and 406 of IPC, filed the present petition to quash the said proceedings.
2. The 2nd respondent/defacto complainant filed complaint stating that her sister Dr. Ashalatha Reddy was approached by the petitioners and stated that they started constructing luxurious independent villas in Medchal in the name of 'Broadway'. Believing said version of the petitioners, the complainant and late Dr.Ashalatha Reddy wanted to purchase one plot each. The complainant herein evinced interest in purchasing the plot No.12 for sale consideration of Rs.84.00 lakhs and late Dr.Ashalatha Reddy wanted plot No.13, which was for Rs.91.00 lakhs. However, due to financial constraints, both the complainant and late Dr. Ashalatha Reddy jointly wanted to purchase only one, plot No.12. The petitioners also did not provide any link documents of the said plot and stated that they would provide them at a subsequent date. 2 The complainant made payment of Rs.1.00 lakh on 09.12.2007 by way of cheque issued in favour of 1st petitioner company/A1 and subsequently, an amount of Rs.10.00 lakhs cash and remaining amount was also paid. The said payments were made by the complainant on her behalf and also on behalf of late Dr.Ashalatha Reddy. In all, the complainant made payment of Rs.29.00 lakhs on 11.02.2008 and later an amount of Rs.25.00 lakhs was paid in cash. The 2nd petitioner promised that he would register the plot and subsequently entered into an agreement for construction of the villa on the said plot. However, no documents were furnished even after receiving Rs.65.00 lakhs. The petitioners failed to provide any documents or register the land in favour of the complainant, for which reason, mail was sent on 09.01.2009 and complainant wished to withdraw from the project and demanded the amount to be returned. However, the 2nd petitioner replied stating that amount was not received by him.
3. It is further the case that the petitioners, without providing any documents have induced the complainant parting with the amount of Rs.70.00 lakhs under the pretext of registering plot 3 No.12 in the project 'Broadway'. The daughter of late Dr.Ashalatha Reddy visited the house at project 'Broadway' and found that only one model house was constructed and nothing else was undertaken. The complainant also states that only on the ground of undertaken given by the petitioners, believing their version, the complainant parted with the total amount of Rs.70.00 lakhs.
4. Aggrieved by the acts of the petitioners, present private complaint was filed which was referred to police for investigation. Questioning the said registration of crime, present petition is filed by the petitioners, who are A1 and A2.
5. Learned counsel for the petitioners submits that the transactions interse between the petitioners and the defacto complainant are purely civil disputes, which can be adjudicated by the civil court. Civil Suit O.S.No.393 of 2013 was already filed. However, on 15.03.2018, the suit was dismissed for default. No steps were taken by the defacto complainant/plaintiffs to restore the said suit. Further, an amount of Rs.21,75,000/- was handed over to the defacto complainant in the Company Petition No.131 of 2011. However, this Court held that differential amount of Rs.42.25 4 lakhs, which is under dispute can be ascertained by the appropriate forum. Even according to the complainant, the defacto complainant has approached for purchase of villa, as such, the ingredients of Section 420 of IPC are not attracted and there is no allegation of any misrepresentation or inducement. In fact, civil suit was filed since there was dispute regarding the amounts given, for which reason, in the company petition, the amount, which was borne by record was paid and accepted by the defacto complainant. In the said circumstances, the ingredients of Section 406 of IPC are also not attracted. In support of his arguments, he relied on the judgments reported in the cases of; i) Priyanka Srivastava v. State of U.P1; ii) Alpic Finance Limited v. P.Sadasivan2; iii) Prof.R.K.Vijaysarathy v. Sudha Seetharam3; iv) Vesa Holdings Private Limited v. State of Kerala4; v) S.W.Palnitker v. State of Bihar5.
1 (2015) 6 Supreme Court Cases 287 2 (2001) 3 Supreme Court Cases 513 3 (2019) 2 Supreme Court Cases 739 4 (2015) 8 Supreme Court Cases 293 5 (2002) 1 Supreme Court Cases 241 5
6. On the other hand, learned counsel for 2nd respondent submits that this Court under inherent powers of Section 482 of Cr.P.C cannot interfere with the process of investigation. There are specific averments in the complaint stating that it was the petitioners who approached the defacto complainant and induced them into purchasing the property. When there was no construction or any improvement in the said venture, the defacto complainant asked for return of the amounts paid. However, there was denial by the petitioners that they have not received any amount, which in itself would go to show the criminal intent of defrauding the defacto complainant.
7. Learned counsel for the 2nd respondent further submits that none of the link documents of the property which was sought to be sold to the defacto complainant were being provided, which raises doubt whether there was any such project which was undertaken and it is apparent that only for the purpose of cheating, the petitioners have taken the amount, failing which, the petitioners would have provided all the relevant documents. In the said circumstances, this court interfering in the process of investigation 6 would not meet the ends of justice. In support of his contention, he relied upon the judgments in the cases of; i) Neeharika Infrastructure Private Limited v. State of Maharashtra6 and argued that the Hon'ble Supreme Court has laid down guidelines that the High Court under Section 482 of Cr.P.C cannot embark upon an enquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. Further, none of the parameters that are laid down in the said judgment for quashing are made out. Counsel also relied upon ; ii) M.N.Ojha v. Alok Kumar Srivastav7; iii) Alpic Finance Ltd., v. P.Sadasivan8; iv) Dr.A.Chandrasekhar v. The State of Telangana through SHO, Panjagutta PS9 of this Court.
8. The Honourable Supreme Court in a catena of decisions had cautioned the High Courts that FIR can be quashed only in the rarest of rare cases and the powers of the High Court shall not be used to stifle legitimate prosecution or investigation, unless the 6 (2021 SCC OnLine SC 315) 7 (2009) 9 Supreme Court Cases 682 8 (2001) 3 Supreme Court Cases 513 9 Criminal Petition No.1621 of 2021 7 cases fall within the rare category, wherein the facts and circumstances do not make out any case for prosecution under IPC.
9. In the instant case, the petitioners have offered to sell the plot to the defacto complainant and several others in the name of 'Broadway' project. Even according to the complainant, though it is stated that the petitioners had intention to cheat the defacto complainant from the inception, however the transactions interse between them would reveal that the said sale transaction did not conclude for the reasons of both parties not abiding by their mutual promises that were made. According to the petitioners, though there was an agreement to make payments in accordance with the schedule, the said schedule was not followed and in fact it was the defacto complainant who went back on the purchase and had addressed email stating that the defacto complainant and late Dr.Ashalatha Reddy wish to withdraw from the project. It is not the case that the defacto complainant was ready with the remaining amount as agreed and thereafter, the petitioners have refused to register the plot. Admittedly, there was a delay in giving amounts to 8 the petitioners and in turn, there was delay on the part of the petitioners in executing the project as promised.
10. For the reason of disputes, the defacto complainant had filed a civil suit. However, the said civil suit was dismissed for non prosecution. No steps were taken to restore the said suit. In the company petition, the defacto complainant has accepted the amount of Rs.21,75,000/- towards debt claimed by the defacto complainant, who was the petitioner in the said company petition.
11. As seen from the transactions between the petitioners and the defacto complainant, the sale transaction did not go as planned, as already discussed, both are responsible.
12. Having received the amount in the Company Petition, the defacto complainant failing to prosecute the Civil Suit for the amount which she claims to be outstanding, she cannot resort to criminal prosecution, which indicates that she is not having interest in money that has to be recovered but only to prosecute petitioners criminally. When the defacto complainant is not interested to safeguard her interests in getting back her money as claimed and in the background of the present case as discussed above, criminal 9 proceedings cannot be allowed to be proceeded with. In the peculiar facts and circumstances of the present case, the transactions appear to be purely civil in nature and the basic ingredients of Section 420 or 406 of IPC have not been fulfilled to continue criminal prosecution.
13. In the result, the proceedings against petitioners/A1 and A2 in Crime No.149 of 2012 on the file of P.S.Panjagutta are hereby quashed.
14. Accordingly, the Criminal Petition is allowed.
__________________ K.SURENDER, J Date: 13.09.2022 kvs 10 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.4633 of 2013 Date: 13.09.2022.
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