Karnataka High Court
Sri Kirti K Mehta vs State Of Karnataka By on 21 October, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 18.09.2024
R
Pronounced on : 21.10.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.6658 OF 2024
C/W
CRIMINAL PETITION No.5089 OF 2024
CRIMINAL PETITION No.5807 OF 2024
CRIMINAL PETITION No.5922 OF 2024
CRIMINAL PETITION No.6166 OF 2024
CRIMINAL PETITION No.6436 OF 2024
CRIMINAL PETITION No.6766 OF 2024
CRIMINAL PETITION No.6846 OF 2024
IN CRIMINAL PETITION No.6658 OF 2024
BETWEEN:
1 . SRI KIRTI K. MEHTA
S/O LATE SRI KANTILAL MEHTA
AGED ABOUT 68 YEARS.
2 . SRI PRATIK K. MEHTA
S/O SRI KIRTI K. MEHTA
AGED ABOUT 41 YEARS.
RESIDING AT NO.301
MOUDGAL HOMES, NO.6
UPPER PIPELINE ROAD
KUMARA PARK WEST
BENGALURU - 560 020.
2
... PETITIONERS
(BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2 . SRI ARSHAD QUASIM DABAPU
AGED ABOUT 41 YEARS
S/O MR. ALI MOULA DABAPU
RESIDING AT FLAT 2001
BATCH B, ALI AHBA TOWERS AJ
KHALIDIYA ABU DHABI, UAE
PERMANANT ADDRESS
AND HAVING
NO.60/29, FLAT NO.25
VEPPERY HIGH ROAD
VEPPERY, CHENNAI - 600 003.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI K.G.AIYAPPA, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED
AGAINST THE PETITIONERS IN CR.NO.369/2024 BY THE 1ST
RESPONDENT POLICE I.E., SAMPIGEHALLI POLICE STATION,
SAMPIGEHALLI, BANGALORE FOR THE OFFENCES P/U/S 406, 420
OF IPC, PENDING ON THE FILE OF IV ADDL. CMM, BENGALURU
VIDE ANNEXURES-A AND B RESPECTIVELY.
3
IN CRIMINAL PETITION No.5089 OF 2024
BETWEEN:
1. ABDUL LATHEEF JABBAR @ AMEEN JABBAR
PROPRIETOR OF M/S. S.A.ENTERPRISES
AGED ABOUT 50 YEARS,
HAVING ITS OFFICE AT:
NO. 29, 15TH CROSS, KANAKA NAGAR,
R.T.NAGAR,
BENGALURU-560 032.
2. SRI ANOOP LOBO
S/O LATE WILLIAM LOBO
AGED ABOUT 45 YEARS
AUTHORIZED SIGNATORY OF
M/S. S.A. ENTERPRISES,
RESIDING AT NO. 51,
LOBO NIVAS, 1ST CROSS,
KEMPEGOWDA RK HEGDE NAGAR,
BENGALURU - 560 077.
... PETITIONERS
(BY SRI VENKATESH R.BHAGAT, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE STAITON,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2 . SRI ANURAG SHARMA
AGED ABOUT 44 YEARS.
4
3 . SMT. INDRANI SHARMA
AGED ABOUT 42 YEARS.
SL.NO.2 AND 3 ARE
R/O AMBER-71, EMERALD HILLS,
SECTOR 65, GURGAON - 122 010
HARYANA.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI ASIM MALIK, ADVOCATE FOR R-2 AND R-3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT
REGISTERED BY THE RESPONDENT NO.1 SAMPIGEHALLI POLICE
DATED 10.05.2024, IN CR.NO.267/2024 FOR THE OFFENCES P/U/S
406, 420, 120-B R/W SEC.34 OF IPC AT ANNEXURE A AND B
PENDING ON THE FILE OF THE 4th ACMM BENGALURU AS THESE
PETITIONERS ARE CONCERNED.
IN CRIMINAL PETITION No.5807 OF 2024
BETWEEN:
S. ABDUL KHADAR JABBAR
S/O JABBAR MOHAMMED SIDDIQUE
AGED ABOUT 48 YEARS,
RESIDING AT NO.29/1, 1ST FLOOR,
15TH CROSS, KANAKANAGAR
R.T.NAGAR,
BENGALURU - 560 032.
... PETITIONER
(BY SRI SHRIDHARA K., ADVOCATE)
5
AND:
1 . STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
AMBEDKAR BEEDI,
BENGALURU - 560 001.
2 . SMT. VIJAYALAKSHMAMMA M.S.,
W/O RAMESH YELLAPPA
AGED ABOUT 49 YEARS,
RESIDING AT NO.98,
D-5 BLOCK, 4TH FLOOR,
KENDRIYA VIHAR, B.B.ROAD
YELAHANKA, BENGALURU NORTH,
BENGALURU - 560 064.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI K.G.AIYAPPA, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 05.08.2023
AND FIR IN CR.NO.278/2023 AND ALL FURTHER PROCEEDINGS
INITIATED BY THE RESPONDENT POLICE PENDING ON THE FILE OF
THE HONBLE IV A.C.M.M AT BENGALURU FOR THE OFFENCES P/U/S
406, 417, 420 R/W 34 OF IPC OF SAMPIGEHALLI POLICE STATION
SO FOR AS THE PETITIONER IS CONCERNED.
IN CRIMINAL PETITION No.5922 OF 2024
BETWEEN:
1 . SRI KIRTI K. MEHTA
S/O LATE SRI KANTILAL MEHTA
6
AGED ABOUT 68 YEARS.
2 . SRI PRATIK K. MEHTA
S/O SRI KIRTI K. MEHTA
AGED ABOUT 41 YEARS.
BOTH RESIDING AT NO.301,
MOUDGAL HOMES, NO.6,
UPPER PIPELINE ROAD,
KUMARA PARK WEST,
BENGALURU - 560 023.
... PETITIONERS
(BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2 . SRI ANURAG SHARMA
AGED ABOUT 44 YEARS
S/O SRI PRAFULLA KUMAR SHARMA.
3 . SMT. INDRANI SHARMA
AGED ABOUT 42 YEARS,
W/O MR. ANURAG SHARMA
NO.2 AND 3 BOTH RESIDING AT
AMBER-71, EMERALD HILLS
SECTOR-65, GURGAON - 122 010
HARYANA.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
7
SRI K.G.AIYAPPA, ADVOCATE FOR R-2 AND R-3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR COMPLAINT LODGED
AGAINST THE PETITIONERS IN CR.NO.267/2024 BY THE 1st
RESPONDENT POLICE THAT IS SAMPIGEHALLI POLICE STATION,
SAMPIGEHALLI, BENGALURU FOR THE OFFENCES P/U/S 406, 420,
120-B, 34 OF IPC., PENDING ON THE FILE OF THE IV ACMM VIDE
ANNEXURE A AND B RESPECTIVELY.
IN CRIMINAL PETITION No.6166 OF 2024
BETWEEN:
1. SRI ABDUL LATHEEF JABBAR
AGED ABOUT 50 YEARS
S/O SRI MOHAMMED SIDDEQUE
PROPRIETOR M/S. S.A.ENTERPRISES
RESIDING AT NO.29, 15TH CROSS,
KANAKA NAGAR, BENGALURU NORTH
R.T.NAGAR,
BENGALURU - 560 032.
2. SRI MOIN @ ABDUL KHADAR JABBAR
AGED ABOUT 48 YEARS
S/O SRI JABBAR MOHAMMED SIDDIQUE
RESIDING AT NO.29/1, 1ST FLOOR,
15TH CROSS, KANAKA NAGAR,
BENGALURU NORTH, R.T.NAGAR,
BENGALURU - 560 032.
3. SRI ANOOP LOBO
AGED ABOUT 45 YEARS
S/O LATE WILLIAM LOBO
RESIDING AT NO.51, LOBO NIVAS
1ST CROSS, KEMPEGOWDA LAYOUT,
NAGENAHALLI, R.K.HEGDE NAGAR
8
BENGALURU NORTH,
DR.SHIVARAMA KARANTH NAGAR,
BENGALURU - 560 077.
4. SRI MOHAMMED NIZAMUDDIN
AGED ABOUT 59 YEARS,
C/O ABDUL JABBAR MUSA
RESIDING AT: NO.10, 3RD CROSS,
CHIKKANNA LAYOUT,
SHAMPUR MAIN ROAD,
BENGALURU NORTH
BENGALURU - 560 045.
... PETITIONERS
(BY SMT.NAYANA TARA B.G., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2 . SMT. NIVEDITA DESAI
AGED ABOUT 53 YEARS
W/O SRI AJAY R.DESAI
D/O S.B.UDOSHI
RESIDING AT FLAT NO.404,
'K' BLOCK, PURVA VENEZIA,
NEAR MADAR DIARY
YELAHANKA NEW TOWN,
BENGALURU - 560 064.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI K.G.AIYAPPA, ADVOCATE FOR R-2)
9
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED
AGAINST THE PETITIONERS IN CR.NO.325/2024 BY THE 1ST
RESPONDENT POLICE i.e., SAMPIGEHALLI POLICE STATION,
SAMPIGEHALLI, BENGALURU FOR THE OFFENCES P/U/S 406, 420,
120B, 342, 506, 149 OF IPC PENDING ON THE FILE OF IV
ADDL.C.M.M., BENGALURU VIDE ANNEXURE-A AND B
RESPECTIVELY.
IN CRIMINAL PETITION No.6436 OF 2024
BETWEEN:
1 . SRI KIRTI K. MEHTA
S/O LATE SRI KANTILAL MEHTA
AGED ABOUT 68 YEARS.
2 . SRI PRATIK K. MEHTA
S/O SRI KIRTI K. MEHTA
AGED ABOUT 41 YEARS.
BOTH RESIDING AT
M/S. UNISHIRE HOMES L.L.P
SRVE NO.78, THANISANDRA
K.R.PURAM HOBLI
BENGALURU CITY - 560 016.
PRESENTLY RESIDING AT:
MOUDAGAL HOMES NO.6
UPPER PIPELINE ROAD
KUMARA PARK WEST
BENGALURU - 560 023.
... PETITIONERS
(BY SRI G.S.VENKATA SUBBA RAO, ADVOCATE)
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AND:
1 . STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2 . SMT. NIVEDITA A. DESAI
AGED ABOUT 52 YEARS
D/O MR.S.B.UDOSHI.
3 . SRI NIKHIL UDOSHI
AGED ABOUT 47 YEARS
S/O MR.S.B.UDOSHI
NO.2 & 3 BOTH RESIDING AT K-404
PURVANKARA VENEZIA
MICHELANGELO,
YELAHANKA NEW TOWN
NEAR MOTHER DIARY
BENGALURU - 560 063.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI ASIM MALIK, ADVOCATE FOR R-2 & R-3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED
AGAINST THE PETITIONERS IN CR.NO.325/2024 BY THE 1ST
RESPONDENT POLICE I.E., SAMPIGEHALLI POLICE STATION,
SAMPIGEHALLI, BANGALORE FOR THE OFFENCES P/U/S 406, 420,
120(B), 342, 506, 149 OF IPC, PENDING ON THE FILE OF IV ADDL.
CMM, BENGALURU VIDE ANNEXURE-A AND B RESPECTIVELY.
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IN CRIMINAL PETITION No.6766 OF 2024
BETWEEN:
1 . SRI KIRTI K.MEHTA
S/O LATE SRI KANTILAL MEHTA,
AGED ABOUT 68 YEARS.
2 . SRI PRATIK K. MEHTA
S/O SRI KIRTI K.MEHTA,
AGED ABOUT 41 YEARS.
BOTH RESIDING AT
M/S. UNISHIRE HOMES L.L.P
SRVE NO.78, THANISANDRA
K.R.PURAM HOBLI,
BENGALURU CITY - 560 016.
PRESENTLY BOTH RESIDING AT:
NO.301, MOUDGAL HOMES,
NO. 6, UPPER PIPELINE ROAD
KUMARA PARK WEST
BENGALURU - 560 023.
... PETITIONERS
(BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE)
AND:
1 . STATE OF KARNATAKA BY
SAMAPIGEHALLI POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2 . SMT.SWETHA TYAGI
AGED ABOUT 43 YEARS,
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W/O MR.TUSHAR TYAGI.
3 . SMT.TUSHAR TYAGI
AGED ABOUT 44 YEARS,
W/O MR.VINOD KUMAR TYAGI
BOTH RESIDING AT SJR VERITY
VIVA-106, HOSA ROAD,
KASAVANAHALLI,
BENGALURU - 560 035.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI K.G.AIYAPPA, ADVOCATE FOR R-2 AND R-3 )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED
AGAINST THE PETITIONERS IN CR.NO.184/2024 BY THE 1ST
RESPONDENT POLICE i.e., SAMPIGEHALLI P.S, SAMPIGEHALLI,
BENGALURU FOR THE OFFENCES P/U/S 420, 406, 120(B) R/W
SEC.34 OF IPC PENDING ON THE FILE OF IV ACMM, COURT
BENGALURU, VIDE ANNEXURE A AND B.
IN CRIMINAL PETITION No.6846 OF 2024
BETWEEN:
1 . SRI KIRTI K. MEHTA
S/O LATE SRI KANTILAL MEHTA,
AGED ABOUT 68 YEARS.
2 . SRI PRATIK K. MEHTA
S/O SRI KIRTI K. MEHTA,
AGED ABOUT 41 YEARS.
BOTH RESIDING
M/S. UNISHIRE HOMES L.L.P
13
SRVE NO. 78, THANISANDRA
K.R.PURAM HOBLI,
BENGALURU CITY - 560 016.
PRESENTLY RESIDING AT NO. 301
MOUDGAL HOMES, NO.6
UPPER PIPELINE ROAD
KUMARA PARK WEST
BENGALURU - 560 023.
... PETITIONERS
(BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2 . SRI KULDEEP CHAUDHARY
AGED ABOUT 41 YEARS,
S/O SRI ROOP SINGH,
DIRECTOR,
NIKULSAN TECHNOLOGIES,
NO. 176, SEC -10 F.VILLA NO.26
KRISHNA NORTH WOOD APARTMENT
SAMPIGE, BENGALURU - 560 064.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI K.G.AIYAPPA, ADVOCATE FOR R-2 AND R-3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED
AGAINST THE PETITIONERS IN CR.NO.287/2024 BY THE 1ST
RESPONDENT POLICE i.e., SAMPIGEHALLI P.S., SAMPIGEHALLI,
14
BANGALORE, FOR THE OFFENCES P/U/S 420, 406, 120(B) R/W
SEC.34 OF IPC PENDING ON THE FILE OF IV ACMM, BENGALURU,
VIDE ANNEXURE A AND B.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.09.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners in these cases are either developers or former
Directors or those who have come into the shoes of developers. The
complainants in all these cases are different home buyers from M/s
Unishire Homes LLP. The grievance of different complainants in all
these cases is common. Therefore, facts obtaining in Criminal
Petition No.6658 of 2024 are noticed in entirety and facts obtaining
in other petitions are succinctly narrated.
2. Facts, in brief, germane are as follows:
The petitioners in Criminal Petition No. 6658 of 2024 are the
partners of the Company, a Limited Liability Partnership concern
said to be incorporated under the Limited Liability Partnership Act,
2008 in the name and style of M/s Unishire Homes LLP (hereinafter
15
referred to as 'the Company' for short). The petitioners claim to
have resigned from the partnership way back in the year 2015 and
claim to be disassociated with the Company. The petitioners, on
the request of existing partners to continue to be the authorized
signatories, the 1st petitioner is said to have continued as
authorized signatory, but however, they did not engage in the day-
to-day affairs of the Company. The averment in the petition is that
the Company takes up development of immovable property in
Sy.No.78 of Thannisandra Village, K.R.Puram Hobli, Bangalore
South Taluk in all measuring 2 acres 33.5 guntas by entering into a
Joint Development Agreement ('JDA' for short) with land owners.
For the purpose of developing the property, the Company had
availed financial assistance from one M/s Vistra ITCL Limited. After
the financial assistance availed of by the petitioners, a tripartite
agreement was entered into between the Company, M/s Vistra ITCL
Limited and a third entity who agreed to fund in the project and
complete the project i.e., M/s S.A. Enterprises.
2.1. The petitioners further aver that the complainant failed
to get the sale deed registered despite communication of two mails
16
calling upon him to come forward to get the sale deed registered in
terms of agreement of sale entered into on 19-02-2013 between
the Company and the complainant. It is further averred that
despite several requests and demands made by the Company, the
complainant failed to get the sale deed registered in terms of the
agreement of sale. Owing to the failure of the complainant in
coming forward and paying the balance sale consideration, the
apartments were sold in favour of third parties. It is then, the
complainant has registered the complaint. This is the broad
allegation against the Company and M/s S.A. Enterprises, who got
into the shoes of the Company for completion of the project, in all
these petitions and accordingly, the complainants have registered
their respective complaints in all these cases.
3. Heard Sri G S Venkat Subba Rao, learned counsel
appearing for petitioners in Crl.P.Nos.6658 of 2024, 5922 of 2024,
6436 of 2024, 6766 of 2024 and 6846 of 2024; Sri Venkatesh R
Bhagat, learned counsel appearing for petitioners in Crl.P.No.5089
of 2024; Sri Shridhara K, learned counsel appearing for petitioner in
Crl.P.No.5807 of 2024; Smt Nayana Tara B G, learned counsel
17
appearing for petitioners in Crl.P.No.6166 of 2024; Sri K G Aiyappa,
learned counsel appearing for respondent No.2 in Crl.P.No.6658 of
2024, 5807 of 2024 and 6166 of 2024; for respondents 2 and 3 in
Crl.P.Nos.5922 of 2024, 6766 of 2024 and 6846 of 2024; Sri Asim
Malik, learned counsel appearing for respondents 2 and 3 in
Crl.P.No.5089 of 2024 and Crl.P.No.6436 of 2024 and Sri B N
Jagadeesha, learned Additional State Public Prosecutor for
respondents No.1 in all the petitions.
4. The learned counsel appearing for the petitioners Sri G.S.
Venkat Subba Rao in few of the petitions and Sri Venkatesh R
Bhagath in few of the petitions and Smt. B.G. Nayana Tara in one of
the petitions have projected common submissions. The
submissions of these learned counsel are that the issue in the lis is
purely contractual or at best a civil dispute between the
complainants and the petitioners and it is sought to be given a
colour of crime. The FIR ought not to have been registered by the
Police in such matters and it should have been at best left to be
decided by the Commercial Courts or the civil Courts as the case
would be. Registration of crime is an abuse of the process of law.
18
The Company is not made an accused since the petitioners have left
the Company long ago. The Company ought to have been made an
accused. The petitioners Kirti K.Mehta and Pratik K.Mehta who are
the petitioners in most of the petitions have no liability since they
had left the Company. The learned Counsel Sri Venkatesh R
Bhagath appearing for the petitioners in few of the cases would
contend that the petitioner M/s S.A. Enterprises has no privity of
contract with the complainants. The contract is between the
complainants and the Company, entered into by way of an
agreement to sell. Due to the delay in the project, M/s S.A.
Enterprises come in, by funding the project to its completion and by
funding the project, they are now facing criminal proceedings. He
would adopt remainder of the submissions of the learned counsel
Sri G.S.Venkat Subba Rao as projected.
5. The learned counsel Smt. Nayana Tara B.G., appearing in
Criminal Petition No.6166 of 2024 would submit that the petitioners
therein have been unnecessarily dragged into these proceedings.
1st petitioner is the proprietor of S.A.Enterprises, 2nd petitioner is
his brother, 3rd petitioner is the employee of S.A.Enterprises and 4th
19
petitioner is the service provider of S.A. Enterprises who are given a
job of construction and completion. They are not aware of any
dispute between the complainants or the Company. The reminder of
the submissions is again adopted by the learned counsel. All the
learned counsel, in unison, would seek quashment of the crime so
registered against these petitioners.
6. Per contra, the learned counsel representing the
complainants would refute the submissions of every learned counsel
to contend that the issue is not purely civil in nature. The home
buyers who had paid 90% of sale consideration at the time when
agreements were entered into with the Company, Kirti K.Mehta and
Pratik K.Mehta have sold the property to third party only on the
score that the mail was not replied by them. Therefore, the issue is
both civil and criminal and the two can run simultaneously. The
project for which the agreement was entered into did not get
complete for more than 8 years and the Company bring in M/s S.A.
Enterprises which also did not complete the project. To-ay the
home buyers who have deposited most of the amount for the
purpose of their homes have neither the homes nor the money.
20
This is a clear case of criminal breach of trust is the submission of
the learned counsel.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. To consider the issue projected before this Court i.e.,
whether the crime should be quashed or otherwise, a little walk in
the history would be necessary. On 23-09-2011 M/s Unishire
Homes LLP is incorporated. The Company enters into a JDA with the
land owners on 24-02-2012. The complainants in all these cases,
though on different dates, enter into agreements of sale.
Therefore, if story would commence from noticing the agreement of
sale would suffice. The sale agreement, as observed, happens on
19-02-2013. It is between home buyers and the Company. The
schedule apartment appended to the agreements of sale is different
in each of the cases as they are different home buyers. Certain
covenants in the agreement of sale are required to be noticed and
they read as follows:
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".... .... ....
NOW THIS MEMORANDUM OF SALE AGREEMENT
WITNESSETH AS FOLLOWS:
1: The CONFIRMING PARTY/DEVELOPER shall allot, construct
and sell and the PURCHASER shall purchase the "C" Schedule
Apartment for a valuable consideration of Rs. 8190425/-
(Rupees Eighty One Lakh Ninety Thousand Four Hundred
and Twenty Five only) inclusive of taxes and other charges as
an absolute estate free from all encumbrances, subject to the
terms and conditions contained hereunder. The sale
consideration of the apartment has been bifurcated in the
following manner:
Sl. Description Amount
No. (Rs.)
01 Land Cost 2736596/-
02 Construction Cost (Including Non
refundable/Transferable Club House
deposit, generator Charges/Deposit, 5343554/-
Service Tax, Vat, Legal Charges Electrical
Services Charges & Car Park)
Total Sale Consideration 8080150/-
03 Maintenance Deposit payable at the time 110275/-
of Registration or Possession whichever is
earlier
Total 8190425/-
2: The PURCHASER agree to pay the total sale consideration
along with the payment towards other charges in the following
manner.
Sl. Description of Installment Amount
No. (Rs.)
01 Booking Amt paid through NEFT AXIS 300000/-
12345010356
02 On Signing the Memorandum of Sale 1316030/-
Agreement
03 On Completion of Foundation 1212023/-
04 On Completion of Basement Roof Slab 646412/-
05 On Completion of Ground Floor Roof Slab 404008/-
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06 On Completion of 1st Floor Slab 323206/-
07 On Completion of 2nd Floor Slab 323206/-
08 On Completion of 3rd Floor Slab 323206/-
09 On Completion of 4th Floor Slab 323206/-
10 On Completion of 5th Floor Slab 323206/-
11 On Completion of 6th Floor Slab 323206/-
12 On Completion of 7th Floor Slab 323206/-
13 On Completion of 8th Floor Slab 323206/-
14 On Completion of 9th Floor Slab 323206/-
15 On Completion of 10th Floor Slab 323206/-
16 On Completion of 11th Floor Slab 323206/-
17 On Completion of 12th Floor Slab 323206/-
18 On Completion of Flooring 242405/-
19 On Possession or Registration whichever 80802/-
is earlier
20 Maintenance Deposit 110275/-
Total 8190425/-
3: The PURCHASER covenants to pay the amount as per the
schedule of payments mentioned herein above either by way of
Local Cheque/Demand Draft/Pay Order. That each installment
shall become due for payment on the 7th day of dispatch of
demand letter by the CONFIRMING PARTY/DEVELOPER. The
PURCHASERS shall not delay, or withhold the payments due
under any circumstances whatsoever. That in the event of the
PURCHASERS delaying, withholding or committing default in the
payment, the CONFIRMING PARTY/DEVELOPER shall be entitled
to charge cumulative the interest @ 2% Per month for the
period of delay of the installment amount. In case the payments
are released by the Housing Financial institutions, PURCHASER
shall ensure that they are released on time and the delay if any
will result in payment of interest as mentioned...
4: That if the PURCHASER commits default for the second time
in the payment of the installments or commits breach of the
terms with regard to the payment schedule or failure to observe
and perform any of the terms and conditions of this
Memorandum of Sale Agreement or if the delay in paying
anyone installment exceeds 15 days, the CONFIRMING
PARTY/DEVELOPER shall give a 7 (seven) days written notice to
23
the PURCHASER to pay the amounts due along with interest. If
the PURCHASER fails to pay the amount due, the CONFIRMING
PARTY/DEVELOPER shall have the right to cancel this
Memorandum of Sale Agreement without any further notice. The
refund of the advance amount paid shall be returned after
deduction of 20% of the Basic cost and will be paid only within
30 days of the resale of the "C" Schedule apartment and as per
the norms of cancellation mentioned in this Memorandum of
Sale Agreement. The CONFIRMING PARTY/DEVELOPER has
informed the PURCHASER that the delay/default in the payment
of installment amount would affect the entire project and
expose the CONFIRMING PARTY/DEVELOPER to financial loss
and will also affect the interest of the other purchasers and will
delay the completion of the Project and therefore, under the
circumstances, the CONFIRMING PARTY/DEVELOPER reserves its
right to cancel this Memorandum of Sale Agreement after giving
due notice as mentioned above.
4.1: The PURCHASER covenants with the CONFIRMING
PARTY/DEVELOPER that the difference (increase or decrease) in
area up to 2% of the total agreed Saleable Area shall be ignored
by both the Parties. Any difference in excess of 2% of the total
agreed saleable area will be valued at the same rate as
mentioned hereinabove and the consideration shall be adjusted
accordingly in the final installment. In case of disagreement
regarding the area calculations between the parties, the decision
of the Project Architects shall be final and binding on both the
parties to this Memorandum of Sale Agreement;
4.2: The PURCHASER covenants not to object in any manner
whatsoever to the CONFIRMING PARTY/DEVELOPER retaining
the balance undivided share of land or undertaking any further
construction activities in the "A" Schedule Property in the event
of any additional Floor Area Ratio being sanctioned in future or
due to other reasons enabling the CONFIRMING
PARTY/DEVELOPER to further construct on the "A" Schedule
Property or with the acquisition of the Transferrable
Developmental Rights. The PURCHASER shall not object to
utilizing such additional Floor Area Ratio/Transferrable
Developmental Rights for the construction of additional area and
the PURCHASER covenants not to hinder or obstruct the
progress of the construction of the building/s or any part thereof
24
in any manner and shall not raise any objection on whatsoever
ground including dust, noise, pollution, nuisance or annoyance
that may be caused due to such construction nor will the
PURCHASER hinder the use of the specified Car Parking
Areas/Terraces Areas/Basement area allotted specifically to the
other purchasers in the event of such additional Floor Area
Ratio. However, the CONFIRMING PARTY/DEVELOPER shall take
necessary precaution/steps at the time of such construction.
4.3: Without prejudice to any of the terms and conditions
of this Memorandum of Sale Agreement, the CONFIRMING
PARTY/DEVELOPER shall have the necessary lien and first
charge on the "B" and "C" Schedule Property for all amounts
that is due by the PURCHASERS and liable to be paid under this
Memorandum of Sale Agreement and the CONFIRMING
PARTY/DEVELOPER shall be entitled to recover and receive the
same from the PURCHASER and until such time the PURCHASER
settles the amount payable to the CONFIRMING PARTY
/DEVELOPER towards the cost of the "B" and "C" Schedule
Property, the CONFIRMING PARTY/DEVELOPER shall be entitled
to withhold delivery of possession of the "B" and "C" Schedule
Property and during the said period the PURCHASERS shall be
liable to pay the maintenance for any other charges including
incidental charges that may be incurred by the CONFIRMING
PARTY/DEVELOPER and against the receipt of full Payment
thereof and other charges as and when paid by the PURCHASER
including the interest accrued thereto, shall deliver possession
of the "B" and "C" Schedule Property to the PURCHASER.
4.4: The PURCHASER, if a non resident of India, shall be solely
responsible for complying with the necessary formalities as laid
down in Foreign Exchange Management Act 1999 (FEMA),
Reserve Bank of India Acts & Rules (RBI) made there under or
any other statutory amendments/modifications made thereof
and all other applicable laws including that of remittance of
payments, acquisition, sale, transfer of immovable property,
etc., and provide the CONFIRMING PARTY/DEVELOPER with such
permissions, approvals which would enable the CONFIRMING
PARTY/DEVELOPER to fulfill its obligations under this
Agreement. The PURCHASER agrees that in the event of any
failure on their part to comply with the applicable guidelines
issued by RBI, the PURCHASER alone shall be liable for any
action under FEMA. The PURCHASER shall keep the
25
CONFIRMING PARTY/DEVELOPER fully indemnified and harmless
in this regard. Whenever there is a change in the residential
status of the PURCHASERS subsequent to the signing of this
Agreement it shall be the sole responsibility of the PURCHASER
to intimate the same in writing to the CONFIRMING
PARTY/DEVELOPER immediately and comply with necessary
formalities if any under the applicable laws. The CONFIRMING
PARTY/DEVELOPER shall not be responsible towards any third
party payments, remittances on behalf of any PURCHASERS and
such third party shall not have any right in this
application/allotment of the Schedule 'C' Apartment in any way
and the CONFIRMING PARTY/DEVELOPER shall issue the
payment receipts in favour of the PURCHASERS only.
COMPLETION AND POSSESSION
a: The CONFIRMING PARTY/DEVELOPER hereby agrees to
handover the "C Schedule Apartment within 36 months
from the date of commencement certificate issued by
BBMP subject to receiving the entire sale consideration
and all sums and charges payable towards amenities,
taxes, charges etc mentioned in this Memorandum of Sale
Agreement
b: The CONFIRMING PARTY/DEVELOPER shall be entitled
to a grace period of six (6) months from the agreed date
for delivery of possession of the "C" Schedule Apartment
and the PURCHASER shall not question any delay not
exceeding six (6) months and cannot make it a ground to
defer payments due as per the schedule of payment.
c: In case of modifications/additional works to the
Apartment as may be requested by the PURCHASER, (and
if the same is accepted by the CONFIRMING
PARTY/DEVELOPER and the cost of modification received
in full in advance), the time fixed for handing over
possession shall get extended proportionately to enable
the CONFIRMING PARTY/DEVELOPER to comply the
request of PURCHASER.
d: The CONFIRMING PARTY/DEVELOPER will be handing
over the Apartment block in the complex in a phased
manner.
26
e: The CONFIRMING PARTY/DEVELOPER shall not be
liable for delays on account of non availability or scarcity
of Cement, Steel and other construction material/s, civil
commotion or Force Majeure or by any Act of God or if the
delay is as a result of any Rule, regulation, law or
notification of the Government or Municipal Authority or
any Court or any other Public or Competent Authority
prohibiting construction activities or non-payment or
delayed payment of installments by a large number of
purchasers and in any of the aforesaid events, the
CONFIRMING PARTY/DEVELOPER shall be entitled to
reasonable extension of time for delivery of possession of
the completed Apartments including the "C" Schedule
Property and the monies till then paid by the PURCHASER
under this Memorandum of sale Agreement shall not be
refunded.
f: The CONFIRMING PARTY DEVELOPER will make every
effort to obtain water supply and sewage connection
common for the apartment Blocks and electrical
connection to the individual apartment within the
stipulated time. However, responsibility shall be accepted
by the CONFIRMING PARTY/DEVELOPER for delays in
obtaining such connections, Clearances required, from
the statutory authorities. The PURCHASER shall not be
entitled to claim any damage / losses against the
CONFIRMING PARTY/DEVELOPER on the ground of such
delay.
e: In the event of delay in obtaining permanent
connections, CONFIRMING PARTY/DEVELOPER shall
arrange to have temporary connections at the cost of the
PURCHASER until the permanent connections are
obtained, to enable PURCHASER to occupy the "C"
Schedule Apartment.
h: The CONFIRMING PARTY/DEVELOPER will substantially
complete all common amenities / facilities/clubhouse
within a period of six (6) months from the date of
handing over the apartment to the PURCHASER and the
PURCHASER accepts the same. The PURCHASER shall take
possession within 15 days from date of intimation. In
case of delay in taking possession, the PURCHASER shall
27
pay Rs 5/- per sft per month on the total Super Built-up
Area to the CONFIRMING PARTY/DEVELOPER towards
holding charges plus bear the proportionate maintenance
cost.
5: The allotment of the Car Park shall been made by the
CONFIRMING PARTY/DEVELOPER and as per the CONFIRMING
PARTY/DEVELOPER'S working plan. CONFIRMING PARTY /
DEVELOPER reserves the right to allot exclusive car parking
usage rights at the Basement or Stilt Level and the PURCHASER
shall have no right to object such allotment.
6: DELAY COMPENSATION
a: In case of delay in delivery of the apartment beyond
the grace period for reasons other than Force Majeure,
the CONFIRMING PARTY/DEVELOPER shall pay the
PURCHASER a Delay compensation calculated at Rs.5/-
per Square feet per month of delay till the date of
"intimation of handing over".
b: The PURCHASER will not be eligible for any kind of
Compensation;
b(i): In case of delay in payment of 2 installments or
above (after considering a grace period of 15 days from
due date);
b(ii): In case of Transfer/assignment of the Rights of the
"C" Schedule Property to another PURCHASER or on
Cancellation. The new PURCHASER will not be eligible for
any delay compensation.
b(iii): The Delay Compensation wherever payable will be
paid to PURCHASER only at the time of Registration or
subsequently.
7: The "C" Schedule Property shall be registered in the
name of the PURCHASER or in the name of their
immediate family member/s provided the necessary
documents are substantiated by the PURCHASER as per
the requirements of the CONFIRMING PARTY
/DEVELOPER.
28
8: All costs, charges and stamp duty, registration
charges, professional /Legal charges and expenses in
connection with the preparation and execution of Sale
Deed shall be borne by the PURCHASER as relating to
purchase of the "B" & "C" Schedule Property in terms of
this Memorandum of Sale Agreement. The PURCHASER
agrees to execute the Sale Deed in terms of the draft
prepared by the CONFIRMING PARTY/DEVELOPER's
Counsel and shall co-operate for the registration of the
Sale Deed in pursuance of this agreement. The Sale Deed
and its registration process shall be completed through
the CONFIRMING PARTY/DEVELOPER's Counsel only and
the PUYRCHASER is / are liable to pay the expenses and
the professional fees stipulated by the Builder in respect
thereto and the PURCHASER hereby consents the same.
KHATHA TRANSFER
9: The PURCHASER, upon securing registration of the Sale
Deed, is entitled to obtain the transfer of Khata in the name of
the PURCHASER and at the cost of the PURCHASER from the
jurisdictional revenue authorities and the CONFIRMING
PARTY/DEVELOPER shall sign necessary consent letters.
9(i): The PURCHASER shall bear all expenses relating to
bifurcation/Transfer of khata, payment of property Tax as
applicable, Electrical Meter Transfer Charges, etc, that may be
levied as and when applicable.
10: CANCELLATION
Acceptance of Cancellation under special circumstances:
a: The PURCHASER covenants and assures the
CONFIRMING PARTY/DEVELOPER, that the PURCHASERS
shall complete the transaction in all respects and agree
not to withdraw from the transaction for any reason(s) or
ground(s) including delay etc as the entire project and
the construction of the apartments has been undertaken
under an integrated scheme of construction for the
benefit of the various prospective PURCHASER and in
view of the commitment made to the PURCHASER of the
29
Apartments including the PURCHASERS herein and that
cancellation will affect the funding of the project
resulting in delays and that the interests of other
PURCHASER of apartment will be affected.
b: In case the PURCHASER intends to cancel due to any
extraordinary situation or compelling circumstances or
reasons that are not within the control of the
PURCHASER, the PURCHASER shall submit a Cancellation
request in writing to the CONFIRMING
PARTY/DEVELOPER. The CONFIRMING
PARTY/DEVELOPER at its sole discretion (depending on
the market situation) on a case to case basis may
consider the request for Cancellation. That on acceptance
of the cancellation request, the CONFIRMING
PARTY/DEVELOPER shall try to identify a prospective
PURCHASER of the "C" Schedule Apartment along with
the "B" Schedule Property. The PURCHASERS herein
agrees to wait for the refund of money till the new
PURCHASER pays the full consideration or the project is
completed. The PURCHASER shall not have any right to
seek any compensation or interest if the delay is due to
any reason in the prospective PURCHASER not being
identified.
c: Cancellation Charges- Cancellation charges shall be
Rs.4,00,000/- (Rupees Four Lakhs only) which shall be
deducted from the amounts returnable to the PURCHASER and
the PURCHASER has agreed to the said covenant and shall not
raise any objections.
d. Time to Refund- The amount payable to the
PURCHASER subject to the deductions as recorded herein, shall
be refunded only after the sale of the "C" Schedule apartment
and on receipt of the amount from the prospective purchaser
that under no circumstances the CONFIRMING
PARTY/DEVELOPER shall pay the amount on its own.
e: That if the payment from the prospective purchaser is
received in installments. the same shall be paid mutatis
mutandis to the PURCHASER herein.
30
f: That until the sale with the new PURCHASER is concluded in
all respects, the Outgoing PURCHASER shall not demand the
refund of the amount payable consequent to the cancellation.
However, the PURCHASER shall also be entitled to identify the
prospective purchaser for the acquisition of the "B" and "C"
Schedule Property.
g: The PURCHASER covenants to adhere to the above procedure
and under no circumstances, the PURCHASER shall not demand
refund of the advance paid deviating from the above procedure.
h: CANCELLATION BY CONFIRMING PARTY/DEVELOPER:- The
CONFIRMING PARTY/DEVELOPER has the right to cancel this
Memorandum of Sale Agreement in case the PURCHASER does
not honour the payments as agreed, subject to grace period and
issue of 7 days notice as mentioned in this Agreement.
11: TRANSFER/RESALE- The Purchaser shall not be entitled to
Transfer/Assign rights under this Agreement in favor of any one
within period of one year from the date of Memorandum of sale
agreement executed. On completion of one year from the date
of Memorandum of sale agreement, Purchaser is allowed to
transfer the rights under this Memorandum of sale agreement to
any third party with prior written approval of Confirming
party/Developer/s and on payment of Rs 200/- per square feet
on super build up area towards administrative charges and
transfer fee against the said payment.
12:The VENDOR covenants with the PURCHASER that:
a: The "A" Schedule Property and the "B" Schedule Property is
not the subject matter of any litigation;
b: That the VENDORS shall keep the PURCHASER sufficiently
indemnified against all encumbrances, damages, attachments
occasioned / suffered by the PURCHASER on account of any
action, omission or commission of the VENDORS or any person
claiming through them in respect of the "A" and "B" Schedule
Property.
c: The VENDORS and all persons claiming through them shall, at
the request of the PURCHASER, do or cause to be done all acts,
deeds and things as shall lawfully and reasonably be required
31
for securing possession and enjoyment of the "B" Schedule
Property as absolute VENDORS thereof."
(Emphasis added)
Time schedule for payment of the amount is indicated. The
complainants have paid `81,90,425/- and the figure varies on the
dimension of the apartment. Nonetheless, every home buyer in
these cases have deposited 90% or above of the entire amount.
The agreement was between the Company and the complainants.
The name of the Apartment complex was 'Unishire Terraza'.
Contrary to the projection that was made in the agreement to sell,
the project did not get complete within 36 months. Comes the year
2018. The completion of the project is handed over to M/s S.A.
Enterprises. It is said that M/s S.A. Enterprises did progress the
project to a certain extent. After the claim of completion of the
project comes the communication/mail on 30-10-2021. It reads as
follows:
"Unishire [CEEC] [email protected] Sat, Oct 30, 2021 at
5:04 P M
To: [email protected]
Cc: [email protected]
Bcc:[email protected],Mehernosh
[email protected]
32
Dear Esteemed Home Buyer.
Greetings
We take this opportunity on the auspicious occasion of
onset of Diwali to inform you on the completion of our
stakeholders Unishire Terraza. We are extremely grateful
for the support rendered from our home buyers and
stakeholders to enable completion of the project despite
the numerous challenges we as an organization are
facing as well as the general real estate situation
prevalent across the country for the past several years.
We are proud to inform that Unishire Terraza project has
received Completion Clearance from the Fire Force
Department on 29-09-2021. We had submitted the
requisition for grant of Occupancy Certificate from BBMP
which was duly acknowledged on 14-09-2021 by the
department.
Please click on the below mentioned link to view the latest
photos of site during inspection by the Fire Force Department,
BBMP as well as the clearance letters from both the
departments:
https://drive.google.com/drive/folders/1uiv6bqlqLcr-
fV9ihrtDJ5yawbAbxv3p?usp=sharing
We are glad to inform you that about 70% of the home buyers
have already registered their homes and are commencing
occupation from 31st October, 2021.
In view of the various legal challenges being faced by the
Organization from the lender, we urge you to make the balance
payments and procure the NOC from the lender without further
delay and register your apartment within 15 days from this
intimation in your best interests of becoming the rightful legal
owner of the apartment. Failing which applicable holding
charges will be imposed along with any other consequential
costs/risks associated thereof.
Thanking you
For Unishire Homes LLP
33
Authorized Signatory"
(Emphasis added)
The communication is not from M/s S.A. Enterprises, but it is from
authorized signatory of the Company. The communication indicates
that the Company was glad to inform that 70% of home buyers
have already registered their homes and have been commencing
their occupation from 31-10-2021 and the Company was proud to
announce that completion clearance and grant of occupancy
certificate would come about immediately. Six months thereafter
comes the second mail. It reads as follows:
"Tue, Apr 12, 2022 at 2:22 PM
Unishire [CEEC] <[email protected]>
To: [email protected]
Cc: Rahul [email protected], Pradeep.
[email protected]
Dear Sir
We are delighted to inform you that the Occupancy
Certificate (OC) for the project Unishire Terraza has been
obtained.
Kindly come forward to register your apartment within 10
days from this communication failing which holding
charges and other levies would be applicable.
Thanking you
For Unishire Homes LLP
34
Authorised Signatory"
(Emphasis added)
It indicates that the Company is delighted to inform that occupancy
certificate for the project -Unishire Terraza has been obtained and
therefore, the complainants were asked to come forward within 10
days to register the apartments, failing which holding charges and
other levies would become applicable. This was a white lie and an
eye wash by the Company, to hoodwink the poor home buyers, as
there was no occupancy certificate in place as on 12-04-2022.
Therefore, this was a false assurance. The occupancy certificate
admittedly comes about only on 14-12-2023. These are undisputed
facts.
9. What happens in the interregnum is shocking, the
Company sells the very property, for which the complainants had
paid 90% of the amount, in favour of third parties. This is again an
undisputed fact that the petitioners, Kirti K.Mehta and Pratik
K.Mehta have sold the properties. After the complainants coming
to know that the properties to which they had paid 90% of the
35
amount or even more have been sold in favour of third parties
without any intimation, the complainants register the complaint
before the jurisdictional Police. The complaint is necessary to be
noticed and it reads as follows:
"To
The inspector of Police
Sampigehalli Police Station
Bangalore
From
Mr. Arshad Qasim Dabapu (41 Years)
Flat 2001 Block B, Al Ahlia Towers
Al Khalidiya
Abu Dhabi UAE.
Subject: Complaint on Cheating and Fraud for reselling our
(original buyers) flats in their project Unishire Terazza by
Unishire Homes LLP - Mr Kirti K. Mehta & Mr. Pratik Mehta and
SA Enterprise-- Abdul Jabbar (Ameen) & Anoop Lobo
Dear Sir,
Myself, Arshad Qasim Dabapu holding Passport number
M2960187 and an NRI working in UAE had booked a flat with
Unishire Terazza by the developer Unishire Homes LLP. I have a
Sale agreement with Unishire Homes LLP dated 19 February
2013, certificate no. IN-KA43409209526260L against flat no A1-
1001, type-3.5BHK, super built up area - 2005 sft. The total
value of the flat at the time of purchase was Rs. 81,90,425
(Rupees Eighty one lakhs, ninty thousand four hundred and
twenty five only) of which the payments were made by self. I
have paid a booking amount of Rs. 3,00,000 on 11 December
2012 and an agreement signing amount of Rs. 13,16,030 in the
month of February 2013. Post payments were made as per
payment schedule related to stages of the project, these were
disbursed directly by me from my NRI Account at Axis Bank. By
36
this time (2015) 95% of our payment was done to Unishire
Homes LLP.
Around this time 2015-16 is when Unishire stranded the
project. There were not reachable for any answers
related to the project, I was clueless and stranded in mid
project status. A couple of co- buyers made and a team
and tried resolving the issues with them as we were all
stuck will payments made and the project was going
nowhere. After a few years of drama and no show, a
couple of years later, SA enterprise, who were then
contractors of the project took over to complete the
project and apparently, SA enterprise were given the
responsibility to sell the remaining unsold units of the
project too.
The project work restated with a lot of struggles in
coming to any common grounds with Ameen and his
right-hand man Anoop Lobo, It was only Anoop Lobo who
would front any conversation (as and when he wishes) on
behalf of Ameen of SA enterprise or Pratik Mehta of
Unishire.
Somehow after a lot of struggle and worries of 6 more years, in
Apr 2022, I got an email from Unishire Homes that they have
received the OC for Unishire Terazza and I should now register
my flat! However, when I asked them to show us the OC, they
refrained and failed to ever show the OC to any buyer. Till date,
no one has seen the OC of the project. I had informed them I
will pay the full amount for the project which was done on Apr
2022 by then 100% of the Flat value was been paid. I had got
the NOC on May 6 from Vistra that all the payments have been
completed and the unit shall stand released if the payment has
been made to the escrow account of Unishire which I had made
the payments in April 2022. I had informed Anoop I will come
for the registration and to show the OC of the project which was
as well not done after making all the payments.
After several calls and meeting for OC but there was none
given despite an official commitment by Unshire that they
have received the OC. I wanted to move ahead and close
it and get flat to my name. In August 2023, I started
reaching out to Mr Anoop to come to India for
37
registration and my calls were unanswered. After many
calls and messages to which Mr.Anoop Lobo replied that
they are not allowing any registration currently and will
keep me updated which got us thinking as to how he can
stop us from registering a flat I have paid for and have all
the papers for. I have been constantly calling/messaging
then since then but Anoop and Ameen were both
untraceable. It is in Jan 2024, that I discovered that our
flat has been double sold to another party and now we
have procured a copy of their EC which shows that the
flat has been sold to them in Dec 2023.
While I entered as a buyer in Unishire Terrazza in
February 2013, I was assured the handover of the flats in
36 months as per the signed agreement copy. From 2016
its been a delay of more than 8 years from the promised
delivery date and despite all odds I had ended up
knowing that Unishire/SA enterprises have committed a
fraud and left us in lurch by illegally selling our flats to
some other buyers. This is absolutely devastating as we
have been striving hard to digest such a delay and the
inconsistencies and non-cooperation from them for years.
This fraud by Unishire was the last thing to add to our
misery and consistent despair for more than a decade. I
am looking forward for your intervention and assistance
to rightfully get back our flats at the earliest.
Please find attached the following as supporting to our
FIR against cheating and fraud by Unishire Homes LLP
and SA enterprise.
1. Sales Agreement first buyers - Arshed Qasim Dabapu
2. Receipts of payments
3. NOC from Vistara and Proof of Payment to Escrow
account-
Final payment making it 100% Payment done.
4. EC of Second buyer."
(Emphasis added)
38
Registration of the complaint leads to registration of crime in Crime
No.369 of 2024 for offences punishable under Sections 406 and 420
of the IPC. The contention is that the issue is purely civil in nature
and would not attract the ingredients of Sections 406 and 420 of
the IPC. Therefore, it becomes necessary to notice Section 406 of
the IPC. It reads as follows:
"406. Punishment for criminal breach of trust.--
Whoever commits criminal breach of trust shall be punished
with imprisonment of either description for a term which may
extend to three years, or with fine, or with both."
Section 406 of the IPC has its ingredients in Section 405 of the IPC.
It reads as follows:
"405. Criminal breach of trust.--Whoever, being in any
manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or converts to his own
use that property, or dishonestly uses or disposes of that
property in violation of any direction of law prescribing the mode
in which such trust is to be discharged, or of any legal contract,
express or implied, which he has made touching the discharge
of such trust, or willfully suffers any other person so to do,
commits "criminal breach of trust".
Explanation 1.--A person, being an employer of an
establishment whether exempted under Section 17 of
the Employees' Provident Funds and Miscellaneous Provisions
Act, 1952 (19 of 1952), or not] who deducts the employee's
contribution from the wages payable to the employee for credit
to a Provident Fund or Family Pension Fund established by any
law for the time being in force, shall be deemed to have been
39
entrusted with the amount of the contribution so deducted by
him and if he makes default in the payment of such contribution
to the said fund in violation of the said law, shall be deemed to
have dishonestly used the amount of the said contribution in
violation of a direction of law as aforesaid.
Explanation 2.--A person, being an employer, who
deducts the employees' contribution from the wages payable to
the employee for credit to the Employees' State Insurance Fund
held and administered by the Employees' State Insurance
Corporation established under the Employees' State Insurance
Act, 1948 (34 of 1948), shall be deemed to have been entrusted
with the amount of the contribution so deducted by him and if
he makes default in the payment of such contribution to the said
Fund in violation of the said Act, shall be deemed to have
dishonestly used the amount of the said contribution in violation
of a direction of law as aforesaid."
Section 405 mandates that any person dishonestly misappropriates
the property of the victim which has been entrusted to him by way
of property or otherwise is said to be committing criminal breach of
trust. The other offence is the one punishable under Section 420 of
the IPC. Section 420 of the IPC reads as follows:
"420. Cheating and dishonestly inducing delivery of
property.--Whoever cheats and thereby dishonestly induces
the person deceived to deliver any property to any person, or to
make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is
capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine."
40
For an offence to become punishable under Section 420 supra, the
ingredients found in Section 415 are necessary to be present.
Section 415 of the IPC reads as follows:
"415. Cheating.--Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the
person so deceived to do or omit to do anything which he would
not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that
person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a
deception within the meaning of this section."
Any person who with dishonest intention lures the victim to enter
into any contract or transfer of funds is said to be committing the
offence of cheating. Whether the role of each of the petitioners
would meet the ingredients of Sections 405 and 415 of the IPC is
required to be noticed. Kirti K.Mehta and Pratik K.Mehta, who are
Directors of the Company are petitioners in most of the petitions. It
is they who have received 90% of the sale consideration from the
hands of the complainants/home buyers 11 years ago. Pratik
K.Mehta is said to be the authorized signatory of the Company.
Though these two have claimed to have resigned, the mails are
sent by them to all the complainants asking them to come forward
41
and register the sale deeds. Though they have projected
themselves to have resigned, but have not in fact did so.
10. The role of Abdul Latheef Jabbar, petitioner in Criminal
Petition No.6166 of 2024 and Criminal Petition No.5089 of 2024 is
that he is the proprietor of M/s S.A. Enterprises. He was entrusted
with completion of construction work of the project. The said
petitioner is said to have conspired with the Company in demanding
money from home buyers by false occupancy certificates and is also
illegally involved in re-selling the apartment of the home buyers to
third parties without the consent of these home buyers. Abdul
Khadar Jabbar, petitioner in Criminal Petition No.5807 of 2024 and
Criminal Petition No.6166 of 2024 is the brother of Abdul Latheef
Jabbar whose role is narrated hereinabove. Though he was an office
bearer of M/s S.A. Enterprises, he is said to have threatened and
harassed the home buyers and is said to be closely involved with
M/s S.A. Enterprises. The other accused is one Anoop Lobo who is
the companion of Abdul Latheef Jabbar and is the authorized
signatory of M/s S.A. Enterprises and who on false hopes demanded
money and entered into sale deeds with third parties. The
42
ingredients of criminal breach of trust, in the opinion of the Court,
are on the face of it, made out in the case at hand. Therefore,
these petitioners are made accused in the crime. Accused Nos. 1
and 2 are Kirti K.Mehta and Pratik K.Mehta in whose favour the
agreements of sale were executed. Accused No.3 is Abdul Latheef
Jabbar, Proprietor of M/s S.A. Enterprises. Accused No.4 is Abdul
Khadar Jabbar, brother of Abdul Latheef Jabbar. Accused No.5 is
Anoop Lobo, the signatory of the sale deeds in favour of third
parties and accused No.6 is the purchaser of the property from the
hands of the proprietor of M/s S.A. Enterprises. If the facts
obtaining as narrated hereinabove are fitted to the ingredients of
Sections 406 and 420 of the IPC as obtaining in Section 405 and
415 of the IPC, it would undoubtedly meet the ingredients.
Generally Section 406 - criminal breach of trust and Section 420 -
cheating would not go hand in hand. The facts obtaining in the
case at hand projects such peculiarity that they go hand in hand.
11. The amount that was paid by each of the home buyers
was for the purpose of getting their respective apartments. 90 to
95% of the amount has been paid by each of the home buyers.
43
Therefore, the said amount is kept in trust with the petitioners, Kirti
K.Mehta an Pratik K.Mehta. On the basis of mails that were not
answered which were by themselves on blatant falsehood that
occupancy certificate was received, the petitioners have sold the
properties to third parties. Today the home buyers whose dream
has been shattered, neither have the hard earned money, nor the
apartments with them, but are unnecessarily drawn into these
litigations on account of fraud played by the petitioners, Kirti
K.Mehta an Pratik K.Mehta. They projected themselves to have
given up every responsibility of the Company. As a matter of fact,
they are the ones who are running the Company even today as
mails have emanated from them and not from M/s S.A. Enterprises.
Therefore, a clear case of cheating and criminal breach of trust is
prima facie made out against these two petitioners.
12. The proprietor of M/s S.A. Enterprises who has indulged
in subsequent demand of money from the home buyers cannot be
left of the hook, as the matter is still at the stage of investigation.
The role of M/s S.A. Enterprises would come out with clarity when
the investigation would get complete and the Police would file their
44
final report. Insofar as the brother of Abdul Latheef Jabbar is
concerned, no offence even prima facie is made against him i.e.,
Abdul Khadar Jabbar. Therefore, permitting any investigation
against him would become abuse of the process of law. Merely
because he is the brother of accused No.3 without any role being
attributed to him, the investigation cannot be permitted against
him. Therefore, the petition filed is entertainable only insofar as
Abdul Khadar Jabbar is concerned and not against any other
accused.
13. Plethora of judgments are relied on by the learned
counsel appearing for the petitioners in these cases to project that
the issue is purely civil in nature and should not be permitted to be
continued. The judgments so relied on are as follows:
(1) Vesa Holdings Private Limited and another v.
State of Kerala and others - (2015) 8 SCC 293.
(2) Vijay Kumar Ghai and others v. State of West
Bengal and others - (2022) 7 SCC 124.
(3) Mitesh Kumar J.Sha v. State of Karnataka and
others - (2022) 14 SCC 572.
45
(4) Radheyshyam and others v. State of Rajasthan
and another - (2024) SCC OnLine SC 2311
(5) Lalit Chaturvedi and others v. State of Uttar
Pradesh - (2024) SCC OnLine SC 171.
(6) Naresh Kumar and another v. State of Karnataka
and another - (2024) SCC OnLine SC 268.
(7) Dinesh Gupta v. State of Uttar Pradesh and
another - (2024) SCC OnLine SC 34.
While there can be no qualm about the principles so laid down or
elucidated by the Apex Court in all the aforesaid judgments, they
are not, on the face of them, applicable to the facts obtaining in the
case at hand. They are all judgments which resulted in quashment
of proceedings on breach of agreements or breach of JDAs or
agreements registered for the purpose of recovery of money. The
facts in the case at hand project different issues where criminal
breach of trust and cheating are clearly made out against these
petitioners in terms of what is narrated hereinabove.
14. It becomes germane to notice a judgment of the
coordinate Bench in the case of KIRTI K.MEHTA AND ANOTHER
46
V. STATE OF KARNATAKA AND OTHERS1. These petitions were
filed by Kirti K.Mehta and Pratik K.Mehta on the same set of facts
projecting the very same grounds. The coordinate Bench has by its
judgment rejected every one of the contentions. The coordinate
Bench has held as follows:
".... .... ....
4. The allegations made in both the first information is
that the first informant had paid huge money to the petitioners
herein who are the partners of M/s. Unishire Homes L.L.P.
Company, towards purchase of apartment in an under
construction project. Since the petitioners were facing serious
financial difficulties, they had handed over the project to M/s.
S.A.Enterprises represented by Abdul Latheef Jabbar.
Afteconstruction of the apartment building was completed, the
apartment for which the first informants had paid huge advance
sale consideration was sold to a third party through registered
sale deeds, for which the petitioners herein and the aforesaid
Abdul Latheef Jabbar are parties. It is in this background, the
first informants had approached the police. Being aggrieved by
the criminal proceedings registered on the basis of the first
information submitted by respondent no.2, petitioners are
before this Court.
5. Learned Counsel for the petitioners having reiterated
the grounds urged in the petition submits that the dispute is
civil in nature. The allegation is that of violation of the contract.
Respondent no.2 instead of approaching the civil court, has
initiated criminal proceedings only with an intention to coerce
and harass the petitioners. He submits that in identical
circumstances, this Court in Crl.P.No.2874/2024 which was filed
by the petitioners, has granted interim order.
1
Criminal Petition No.3118 of 2024 and connected case decided on 2nd April,
2024
47
6. Per contra, learned HCGP has opposed the petition.
She submits that the petitioners have received 90% of the sale
consideration under an agreement from respondent no.2 in
Crl.P.No.3118/2024 and from respondent no.2 in
Crl.P.No.2879/2024, petitioners have received a sum of
Rs.64,60,000/- out of the sale consideration of Rs.67,08,380/-.
In both the cases, petitioners have received 90% of the sale
consideration from the intending purchasers and sale agreement
was also executed in their favour. Subsequently, petitioners
have connived with accused nos.1 to 3 and have executed sale
deeds in favour of third parties in respect of the apartments
which were subject matter of the sale agreements executed in
favour of the respondent no.2-first informants. She submits that
in addition to these cases, several other cases of similar nature
are also registered against the petitioners. Investigation in the
case is under progress. Accordingly, she prays to dismiss the
petitions.
7. From a perusal of the material available on
record, it is seen that the petitioners who are partners of
M/s. Unishire Homes L.L.P. Company, have received 90%
of the sale consideration under two separate sale
agreements from the first informants. Subsequently, the
under construction project was handed over by the
petitioners to M/s. S.A.Enterprises, who inturn has
completed the project. The petitioners hereinwho had
entered into an agreement for sale of apartments in
favour of first informants, have joined hands with M/s.
S.A.Enterprises who is also arrayed as an accused in the
FIR and have executed sale deeds in respect of the
apartment which was the subject matter of sale
agreements, in favour of third party after receiving sale
consideration from the third party.
8. Learned HCGP has brought to the notice of this
Court several other similar cases have been registered
against the petitioners herein and similar modus operandi
is found in all the cases. FIR has been registered in the
present two cases against the accused for the offences
punishable under Sections 420, 406, 120B, 34 IPC.
Petitioners who have received 90% of sale consideration
from the intending purchasers who are the first
informants in the present case, have joined hands with
48
the other accused persons and have sold the property for
which they had received advance consideration in favour
of third parties by executing sale deeds.
9. Petitioners who had received advance sale
consideration from the first informants under the sale
agreements, have dishonestly misappropriated the
amount received and have dishonestly disposed of the
property which was the subject matter of the sale
agreements. The first informants had paid advance sale
consideration to the petitioners herein since the
petitioners had assured that they would sell the property
which is the subject matter of sale agreements in their
favour. The material on record would also go to show that
the petitioners and the other accused have created sale
deeds in favour of third parties in similar manner after
receiving huge sale consideration from many others and
several similar other criminal cases are registered against
the accused before the very same police station. The
allegations found in the first information has the
necessary ingredients for invoking the alleged offences
against the petitioners herein. It cannot be said that
there is absolutely no material as against the petitioners
for prosecuting them for the alleged offences.
10. In Crl.P.No.2874/2024, since it was found that
advance sale consideration was received by M/s.
S.A.Enterprises represented by Abdul Latheef Jabbar and
the petitioners herein had not received any sale
consideration from the first informant in the said case,
this Court has granted an interim order infavour of the
petitioners. However, in the present case, it is the
petitioners who have received 90% advance sale
consideration from the first informants, and therefore,
the reasons assigned by this Court in Crl.P.No.2874/2024
while granting the interim order cannot be applicable to
the facts of this case.
11. The Hon'ble Supreme Court in the case of
SANAPAREDDY MAHEEDHAR SESHAGIRI VS STATE OF
A.P. - (2007)13 SCC 165, at paragraph 31, has observed as
under:
49
"31. A careful reading of the above noted
judgments makes it clear that the High Court should
be extremely cautious and slow to interfere with the
investigation and/or trial of criminal cases and should
not stall the investigation and/or prosecution except
when it is convinced beyond any manner of doubt that
the FIR does not disclose commission of any offence or
that the allegations contained in the FIR do not
constitute any cognizable offence or that the
prosecution is barred by law or the High Court is
convinced that it is necessary to interfere to prevent
abuse of the process of the court. In dealing with such
cases, the High Court has to bear in mind that judicial
intervention at the threshold of the legal process
initiated against a person accused of committing
offence is highly detrimental to the larger public and
societal interest. The people and the society have a
legitimate expectation that those committing offences
eitheragainst an individual or the society are
expeditiously brought to trial and, if found guilty,
adequately punished. Therefore, while deciding a
petition filed for quashing the FIR or complaint or
restraining the competent authority from investigating
the allegations contained in the FIR or complaint or for
stalling the trial of the case, the High Court should be
extremely careful and circumspect. If the allegations
contained in the FIR or complaint discloses
commission of some crime, then the High Court must
keep its hands off and allow the investigating agency
to complete the investigation without any fetter and
also refrain from passing order which may impede the
trial. The High Court should not go into the merits and
demerits of the allegations simply because the
petitioner alleges malus animus against the author of
the FIR or the complainant. The High Court must also
refrain from making imaginary journey in the realm of
possible harassment which may be caused to the
petitioner on account of investigation of the FIR or
complaint. Such a course will result in miscarriage
of justice and would encourage those accused of
committing crimes to repeat the same. However,
if the High Court is satisfied that the complaint
does not disclose commission of any offence or
50
prosecution is barred by limitation or that the
proceedings of criminal case would result in
failure of justice, then it may exercise inherent
power under Section 482 Cr.P.C."
12. Under the circumstances, I am of the opinion
that the prayer made by the petitioners to quash the FIR
cannot be granted. Accordingly, the petitions are
dismissed."
(Emphasis supplied)
The coordinate Bench observes the role of the petitioners, the role
of M/s S.A. Enterprises and criminality shrouded in the entire
episode of crime. The dismissal of these petitions was challenged by
Kirti K.Mehta and Pratik K.Mehta before the Apex Court. The Apex
Court, in terms of its order dated 10-07-2024, has rejected the
S.L.P. by the following order:
"UPON hearing the counsel, the Court made the following:
ORDER
Heard Mr. Vijay K.Sagar, learned counsel, appearing for
the petitioners.
We see no reason to interfere with the impugned order.
The Special Leave Petition is, accordingly, dismissed.
Pending applications(s), if any, stand closed."
Therefore, identical arguments being rejected has had the
imprimatur of the Apex Court. Even otherwise, it is well settled
principle of law that a fact can give rise to two proceedings - one
civil and other criminal. Merely because, in the first blush, it
appears to be civil, it need not result in quashment of criminal law
being set into motion, if prima facie criminality is found in such
complaints.
15. It becomes germane to notice the judgment of the Apex
Court in the case of KAMAL SHIVAJI POKARNEKAR v. STATE OF
MAHARASHTRA2 wherein it is held as follows:
".... .... ....
5. Quashing the criminal proceedings is called for only in
a case where the complaint does not disclose any offence, or is
frivolous, vexatious, or oppressive. If the allegations set out in
the complaint do not constitute the offence of which cognizance
has been taken by the Magistrate, it is open to the High Court to
quash the same. It is not necessary that a meticulous analysis
of the case should be done before the trial to find out whether
the case would end in conviction or acquittal. If it appears on a
reading of the complaint and consideration of the allegations
therein, in the light of the statement made on oath that the
ingredients of the offence are disclosed, there would be no
justification for the High Court to interfere [State of
Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC
(Cri) 539] .
6. Defences that may be available, or facts/aspects which
when established during the trial, may lead to acquittal, are not
grounds for quashing the complaint at the threshold. At that
stage, the only question relevant is whether the averments in
(2019) 14 SCC 350
the complaint spell out the ingredients of a criminal offence or
not [Indian Oil Corpn. v. NEPC (India) Ltd., (2006) 6 SCC 736 :
(2006) 3 SCC (Cri) 188] .
... ... ...
9. Having heard the learned Senior Counsel and
examined the material on record, we are of the
considered view that the High Court ought not to have set
aside the order passed by the trial court issuing summons
to the respondents. A perusal of the complaint discloses
prima facie, offences that are alleged against the
respondents. The correctness or otherwise of the said
allegations has to be decided only in the trial. At the
initial stage of issuance of process it is not open to the
courts to stifle the proceedings by entering into the
merits of the contentions made on behalf of the accused.
Criminal complaints cannot be quashed only on the
ground that the allegations made therein appear to be of
a civil nature. If the ingredients of the offence alleged
against the accused are prima facie made out in the
complaint, the criminal proceeding shall not be
interdicted."
(Emphasis supplied)
The Apex Court holds that criminal proceedings should be quashed
if the complaint does not disclose any offence or is frivolous or
vexatious and further holds that criminal complaints sometimes
cannot be quashed only on the ground that the allegations made
therein appear to be of a civil nature. The Apex Court, further, in
the case of PRITI SARAF v. STATE (NCT OF DELHI)3, has held
as follows:
(2021) 16 SCC 142
".... .... ....
30. Be it noted that in the matter of exercise of inherent
power by the High Court, the only requirement is to see whether
continuance of the proceedings would be a total abuse of the
process of the Court. The Criminal Procedure Code contains a
detailed procedure for investigation, framing of charge and trial,
and in the event when the High Court is desirous of putting a
halt to the known procedure of law, it must use proper
circumspection with great care and caution to interfere in the
complaint/FIR/charge-sheet in exercise of its inherent
jurisdiction.
31. In the instant case, on a careful reading of the
complaint/FIR/charge-sheet, in our view, it cannot be
said that the complaint does not disclose the commission
of an offence. The ingredients of the offences under
Sections 406 and 420IPC cannot be said to be absent on
the basis of the allegations in the complaint/FIR/charge-
sheet. We would like to add that whether the allegations
in the complaint are otherwise correct or not, has to be
decided on the basis of the evidence to be led during the
course of trial. Simply because there is a remedy
provided for breach of contract or arbitral proceedings
initiated at the instance of the appellants, that does not
by itself clothe the court to come to a conclusion that civil
remedy is the only remedy, and the initiation of criminal
proceedings, in any manner, will be an abuse of the
process of the court for exercising inherent powers of the
High Court under Section 482CrPC for quashing such
proceedings.
32. We have perused the pleadings of the parties,
the complaint/FIR/charge-sheet and orders of the courts
below and have taken into consideration the material on
record. After hearing the learned counsel for the parties,
we are satisfied that the issue involved in the matter
under consideration is not a case in which the criminal
trial should have been short-circuited. The High Court
was not justified in quashing the criminal proceedings in
exercise of its inherent jurisdiction. The High Court has
primarily adverted on two circumstances,
(i) that it was a case of termination of agreement to sell
on account of an alleged breach of the contract and;
(ii) the fact that the arbitral proceedings have been
initiated at the instance of the appellants.
Both the alleged circumstances noticed by the High Court, in our
view, are unsustainable in law. The facts narrated in the present
complaint/FIR/charge-sheet indeed reveal the commercial
transaction but that is hardly a reason for holding that the
offence of cheating would elude from such transaction. In fact,
many a times, offence of cheating is committed in the course of
commercial transactions and the illustrations have been set out
under Sections 415, 418 and 420 IPC."
(Emphasis supplied)
The Apex Court reiterates that a proceeding may give rise to both
criminality and a remedy that is civil in nature. Simply because
there is a remedy provided for breach of contract initiated at the
instance of the appellants therein, it would not come to the
conclusion that it is only a civil remedy.
16. What is narrated hereinabove is a seriously disputed
question of fact, which requires evidence and may be further trial.
In such cases, the Apex Court holds that exercise of jurisdiction
under Section 482 of the Cr.P.C. should be extremely limited. The
Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR
PRADESH4, has held as follows:
".... .... ....
"9.1. At the outset, it is required to be noted that
in the present case the High Court in exercise of powers
under Section 482 CrPC has quashed the criminal
proceedings for the offences under Sections 147, 148,
149, 406, 329 and 386 IPC. It is required to be noted
that when the High Court in exercise of powers under
Section 482 CrPC quashed the criminal proceedings, by
the time the investigating officer after recording the
statement of the witnesses, statement of the
complainant and collecting the evidence from the
incident place and after taking statement of the
independent witnesses and even statement of the
accused persons, has filed the charge-sheet before the
learned Magistrate for the offences under Sections 147,
148, 149, 406, 329 and 386 IPC and even the learned
Magistrate also took the cognizance. From the impugned
judgment and order [Radhey Shyam Gupta v. State of U.P.,
2020 SCC OnLine All 914] passed by the High Court, it does
not appear that the High Court took into consideration the
material collected during the investigation/inquiry and even
the statements recorded. If the petition under Section 482
CrPC was at the stage of FIR in that case the allegations
in the FIR/complaint only are required to be considered
and whether a cognizable offence is disclosed or not is
required to be considered. However, thereafter when
the statements are recorded, evidence is collected and
the charge-sheet is filed after conclusion of the
investigation/inquiry the matter stands on different
footing and the Court is required to consider the
material/evidence collected during the investigation.
Even at this stage also, as observed and held by this Court in
a catena of decisions, the High Court is not required to go into
the merits of the allegations and/or enter into the merits of
the case as if the High Court is exercising the appellate
jurisdiction and/or conducting the trial. As held by this Court
(2021) 9 SCC 35
in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai
Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC
(Cri) 683] in order to examine as to whether factual contents
of FIR disclose any cognizable offence or not, the High Court
cannot act like the investigating agency nor can exercise the
powers like an appellate court. It is further observed and held
that that question is required to be examined keeping in view,
the contents of FIR and prima facie material, if any, requiring
no proof. At such stage, the High Court cannot appreciate
evidence nor can it draw its own inferences from
contents of FIR and material relied on. It is further
observed it is more so, when the material relied on is
disputed. It is further observed that in such a situation,
it becomes the job of the investigating authority at such
stage to probe and then of the court to examine
questions once the charge-sheet is filed along with such
material as to how far and to what extent reliance can
be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this
Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this
Court that exercise of powers under Section 482 CrPC to
quash the proceedings is an exception and not a rule. It is
further observed that inherent jurisdiction under
Section 482 CrPC though wide is to be exercised
sparingly, carefully and with caution, only when such
exercise is justified by tests specifically laid down in the
section itself. It is further observed that appreciation of
evidence is not permissible at the stage of quashing of
proceedings in exercise of powers under Section 482
CrPC. Similar view has been expressed by this Court in Arvind
Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1
SCC (Cri) 94] , Managipet [State of Telangana v. Managipet,
(2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and
in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1
SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are of
the opinion that the High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers under
Section 482 CrPC.
10. The High Court has failed to appreciate and consider
the fact that there are very serious triable issues/allegations
which are required to be gone into and considered at the time
of trial. The High Court has lost sight of crucial aspects which
have emerged during the course of the investigation. The High
Court has failed to appreciate and consider the fact that the
document i.e. a joint notarised affidavit of Mamta Gupta
Accused 2 and Munni Devi under which according to Accused 2
Ms Mamta Gupta, Rs 25 lakhs was paid and the possession
was transferred to her itself is seriously disputed. It is required
to be noted that in the registered agreement to sell dated 27-
10-2010, the sale consideration is stated to be Rs 25 lakhs
and with no reference to payment of Rs 25 lakhs to Ms Munni
Devi and no reference to handing over the possession.
However, in the joint notarised affidavit of the same date i.e.
27-10-2010 sale consideration is stated to be Rs 35 lakhs out
of which Rs 25 lakhs is alleged to have been paid and there is
a reference to transfer of possession to Accused 2. Whether Rs
25 lakhs has been paid or not the accused have to establish
during the trial, because the accused are relying upon the said
document and payment of Rs 25 lakhs as mentioned in the
joint notarised affidavit dated 27-10-2010. It is also required
to be considered that the first agreement to sell in which Rs 25
lakhs is stated to be sale consideration and there is reference
to the payment of Rs 10 lakhs by cheques. It is a registered
document. The aforesaid are all triable issues/allegations
which are required to be considered at the time of trial. The
High Court has failed to notice and/or consider the material
collected during the investigation.
11. Now so far as the finding recorded by the High Court
that no case is made out for the offence under Section 406 IPC
is concerned, it is to be noted that the High Court itself has
noted that the joint notarised affidavit dated 27-10-2010 is
seriously disputed, however as per the High Court the same is
required to be considered in the civil proceedings. There the
High Court has committed an error. Even the High Court has
failed to notice that another FIR has been lodged against the
accused for the offences under Sections 467, 468, 471 IPC
with respect to the said alleged joint notarised affidavit. Even
according to the accused the possession was handed over to
them. However, when the payment of Rs 25 lakhs as
mentioned in the joint notarised affidavit is seriously disputed
and even one of the cheques out of 5 cheques each of Rs 2
lakhs was dishonoured and according to the accused they were
handed over the possession (which is seriously disputed) it can
be said to be entrustment of property. Therefore, at this stage
to opine that no case is made out for the offence under
Section 406 IPC is premature and the aforesaid aspect is to be
considered during trial. It is also required to be noted that the
first suit was filed by Munni Devi and thereafter subsequent
suit came to be filed by the accused and that too for
permanent injunction only. Nothing is on record that any suit
for specific performance has been filed. Be that as it may, all
the aforesaid aspects are required to be considered at the time
of trial only.
12. Therefore, the High Court has grossly erred in
quashing the criminal proceedings by entering into the
merits of the allegations as if the High Court was
exercising the appellate jurisdiction and/or conducting
the trial. The High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers
under Section 482 CrPC.
13. Even the High Court has erred in observing that
original complaint has no locus. The aforesaid observation is
made on the premise that the complainant has not placed on
record the power of attorney along with the counter filed
before the High Court. However, when it is specifically stated
in the FIR that Munni Devi has executed the power of attorney
and thereafter the investigating officer has conducted the
investigation and has recorded the statement of the
complainant, accused and the independent witnesses,
thereafter whether the complainant is having the power of
attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated
above, the impugned judgment and order [Radhey Shyam
Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by
the High Court quashing the criminal proceedings in exercise
of powers under Section 482 CrPC is unsustainable and the
same deserves to be quashed and set aside and is accordingly
quashed and set aside. Now, the trial is to be conducted and
proceeded further in accordance with law and on its own
merits. It is made clear that the observations made by this
Court in the present proceedings are to be treated to be
confined to the proceedings under Section 482 CrPC only and
the trial court to decide the case in accordance with law and
on its own merits and on the basis of the evidence to be laid
and without being influenced by any of the observations made
by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied)
In the light of the aforesaid circumstance and the role of these
petitioners, except Abdul Khadar Jabbar, the case needs to be
investigated to bring these petitioners to books.
17. The home buyers, who with all fond hopes of having own
houses in the City of Bangalore - house in the nature of an
apartment, invest all their life fortunes into the Company, which
projects development of a livable apartment complex. The fond
hopes are stage by stage shattered, either by the delay or the
developers indulging in the acts which have now become the crime.
The mails that are communicated to these complainants, are only
an eye wash, as no occupancy certificate was even in their hands
when they asked these home buyers to pay 5% or 10% of the
remaining amount and get their sale deeds registered. The
communications did not indicate that in the event the home buyers
do not come forward for registration of sale deeds, the apartment
would be sold to third parties. What was communicated was
holding charges would become applicable. Therefore, prima facie
these accused have played fraud, on the poor home buyers who are
now left high and dry without the money that they have invested
long ago and without the apartment with them, which they were
hoping to have as a dream home. By the fraud of these petitioners,
the dreams of poor home buyers are crushed. The developers
cannot play with the lives of home buyers, except save in certain
circumstances where there is clear breach of contract or a particular
home buyer is having an axe to grind against the developers. The
subject case forms a classic illustration of the acts of the accused,
except one, where the ingredients of criminal breach of trust and
cheating, on the home buyers, is prima facie met, as the
agreements entered into with the home buyers by the accused were
after receiving 90 or 95% of the total sale consideration and
notwithstanding this, those very apartments which formed the part
of the agreement are sold to third parties. Therefore, the crime so
registered against the accused cannot be quashed except qua Abdul
Khadar Jabbar.
18. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petitions qua all the accused, except one,
would stand rejected.
(ii) The Criminal Petition qua the accused Abdul Khadar
Jabbar stands allowed.
(iii) The impugned proceedings only against Abdul Khadar
Jabbar who is accused No.2 in Crime No. 278 of 2023
and accused No.4 in Crime No.325 of 2024 of
Sampigehalli police station, pending before IV
Additional Chief Metropolitan Magistrate, Bangalore
stand quashed.
(iii) Interim order of any kind if operating, shall stand
dissolved.
Sd/-
(M. NAGAPRASANNA)
JUDGE
Bkp
CT:MJ
