Kerala High Court
Nishanth Chundakkandi vs Nisar Abdul Rehman on 13 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2023/22ND BHADRA, 1945
CRL.REV.PET NO. 343 OF 2023
AGAINST THE ORDER/JUDGMENT CMP 6054/2022 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,TALIPARAMBA
PETITIONERS/COMPLAINANTS:
1 NISHANTH CHUNDAKKANDI,
AGED 37 YEARS,
S/O. RAMAKRISHNAN,
CHUNDAKKANDI HOUSE,
NEAR POOKKOTHU KOTTARAM,
THALIPARAMBA P.O,
KANNUR DISTRICT, PIN - 670141
2 NIMISHA,
AGED 33 YEARS,
W/O. NISHANTH,
VALIYAPURAYIL HOUSE,
NEAR POOKKOTHU KOTTARAM,
THALIPARAMBA P.O,
KANNUR DISTRICT, PIN - 670141
BY ADVS.
LIJIN THAMBAN
G.S.KRISHNAN KARTHA
RESPONDENTS/ACCUSED AND STATE:
1 NISAR ABDUL REHMAN,
S/O. K.V. ABDUL REHMAN,
CHAIRMAN AND MANAGING DIRECTOR,
NAMBRAS HOMES BUILDERS AND DEVELOPERS,
NAMBRAS BUILDING, NATIONAL HIGH WAY,
THALIPARAMBA P.O., KANNUR DISTRICT, PIN - 670141
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
SRI.R. SURENDRAN FOR R1.
SRI.C.S.HRITHWIK, SENIOR PUBLIC PROSECUTOR FOR R2.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P. No.343/2023
:2:
N. NAGARESH, J.
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Crl.R.P. No.343 of 2023
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Dated this the 13th day of September, 2023
ORDER
The revision petitioners are aggrieved by order dated
10.08.2022 in C.M.P. No.6054/2022 passed by the Judicial
First Class Magistrate's Court, Taliparamba.
2. The petitioners, who are husband and wife filed a
complaint invoking Section 190(1)(a) read with Section 200
Cr.P.C. alleging offence punishable under Section 420 IPC,
against the 1st respondent-accused. The complaint was that on
12.05.2019, the complainant and CW2 bought a Villa from
Nambras Home Builders at Vadakkanchery for a total
consideration of ₹75,18,800/-. The petitioners state that they
have paid ₹67,13,640/- to the 1st respondent.
3. To the predicament of the petitioners, the
1st respondent did not complete the construction of the building.
Crl.R.P. No.343/2023
It is the case of the petitioners that the petitioners wanted to
purchase another plot of land for the Villa construction. The
1st respondent made them believe that the said plot was
already sold out and induced the petitioners to purchase plot
No.6. After executing the agreement, the 1 st respondent
abandoned the project and did not complete the construction.
4. The petitioners contended that the very intention of
the 1st respondent was to cheat the petitioners and take away
money from the petitioners knowing that the 1 st respondent is
not going to construct the Villa for the petitioners.
5. The Judicial First Class Magistrate's Court,
Taliparamba considered the complaint of the petitioners. The
Magistrate's Court found that it is only a case of breach of
promise made by the 1st respondent and the ingredients
required for constituting an offence under Section 420 IPC are
not made out from the complaint of the petitioners. Relying on
the judgment of the Hon'ble Apex Court in Jose V.Y. and
another v. State of Gujarat and another reported in [(2009) 3
Crl.R.P. No.343/2023
SCC 78] and the judgment of this Court in Reji Varghese v.
State of Kerala and another reported in [2019 KHC 167], the
Judicial First Class Magistrate's Court, Taliparamba dismissed
the complaint filed by the petitioners. It is aggrieved by the
dismissal of the complaint that the petitioners are before this
Court.
6. The petitioners would submit that they have
established a prima facie case and the culpable intention of the
1st respondent at the time of making the initial promise. There
are sufficient reasons to attract the offence under Section 420
IPC. The specific case of the petitioners is that the
1st respondent had given initial promise of Villa Project and
after executing agreement and receiving money, the
1st respondent has abandoned the project and sold out the land
intended for construction of the Villas to private parties, as
independent plots. That itself shows the dishonest intention of
the 1st respondent at the time of entering into agreement.
Crl.R.P. No.343/2023
7. The counsel for the petitioners further urged that
this is not a case of discharge under Section 203. It is a settled
preposition of law that it is not for the court to decide whether
accused could be convicted or not. He can only judge if there
are circumstances to proceed further on prosecution.
Therefore, the impugned order is liable to be set aside, urged
by the counsel for the petitioners.
8. I have heard the learned counsel for the petitioners,
the learned Public Prosecutor representing the 2 nd respondent
and the learned counsel appearing for the 1 st respondent.
9. The allegation of the petitioners is that on the basis
of an agreement to construct a Villa for the petitioners, the
1st respondent has entered into an agreement for ₹75,18,800/-.
The 1st respondent has received ₹67,13,640/-. The
1st respondent did not abide by the terms of the contract. The
building is not constructed. Construction of surrounding
amenities is abandoned. The 1st respondent had no intention
to construct the Villa when the agreement was executed.
Crl.R.P. No.343/2023
10. The counsel for the 1st respondent, on the other
hand, would submit that what is sold to the petitioners was not
any unit of the published Villa Project. It was an independent
agreement entered into by the 1 st respondent with the
petitioners for construction of building. The petitioners had
purchased the land from a third party. The 1 st respondent could
not complete the construction of the building as the petitioners
did not pay the money for the work done by the respondents.
11. Be that as it may, going through the pleadings in the
Criminal Revision Petition, it is evident that the
1st respondent had executed an agreement with the petitioners.
It has also come out that the 1 st respondent has constructed
considerable part of the building after executing agreement.
Even according to the petitioners, the allegation is that the
1st respondent has not completed the remaining work including
door, electrical and plumbing, wiring, interlock, gate and
drainage.
Crl.R.P. No.343/2023
12. The very fact that the 1st respondent has carried out
certain extent of construction would go to indicate that he had
no intention to cheat the petitioners. At any rate, the facts
disclosed in the complaint and the revision petition do not
constitute an offence under Section 420 IPC. The Judicial First
Class Magistrate's Court rightly dismissed the complaint of the
petitioners. The Criminal Revision Petition is therefore of no
merit.
The Criminal Revision Petition is dismissed.
Sd/-
N. NAGARESH
JUDGE
sss
Crl.R.P. No.343/2023
APPENDIX OF CRL.REV.PET 343/2023
PETITIONERS' ANNEXURES
ANNEXURE 1 CERTIFIED COPY OF STATEMENT OF 1ST
PETITIONERS RECORDED IN C.M.P
NO.6054/2022 BY THE LEARNED MAGISTRATE
DATED 6.8.2022.
ANNEXURE 2 CERTIFIED COPY OF STATEMENT OF 2ND
PETITIONER RECORDED IN C.M.P
NO.6054/2022 BY THE LEANED MAGISTRATE
DATED 6.8.2022.
ANNEXURE 3 TRUE COPY OF COMPLAINT IN CMP NO.
6054/2022 OF THE JFCM, TALIPARAMBA
DATED 5.8.2022.
ANNEXURE 2 TRUE COPY OF REGISTERED SALE DEED
NO.16671 DATED 13.05.2019 OF SRO
TALIPARAMBA.
ANNEXURE 3 TRUE COPY OF BUILDING CONSTRUCTION
AGREEMENT EXECUTED BETWEEN THE
PETITIONERS AND 1ST RESPONDENT DATED
12.05.2019.
ANNEXURE 4 TRUE COPY OF BROCHURE OF URBAN VALLEY
PREMIUM VILLAS PUBLISHED BY 1ST
RESPONDENT.
