Rajasthan High Court
Smt. Rashmi Kala, Wife Of Late Shri ... vs State Of Rajasthan on 12 April, 2022
Bench: Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 2442/2022
1. Smt. Rashmi Kala, Wife Of Late Shri Vinod Kala, Aged
About 64 Years, Resident Of B-20, Trimurti Building,
North Avenue Road, Santacruz (West) Mumbai - Presently
Residing At 201-D/12, Gokul Vatika, Near Jawahar Circle,
Jaipur (Rajasthan).
2. Ravish Kala, Son Of Late Shri Vinod Kala, Aged About 31
Years, Resident Of B-20, Trimurti Building, North Avenue
Road, Santacruz (West) Mumbai -Presently Residing At
201-D/12, Gokul Vatika, Near Jawahar Circle, Jaipur
(Rajasthan).
----Petitioners
Versus
1. State Of Rajasthan, Through Its Public Prosecutor.
2. Amit Kumar Dhoka, Son Of Shri Lalit Kumar Dhoka,
Resident Of 28, Indira Colony, Bani Park, Jaipur (West)
(Rajasthan).
----Respondents
For Petitioner(s) : Mr. Saransh Saini
For Respondent(s) : Mr. Mangal Singh Saini, PP.
Mr. J. K. Moolchandani on behalf of
Mr. Saurabh Bhandari
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
Judgment reserved on : 07/04/2022
Date of Pronouncement : 12/04/2022
1. By way of this criminal miscellaneous petition, petitioners
want to quash FIR bearing No.1/2022 registered at Police Station
Bani Park, Jaipur (West) for the offence punishable under Sections
420, 406 and 120B IPC.
(2 of 4) [CRLMP-2442/2022]
2. Learned counsel for the petitioners submits that complainant
has lodged the present FIR after thought and mala fide and that
dispute is of civil nature and criminal colour has been given to it.
Learned counsel for the petitioners submits that it is an admitted
position that the registered development agreement, i.e. contact,
was executed between the parties on 26.09.2014. As per
agreement, share of petitioner No.1 was 62% and complainant
was 38%. Learned counsel for the petitioners also submits that
complainant had given Rs.51 lac which is returnable after
completion of construction as per development agreement. He
submits that complainant had to construct the penthouse as per
agreement but complainant had not constructed it. So, petitioner
No.1 had not returned the refundable security money as per
agreement. Learned counsel for the petitioners submits that as
per agreement, criminal proceedings cannot be initiated against
the petitioners. As per agreement, arbitration proceedings were to
be initiated. He submits that as per Clause 28, development
agreement for resolution of dispute, proceedings were to be
resolved by arbitration. So, criminal proceedings initiated against
the petitioners, be quashed.
3. Learned counsel for the petitioners relied upon the judgments
passed by Hon'ble Apex Court in Anand Kumar Mohatta and
Anr. Vs. State (NCT of Delhi), Department of Home and Anr.
reported in (2019) 11 SCC 706 and Mitesh Kumar J. Sha Vs.
State of Karnataka and Ors. reported in 2021 SCC OnLine SC
976.
(3 of 4) [CRLMP-2442/2022]
4. Learned Public Prosecutor as well as learned counsel for the
complainant have opposed the arguments advanced by learned
counsel for the petitioners and submit that after investigation,
Investigating Officer had found proved the offence against the
petitioners under Sections 420 and 409 IPC. Learned counsel for
the complainant submits that complainant had completed the
construction as per development agreement. But, due to
resistance of neighbors and local authorities, complainant could
not construct the penthouse. It is not a fault of the complainant.
Learned counsel for the complainant further submits that
complainant had given a notice to refund the security amount but
petitioner had not refunded the security. So, criminal proceedings
against the petitioners is rightly initiated. Learned counsel for the
complainant further submits that provisions of development
agreement could not be invoked because construction was
completed by the complainant. So, petition filed by the petitioners
be dismissed.
5. I have considered the arguments advanced by learned
counsel for the petitioners as well as learned Public Prosecutor and
learned counsel for the complainant.
6. It is an admitted position that the development agreement
was executed between the parties on 26.09.2014. As per
development agreement, complainant had to construct penthouse
but it is admitted position that he had not constructed the
penthouse. As per development agreement, any dispute arises
between the parties, shall be resolved by the arbitrator. So, in my
considered opinion, complainant has wrongly initiated the criminal
(4 of 4) [CRLMP-2442/2022]
proceedings against the petitioners and lodged the present FIR to
give the criminal colour to the civil proceedings. So, allowing the
proceedings in the present FIR would be abuse of process of law.
So, looking to the facts and circumstances of the case, I deem it
proper to allow the criminal miscellaneous petition filed by the
petitioners.
7. Accordingly, the criminal miscellaneous petition is allowed.
The FIR No.1/2022 registered at Police Station Bani Park, Jaipur
(West) for the offence punishable under Sections 420, 406 and
120B IPC and criminal proceedings pursuant thereto, are quashed.
(NARENDRA SINGH DHADDHA),J
Seema/41
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