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                   HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL PETITION No.4633 OF 2013
ORDER:

1. The petitioners are aggrieved by the registration of Crime

No.149/2012 by Panjagutta Police Station for the offences under

Sections 420 and 406 of IPC, filed the present petition to quash the

said proceedings.

2. The 2nd respondent/defacto complainant filed complaint

stating that her sister Dr. Ashalatha Reddy was approached by the

petitioners and stated that they started constructing luxurious

independent villas in Medchal in the name of 'Broadway'. Believing

said version of the petitioners, the complainant and late

Dr.Ashalatha Reddy wanted to purchase one plot each. The

complainant herein evinced interest in purchasing the plot No.12

for sale consideration of Rs.84.00 lakhs and late Dr.Ashalatha

Reddy wanted plot No.13, which was for Rs.91.00 lakhs. However,

due to financial constraints, both the complainant and late Dr.

Ashalatha Reddy jointly wanted to purchase only one, plot No.12.

The petitioners also did not provide any link documents of the said

plot and stated that they would provide them at a subsequent date.

The complainant made payment of Rs.1.00 lakh on 09.12.2007 by

way of cheque issued in favour of 1st petitioner company/A1 and

subsequently, an amount of Rs.10.00 lakhs cash and remaining

amount was also paid. The said payments were made by the

complainant on her behalf and also on behalf of late Dr.Ashalatha

Reddy. In all, the complainant made payment of Rs.29.00 lakhs on

11.02.2008 and later an amount of Rs.25.00 lakhs was paid in

cash. The 2nd petitioner promised that he would register the plot

and subsequently entered into an agreement for construction of the

villa on the said plot. However, no documents were furnished even

after receiving Rs.65.00 lakhs. The petitioners failed to provide any

documents or register the land in favour of the complainant, for

which reason, mail was sent on 09.01.2009 and complainant

wished to withdraw from the project and demanded the amount to

be returned. However, the 2nd petitioner replied stating that amount

was not received by him.

3. It is further the case that the petitioners, without providing

any documents have induced the complainant parting with the

amount of Rs.70.00 lakhs under the pretext of registering plot

No.12 in the project 'Broadway'. The daughter of late Dr.Ashalatha

Reddy visited the house at project 'Broadway' and found that only

one model house was constructed and nothing else was

undertaken. The complainant also states that only on the ground of

undertaken given by the petitioners, believing their version, the

complainant parted with the total amount of Rs.70.00 lakhs.

4. Aggrieved by the acts of the petitioners, present private

complaint was filed which was referred to police for investigation.

Questioning the said registration of crime, present petition is filed

by the petitioners, who are A1 and A2.

5. Learned counsel for the petitioners submits that the

transactions interse between the petitioners and the defacto

complainant are purely civil disputes, which can be adjudicated by

the civil court. Civil Suit O.S.No.393 of 2013 was already filed.

However, on 15.03.2018, the suit was dismissed for default. No

steps were taken by the defacto complainant/plaintiffs to restore

the said suit. Further, an amount of Rs.21,75,000/- was handed

over to the defacto complainant in the Company Petition No.131 of

2011. However, this Court held that differential amount of Rs.42.25

lakhs, which is under dispute can be ascertained by the appropriate

forum. Even according to the complainant, the defacto complainant

has approached for purchase of villa, as such, the ingredients of

Section 420 of IPC are not attracted and there is no allegation of

any misrepresentation or inducement. In fact, civil suit was filed

since there was dispute regarding the amounts given, for which

reason, in the company petition, the amount, which was borne by

record was paid and accepted by the defacto complainant. In the

said circumstances, the ingredients of Section 406 of IPC are also

not attracted. In support of his arguments, he relied on the

judgments reported in the cases of; i) Priyanka Srivastava v. State

of U.P1; ii) Alpic Finance Limited v. P.Sadasivan2; iii)

Prof.R.K.Vijaysarathy v. Sudha Seetharam3; iv) Vesa Holdings

Private Limited v. State of Kerala4; v) S.W.Palnitker v. State of

Bihar5.

(2015) 6 Supreme Court Cases 287

(2001) 3 Supreme Court Cases 513

(2019) 2 Supreme Court Cases 739

(2015) 8 Supreme Court Cases 293

(2002) 1 Supreme Court Cases 241

6. On the other hand, learned counsel for 2nd respondent

submits that this Court under inherent powers of Section 482 of

Cr.P.C cannot interfere with the process of investigation. There are

specific averments in the complaint stating that it was the

petitioners who approached the defacto complainant and induced

them into purchasing the property. When there was no construction

or any improvement in the said venture, the defacto complainant

asked for return of the amounts paid. However, there was denial by

the petitioners that they have not received any amount, which in

itself would go to show the criminal intent of defrauding the defacto

complainant.

7. Learned counsel for the 2nd respondent further submits that

none of the link documents of the property which was sought to be

sold to the defacto complainant were being provided, which raises

doubt whether there was any such project which was undertaken

and it is apparent that only for the purpose of cheating, the

petitioners have taken the amount, failing which, the petitioners

would have provided all the relevant documents. In the said

circumstances, this court interfering in the process of investigation

would not meet the ends of justice. In support of his contention, he

relied upon the judgments in the cases of; i) Neeharika

Infrastructure Private Limited v. State of Maharashtra6 and

argued that the Hon'ble Supreme Court has laid down guidelines

that the High Court under Section 482 of Cr.P.C cannot embark

upon an enquiry into the merits and demerits of the allegations and

quash the proceedings without allowing the investigating agency to

complete its task. Further, none of the parameters that are laid

down in the said judgment for quashing are made out. Counsel also

relied upon ; ii) M.N.Ojha v. Alok Kumar Srivastav7; iii) Alpic

Finance Ltd., v. P.Sadasivan8; iv) Dr.A.Chandrasekhar v. The

State of Telangana through SHO, Panjagutta PS9 of this Court.

8. The Honourable Supreme Court in a catena of decisions had

cautioned the High Courts that FIR can be quashed only in the

rarest of rare cases and the powers of the High Court shall not be

used to stifle legitimate prosecution or investigation, unless the

(2021 SCC OnLine SC 315)

(2009) 9 Supreme Court Cases 682

(2001) 3 Supreme Court Cases 513

Criminal Petition No.1621 of 2021

cases fall within the rare category, wherein the facts and

circumstances do not make out any case for prosecution under IPC.

9. In the instant case, the petitioners have offered to sell the plot

to the defacto complainant and several others in the name of

'Broadway' project. Even according to the complainant, though it is

stated that the petitioners had intention to cheat the defacto

complainant from the inception, however the transactions interse

between them would reveal that the said sale transaction did not

conclude for the reasons of both parties not abiding by their mutual

promises that were made. According to the petitioners, though

there was an agreement to make payments in accordance with the

schedule, the said schedule was not followed and in fact it was the

defacto complainant who went back on the purchase and had

addressed email stating that the defacto complainant and late

Dr.Ashalatha Reddy wish to withdraw from the project. It is not the

case that the defacto complainant was ready with the remaining

amount as agreed and thereafter, the petitioners have refused to

register the plot. Admittedly, there was a delay in giving amounts to

the petitioners and in turn, there was delay on the part of the

petitioners in executing the project as promised.

10. For the reason of disputes, the defacto complainant had filed

a civil suit. However, the said civil suit was dismissed for non

prosecution. No steps were taken to restore the said suit. In the

company petition, the defacto complainant has accepted the

amount of Rs.21,75,000/- towards debt claimed by the defacto

complainant, who was the petitioner in the said company petition.

11. As seen from the transactions between the petitioners and the

defacto complainant, the sale transaction did not go as planned, as

already discussed, both are responsible.

12. Having received the amount in the Company Petition, the

defacto complainant failing to prosecute the Civil Suit for the

amount which she claims to be outstanding, she cannot resort to

criminal prosecution, which indicates that she is not having interest

in money that has to be recovered but only to prosecute petitioners

criminally. When the defacto complainant is not interested to

safeguard her interests in getting back her money as claimed and in

the background of the present case as discussed above, criminal

proceedings cannot be allowed to be proceeded with. In the

peculiar facts and circumstances of the present case, the

transactions appear to be purely civil in nature and the basic

ingredients of Section 420 or 406 of IPC have not been fulfilled to

continue criminal prosecution.

13. In the result, the proceedings against petitioners/A1 and A2 in

Crime No.149 of 2012 on the file of P.S.Panjagutta are hereby

quashed.

14. Accordingly, the Criminal Petition is allowed.

__________________ K.SURENDER, J Date: 13.09.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL PETITION No.4633 of 2013

Date: 13.09.2022.

kvs