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Judgment
Hon''ble Mr. Justice V. Jagannathan
All these petitions under Section 482 of the Cr.P.C. have common prayer i.e., to quash the F.I.R. in Crime No. 8/2012 and the order of the trial court directing investigation under Section 156(3) of the Cr.P.C. The petitioners in Crl. P. No. 1821/2012 are A-7 and A-8, the petitioner in Crl. P. No. 2170/2012 is A-2, and the petitioners in Crl. P. No. 2298/2012 are A-1 and A-3 in the private complaint that is filed by R-2 Defence Employees Welfare Society (''the Society'' for short). Therefore, these petitions are disposed of by this common order. The private complaint filed by R-2 Society herein led to the court below ordering investigation under Section 156(3) of the Cr.P.C. and in the complaint, the aforementioned society alleged commission of the offences under Sections 120-B, 405, 406, 415, 417, 420, 423, 425, 426 read with 34 of the I.P.C. against the 14 accused persons named in the complaint. The basis for the said offences being alleged against the accused petitioners in short is that, the society had entered into an agreement with the developer in respect of acquiring sites in a layout known as "Rakshapuram Layout" for the purpose of allotting sites to the members of the society and most of the members belonged to the defence having served in various capacities and the other members being the family members of the defence personnel.
It is the case of the complainant-society that to provide sites to the defence persons and other members of their family, the society wanted to buy lands for allotting sites to 716 members, who had applied for the site allotment. Pursuant to the agreement entered into with A-1 and A-2, with the help of A-7 and the other accused also playing different roles like facilitators, developers, etc, several agreements were entered into and consequent to these agreements, A-1 came forward to take over the project and assured the society that the society would be handed over the sites after development. It was also the case of the complainant society that A-7 was released from the project and A-1 took over the entire responsibility and liability of delivering the developed sites to the members of the society.
It is also alleged in the complaint that a time frame was also agreed to between the parties and despite the time frame so agreed, many of the members of the society were not allotted sites though the members had paid amounts and it is the further case of the complainant that though more than 18 crores rupees had been paid to the accused persons towards the aforesaid object of providing sites to the defence personnel, who are the members of the society, the accused not only failed to live upto their promise, but also made several changes contrary to the terms agreed to between the parties. One such modification made by the accused was in the dimension of sites from 30'' x 40'' to 35'' x 45'' and 40'' x 60'' to 45'' x 65''.
Another contravention is that, though the price agreed was at Rs. 250/- per sq. ft., it was increased to Rs. 700/- per sq. ft. and it is also alleged in the complaint by referring to the table that is mentioned in paragraph-24 that the accused persons, contrary to the terms agreed to in the agreement, had sold sites to different persons without the said sites being approved by the society or channelizing the allotment through the society. Khathas were also effected in favour of the persons other than the members of the society despite the agreement making it clear that the sites to be acquired are meant only for the members of the society.
Alleging all the above facts in the complaint, the society, therefore, sought cognizance to be taken against the accused persons in respect of the offences first above mentioned.
I have heard the learned counsel appearing for the respective petitioners and learned senior counsel for R-2 society and learned Government Pleader for R-1 State and perused the material placed.
Learned counsel Shri D. Selvaraju took this court through the complaint averments and also to the documents filed by the petitioners in Crl.P. No. 2298/2012 to contend that, pursuant to the agreements entered into from time to time, 133 sites had been allotted to the members and sale deeds had been executed in respect of those 133 members. Secondly, if at all there is delay in completing the allotment of sites, it was because of various reasons. First of all, the delay was due to some of the erstwhile land owners filing suits in the civil court and having obtained orders of injunction and secondly, the delay was also due to other factors beyond the control of A-1 and A-3.
The land in question however remains intact in the name of the nominee of the society i.e., A-6, and A-1 took over the responsibility from A-7 and towards that, A-1 had made huge payment to A-7 in a sum of Rs. 57 lakhs. Therefore, in the face of several agreements entered into between the parties and change of hands, the entire complaint allegations, therefore, give rise to infer that it is a purely civil dispute between the parties and no intention on the part of the petitioners i.e., A-1 and A-3, can be made out to the effect that they had made up their minds to cheat the members of the society or the society as such. No criminality, therefore, can be attached to the case of the accused petitioners and moreover, the intention to cheat has to be made out at the inception itself, which element is lacking in the instant case.
The petitioners still are ready to complete their responsibility once all the bottlenecks get resolved like, the orders of injunction in the suits pending in the courts against the society and its members and, as such, this court, therefore, has got the power to interfere under Section 482 of the Cr.P.C. In this connection, the learned counsel referred to the decisions of the Apex Court reported in S.W. Palanitkar and others Vs. State of Bihar and another, to contend that mere failure to keep up the promise cannot be presumed as an act leading to cheating. In the light of the aforesaid submissions made and also referring to various documents filed in proof of certain number of sites having already been given to some of the members, the learned counsel sought for the investigation being quashed.
Learned counsel Shri C.S. Saravan appearing for A-2 virtually adopted the aforesaid submissions made by the learned counsel for A-1 and A-3 and except the fact that A-2 happens to be the brother of A-1 and A-3 and no monetary benefit having been obtained by the petitioner, proceeding with the investigation, therefore, is not called for and no specific allegations are made in the complaint against A-2.
Learned counsel Shri S. Mahesh for A-7 and A-8, drawing the attention to the averments made in the complaint itself, argued that no allegations are made against A-7 and A-8. In fact, the complainant-society has conceded in the complaint itself that A-7 was released from the entire project and it was A-1, who took over the entire responsibility of providing the developed sites. In view of the further averment in the complaint that A-7 had executed G.P.A. in favour of A-6 and pursuant thereto, the society also passed a resolution and further the agreement dated 19.9.2008 also making it clear at clause (3) that the society had released M/s Umarajeshwari Estates Pvt. Ltd. from all the obligations and responsibilities, fulfilling the obligations under the said 113 agreements, it is, therefore, argued on the strength of the aforesaid documents and the averments made in the complaint itself that no allegations are there against A-7 in respect of any one of the offences alleged and A-8, being the wife of A-7, has not been even mentioned in the complaint of having played any role. Therefore, proceeding against A-7 and A-8 will be of no use nor would serve any purpose. Hence, the proceedings be quashed so far as they are concerned.
In the light of the aforesaid submissions put forward by learned senior counsel Shri Padmanabha Mahale for R-2 society as well as by the learned counsel for the petitioners, whether the petitioners have made out a case for this court to quash the proceedings against them is the point for consideration.
The Apex Court, in the case of Devendra and Others Vs. State of U.P. and Another, , has held that to attract Section 420 of the I.P.C., misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating. In the case before it, it was found on facts that the appellants before the court had not made any representation to the complainant and no contract or transaction had been entered into by and between the complainant and the appellants and the appellants and, therefore, on these facts, the Apex Court took the view that it could not be said that the alleged act of the appellants constituted the offence of cheating.
In the case of V.Y. Jose and Another Vs. State of Gujarat and Another, , the Apex Court has held that only because civil law can be taken recourse to, that would not necessarily mean that criminal proceedings should be barred. At the same time, it was also held in the said case that, although breach of contract per se would not come in the way of initiation of criminal proceedings, yet, in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Cr.P.C. The observations from the decision of State of Haryana Vs. Bhajan Lal ( 1992 SCC (Cri) 426) were also referred to and at paragraph-103 of the decision, the observations were as under:
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 15. Keeping the aforesaid principles in view as well as the one laid down in the decision referred to by the learned counsel for A-1 and A-3, whether it can be said that all the petitioners have made out a case for quashing of the proceedings in question has to be considered at this juncture.
The entire complaint, on a plain reading, goes to indicate that the society in question had entered into various agreements with A-1, A-2, A-7 and others as could be seen from the agreements referred to in the complaint and the main grievance of the society is that, the members had not been allotted the sites and secondly, there has been modification in the site dimensions from 30'' x 40'' to 35'' x 45'' and from 40'' x 60'' to 45'' x 65'' and thirdly, the price was also increased from Rs. 250/- per sq. ft. to Rs. 700/- per sq. ft. and it is also alleged in the complaint at paragraph-24 that several persons who were not the members of the society have been allotted sites and the details of the persons are given in the table at paragraph-24.
It is also the complaint allegation that the society had paid more than 18 crores rupees but the members are yet to get the sites and, therefore, the complaint allegation is that the accused persons have cheated the society and its members and have also caused wrongful loss and damage to the society. Several agreements have been annexed to the complaint and except 133 sites said to have been allotted to the members, all the 710 members have not been allotted the sites is the main grievance of the complainant society. As the whole complaint is based on several agreements and the terms and conditions agreed to between the society and other parties to the agreement, at this stage, this court, therefore, cannot embark upon a detailed inquiry to examine the genuineness or otherwise of the allegations made in the FIR or the complaint.
In the light of the principle laid down by the Apex Court, insofar as the petitioners other than A-7 and A-8 are concerned, the investigation, therefore, has to go on and the petitioners can provide all the information to the police and if it is found that some of the petitioners have no role to play or that the offences alleged do not get attracted to some of them, the authority or agency concerned would file appropriate report before the court.
As far as A-7 and A-8 are concerned, in view of the complaint averments clearly giving them a clean chit by mentioning at paragraph-8 that A-7 was released from all the obligations and responsibilities and A-1 took over the responsibility of delivering the developed sites and the further fact that A-7 also had executed a G.P.A. in favour of A-6 in respect of the lands in S.Nos. 23, 26 and 28 of Binnamangala village and further, the society also having given up A-7 and A-8 in the whole project, learned counsel Shri S. Mahesh is justified in submitting that the complaint allegations, in the light of the averments made therein, do not make out any case against A-7 and A-8, who is said to be the wife of A-7. As such, insofar as these two petitioners are concerned, a case is made out by them for quashing the F.I.R. For the aforesaid reasons, Crl. P. No. 1821/2012 filed by A-7 and A-8 is allowed and the proceedings initiated and the investigation taken thereon stand quashed to meet the ends of justice.
As far as the other petitioners are concerned, the investigation shall go on in accordance with law and the petitioners are at liberty to place all the material before the investigating agency and the agency concerned shall take into account all those materials and thereafter decide as to whether any case is made out against them or not and to file appropriate report before the court. It is needless to say that the investigating agency shall apply its mind independently to the task before it and not to be carried over by the observations made in this order.
Since the matter is of much importance to the members of the society who, according to learned senior counsel Shri Padmanabha Mahale, have been waiting for years to get a piece of land to have a roof over their head, the agency shall complete the investigation as quickly as possible and not later than December 2012.
Accordingly, Crl.P. Nos. 2170/2012 and 2298/2012 stand dismissed.