Allowed

M/S.Aditya Housing and Infrastructure and Another v. the State of Telangana and Another

Telangana HC18 Feb 2022CRLP/10637/2016

Case brief

AI extract

What is this about?

Court allowed criminal petition under Section 482 Cr.P.C to quash proceedings against petitioners for cheating. Found allegations pertained to civil breach of contract regarding advance payment and documentation. Held that suppression of mortgage did not prove intention to cheat from inception.

What did the court decide?

Quashed proceedings in CC No.543 of 2015; pending criminal proceedings closed.

M/S.Aditya Housing and Infrastructure and Another Vs… — Cheating and Forgery | Telangana HC (2022)

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oF^TELANGANA rN rHE^{HrGH 'R1{3$"'sf"'sE} t',f,H ^ F^{RI D AY' r H EEI GHr EEXI$'$"',"-!I}

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PRESENT

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THE^{HONOURABLEDr'JUSTICE G'RADHA RANI} 6370^F2016 CR IN A P T lTt^NNo:1

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Be*''een: #h' ' Hi:"..ft':'is,'[1ill',id l,{'S;JJ5',',&"ff:3ii[:il''"d;fl:l3XlB'"i$; ' i,i.$,:rpu",tiq ';'",**':*r.ffi ;:::::

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AND

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1 , S:X'i il.?Ps^sR H?,i,A,:"::],"13ir,i[f, Nasar' "'o"uo'o' .']]'1ffi

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2 ?;i€l,Biii?,1gfi^{SlY;Yi;,'-ll3lillJ?:$il7;hXli:il:ft"'?3,'.["?'='-} i'lagar'^Hyderaoa RESP.NDENT/DEFA.T.^..MPLAINANT

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Petition^{under Section 482 of Cr'P.Cprayingthatin the circumstances stated} petition' the^{HighCourt may be pleased} in the^{lvlemorandutot o'ounot'o'} ""'"'' * file of^{the lll Additional ChiefNiletropolltan} 'n" to^{quash the CC No'543} ' 'o,1 " Magistrate^{at NamPallY' HYderabad}

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CRLPMP.^{NO:11552OF 2016}

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Petition^{under Section 482 of Cr'P C prayingthatin the circumstances staled} in the^{Memorandumof Grounds of Criminal Petition' the HighCourt may be pleased} to stay^{of all further proceedings including appearanceof the petitioners/accused} U' on^{the file of the lllAdditional Chief} Nos.1 and^{2 in C C No S4t o'} Metropolitan^{Magistrate at Nampally' Hyderabad'} 'Ot^{pendingdisposal of Crl P'} This Petition^{comingon for hearing,upon perusing the Memorandum of} Grounds of^{Criminal Petition} and upon^{hearing the arguments of Sri K'} Petitioner^{and the Assistant Public Prosecutoron} Venumadhav,^{Advocateforthe} 1 and of Sri^{G. Ralesham, Advocatefor the} behalf of the^RespondentNo Respondent^No.2.

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The Court^{made the following:ORDER}

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---.*i\i

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fHE HON,BLE Dr. JUSTICE G. R{DHA R.{Nl C R IM INALPIT r1'l ON otU)[It: o.l 0 637 9t' 20lf

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Thir petition is filed by the peritioners-Al and ,42 under Section 482 Cr.p.( to quash re proceedings in CC No.543 of20)5 on the frle of III Addil onal Chief Metropolitan Magistrate, Nampally, Hyderabad.

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Tl ." case ofthe petitioners in brief was that the 2"d respondent filed a privr te compliant against them alleging that ,A2 had started a venture, b; name, lvI/s. Aditya Housing and Infrastructure Developmen and that he was going to construct an apartment in the name and st, le of "Empress Heights,, consisting of one cellar + subcellar + stilt + 22 tppe.r floors ar Shaikpet village, Hyderabad and intimated to the complainanr thar he had taken perrrission fi.om GHMC, Hydt :abad for construction of the same. Al was the Director olAl Compa y. Believing 42, the complainant booked trvo Flats, one in his name ar d another in rhe name ol. his daLrghter. FlLrt Nos. I l0 and 210, a rotal ex ent o1' approxirnatel) 1.-s00 sti,, in the said apallntent on 03.08.2010 a: d paid an advance amount ol Rs.10.00 lakhs. A2 promised that the construction would be completed within one year from the date ,fthe said payment and on 03.03.201I the representative of Al compa y issued an allotment^{letter to the complainantfor the} above^{said fl rts' Thecomplainant made tepeated requests to provide} rian^etc '^{of the bookedflats to approachthe bank for the} docurrents' purpose^{of \oan' lnspiteof several requests'A2 failed to supplythe}

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Dt GRRJ 2.

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same, The complainant^{requested A2 to retum the advance amount} with interest. On 25.03.2013, A2 had taken a blank^{letter from the wife} of the complainant with a promise to return the amount along^with interest and damages within 25 days. But contrary to the said^promise, he failed to repay the same. The complainant came to know that .{2 with an intention to cheat hirn suppressed the fact that the flats booked by the cornplainanl were mongaged to GHMC, Hvderabad. The complainant carTre to knou'the same by an app)ication filed under Right to Infonnation Act before the GHMC. Thus, Al and A,2 cheated the complainant by taking advance amount of Rs.10.00 lakhs against the mo(gaged property which was in violation of rules and instructions of GHMC and committed the offences under Sections 406, 420 and 506 read with 34 IpC. The said complaint was referred to the police for investigation. The same was registered as Crime No.i 137 of 2014 by the SR Nagar police and after completing investigation, filed charge sheet against A I and .42 for the offences under Section 406, 420 and, 506 IPC

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Heard the leamed counsei lor the petitioners, learned counsel for the 2,d respondent and the leamed Assistant public prosecutor fbr the l'r respondent.

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l I-eamed counsel lor the petitioners submifteci that the allegations in the comp Iaint or in the charge sheet would not constitute any offences punishabl e under Sections 406,420 and 506 IpC. The complaint was referred without there being any affidavit filed by the

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2nd respor Jent and^{without approachingthe concemed police and in} violation^, f the^{judgmentof the Hon'ble Apex Court in Priyanka} Srivastav: and^{anotherv. Statel'The allegations made againstthe} petitioners werc civil in^{nature as it was regarding non-refundof} advance an )unt^{paid by the 2nd respondent' The2nd respondentdid not} want to^{pur, hase the said flats andwanted to get back his amount'As} such, the^{il itiationand continuation of criminalproceedingswas} nothing but^{n abuseof processof law and was liableto be quashed'} As^{per the 2' I respondent'the said ilats rvereallottedin his f'avour on} 03.08.2010^{opalt paymenl but the complaintrvas liled in the year} 2014.^{Withot' payingthe entiresaleconsiderationas per the allotment} le$er,^{the conplainanthad chosen a shortcut methodto get back his} advance^{amou rt and t-rled the said complairrtonly with an intcntionto} harass^{and to causedis-repr'rte1o the petilioners' lhe lnvestigating} oitrcer^{had ar o notinvestigatedinro the racl ol obtainingoccupanc'v} certificate^{fro r GHMCby the petitionerswithregardto the flats} constructed^{by the petitionersandprayedto quashthe proceedings'}

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5'^{Lear redcounselfor the 2ndrespondent'o" t1'" 61ter hand'} submitted^{tha as on the date of eflteringinto agreement by the} petitioners^{wi11 the2nd respondent'the property was mortgagedwith} the^{GI{N4Can' the said factwouldclearlyshowthat the petitionershad} an^{intention c' cheating the2nd respondentfrom the inception itself} attracting^{the rft-ence under Section420 iPC'as suchthiswas not a} case^{of quashi'g the ploceedinBs ttnder Section'182Cr'P C'}

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, '9g5 i61sCC^2lt'

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I l-

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6'^{Leamed Assistant Public Prosecutor also opposedthe petition} submitting^{that the matter was coming for cross examination of PW'l} before^{the trial Courtandprayed to allow the trial to be continuedso} that^{the truth of the allegations could be known'}

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7.^{Perusedthe record As per the complaint'the 2nd respondent} intended^{to purchase two flats'one for him andanotherfor his} daughter,^{and paidan amountof Rs'10'00 lakhs (Rs'5 00 lakhs each)} towards^{advance sale considerationof booking flatNos110 and 210 in} the^{apafiment constructedin the nameand styleof "Empress Heights"} at Shaikpet^{village'Hyderabadby the petitioners hetein'The} contention^{of the2"d r.espondentwas that he requestedthe 2nd petitioner} to^{provide the documents and plan of the booked flatsto enable himto} apply^{fora bank loanbut the petitioners failedto comply the same'His} another^{contentionwas that the 2nd petitionerwithan intention to cheat} him,^{suppressedabout the mortgageof the bookedflats with the} GHMC^{and cheatedhim'He further contended that he requested for} retumoftheadvanceamount,butasthepetitionersfailedtoretumthe amount,^{filedthe privatecomplaint'}

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8'Therecordalsowoulddisclosethatthepetitionershadissucd a notice^{to the2"'r respondent on 14 02 2012 prior to his lodging the} private corr.rplaint^{itsellstatingthat he rvas overduean amountol'} Rs.37,50,000/-^{asperthe payment schedule agreed between the parties} and they had^{issued several lettersbutas the 2nd respondentfailedto} make the^{subsequentnayments sincethe date of booking' left with no}

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other otr ion, they had cancelrFrr rr.^ L ,. ,,+ r",*i]'i'rfil """0^{the booking} of flats by forfeiting tfie amount. primafaca ,, uoo, " to be a breach ofcontractual obrigation between he parties d ,h" Iies in filing a civii case for retum of the ad /ance amount 0",. o' ''" 2'd respondent in favour of the petitione But, instead or' o"nu a civil case' the 2'd respondent resorted to fire a criminal .ur. against the petitioners,

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L amed counsel f, or the petitioners relied upon a judgment of the Hon,br, Apex court Mohan Goswamy r'. State of uttarancha r, wherein the.r Jtrn'ble Apex Coun alier relerring ro rhe various decj ions delivered by it earlier on the scope antj arnbit ol. power of C< "rrls under Seoion 4g2 Cr.p.C and after extracting the definition of, heating under Section 415 IpC punishable under Section 420 IPC,held :hat;

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'.!?..,r:,^ reading of rhe aloresaid secrion. it is manilest that i L the definition there are tr\ r:,,",,* 1*:+;r*dT";T.'fiffi;.lf::: il tJ rusr rass ot acts he may be induced nrrari."j, ..i drsho esrly to deliver p.opi.t t. class f acrs ;.,r," a"i,ie ;:;i,,;#,,"tt:lrli,L.;i::fl lli T '?:^L::.i":d^{wouldnordo or omirto ao irf;.} .,. rror sr decerved. In the first class of cases. ,ft.'irir.rn, must I -.fraudulenr or dishonesr. ln tf.,. ,..ona;i;r; ;f;i:: lhe,in( lcing must be intenLional bur need not be frru<julent or drsl )nesr. Thercfore, it is the ir or rrre orence io ;;l;:,;#i:il;lJJrt[H;l" i,i] ll..::.::^{,-t ro, shouLhar hc hud a ii.rudutcr,} ;;;i;i";.., j:ll:Tr I "l rhe rinre ur mating rhe prumise. t.,,, ti.'n,.r. rnIUr,( o 5llDs(qLrellll\ k(cp J nt,,nlts(.,,nc JJnllut pl(j5utnU Ii,^.1 :il^{rt,,,nghrJ a ..ulpubl<irrrcnrj,,rrr,, r.i,'..}-ir,. profirrs lront the ber:iurinp^'

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se\ tbr^{tl.re 2nd tesPonclent} \0.^{The contentionol the \earned coun} Cneal ' _ tt_6 1nJ^{ur' -} tg5Pqndent $,JaS^{\ha\ the le(rtronershad an tntenrron to} (sc)¹⁰⁹⁵ r 1$01^!${Sui

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from^{the inception at the time of making the promise itselfas he} suppressed^{the fact that the tlats whichwereoffered by the petitioners} were^{already mortgaged before the GIMC'Hyderabad'lt is to be} noted^{thatthe 2nd respondenthad also approachedthe State Consumer} Disputes^{Redressal Commissionby filing CC No'169 of 2015} complaining^{aboutthe deficiency in sewice on the partof the opposite} parties^{(petitioners herein) directing them to refundRs'10'00'0001paid} towards^{advance sale consideration together with interestand the same} was dismissed^{by the said Commissionon 28 04'2017'}

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It^{is also to be noted that it was a common practice that} certain^{flats in any project under constructionwould be mortgaged to} CHMC^{ancl rvould be released later lrom morlgage once the} construction^{was cotnpleted and during continuation of the mo$gage'} the mortgaged^{flarscould not be sold' but however'agreementof sale} or booking^{could be done with the undertaking thatthey could be sold} subject to^{releaseof mortgageandthe 2nd respondenthad not filed any} document^{to show thatthe flat Nos'110and210 had been specifically} mortgaged in^{favourof GHMC and that the charge sheet would} disclose that i0%^{of the built up area in the 1't floor and 5% ofthe built} up area in the^{2nd floor was mortgagedto GHMC Authorities'The} record would^{disclose that occupancy certificate was also issued by the} GHMC on^{23.0g.2014releasing the mortgageThus' it cannot be said} that the^{petitionershad an intentionto cheat the2nd respondentfrom the} beginning and that they otfered to sell^{the mofigagedplopertyt0 him}

,".,rr;;ffl and the eby cheated him. Th- _^nring a civir suit by the 2nd respr ndent ror ",",,,, I.,.iri:l::, ff ;,, ;ffi*::*"^";;".,:#;. _:; ; case- ?he contents ( tnut'" sheet a]so wouid not dr.sclo 'se^the ingredients of rhe ,ni'tn" under Sections 4 ,6 and.506 Ipc. such' it is considered a,--ences proceedingr against the 0"r,,,.o in cc No 5.3 ot 20l5 i,::::: rII Addition .r chief Metropo,rnc'rs lan Magisrrare, Nampally, Hyderabad.

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h tbe result, the criminal Petition is allowed quashing the proceedings r r cc No.543 o 2015 on the file of III Additionai chief Metropolitan dagistrate,-f npally' Hyderabad against the petitioners -^Ar and, A2.

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To,

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_lairy,.lre r99rlp91ilions pendin C, if any, shall stand closed.

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SECTION OFFICER