High Court of KeralaSingle Judge2023-09-13The Criminal Revision Petition is dismissed and...

Nishanth Chundakkandi and Nimisha v. Nisar Abdul Rehman and State of Kerala

Case / Petition Number:Crl.R.P. No.343/2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-09-13
Court Decision / Holding: The Criminal Revision Petition is dismissed. The High Court upholds the Magistrate’s view that the allegations do not constitute an offence under section 420 IPC and affirms the dismissal of the complaint.
Final Disposition: The Criminal Revision Petition is dismissed and the order of the Judicial First Class Magistrate, Taliparamba, is sustained.

Parties to the Case

Appellants / Petitioners

Nishanth Chundakkandi
Nimisha

Respondents

Nisar Abdul Rehman
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Lijin Thamban
• G. S. Krishnan Kartha

Counsels for Respondents

• R. Surendran
• C. S. Hrithwik (Senior Public Prosecutor)

Case Synopsis & Summary

This Criminal Revision Petition challenges an order of the Judicial First Class Magistrate, Taliparamba, dismissing a complaint under section 190(1)(a) r/w section 200 CrPC for an offence punishable under section 420 IPC against Nisar Abdul Rehman, the chairman and managing director of Nambras Homes Builders. The petitioners, a husband and wife, paid a substantial sum of money (₹67,13,640) out of the total ₹75,18,800 for a villa project but the builder did not complete construction and allegedly misled them into purchasing plots by presenting a sold-out plot as part of the project. The Magistrate held that the dispute amounted to breach of contract and not to a criminal offence under section 420 IPC, relying on the Supreme Court’s Jose V.Y. and State of Kerala decisions in Reji Varghese. The petitioners contend that a prima facie case has been made out and that the accused had a dishonest intention at the time of entering into the agreement; they urge that it is not for the court to decide guilt at this stage but only whether the prosecution should proceed. The High Court notes the allegations and the partial construction completed by the respondent, but ultimately agrees with the Magistrate that the facts do not constitute section 420 IPC. It affirms the dismissal and dismisses the revision petition.

Provisions of Law Cited

Section 190(1)(a) read with Section 200 Cr.P.C.Section 420 IPCSection 203 Cr.P.C.

Legal Doctrines & Maxims

Not for the court to decide whether the accused could be convicted or not (settled preposition of law under Section 203 Cr.P.C.)
Prima facie case

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioners contend that the complaint discloses a prima facie case under section 420 IPC due to the first respondent's initial promise to develop a villa project, receipt of substantial consideration (₹67,13,640 out of ₹75,18,800), and subsequent abandonment of construction. They assert the first respondent had a dishonest intention at the time of entering into the agreement and misled them into purchasing land. They argue that the court should not determine guilt at this stage but must consider whether there are circumstances to proceed with prosecution, and rely on the earlier decisions cited to support the view that section 420 is attracted by deceitful inducement even within a breach of contract context.

Contentions of Respondents

Respondents submit that the transaction was not a unit of the published villa project but an independent construction agreement; the petitioners purchased land from a third party. The respondent claims non-payment for completed work led to incomplete construction, and there was no proven dishonest intent at the time of entering into the agreement. The defence relies on the factual matrix that partial construction was undertaken and that non-performance resulted from financial/non-payment factors rather than intentional cheating.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jose V.Y. and another v. State of Gujarat and another	(2009) 3 SCC 78	Positive	Cited as authority supporting the view that the ingredients of section 420 IPC may not be made out in this factual matrix; the magistrate’s approach is endorsed by reliance on this Supreme Court decision.
Reji Varghese v. State of Kerala and another	2019 KHC 167	Positive	Cited by the lower court and relied upon by the High Court as consistent with a view that not every breach coupled with non-performance amounts to 420 IPC; used to justify non-fulfillment of the offence’s elements.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 13[TH] 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.** **--------------------------------------------------Crl.R.P. No.343 of 2023 ---------------------------------------------------** _**Dated this the 13[th] 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 1[st ] 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 1[st] respondent. 3. To the predicament of the petitioners, the 1[st] respondent did not complete the construction of the building. Crl.R.P. No.343/2023 : 3 : It is the case of the petitioners that the petitioners wanted to purchase another plot of land for the Villa construction. The 1[st] 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 1[st] 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 1[st] 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 : 4 : _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 1[st] 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 1[st] respondent had given initial promise of Villa Project and after executing agreement and receiving money, the 1[st] 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 1[st] respondent at the time of entering into agreement. Crl.R.P. No.343/2023 : 5 : 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 1[st] respondent has entered into an agreement for ₹75,18,800/-. The 1[st] respondent has received ₹67,13,640/-. The 1[st] respondent did not abide by the terms of the contract. The building is not constructed. Construction of surrounding amenities is abandoned. The 1[st] respondent had no intention to construct the Villa when the agreement was executed. Crl.R.P. No.343/2023 : 6 : 10. The counsel for the 1[st] 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 1[st] 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 1[st] respondent has not completed the remaining work including door, electrical and plumbing, wiring, interlock, gate and drainage. Crl.R.P. No.343/2023 : 7 : 12. The very fact that the 1[st] 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 : 8 : ## **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.**|