Renu C Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** **Crl.Rev.Pet.No.443 of 2018** **CC 688/2016 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANJIRAPPALLY DATED 05-02-2018** ## **REVISION PETITIONER/PETITIONER/ACCUSED:** **RENU C BABU, AGED 40 YEARS, D/O.BABU C.GEORGE, CHANDRATHIL HOUSE, PALARIVATTOM.P.O.** **BY ADVS. SRI.JOHNSON ABRAHAM SRI.NELSON ABRAHAM** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31.** **2 ADDL.R2 DR.N.C JOY,** **S/O CHACKO JACOB, RESIDING AT NEDUMUTTOM HOUSE, PULIKKAL KAVALA P.O, VAZHOOR, KOTTAYAM-686515. (ADDL.R2 IS IMPLEADED AS PER THE ORDER DATED 04/07/2018 IN CRL.MA.3754/2018)** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY BY ADDL.R2 DR.N.C JOY(PARTY IN PERSON)** ## **SRI. RAMESH CHAND PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.443 of 2018 2 ## **ORDER** This petition is directed against the order passed by the court below dismissing the petition seeking discharge filed by the petitioner herein a prosecution initiated against her by the 2[nd] respondent herein under Sections 406 and 420 of the IPC and pending as C.C.No 688 of 2016 on the file of the Judicial First Class Magistrate Court–I, Kanjirappally. 2. Sans the details, the relevant facts which led to the initiation of prosecution proceedings need to be adverted to. BCG Estates is a company incorporated under the Companies Act, 1956 and the petitioner herein is the Director. The Company is engaged in the development of housing plots, construction of Villas etc. The de facto complainant entered into an agreement for sale on 19.3.2008 for purchase of an apartment in the 8[th] floor of an Apartment Complex by name “BCG Mars” for a total consideration of 31,38,763/-. At the time of entering into the agreement, the petitioner undertook that the entire construction works would be completed in the year 2009 and an apartment having an area of 1650 square feet would be handed over. A total sum of Rs.33,14,350/- lakhs was received from the de facto complainant towards apartment cost and incidental expenses. In violation of the Crl.Rev.Pet.No.443 of 2018 3 terms of the agreement, the apartment which was constructed was one with an area of just 1208 square feet. Furthermore, the construction was not completed as undertaken within the agreed period. Stating these allegations, Annexure-A complaint was submitted before the Home Minister of the State on 4.10.2014. The said complaint was forwarded to the Police and Crime No.895 of 2014 was registered on 11.11.2014. The investigation was conducted by the Sub Inspector of Police, Pallickathodu and on its completion Annexure-E final report was laid before the learned Magistrate alleging offences punishable under Sections 406 and 420 of the IPC. 3. After entering appearance before the learned Magistrate, the petitioner herein filed a petition seeking discharge. By the impugned order, the learned Magistrate rejected the same holding that the documents produced by the prosecution as well as the materials accompanying the final report clearly support the prosecution version and the charge cannot be said to be groundless. It is against the said order that the instant revision petition is filed. 4. Sri. Johnson Abraham, the learned counsel appearing for the petitioner, submitted that the specific allegation against the petitioner is that instead of completing and handing over an apartment having an area of 1650 square feet in the eighth floor of the apartment building by name “BCG Mars” in terms of the agreement entered into between the parties, what was constructed Crl.Rev.Pet.No.443 of 2018 4 and completed was an apartment having an area of 1208 square feet. The next allegation is that though the petitioner had undertaken that the construction would be completed in the year 2009, till date vacant possession has not been handed over. Both these allegations have no legs to stand, contends the learned counsel. He would contend that as per the agreement entered into between the parties, copies of which are produced as Annexures-C & D, the builder had agreed to construct an apartment having a super built up area of 1650 square feet. He would point out that Built up Area is the carpet area plus the thickness of outer walls and the balcony whereas, Super Built Up Area is the built up area plus proportionate area of common areas such as the lobby, lifts shaft, stairs, etc. After having executed the agreement, the de facto complaint cannot now turn around and contend that he was intentionally deceived and a lesser area was allotted to him. The learned counsel would further contend that Annexure-H notice issued by the Kottayam Municipality and Annexure-I Tax receipt would clearly show that assessment was completed in the year 2003 itself, prior to the lodging of the criminal complaint and tax was remitted. According to the learned counsel, the de facto complainant insisted that a larger area than what was agreed as per the agreement should be allotted to him and on its basis, refused to take possession of the apartment. Initiation of criminal proceedings are clearly an abuse of process, contends the learned counsel. In order to substantiate his contention that neither the offence under Section 406 nor the Crl.Rev.Pet.No.443 of 2018 5 offence under Section 420 would be attracted, the learned counsel has relied on the reports in **Devendra v. State of U.P.** [(2009) 7 SCC 495], **Dalip Kaur and Others v. Jagnar Singh and Another** [(2009) 14 SCC 696], **Ajay Mitra v. State of M.P. and Others** [(2003) 3 SCC 11] and **Arun Bhandari v. State of U.P. and others** [(2013) 2 SCC 801]. 5. Sri. Vinay, the learned counsel appearing for the de facto complainant, would vehemently oppose the prayer. It is submitted that the petitioner herein had intention to deceive the de facto complainant and this fact is evident from the prosecution records itself. The learned counsel would urge that the petitioner after obtaining a permit, moved the Municipality and sought for enhancing the commercial area from 48 m² to 337 m² and a major portion of the common area was sold to private parties. According to the learned counsel, these acts were done behind the back of the de facto complainant. He would further urge that certain facts were suppressed by the petitioner while approaching this Court. He would also contend that while issuing Occupancy Certificate, the local authority had insisted that the petitioner should obtain a No Objection Certificate from the Pollution Control Board. The same has still not been obtained, contends the learned counsel. At any rate, the allegations against the petitioner cannot be said to be groundless and the learned Magistrate has rightly rejected the prayer, submits the learned counsel. Crl.Rev.Pet.No.443 of 2018 6 6. I have anxiously considered the submissions advanced and have meticulously gone through the final report as well as the records accompanying the same. 7. After admitting the matter, this Court taking note of the fact that the dispute relates to the construction and handing over of an apartment building, directed the parties to the Kerala High Court Mediation Centre to make an attempt to settle the entire disputes. However, it ended in failure. 8. The first and major allegation against the petitioner is that after having entered into an agreement for sale of an apartment having a carpet area of 1650 sq.ft. what was constructed was an apartment having an area of 1208 sq.ft. Admittedly, Annexure-D is the agreement entered into between the parties. A perusal of the agreement would reveal that the de facto complainant was allotted proportionate undivided share in an item of property having an extent of 38.13 cents for the purpose of construction of an apartment marked as 8A in the complex. It states that the petitioner has obtained a building permit on 27/7/2007 from the Kottayam Municipality. The agreement also states that the builder has agreed to construct the apartment with a super built-up area of 1650 sq.ft. for a total cost of Rs.31,38,763.50/-. No where in the agreement has it been stated that the carpet area or for that matter, the plinth area to be allotted to the additional 2[nd] respondent would be 1650 sq.ft. Super Built Up Area is the Crl.Rev.Pet.No.443 of 2018 7 built up area plus proportionate area of common areas such as the lobby, lifts shaft, stairs, etc. The plinth area or for that matter, the built up area of an apartment will be much less than the super built-up area. After having entered into an agreement with open eyes, it would be futile for the de facto complainant to content that he should be provided with an apartment having a carpet area of 1650 sq.ft. Thus, I have no doubt in my mind that the insistence of the additional 2[nd] respondent that he was entitled to an apartment having an area of 1650 sq.ft. is fundamentally flawed. Now the question is whether at the time of entering into the agreement for sale, the petitioner had intent to deceive the de facto complainant. In view of the unequivocal terms in the agreement entered into between the parties, I am of the view that the petitioner was well within his rights in insisting that the de facto complainant was only entitled to an apartment having a super built up area of 1650 sq. ft. and not an apartment having a carpet area of 1650 sq.ft. as is now contended. 9. The records produced before this Court reveal that the construction was completed and Occupancy Certificate was issued by the Municipality. According to the petitioner, a sum of Rs.2,42,641/- is still outstanding from the de facto complainant. Apparently, the balance amount was not paid as the de facto complainant was of the strong view that the area of the apartment which was constructed was much less than that was agreed. The records produced by the petitioner before this Court reveal that the construction of the apartment Crl.Rev.Pet.No.443 of 2018 8 was completed in the year 2003 and the property tax has been remitted. 10. The next question is whether, in the facts and circumstances the offences under Section 406 or Section 420 of the IPC are made out. ## 11. Sections 405 of the IPC defines `criminal breach of trust', which reads as under: "405-Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". 12. The ingredients in order to constitute a criminal breach of trust are: - (i) entrusting a person with property or with any dominion over property - (ii) that person entrusted - (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation; Crl.Rev.Pet.No.443 of 2018 9 (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust. 13. From the discussion above, I do not think that there are prima facie materials to conclude that the petitioner herein had dishonestly misappropriated or converted to her own use any property in violation of any directions of law. 14. Section 415 of the IPC, on the other hand, reads as under:- "415. Cheating—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'." 15. An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating. 16. The ingredients of Section 420 of the IPC are: - i. Deception of any persons; - ii. Fraudulently or dishonestly inducing any person to deliver Crl.Rev.Pet.No.443 of 2018 10 any property; or iii. To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit." 17. In other words, to hold a person guilty of offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. 18. It is luminescent from the materials before this Court that there are no materials to conclude that the petitioner had suppressed any material facts or that she had induced the de facto complainant to part with amounts with intent to deceive him. Annexure-D agreement details the manner in which the payment has to be made. If payment is made as per the schedule, the petitioner was bound to hand over possession of the apartment as agreed upon by the parties and if there is any dispute, the said matter will have to be adjudicated in the appropriate forum. 19. As has been held by the Apex Court in **Indian Oil Corporation v. NEPC India Ltd.** [2006 (6) SCC 736], there is a growing tendency on the part certain litigants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature. This is with a view to apply pressure on the accused to force them to come to a settlement. The criminal courts are to ensure that proceedings before it are not used for settling scores or Crl.Rev.Pet.No.443 of 2018 11 to pressurize parties to settle disputes. It also cannot be forgotten that several disputes of a civil nature may also contain ingredients of a criminal offence and if so, they are to be tried as criminal offences. However, in the facts of the instant case, I have no doubt in my mind that the allegations will not constitute the offence either under Section 406 or under Section 420 of the IPC. 20. In that view of the matter, I am inclined to hold that the learned Magistrate was not justified in dismissing the application filed by the petitioner for discharge. The said order will stand set aside. The petitioner will stand discharged. The revision petition is allowed. **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP //TRUE COPY// P.A. TO JUDGE Crl.Rev.Pet.No.443 of 2018 12 **APPENDIX** ## **’ - PETITIONER S ANNEXURES:** **ANNEXURE-A TRUE COPY OF THE FI STATEMENT DATED 4.10.2014 ANNEXURE-B TRUE COPY OF THE FIR IN CRIME NO.0895/14 PALLICKATHODU POLICE STATION ANNEXURE-C TRUE COPY OF AGREEMENT FOR SALE DATED 19.03.2008 ANNEXURE-D TRUE COPY OF AGREEMENT FOR CONSTRUCTION DATED 19.03.2008 ANNEXURE-E TRUE COPY OF THE CHARGE SHEET ANNEXURE-F TRUE COPY OF SUPER BUILT UP AREA CALCULATION PREPARED BY THE COMPETENT ENGINEER ANNEXURE-G TRUE COPY OF THE DISCHARGE PETITION CMP.NO.2949/17 IN CC.NO.688/16. ANNEXURE-H TRUE COPY OF THE NOTICE NO.,660 DATED 10.5.2013 ISSUED BY KOTTAYAM MUNICIPALITY TO THE OWNERS OF THE PROPERTY IN RESPECT OF DOOR NO.IV/729J ANNEXURE-I TRUE COPY OF THE PROPERTY TAX RECEIPT NO.990 DATED 23.10.2013 FOR THE PERIOD 2013-14 IN RESPECT OF APARTMENT NO.8A (NO.IV/729J ISSUED BY KOTTAYAM MUNICIPALITY)** **’ - RESPONDENTS ANNEXURES:** **R2(A) TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE KOTTAYAM MUNICIPALITY DATED 27.7.2007. R2(B) TRUE COPY OF THE APPLICATION DATED 11.4.2011 SUBMITTED BEFORE THE KOTTAYAM MUNICIPALITY THROUGH THE PROPERTY OWNERS. R2(C) TRUE COPY OF THE EMAIL DATED 5.9.2012 SENT BY BCG BUILDERS TO THE RESPONDENT HEREIN. R2(D) TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE KOTTAYAM MUNICIPALITY DATED 1.4.2013.** Crl.Rev.Pet.No.443 of 2018 13 |**R2(E)**|**TRUE COPY OF THE RELEVANT PAGE OF THE TAX**| |---|---| ||**PAYMENT REGISTER MAINTAINED BY THE KOTTAYAM**| ||**MUNICIPALITY.**| |**R2(F)**|**TRUE COPY OF THE REPLY RECEIVED UNDER THE RTI**| ||**ACT ON 15.1.2016 OF KOTTAYAM MUNICIPALITY.**| |**R2(G)**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**30.04.2014 SUBMITTED BEFORE THE DY.S.P.,**| ||**KANJIRAPALLY.**| |**R2(H)**|**TRUE COPY OF THE LETTER DATED 06.01.2017 SENT**| ||**TO THE PCB AUTHORITIES BY THE ACCUSED.**|