Gujarat High Court
Virendra Girishbhai Patel vs State Of Gujarat on 14 August, 2025
NEUTRAL CITATION
R/SCR.A/4730/2014 ORDER DATED: 14/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMeenaL APPLICATION (QUASHING) NO. 4730 of 2014
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VIRENDRA GIRISHBHAI PATEL & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SI NANAVATI, SR. ADVOCATE for MS MITA S PANCHAL(530) for the
Applicant(s) No. 1,2
NIYATI D CHAUHAN(9082) for the Respondent(s) No. 2
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/08/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioners prayed for quashing and setting aside FIR being C.R.No.I - 194 of 2014 registered with Vastrapur Police Station, for the offences punishable under Sections 406 and 420 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioners herein.
2. Brief facts of the case are as under:-
2.1 That the petitioners are engaged in business of construction in the name and style of M/s. Virgo Infracon from 2010 and the petitioners No. 2 happened to be silent partner of the said partnership firm.Page 1 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025
NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined 2.2 That the petitioners have launched one scheme Peral.36 in 2011 after obtaining all necessary permissions and approving the plans of construction from competent authorities.
2.3 That one Amrutlal Laxmidas Ardeshna had visited the site of the petitioners's scheme named "Pearl 36" and after exaMeenations all the papers and documents voluntarily booked the flat being Flat No. 27 in August, 2012.
2.4 That thereafter the respondent No. 2 made first payment by issuing cheque on 19-8-2012, wherein the cheque was issued of dated 6-8-2012 and after that the respondent No. 2 suppose to pay balance amount within two months from the date of booking of the flat, which the respondent No. 2 failed to pay, and therefore, liable to pay interest on the balance amount.
2.5 That thereafter on 5.4.2013, sale deed was executed and simultaneously possession was also handed over to the complainant for whom the respondent No. 2 issued possession receipt stating that he is satisfied with the construction quality and other common aspects of scheme.
2.6 That thereafter the respondent No. 2 also filed complaint before the Consumer Forum being Complaint No. 244 of 2013, which is still pending for adjudication.
2.7 That thereafter the complainant had approached to the police authority for registering the FIR failing which he had Page 2 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined approached this Hon'ble Court for registering the complaint, but the said petition was not entertained by this Hon'ble Court by order dated 18-3-2014.
2.8 That thereafter the petitioners constrained to file Special Civil Suit No. 341 of 2014 before the court of Ld. Principal Civil Judge, Ahmedabad (Rural) for defamation against the complainant, wherein on 18-8-2014 court commission was carried out and it was reported in the report that there is no substance in the complaint of the complainant in spite of that, the police authority had registered the FIR being C.R. No. I 194 of 2014 under Section 406 and 420 of IPC which is nothing but clear abuse of process of law.
2.9 Hence, this petition.
3. Seeking quashment of the FIR, learned Senior counsel Mr. SI Nanavati assisted by learned advocate Ms Mita Panchal for the petitioners would mainly argue that dispute raised by the complainant is at the most is of a civil nature and nothing more than that. He would further submit that by filing the complaint, civil wrong has been given colour of criminality. Taking this court to the facts of the case. learned Senior advocate would submit that petitioners is the partner of M/s Virgo Infracon and they have constructed apartment, namely, Pearl 36 behind Rajpath Club, Bodakdev. He would further submit that the complainant is a purchaser of flat No.
27. He would further submit that in a complaint, the complainant has raised multiple aspects, however, none of such aspects proved to be an offence under section 406 and Page 3 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined 420 of the IPC. He would further submit that at the most, the contention raised in the complaint would be treated as deficiency of service, but none of them could be treated as a criminal breach of trust or cheating. He would further submit that the sale deed has been executed in favour of the complainant (Annexure B) and the possession receipt is also issued by the complainant (Annexure B collectively), which indicates that the petitioners have stood to what he has promised to the complainant. He would further submit that the complainant has purchased the terrace of flat No.26, sale deed of which has also been executed along with sale deed of flat No. 27. He would refer to clause 21 of the sale deed at Annexure B and submit that right of utilization of the adjourning land was also given to the complainant. He would further submit that the alleged cash were given to the complainant, which is reflected from the possession receipt. In all, he would submit that whatever has been promised by the builder petitioners to the complainant, it has been given by way of sale deed. He would further submit that main grievance of the petitioners is that selling of terrace of flat No.26 is in contravention of the circular issued by the Director General of Police, however, the complainant has also sold said terrace to Komalben Sunilbhai Parikh by executing sale deed in 2021 (page 356). He would further submit that a person, who has committed wrong, cannot claim that the petitioners have also committed wrong. Even otherwise, the same would not attract the offence under Section 406 and 420 of the IPC.
3.1 Mainly upon above submissions, learned Senior counsel Page 4 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined Mr. Nanavati would submit to allow this petition.
4. Per contra, learned advocate, Mr. Meena appearing for the private respondent, as against the aforesaid submissions, would submit that selling of terrace is banned under the Gujarat Ownership Flat Act. He would further submit that the Director General of Police issued a specific circular and directed that if any person, who sold terrace in an apartment to any third party, has breached circular and attracts the offence under section 406 and 420 of the IPC. He would further submit that in the present case, admittedly, the petitioners, who have purchased the property, has sold terrace of flat No.26, which is in contravention of the circular issued by the Director General of Police so also the Gujarat Ownership Flat Act. He would further submit that as many as 15 different complaints have been raised in the FIR. The petitioners, who are developers of the scheme, namely, Pearl 36, in a brochure, promised to give multiple amenities, however, failed to do so and in result thereof, they have committed breach of promise, which attracts the offence under Section 406 and 420 of the IPC.
4.1 Upon above submission, learned advocate Mr. Meena requests to dismiss the petition.
5. Learned APP joined the argument of learned advocate Mr. Meena and referred to the investigation carried out in the matter. He would submit that charge sheet is already filed before the learned trial court, which indicates existence of the prima facie case against the petitioners and and therefore, Page 5 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined both the petitioners may be directed to face the trial. Upon above submission, he would submit to dismiss the petition.
6. I have heard learned advocates for both the parties and also considered the documents placed on record.
7. In Ashok kumar Jain v/s. State of Gujarat [SLP Criminal No.1850 of 2020, the Hon'ble Apex Court explained the applicability of offence u/s 406 and 420 of the IPC, which reads as under:-
"9. The FIR has been registered under sections 406 and 420 of the IPC. The scope and expanse of these sections is better appreciated in the company of sections 405 and 415 of the IPC. This court in the case of Radheyshyam v. State of Rajasthan4, culled out the following ingredients to constitute the criminal breach of trust:
"11. For an offence punishable under Section 406, IPC, the following ingredients must exist:
i. The accused was entrusted with property, or entrusted with dominion over property;
ii. The accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and iii. Such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract."
8. In background of the aforestated settled provisions of law, let refer the FIR, whereby 15 different complaints have Page 6 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined been raised by the complainant as under:-
"1. In the approved plan, a common 4.50-meter road was approved around the common garden inside the society. Out of which, a 1.20-meter road has been kept and the rest 3.30 mtr road has been sold to the ground floor owners. This has been sold to the owners of flat nos. 1, 2, 10, 11, 19, 20, 28, 29 and it is also shown as a private garden in the brochure. Further, the owner of flat no. 29 has closed the road in front of their house and taken possession of the land of the road. This road and margin land is considered as combined ownership of all members. The exclusive rights have been given to the ground floor owners in the deed, which are totally considered illegal.
2. In Virgo Infocon Pearl-36, the terraces of the blocks of the flats, which are for common use purpose, have been shown as private garden in the brochure and sold to the house owners of the flats no. 9, 27, 36, 18. Thus, the common space has been sold by the builder. The Pearl-36 scheme has 36 flats and is a three-storey scheme. It is for the use of all 36 flat owners, but the builder has taken money from the above-mentioned owners and sold them the said four terraces. Rights of the terraces were purchased by this flats. We booked flat no. 27 and the terrace part was also included in the flat price of Rs. 48,51,000/- which includes Rs. 19,24,000/- for the terrace which was taken by the builder. The deed was executed on 05/04/2013 wherein it is mentioned that the terrace rights of 1539 square feet were given independently.
3. When the builder sold flat no. 27, they stated the area as 2063 square feet in the brochure and accordingly the money was paid for the flat. When the deed of my flat was executed, the area of my flat was shown as 1192 square feet. Thus, less area of construction has been given than the money taken from us.Page 7 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025
NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined
4. Due to poor construction in most of the blocks, there is leakage of rain water and sewage water, in which water falls from the slab of the basement. For example, there is water leakage in flat no. 23, 20 and 24, 21.
5. The plan approved by Ahmedabad Municipal Corporation approves safety lift for six people wherein the conditions of the license has not been complied. They have installed a less capacity lift by mentioning lift with a capacity for five people. The said lift gets shut down at anytime during power supply cut or break down and any time the incidents of people getting trapped occurs. The lift is not installed with the system that, when the power supply went off, the lift gets open by stopping at nearest floor by the backup system. Thus, a modern system has not been installed.
6. In the approved plan, the society was supposed to have 50% Car Parking, 40% Cycle and Scooter Parking and 10% Visitor Parking. Upon not planning it, no visitor parking or scooter parking has been provided. A gym, a theater and the society office etc. have been illegally constructed on that place.
7. In the brochure, the builder has shown ten rooms and six toilets for servants and drivers in the basement. Instead of these, only two rest rooms and two toilets have been constructed.
8. Further, on contrary to the space of the approved plan, a gymnasium, tennis room and theater have been constructed in the space for parking. Also, the margin land behind the flats has been sold to the respective flat owners.
9. The builder has shown in the brochure that each Page 8 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined member would be given two car parking and the cost of which was included in the price of the flat. However, most of the members have been given less space for car parking.
10. In the approved plan, as per the government rules and Annexure 'A' of the letter no. PHR-102004- 169-L dated 27/07/2004 of the Urban Development Housing Department, Gandhinagar, a rainwater harvesting system and two bores are mandatory. The builder has obtained the B.U. permission without constructing a single bore or a rainwater harvesting system.
11. For B.U. permission and other work from the Ahmedabad Municipal Corporation, N.G.T. Vipin & Bhailal Contractor obtained permission falsely by submitting certificates without the signatures of the Supervising Engineer and Engineer. (As we had asked for information under RTI Act, this fact was revealed)
12. Different types of tests were conducted at M/s. Mukesh A. Patel Technical Consultancy Civil Engg. Laboratory (ISO 9001 certified & Govt Approved Laboratory), wherein it is stated that the strength of the second column and slabs are weak. The results in the test are 22.66, 14.49, 17.26, 9.67, 13.59, 12.47 N/mm2. These are very weak results. As per the Indian Standard Code, the minimum should be 25 N/mm2. This indicates extremely poor construction. Thus, the builder has done very poor construction, which cannot withstand an earthquake and it is very risky to live in this building.
13. In this society, the builder has collected the money as security deposit from all the members. However, the management of this deposit has not been handed over to the society till date and no accounts or audit reports have been provided to us-Page 9 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025
NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined members.
14. Upon hiding the facts of the approved plan of this scheme, for the personal benefit, a brochure was made with facts contrary to the approved plan. On this base, committed breach of trust and fraud to the members of the society. The brochure and copy of the approved plan is hereby produced. As per the judgment of the Hon'ble Judge Mr. K. J. Rohee, Mumbai High Court, the brochure is considered to be the legal document and a copy of the same is attached herewith.
15. In this scheme, the builder has not extended the sewer and air vent pipes to their full height and has left them in the middle in incomplete condition. Due to this, a bad smell from the sewer and toilets comes into the houses and the society, which is extremely harmful to health. The builder has shown negligence in such a serious matter."
9. In the offence, investigation has been carried out. According to the investigation papers produced on record by the learned APP, what appears that other residents of Pearl 36 have no complaint against the builder - petitioners. It is only the complainant who has raised multiple complaints against the petitioners. It is also established from the papers that Pearl Cooperative Housing Society has been formed amongst the owners of the different block holders of Pearl 36. This Cooperative Society has not given any permission to the complainant to lodge a complaint on their behalf. Moreover, what appears that the AMC has granted BU permission to the builder for the scheme Pearl 36 by raising various issues. It appears that the complainant has tried to settle the personal score by filing the complaint. Moreover, such complaint, if Page 10 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined taken on its face value, is at the most attracting the breach of promise and nothing more than that. Admittedly breach of promise would not entail provisions of section 406 and 420 of the IPC. At this juncture, I may refer to the order dated 25 th November 2019 passed by the coordinate bench of this court while issuing rule and granting interim relief in favour of the petitioners:-
"Heard learned advocates for the appearing parties.
It appears that the First Informant Report (FIR) which is registered for an offence under Sections 406 and 420 of the Indian Penal Code (IPC) has its root in different complaints by the purchaser for which, he has to approach different authorities for the resolution of his grievances. At the same time, it appears that the first informant has already approached the Consumer Forum, as submitted by Mr.Sudhir Nanavati, learned senior advocate assisted by Ms. Mita Panchal, learned advocate for the petitioner. It appears that the first informant has already approached the different authorities for the resolution of his grievances. Earlier also, in the very police station where this FIR is registered, complainant moved an application raising similar grievances and vide communication dated 2.2.2014 by Police Inspector, Vastrapur Police Station addressed to Assistant Vastrapur Commissioner of Police 'A' Division, Ahmedabad city, it is found that dispute appears to be of a civil nature and It is also grievances are for breach of agreement. mentioned in it that talks for settlement was going on between the parties. At any rate, for the grievances raised in FIR calls for different actions by different authorities than registering the offence under Section 406 and 420 of the Indian Penal Code.
Hence, Rule.
Ms. Nisha Thakor, learned APP waives service of rule Page 11 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined on behalf of Respondent No.1-State and Ms.Mita Panchal, learned advocate waives service of rule on behalf of Respondent No.2.
By way of interim relief, further investigation into an offence registered at C.R.No.I-194 of 2014 registered with Vastrapur Police Station is hereby stayed till further orders."
10. Even at the first blush, it was observed by the coordinate bench of this court that the dispute appears to be of civil nature and the grievances are for a breach of agreement, which does not attract criminal liability.
11. The foremost argument of learned advocate Mr. Meena that since the petitioners have sold terrace of flat no.26, which is in contravention of the circular issued by the Director General Police as well as under the provisions of the Gujarat Ownership Flat Act, it could be noticed that the complainant with open eyes purchased the terrace of flat no.26. Noticeably, the owner of flat no.26 has not made any complaint that without his permission, right to use terrace has been sold to the complainant. Moreover, the complainant has also sold the right to use the terrace of flat No. 26 by executing sale deed in favour of Komalben Sunilbhai Parikh on 20.2.2021 (page 356). Therefore, a person who has committed wrong cannot claim that he has become the victim of fraud.
12. In the aforesaid circumstances, according to this court, the FIR filed against the petitioners is abuse of process of law. It could also be not noticeable that the complainant has filed Page 12 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025 NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined consumer dispute, reference of which was also noticed in oral order dated 10th November 2014 being consumer forum complaint No.244 of 2013, in which, the complainant has raised the grievance that the tiles which are fitted in flat No.26 are not as per the standard. The complaint has been adjudicated in favour of the complainant and presently appeal no.357 of 2022 is pending before the Consumer Redressal Commission, State of Gujarat.
13. In the case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604, the Hon'ble Apex Court summed up the proposition of law, which reads as under:-
"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code.
(3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any offence and make out the case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.Page 13 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025
NEUTRAL CITATION R/SCR.A/4730/2014 ORDER DATED: 14/08/2025 undefined (5) Whether, the allegations made in the F.I.R. or complaint are sO absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
13.1 The findings of the Hon'ble Apex Court in para 1,3 and 7 are attracted in the present case. In view of above, present petition deserves consideration.
14. In the result, present petition is allowed and impugned FIR being C.R.No.I - 194 of 2014 registered with Vastrapur Police Station, for the offences punishable under Sections 406 and 420 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioners herein are hereby quashed and set aside. Rule made absolute to the aforesaid extent. Direct service is permitted.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 14 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Aug 20 2025 Downloaded on : Wed Aug 20 21:51:48 IST 2025