Allahabad High Court
Shailendra Agrawal And Another vs State Of U.P. And Another on 26 September, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 14.09.2022 Delivered on 26.09.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 10282 of 2022 Applicant :- Shailendra Agrawal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bharat Bhushan Paul,Saurabh Paul Counsel for Opposite Party :- G.A.,Balbeer Singh Hon'ble Saurabh Shyam Shamshery,J.
1. The genesis of the present case is that applicants are builders of "Nikhil Park Royal Project" situate at Agra. The Complainant has alleged that she was induced by Complainant to purchase a flat in the project and accordingly she deposited earnest money against consideration of Rs. 40,95,000/- and she was allotted Flat No. 608 in the above referred apartment. However, later on Complainant came to know that said flat has already been sold to another person and applicants were not able to handover possession of flat though Complainant was forced to pay EMI of the loan taken for said flat and in these circumstances, Complainant lodged FIR against applicants being Case Crime No. 364 of 2017, under Sections 406, 420 IPC, Police Station Sikandra, District Agra.
2. Sri Bharat Bhushan Paul, learned counsel for applicants, submitted that applicants were granted bail wherein an undertaking was given that earnest amount will be repaid to Complainant and, therefore, no case is made out against applicants and as such the criminal proceedings be quashed.
3. Above submissions are vehemently opposed by Sri Balbeer Singh, learned counsel appearing for Opposite Party No. 2. He contended that it is not a case of return of earnest money but it is a case that applicants dishonestly induced Complainant to pay money for that and with dishonest intention they induce the Complainant to enter a tri-party agreement. Learned counsel also pointed out that in similarly situated circumstance number of purchasers have filed FIRs against applicants and in one of the FIR applicants have approached this Court for quashing of FIR, however, the same was rejected by a reasoned order dated 04.09.2017 in Application under Section 482 No. 27262 of 2017 (Shri Shailendra Agrawal and others vs. State of U.P. and another).
4. I have heard learned counsel for parties and perused the material available on record.
5. It is not in dispute that a tri-party agreement was entered between the parties. The only averment made in present application is that applicants were granted bail wherein they have given undertaking that earnest amount will be returned back to Complainant and it was ensured that it would be repaid expeditiously and only on that ground applicants are seeking quashing of entire criminal proceedings. Applicants have not come up with clean hands as they have not disclosed that in similar circumstances a FIR was lodged by similarly situated purchaser and challenge to it was rejected by a reasoned order passed by Coordinate Bench of this Court, referred above.
6. Though learned counsel for applicants have not mentioned any ground that why ingredients of offences alleged are not made out but he tried to persuade this Court by placing reliance on certain judgments. However, I find merit in the argument of learned counsel for Opposite Party No. 2 that in similar circumstances challenge to criminal proceedings by applicants has already been rejected by a reasoned order, therefore, present application may have similar fate. The Coordinate Bench has held as under:
Thus, on the very first date when the complainant was induced to invest and gave huge amount of money, the applicants were well aware that they were not the owners and even thereafter on 22.6.2015 the same flat was allotted to one Anant Lal Srivastava in spite of the fact that the applicants were aware of the fact that under tripartite agreement entered into with the opposite party no.2 the said flat already stood mortgaged with the financial institution.
XXXX I have perused the First Information Report wherein specific allegations have been made against the applicants. There is no vagueness or ambiguity in the said FIR. I have also perused the order by means of which cognizance has been taken as well as the order passed by the revisional court. No illegality or perversity has been attributed in the said orders. The revisional court's order is a very elaborate and speaking order. It may also be appreciated that neither allotment made in favour of other persons has been cancelled nor money has been returned to the complainant. Even otherwise, looking into the facts and circumstances of the case as have been brought before this Court as well as the First Information Report itself, no case for grant of any indulgence has been made.
7. I have perused the material on record. The offences are prima facie made out that applicants have dishonestly induced the Complainant to pay amount towards allotment of a flat, however, not only the flat was sold to some one else but the applicants were failed to handover possession of another flat to Complainant. Therefore, I find no reason to take a view other than the Coordinate Bench has taken while rejecting challenge to the FIR lodged by a buyer of a flat similar to Complainant.
8. The application is accordingly dismissed.
Order Date :- 26.09.2022 AK