Gujarat High Court
Kirtikumar Fakirchand Mehta & vs State Of Gujarat & on 7 August, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
R/SCR.A/2308/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2308 of 2015
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KIRTIKUMAR FAKIRCHAND MEHTA & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR N.D.NANAVATY, LEARNED SENIOR ADVOCATE WITH MR PARTHIV B
SHAH, ADVOCATE for the Applicant(s) No. 1 - 2
MR LB DABHI, LEARNED ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR.DIPAK B PATEL, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 07/08/2015
ORAL ORDER
1. Heard Mr.N.D. Nanavaty, learned Senior Advocate with Mr.Parthiv B. Shah, learned advocate for the petitioners.
2. The gist of the submissions advanced by the learned Senior Advocate is as below:
2.1 The petitioners, who are shown as accused Nos.4 to 5 in the impugned FIR, are the original owners of the land that was sold by them to accused No.6 (who is not a petitioner before this Court) by a registered Page 1 of 13 HC-NIC Page 1 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER Sale Deed dated 23.08.2013, for a total consideration of Rs.14 crores, wherein several postdated cheques of the denomination of Rs.10 Lacs were indicated. On the same day, that is, on 23.08.2013, a Correction Deed was entered into and submitted for registration. It was clarified in the Correction Deed that the cheques given in the Sale Deed are postdated and the Sale Deed would be subject to the realization of the cheques.
2.2 On 26.02.2014, the petitioners issued a legal notice calling upon accused No.6 to pay the balance amount of the sale consideration of Rs.11.60 crores, as the petitioners had only received an amount of Rs.2.2 crores. As no payment was made by accused No.6, the petitioners issued a public notice in the Newspaper on 18.03.2014, informing the petitioners about the nonpayment of the amount of consideration of sale and the rights of the petitioners in respect of the said land.
2.3 That due to the nonpayment of the balance amount of consideration, the petitioners had no alternative except to cancel the Sale Deed by way of a Deed of Page 2 of 13 HC-NIC Page 2 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER Cancellation dated 21.04.2014, wherein it was agreed that the ownership and possession of the property would stand transferred in the name of the petitioners, who are the original owners of the said property.
2.4 That, the petitioners are the original owners of the land, who have not received the full sale consideration. The apartments constructed on the land by accused No.6 were sold by him to several persons and the booking amount was taken by accused No.6. The petitioners have nothing to do with the transactions entered into by accused No.6 with the complainant and others, who have booked the apartments. There is no lis between the petitioners and the complainant, or any other person to whom accused No.6 has allotted apartments. Similarly, no privity of contract exists between the petitioners and the complainant or allottees of the apartments. It cannot, therefore, be said that the petitioners have committed any offence, as alleged in the FIR.
2.5 That, it is not the case of the complainant or the other allottees of the apartments, that the Page 3 of 13 HC-NIC Page 3 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER petitioners have taken any amount from them or had any dealings with them.
2.6 That ingredients of the offence under Section 406 of the Indian Penal Code for criminal breach of trust are not made out against the petitioners. There has been no entrustment of property to the petitioners by the complainant, therefore, there is no question of disposal of the property by the petitioners. It is an admitted case that the complainant has paid the amount for the apartment booked by him to accused No.6, who did not fulfill his obligation towards the complainant. Similarly, accused No.6 has not paid the full amount of consideration for the land purchased by him to the petitioners, who are themselves victims and not the offenders.
2.7 That the offence under Section 420 of the Indian Penal Code, for cheating and dishonestly inducing delivery of property, as alleged against the petitioners, is not made out against them, as respondent No.2complainant has no direct lis with the petitioners. The petitioners are the true owners of the land in question, therefore, no question arises of Page 4 of 13 HC-NIC Page 4 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER any inducement by them of respondent No.2, to deliver any property belonging to him in favour of the petitioners. The offence of cheating can only be constituted by dishonestly inducing the delivery of the property with a malafide intention. In the present case, no such malafide intention to dishonestly induce the complainant to deliver the property in favour of the petitioners can be alleged, as the petitioners are the owners of the property and are not involved in the transactions between the complainant and accused No.6.
The petitioners are themselves the sufferers and victims of the actions of accused No.6 and have been falsely roped into the FIR.
2.8 It is next submitted that the offence under Section 465 of the Indian Penal Code, for forgery, as alleged against the petitioners is also not made out against them, as all the Deeds executed in the present case have been registered. There is no allegation of the creation of any forged document with an intention to make any person or public believe such document to be true and cause damage or injury to any person or public.
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R/SCR.A/2308/2015 ORDER
2.9 That the other offences under Sections 407, 408 and 471 of the Indian Penal Code are also not made out against the petitioners, from a bare reading of the FIR. Insofar as the provisions of Section 120B are concerned, it is an independent offence by itself. The said offence is not constituted against the petitioners as there is no allegation in the FIR that there was a prior meeting of minds, which is the basic requirement of Section 120B. The allegations in the FIR do not, therefore, indicate that the said offence is primafacie made out against the petitioners, who are themselves victims, having lost a large amount of money at the hands of accused No.6.
2.10 That a bare perusal of the FIR does not indicate any specific or direct allegation regarding the alleged offences against the petitioners. If the complainant is aggrieved by the cancellation of the Sale Deed between the petitioners and accused No.6, he could have availed of a civil remedy. However, such remedy has not been availed of. If accused No.6 does not abide by his legal obligations towards the complainant, the petitioners cannot be held Page 6 of 13 HC-NIC Page 6 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER responsible. There is no direct contractual or legal relationship between the petitioners and the complainant, or any other allottees of the apartments. 2.11 That the registration of the FIR against the petitioners is nothing short of an abuse of the process of law and is in the nature of pressure tactics and an armtwisting method used against the petitioners.
3. Mr.L.B. Dabhi, learned Additional Public Prosecutor for respondent No.1State of Gujarat, has submitted that the anticipatory bail application filed by the petitioners was rejected by the Sessions Court and this Court. However, in the present petition, this Court has directed that no coercive action be taken against the petitioners. It is submitted that prima facie, a case regarding the alleged offences is made out against the petitioners, as it emerges from the record that accused No.6 floated the scheme and construction took place on the land, even before the execution of the Sale Deed. It is submitted that the franking done on the Correction Deed is at Serial No.35905, which is prior to the franking done on the Page 7 of 13 HC-NIC Page 7 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER Sale Deed which is at Serial No.35906. There was no need to execute the Correction Deed and the correction could have been added in the Sale Deed itself. However, as that would make the Sale Deed a conditional one, the banks would not have granted finance. That it is not possible to believe that accused No.6, who is a builder, had simply forgotten to add such clause, so as to necessitate the execution of a Correction Deed.
3.1 It is next submitted that the Correction Deed was not registered along with the Sale Deed and was registered later on, which vindicates the allegations of conspiracy between the petitioners and accused No.6. It is further submitted that any prudent man would deposit the cheques received by him immediately. However, the petitioners did not deposit the cheques immediately, but deposited them after a long time and they came to be dishonoured.
3.2 That the construction was already existing on the land in question, therefore, the Cancellation Deed ought to have mentioned something about the structure Page 8 of 13 HC-NIC Page 8 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER which was not done. This, according to the learned Additional Public Prosecutor, indicates the intention of the parties.
4. Mr.Dipak B. Patel, learned advocate for respondent No.2complainant, has submitted that the petitioners permitted accused No.6 to launch the scheme on their land in March, 2013. The complainant booked an apartment on 03.08.2013 and the Sale Deed was executed by the petitioners in favour of accused No.6 on 23.08.2013. In the Sale Deed, the details of the cheques and consideration were mentioned but the dates of the cheques were not mentioned. A Correction Deed was prepared on the same day and presented before the Registrar for execution. As the Sale Deed had not been registered, the correction could have been carried out in the Sale Deed itself and there was no need to execute the Correction Deed. The learned advocate for respondent No.2 has also indicted that the serial number of the franking done on the Sale Deed is later in point of time to that done on the Correction Deed.
4.1 It is submitted that if the correction had been Page 9 of 13 HC-NIC Page 9 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER carried out in the Sale Deed, it would have become a conditional one and no loan would have been granted by the banks and the title of the property would not have been cleared. It is submitted that this was a trick and conspiracy devised by the petitioners and accused No.6 in order to deceive the general public. 4.2 It is next submitted that the complainant purchased the apartment from accused No.6 on 28.02.2014. Till this time, the cheques had not been honoured but the petitioners did not object to the sale of the apartment. It is submitted that the petitioners were fully aware of the schemes and allotment of the apartments, therefore, the allegations in the FIR constitute a primafacie case against the petitioners.
5. This Court has heard the learned counsel for the respective parties, perused the averments made in the petition, the FIR and other documents and has also considered the submissions advanced at the Bar.
6. This Court, by an order dated 21.04.2015 (Coram: Page 10 of 13
HC-NIC Page 10 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER J.B. Pardiwala, J.) had issued notice to the respondents and directed that "In the meantime, no coercive steps be taken against the applicants." The interim relief has been continued.
7. It appears from the record that the parties were negotiating with each other and talks of a settlement were going on.
8. It has been submitted by Mr.N.D. Nanavaty, learned Senior Advocate for the petitioners that the talks of settlement were going on between the parties, till yesterday.
9. Mr.Dipak B. Patel, learned advocate for respondent No.2, has agreed that it would be in the interest of the parties, especially respondent No.2, if a settlement is worked out.
10. Considering the above submissions, if such is the intention of the parties, this Court leaves it open to them to work out an amicable settlement, which would be in the interest of all concerned, especially respondent No.2, and the other persons who have Page 11 of 13 HC-NIC Page 11 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER booked, or allotted, the apartments.
11. Considering the submissions advanced by the learned counsel for the respective parties and the material on record, it emerges that the submission of the learned Senior Advocate for the petitioners that the petitioners had no direct lis or contract with respondent No.2 or the allottees of the apartments, primafacie, has substance. It further appears that the submission that the petitioners were the original owners of the land, who had executed a Sale Deed with accused No.6, which was cancelled later on due to non payment of full consideration, deserves consideration. The record reveals that the petitioners received only about Rs.2.2 crores, out of the total sale consideration of Rs.14 crores. The land in question has, therefore, now reverted back to the petitioners. There does not appear to be any allegation in the FIR regarding any direct dealing of the petitioners with respondent No.2 or other allottees, therefore, no direct list between them is indicated.
12. Taking into considering the totality of the facts and circumstances of the case, this Court is of the Page 12 of 13 HC-NIC Page 12 of 13 Created On Wed Aug 12 01:11:45 IST 2015 R/SCR.A/2308/2015 ORDER view that Mr.N.D. Nanavaty, learned Senior Advocate for the petitioners, has succeeded in making out a primafacie case for the admission of the petition and grant of interim relief. Hence, the following order is passed:
Issue Rule.
Mr.L.B. Dabhi, learned Additional Public Prosecutor, waives service of notice of Rule for respondent No.1State of Gujarat.
Interim relief in terms of Paragraph7(B) is granted, qua the petitioners.
(SMT. ABHILASHA KUMARI, J.) piyush Page 13 of 13 HC-NIC Page 13 of 13 Created On Wed Aug 12 01:11:45 IST 2015