Kerala High Court
Sanjay Bahadar vs State Of Kerala on 27 February, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.MC.No.2898/23 & con.cases
1
2025:KER:21423
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
CRL.MC NO. 1711 OF 2024
CRIME NO.238/2015 OF MARADU POLICE STATION, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1816 OF
2017 OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM
PETITIONERS:
1 RAMAN SHARMA,
AGED 68 YEARS
S/O M.P. SHARMA, 68-C, BLOCK R,
DILSHAD GARDEN, NEW DELHI, PIN - 110095
2 NAGARAJU ROUTHU,
AGED 53 YEARS
S/O R JANARDHAN RAO, A-61, 2ND FLOOR,
SOUTH CITY 2, GURUGRAM,HARYANA,
PIN - 122018
3 SUBASH GUPTA,
AGED 66 YEARS
S/O LATE DHARMVIR GUPTA, FLAT NO.7,
SECTOR 9, DWARAKA, NEW DELHI,
PIN - 110075
Crl.MC.No.2898/23 & con.cases
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4 R. RAVI,
AGED 61 YEARS
S/O LATE P RAMAMOORTHI,
54-GANGOTHRI APARTMENTS,
F BLOCK, VIKASPURI,
NEW DELHI, PIN - 110018
5 SUNIL DUTH,
AGED 61 YEARS
S/O C.P. MAHESWARAN NAIR,
MNRA-106, NF GATE,
THRIPUNITHURA,
ERNAKULAM, PIN - 682301
BY ADV T.R.ASWAS
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 RAKESH NAIR,
S/O P.P. NAIR,
7A/CROWN TRINITY APARTMENTS,
OPPOSITE LULU,
ERNAKULAM, PIN - 682024
BY ADVS.
V.K.BALACHANDRAN
AMRUTHA P.S.
Crl.MC.No.2898/23 & con.cases
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OTHER PRESENT:
SR. ADV. S.SREEKUMAR FOR THE PETITIONER.
SMT. PUSHPALATHA. M.K, SR.PP. SRI. M.C. ASHI, PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.02.2025, ALONG WITH Crl.MC.2898/2023, 875/2024 AND
CONNECTED CASES, THE COURT ON 27.02.2025 PASSED THE
FOLLOWING:
Crl.MC.No.2898/23 & con.cases
4
2025:KER:21423
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
CRL.MC NO. 2898 OF 2023
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.480 OF 2017
OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM
PETITIONERS:
1 MINOTI BAHRI,
AGED 56 YEARS
R/O R-87 GREATER KAILASH,
NEW DELHI, PIN - 110042
2 SANJAY BAHADUR,
AGED 61 YEARS
R/O 3B-901/2
GREEN ACRES CHS LTD LOKHANDWALA COMPLEX
ANDHERI (WEST) MUMBAI MAHARASHTRA, PIN - 400053
BY ADVS.
JOJU KYNADY
SAURAV SHAJI
S.SREEKUMAR (SR.)
Crl.MC.No.2898/23 & con.cases
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2025:KER:21423
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF
KERALA ERNAKULAM, PIN - 682031
2 GODFREY ANTONY MORAIS,
A12 SUNDARSHAN APARTMENT RAMDASWADI KALYAN MUMBAI
MAHARASHTRA. REPRESENTED BY POWER OF ATTORNEY
HOLDER DEEPU GEORGE AGED ABOUT 39 YEARS,
S/O KADALIKKATTIL EPREM GEORGEKUTTY,
KADALIKKATTIL HOUSE, PALAI KAVEE KUNNU P.O,
KIZHATHADIYOOR, KOTTAYAM - 686575.
3 SHIJA GODFREY
A12 SUDARSHAN APARTMENT RAMDASWADI KALYAN MUMBAI
MAHARASHTRA. REPRESENTED BY POWER OF ATTORNEY
HOLDER DEEPU GEORGE AGED ABOUT 39 YEARS,
S/O KADALIKKATTIL EPREM GEORGEKUTTY,
KADALIKKATTIL HOUSE, PALAI KAVEE KUNNU P.O,
KIZHATHADIYOOR, KOTTAYAM - 686575., PIN - 421301
4 SILVI DAVIS THAZHATH,
A12 SUDARSHAN APARTMENT RAMDASWADI KALYAN MUMBAI
MAHARASHTRA. REPRESENTED BY POWER OF ATTORNEY
HOLDER DEEPU GEORGE AGED ABOUT 39 YEARS,
S/O KADALIKKATTIL EPREM GEORGEKUTTY,
KADALIKKATTIL HOUSE, PALAI KAVEE KUNNU P.O,
KIZHATHADIYOOR, KOTTAYAM - 686575.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.02.2025, ALONG WITH Crl.MC.1711/2024 AND CONNECTED
CASES, THE COURT ON 27.02.2025 PASSED THE FOLLOWING:
Crl.MC.No.2898/23 & con.cases
6
2025:KER:21423
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
CRL.MC NO. 875 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.480 OF 2017
OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM
PETITIONER:
RAMAN SHARMA
AGED 68 YEARS
S/O M.P. SHARMA, C-27/Z-1,
DILSHAD GARDEN, POCKET C,
NEW DELHI., PIN - 110048
BY ADV T.R.ASWAS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA., PIN - 682031
Crl.MC.No.2898/23 & con.cases
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2 GODFREY ANTONY MORAIS
A-12, SUDHARSHAN APARTMENT, RAMDASWADI, KALYAN,
MUMBAI-421301 REPRESENTED BY POWER OF ATTORNEY
HOLDER MR DEEPU GEORGE,
S/O KADALIKKATTILEPREMGEORGEKUTTY,
PALAIKAVEEKUNNU P.O, KIZHATHADIYUR,
KOTTAYAM., PIN - 686575
3 SHIJA GODFREY
A-12, SUDHARSHAN APARTMENT, RAMDASWADI, KALYAN,
MUMBAI-421301 REPRESENTED BY POWER OF ATTORNEY
HOLDER MR DEEPU GEORGE,
S/O KADALIKKATTILEPREMGEORGEKUTTY,
PALAIKAVEEKUNNU P.O,
KIZHATHADIYUR, KOTTAYAM., PIN - 686575
4 SILVI DAVIS THAZHATH
A-12, SUDHARSHAN APARTMENT, RAMDASWADI, KALYAN,
MUMBAI-421301 REPRESENTED BY POWER OF ATTORNEY
HOLDER MR DEEPUGEORGE,
S/O KADALIKKATTILEPREMGEORGEKUTTY,
PALAIKAVEEKUNNU P.O,
KIZHATHADIYUR, KOTTAYAM., PIN - 686575
OTHER PRESENT:
SMT. PUSHPALATHA. M.K, SR.PP & SRI. M.C. ASHI,
PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.02.2025,, ALONG WITH Crl.MC.1711/2024 AND CONNECTED
CASES, THE COURT ON 27.02.2025 PASSED THE FOLLOWING:
Crl.MC.No.2898/23 & con.cases
8
2025:KER:21423
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
CRL.MC NO. 1708 OF 2024
CRIME NO.1664/2014 OF Ernakulam South Police Station,
Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.27 OF 2017
OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM
PETITIONERS:
1 NAGARAJU ROUTHU
AGED 53 YEARS
S/O R JANARDHAN RAO, A-61, 2 ND FLOOR, SOUTH CITY
2, GURUGRAM, HARYANA ,, PIN - 122018
2 R. RAVI
AGED 61 YEARS
S/O LATE P RAMAMOORTHI, 54- GANGOTHRI APARTMENTS,
F BLOCK, VIKASPURI, NEW DELHI, PIN - 110018
3 RAMAN SHARMA
AGED 68 YEARS
S/O M.P. SHARMA, 68- C, BLOCK R, DILSHAD GARDEN,
NEW DELHI, PIN - 110095
Crl.MC.No.2898/23 & con.cases
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4 MUNISH BALDEV
AGED 52 YEARS
S/O LATE BALDEV KUMAR, HOUSE NO.227, SECTOR-15A,
FARIDABAD, HARYANA, PIN - 121007
BY ADV T.R.ASWAS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 JAISON ANITHANAM
S/O A.V. CHACKO, HOUSE NO. XIV/225, MMC, VIKAS
NAGAR, KUNDANOOR, ERNAKULAM, PIN - 682304
BY ADVS.
cimil
MINTU CHERIYAN(K/887/2010)
VIJIN K.(K/001373/2024)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.02.2025,, ALONG WITH Crl.MC.1711/2024 AND CONNECTED
CASES, THE COURT ON 27.02.2025 PASSED THE FOLLOWING:
Crl.MC.No.2898/23 & con.cases
10
2025:KER:21423
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
CRL.MC NO. 3230 OF 2024
CRIME NO.1664/2014 OF MARADU POLICE STATION, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.27 OF 2017
OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM
PETITIONERS:
1 SANJAY BAHADAR,
AGED 61 YEARS
3B-901/2 GREEN ACRES CHS LTD,LOKHANDWALA COMPLEX,
ANDHERI WEST, MUMBAI MAHARASHTRA, PIN - 400053
2 MINOTI BHARI,
AGED 58 YEARS
R-87, GREATER KAILASH-1, NEW DELHI, PIN - 110048
3 ANIL HARISH,
AGED 70 YEARS
13, CC1 CHAMBER, 1ST FLOOR, DINSHAW WACHA
ROAD,MUMBAI, MAHARASHTRA, PIN - 400020
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4 P.K. MOHANTY,
AGED 89 YEARS
3-B, MONALISA ,17 CAMAC STREET, KOLKATA, WEST
BENGAL, PIN - 700016
5 RAVINDER SINGHANIA,
AGED 56 YEARS
P-24, GREEN PARK EXTENSION, NEW DELHI, PIN -
110016
BY ADVS.
JOJU KYNADY
SAURAV SHAJI
S.SREEKUMAR (SR.)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 JAISON ANITHANAM,
S/O A.V CHACKO, HOUSE NO. XIV/225, MMC, VIKAS
NAGAR, KUNDANOOR, ERNAKULAM, PIN - 682304
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.02.2025,, ALONG WITH Crl.MC.1711/2024 AND CONNECTED
CASES, THE COURT ON 27.02.2025 PASSED THE FOLLOWING:
Crl.MC.No.2898/23 & con.cases
12
2025:KER:21423
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
CRL.MC NO. 3255 OF 2024
CRIME NO.238/2015 OF MARADU POLICE STATION, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1816 OF
2017 OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM
PETITIONERS:
1 SANJAY BAHADAR,
AGED 61 YEARS
3B-901/2 GREEN ACRES CHS LTD,LOKHANDWALA COMPLEX,
ANDHERI WEST, MUMBAI, MAHARASHTRA, PIN - 400053
2 MINOTI BHARI,
AGED 58 YEARS
R-87, GREATER KAILASH-1, NEW DELHI, PIN - 110048
3 ANIL HARISH,
AGED 70 YEARS
13, CC1 CHAMBER, 1ST FLOOR, DINSHAW WACHA ROAD
MUMBAI, MAHARASHTRA, PIN - 400020
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13
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4 P.K. MOHANTY,
AGED 89 YEARS
3-B, MONALISA ,17 CAMAC STREET, KOLKATA, WEST
BENGAL, PIN - 700017
5 RAVINDER SINGHANIA,
AGED 58 YEARS
P-24, GREEN PARK EXTENSION, NEW DELHI, PIN -
110016
BY ADVS.
JOJU KYNADY
SAURAV SHAJI
S.SREEKUMAR (SR.)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 RAKESH NAIR,
7A CROWN FLAT, TRINITY APARTMENTS,EDAPPALLY NORTH
VILLAGE, KANAYANUR TALUK,ERNAKULUM DISTRICT, PIN
- 682024
3 SUBHA T,
7A CROWN FLAT, TRINITY APARTMENTS,EDAPPALLY NORTH
VILLAGE, KANAYANUR TALUK,ERNAKULUM DISTRICT, PIN
- 682024
Crl.MC.No.2898/23 & con.cases
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BY ADVS.
V.K.BALACHANDRAN
AMRUTHA P.S.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.02.2025,, ALONG WITH Crl.MC.1711/2024 AND CONNECTED
CASES, THE COURT ON 27.02.2025 PASSED THE FOLLOWING:
Crl.MC.No.2898/23 & con.cases
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V.G.ARUN, J
= = = = = = = = = = = = = = = = =
Crl.M.C.Nos.2898 of 2023,
875, 1708, 1711,3230
and 3255 of 2024
= = = = = = = = = = = = = = = = = =
Dated this the 27th day of February, 2025
ORDER
The petitioners in Crl.M.C.No.1711 of 2024 are accused numbers 1,11,12,14,15 and the petitioners in Crl.M.C.No.3255 of 2024 are accused numbers 6,7,8,9 and 10 in C.C.No.1816 of 2017 pending in the Court of the JFCM-VIII, Ernakulam. The case originated from Crime No.238 of 2015 registered at the Maradu Police Station alleging commission of offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code against three companies namely; 1. Colossal Projects Pvt.Ltd, New Delhi, 2. Unitech Ltd., New Delhi and 3. Unitech Ltd., Kundannoor Branch. The police, after Crl.MC.No.2898/23 & con.cases 16 2025:KER:21423 investigation, filed final report alleging commission of the offences under Sections 406 and 420 read with Section 34 of IPC against 15 named accused. Petitioners were arrayed as accused in their capacity as Directors and Officers of the two companies.
2. Crl.M.C.Nos.3230 and 1708 of 2024 are filed by accused numbers 5 to 9 and accused numbers 10,13 to 15 in C.C.No.27 of 2017, pending on the files of the JFCM VIII, Ernakulam. The case originated from Crime No.1664 of 2014 registered at the Ernakulam Town South Police Station.
3. The petitioner in Crl.M.C.No.875 of 2024 is the 2 nd accused and the petitioners in Crl.M.C. No.2898 of 2023 are accused numbers 9 and 10 in C.C.No.480 of 2017 pending before the same court, which originated from a private complaint filed by the party respondent against the petitioners and 12 others.
4. The tenor of the common allegations raised against the petitioners are as under;
Crl.MC.No.2898/23 & con.cases 17 2025:KER:21423 In the year 2010, Unitech India Ltd. launched a project with the aim of constructing a commercial complex in 7.06 Acres of freehold commercial plot in Maradu village possessed by its subsidiary company named Colossal Projects Pvt.Ltd. Attracted by the brochures and advertisements of the project named 'Great India Palace', complainants entered into Memorandums of Understanding and Agreements for Sale with M/s.Colossal Projects Private Ltd. (hereinafter described as "the Developer"), a wholly owned subsidiary of the Unitech Ltd. (hereinafter described as "the Promoter"), for assignment of specified built-up space in the proposed commercial mall. As per the terms of the MoU and the Agreement, the Mall was to be constructed in 30 months and the Developer also assured to pay rental return @12% of the total sale consideration to the purchasers, after 30 months of signing the MoU and/or the date when 90% of the total sale consideration is realised by the Developer, whichever is later. According to the complainants, contrary to the assurances and promises, neither was the Crl.MC.No.2898/23 & con.cases 18 2025:KER:21423 construction completed within time nor the assured rental returns paid. Even the purchase price paid by the complainants was not refunded. Gradually the complainants realised that they had been deceived into paying huge amounts on the false assurance of assigning commercial space within 30 months and monthly returns till allotment of space.
5. Arguments for the petitioners was led by Senior Advocate S.Sreekumar and supplemented by Advocate T.R. Aswas. Public Prosecutors M.C. Ashi and M.K. Pushpalatha along with Advocate V.K. Balachandran advanced counter arguments.
6. Learned Senior Counsel appearing for the petitioners in Crl.M.C Nos. 3230 and 3255 of 2024, as instructed by Adv. Joju Kynady, put forth the following contentions;
The Memorandum of Understanding (MoU) and Agreement for Sale were entered into between the de facto complainants and Colossal Projects Pvt. Ltd. Though Colossal Projects Pvt.Ltd. is a fully owned subsidiary of Unitech Ltd., it Crl.MC.No.2898/23 & con.cases 19 2025:KER:21423 is a separate legal entity. As the petitioners are only Independent Directors of the Holding Company, they cannot be prosecuted for the offences alleged to have been committed by a subsidiary company. Even otherwise, Directors/officials of a company cannot be made vicariously liable for the offences committed by the company, without there being specific allegations against them with respect to their individual roles. Support for this argument is sought to be drawn from the Apex Court's decision in Ravindranatha Bajpe v. Mangalore Special Economic Zone Limited And Other [(2022) 15 SCC 430]. The allegations, even if accepted in their entirety, will not constitute any criminal offence and the remedy is to approach the civil court/forum, particularly in view of the arbitration clause contained in the MoU and the Agreement for Sale. The parties have resorted to such remedy by proceeding under the Arbitration and Conciliation Act and attaching the 7.06 Acres of land belonging to Colossal Projects Pvt.Ltd. Various issues relating to Unitech Ltd. is pending before the Supreme Court Crl.MC.No.2898/23 & con.cases 20 2025:KER:21423 and efforts are being taken to resolve all the disputes between the various claimants and the company. In fact, party respondents have also approached the Supreme Court.
7. Adv.T.R.Aswas appearing for the petitioners in Crl.M.C.No.1711 of 2024 supported the arguments of the Senior Counsel and put forth the following additional contentions;
The Magistrate grossly erred in taking cognizance of the offences in C.C.No.480 of 2017, against which Crl.M.C.Nos.875 of 2024 and 2898 of 2023 are filed, inasmuch as the complaint filed by the party respondents was not accompanied by affidavits of the complainants, as mandated by the Apex Court in Priyanka Srivastava and Another v. State of Uttar Pradesh and Others [2015 6 SCC 287] and Babu Venkatesh and Others v. State of Karnataka and Another [(2022) 5 SCC 639]. This patent and incurable illegality has rendered the further proceedings void in the eye of law. Even though the petitioners are Officers and Directors of Colossal Projects Crl.MC.No.2898/23 & con.cases 21 2025:KER:21423 Private Limited, in so far as the company is not made an accused in the final report, its Directors or Officers cannot be cast with vicarious liability for the acts of the company. In support of the contention, reliance is placed on the decision of the Apex Court in Sharad Kumar Sanghi v. Sangita Rane [(2015) 12 SCC 781]. Referring to Annexure P8 order in Crl.M.C.No.3255 of 2024, it is pointed out that in the order granting anticipatory bail to the petitioners in Crime No.238 of 2015 of Maradu Police Station learned Sessions Judge had taken note of the fact that, in the claim for Rs.76,55,775/- raised by the de facto complainant, attachment of the properties of the Developer had been ordered and the same is under challenge before the High Court.
8. Adv.V.K.Balachandran, learned counsel appearing for the party respondent in Crl.M.C.No.1711 of 2024, submitted that his clients have been duped of Rs.76,55,775/- by promising to provide them with built-up space within 30 months of executing the MoU. They were also assured rental at the rate Crl.MC.No.2898/23 & con.cases 22 2025:KER:21423 of 12% of the sale consideration. Contrary to the promise, neither was the building constructed nor the rental paid. The argument of the petitioners that Unitech Ltd. and Colossal Projects Pvt.Ltd are separate entities is liable to be rejected, since the payments were made by the party respondents in favour of "Unitech- GIP Cochin Sales A/c. The contention that the petitioners cannot be proceeded against without the companies being arraigned as accused cannot also be countenanced since the FIR was registered against the companies and the mistake of the police in not arraying the companies as accused can be corrected by the trial court in exercise of the power under Section 319 of the Cr.P.C. Moreover, the MoU and the Agreement for Sale are signed by petitioners 1 and 4, which is clear proof of their complicity.
9. I heard the learned Public Prosecutor also.
10. Among the Crl.M.Cs, the hotly contested matter is Crl.M.C.No.1711 of 2024. Hence, that case is to be dealt with first. The allegation of the party respondent is that the accused Crl.MC.No.2898/23 & con.cases 23 2025:KER:21423 had committed breach of trust and cheated him of Rs.76,55,775/- by promising to provide built up space within 30 months and rental value till then. In this context, 2 nd respondent's statement to the police that, after executing the MoU on 27.03.2010, he was paid assured rental up to 30.09.2013 assumes relevance. In order to constitute the offence of breach of trust, there should be entrustment of property and dishonest misappropriation of that property by the person so entrusted. The essential ingredient of cheating is fraudulent or dishonest inducement to deliver any property. Therefore, for both offences, dishonest intention should exist from the very inception. Payment of annual rental is indicative that the accused did not harbour such intention while entering into the agreement. As held by the Apex Court in International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others v. Nimra Cerglass Technics Private Limited and Another [(2016) 1 SCC 348], even if an assurance given was Crl.MC.No.2898/23 & con.cases 24 2025:KER:21423 subsequently not honoured, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is to seek remedy for breach of contract before the civil court. Mere breach of contract cannot lead to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. Here, it is pertinent to note that the 2nd respondent has resorted to his civil remedy by initiating proceedings under the Arbitration and Conciliation Act and has obtained an order of attachment over the 7.06 Acres of land belonging to the Developer. It is also on record that the 2nd respondent has approached the committee constituted by the Supreme Court to resolve the issues pertaining to the liabilities of Unitech Ltd. Learned counsel for the party respondent is right in his contention that criminal proceedings cannot be quashed merely for reason of the Company not being made an accused, since Section 319 of the Code confers the trial court with the power to proceed against any person appearing to be guilty of the offence. But, for the Crl.MC.No.2898/23 & con.cases 25 2025:KER:21423 court to adopt such procedure, there should be specific allegations against the Directors and Officers of the Company. This legal position is explicitly laid down by the Apex Court in a plethora of decisions, including Ravindranatha Bajpe (supra).
11. In Crl.M.C.Nos.3230 and 3255 of 2024, petitioners have raised an additional ground that they were the independent Directors of Unitech Ltd., a separate legal entity and hence, no vicarious liability can be mulcted on them.
12. The challenge in Crl.M.C.Nos.875 of 2024 and 2898 of 2023 is against further proceedings against C.C.No.480 of 2017 which originated from a private complaint. Apart from the grounds discussed above, learned counsel for the petitioners have raised an additional contention that the complaint was not accompanied by an affidavit, which became mandatory after the declaration of law in that regard by the Apex Court in Priyanka Srivastava (supra). The above contention is liable to be upheld in view of the decision in Babu Venkatesh (supra), wherein, Crl.MC.No.2898/23 & con.cases 26 2025:KER:21423 under similar circumstances, further proceedings based on a private complaint forwarded for investigation under Section 156(3) Cr.P.C, was quashed on the ground that the complaint was not accompanied by an affidavit of the complainant. The afore discussions lead to the definite conclusion that further prosecution of the petitioners will be an abuse of process of court.
In the result the Crl.M.Cs are allowed and all further proceedings in C.C.Nos.480 of 2017, 27 of 2017 and 1816 of 2017 on the files of the Judicial Magistrate of First Class -VIII, Ernakulam, as against the petitioners, are quashed.
sd/-
V.G.ARUN, JUDGE sj Crl.MC.No.2898/23 & con.cases 27 2025:KER:21423 APPENDIX OF CRL.MC 2898/2023 PETITIONER ANNEXURES Annexure P1 CERTIFIED COPY OF COMPLIANT AND AFFIDAVIT IN CC 480 OF 2017 Annexure P2 COURT ORDERS IN CC 480 OF 2017 Annexure P3 DEPOSITION OF DEFACTO COMPLAINANT NO.1 Annexure P4 MCA MASTER DATA OF ACCUSED 14 COMPANY (M/S COLOSSAL PROJECTS PRIVATE LIMITED) Annexure P5 RELEVANT RECORDS OF ACCUSED 15 COMPANY (M/S UNITECH LIMITED) Annexure P6 STATUTORY RECORDS OF ACCUSED 15 COMPANY (M/S UNITECH LIMITED) Annexure P7 MEMORANDUM OF UNDERSTANDING Annexure P8 AGREEMENT TO SELL DATED 19.10.2010 Crl.MC.No.2898/23 & con.cases 28 2025:KER:21423 APPENDIX OF CRL.MC 875/2024 PETITIONER ANNEXURES Annexure A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE RESPONDENTS 2 TO 4 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-8, ERNAKULAM TAKEN AS CC NO.480/2017 Annexure B TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 19-10-2010 Annexure C TRUE COPY OF THE AGREEMENT TO SELL DATED 19-10-2010 Annexure D TRUE COPY OF THE HAND WRITTEN COPY OF THE SWORN STATEMENT RECORDED BY TRIAL COURT ON 21-10-2016 IN C.C.NO.480/2017 Crl.MC.No.2898/23 & con.cases 29 2025:KER:21423 APPENDIX OF CRL.MC 1708/2024 PETITIONER ANNEXURES Annexure A TRUE COPY OF THE PRIVATE COMPLAINT, NUMBERED AS CC.27/2017 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-8, ERNAKULAM Annexure B CERTIFIED COPY OF THE CHARGE SHEET FILED IN C.C. NO.27/2017 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT- 8, ERNAKULAM Annexure C TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 12-10-2010 Annexure D TRUE COPY OF THE AGREEMENT TO SELL DATED 12-10-2010 Crl.MC.No.2898/23 & con.cases 30 2025:KER:21423 APPENDIX OF CRL.MC 3230/2024 PETITIONER ANNEXURES Annexure P1 TRUE COPY OF CRIME/FIR NO.1664 OF 2014 DATED 27.11.2014 Annexure P2 TRUE COPY OF THE FINAL REPORT DATED 20.11.2016 Annexure P3 TRUE COPY OF THE RELEVANT RECORDS OF M/S.COLOSSAL PROJECTS PRIVATE LIMITED DOWNLOADED FROM THE WEBSITE OF MINISTRY OF CORPORATE AFFAIRS Annexure P4 TRUE COPIES OF THE RELEVANT RECORDS OF M/S.UNITECH LTD. FROM THE WEBSITE OF MCA Annexure P5 TRUE COPIES OF THE RELEVANT RECORDS SHOWING THAT PETITIONERS ARE INDEPENDENT/ NON EXECUTIVE-DIRECTORS Annexure P6 TRUE COPY OF MEMORANDUM OF UNDERSTANDING DATED 12.10.2010 Annexure P7 TRUE COPY OF AGREEMENT TO SELL DATED 12.10.2010 BETWEEN DE FACTO COMPLAINANT AND M/S.COLOSSAL PROJECTS PRIVATE LIMITED Annexure P8 TRUE COPY OF PRIVATE COMPLAINT DATED 12.11.2014 LODGED BY DE FACTO COMPLAINANT BEFORE JFCM 1, KOCHI Crl.MC.No.2898/23 & con.cases 31 2025:KER:21423 Annexure P9 TRUE COPY OF ORDER DATED 22.02.2024 PASSED IN CRL. MC NO. 1708 OF 2024 Annexure P10 TRUECOPY OF MASTER CIRCULAR NO.1 OF 2011 DATED 29.07.2011 ISSUED BY MINISTRY OF CORPORATE AFFAIRS Annexure P11 TRUECOPY OF GENERAL CIRCULAR NO.1 OF 2020 DATED 02.03.2020 ISSUED BY MINISTRY OF CORPORATE AFFAIRS Crl.MC.No.2898/23 & con.cases 32 2025:KER:21423 APPENDIX OF CRL.MC 3255/2024 PETITIONER ANNEXURES Annexure P1 TRUE COPY OF FIR NO. 238 OF 2015 DATED 13.03.2015 Annexure P2 TRUE COPY OF THE FINAL REPORT DATED 10.05.2017 Annexure P3 TRUE COPY OF THE RELEVANT RECORDS OF M/S.COLOSSAL PROJECTS PVT LTD DOWNLOADED FROM THE WEBSITE OF MINISTRY OF CORPORATE AFFAIRS Annexure P4 TRUE COPIES OF THE RELEVANT RECORDS OF M/S.UNITECH LTD. FROM THE WEBSITE OF MCA Annexure P5 TRUE COPIES OF THE RELEVANT RECORDS SHOWING THAT PETITIONERS ARE INDEPENDENT/ NON EXECUTIVE-DIRECTORS Annexure P6 TRUE COPY OF MEMORANDUM OF UNDERSTANDING DATED 27.08.2010 Annexure P7 TRUECOPY OF AGREEMENT TO SELL 27.08.2010 BETWEEN DE FACTO COMPLAINANTS AND M/S COLLOSAL PROJECTS PVT LTD Annexure P8 TRUE COPY OF ORDER DATED 01.03.2017 PASSED BY SESSION COURT, ERNAKULAM Crl.MC.No.2898/23 & con.cases 33 2025:KER:21423 Annexure P9 TRUE COPY OF ORDER DATED 22.02.2024 IN CRL M.C 1711 OF 2024 Annexure P10 TRUECOPY OF MASTER CIRCULAR NO.1 OF 2011 DATED 29.07.2011 ISSUED BY MINISTRY OF CORPORATE AFFAIRS Annexure P11 TRUECOPY OF GENERAL CIRCULAR NO.1 OF 2020 DATED 02.03.2020 ISSUED BY MINISTRY OF CORPORATE AFFAIRS Crl.MC.No.2898/23 & con.cases 34 2025:KER:21423 APPENDIX OF CRL.MC 1711/2024 PETITIONER ANNEXURES Annexure A CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.238/2015 REGISTERED BY THE MARADU POLICE STATION BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT- 8, ERNAKULAM Annexure B CERTIFIED COPY OF THE CHARGE SHEET/FINAL REPORT FILED IN CC NO.1816/2017 IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT-8, ERNAKULAM Annexure C TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 27-8-2010 Annexure D TRUE COPY OF THE AGREEMENT TO SELL DATED 27-8-2010 Annexure E TRUE COPY OF THE JUDGMENT IN AR NO.16/2015 DATED 25-08-2021 OF THIS HON'BLE COURT