Indian Kanoon - Search engine for Indian Law

3. It was alleged that the intent to cheat was evident as the petitioners duped the complainant of his life savings under the false pretext of building World Class Villas despite knowing that the land on which the project was to be made was in litigation before NGT since 2014/ 2015, of which the undersigned was not aware. It was alleged that the business operandi of the petitioners was to control his parent Company Asian Hotels (North) Ltd through a web of Overseas Companies so that none of his personal assets in India can be attached for his criminal activities committed here. It was alleged that thus the petitioners committed offences of cheating, criminal breach of trust and misappropriated funds. Basis the said allegations, the impugned FIR was lodged.

14. Allegedly, from 01.10.2015 till 08.11.2017, the Respondent No. 2 being satisfied with the returns, further invested an amount of Rs. 7.5 crores as ICD through Victor Cables. The said amount was repaid in full by 24.01.2018 along with interest totalling to Rs. 73,87,843/- including TDS. It is submitted that the aforesaid refunds belie any intention to cheat, let alone since the inception. It is clear from the above that the Company made all the payments upon demand by Respondent No. 2, which clearly reflects that at no point, did the Company and/or its officials had any dishonest intentions to usurp the money of Respondent No. 2 as sought to be alleged in the FIR, let alone any dishonest intention from the beginning to cheat upon Respondent No. 2.

34. Further, a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction because for the offence of cheating, it is a prerequisite that dishonest intention must exist at the inception of any transaction whereas in case of criminal breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property as per law, therefore, for commission of criminal breach of trust, the dishonest intention comes later, i.e, after obtaining dominion over the property by the accused person whereas for commission of cheating, dishonest intention of the accused has to be present at the inception of the transaction."

32. Ld. Sr. Counsel submits that the transaction was purely a loan and further submits that even for the sake of argument if it be taken as a villa purchase, the delay in the project was caused due to Stay Orders passed in judicial proceedings which were beyond the control of the petitioners and fell within the ambit of force majeure. The factums of orders were duly disclosed in the Directors Report of the Company every year. Hence, it cannot be said that the petitioners had an intention to cheat since the inception. In fact, refunds and payment of interest were made regularly coupled with the fact that various approvals were procured by the company, highlights the very efforts made by the Company and belies any intention to cheat.