Indian Kanoon - Search engine for Indian Law

3.He further submitted that it is not in dispute that the petitioner purchased the flat from M/s.Ozone Projects Private Limited and paid the amount of Rs.2,05,15,383/- from the year 2010 onwards. Despite payment of entire amount, the flat not handed over to the petitioner. On inspection, it was found it is an incomplete flat. Later, the petitioner came to know that the said flat sold to third person neither informing the petitioner nor causing cancellation of any documents. Now, the documents are still in the name of the petitioner, but on false particulars, the property sold to third person and thereby, misappropriation and cheating committed. He further submitted that https://www.mhc.tn.gov.in/judis M/s.Ozone Projects Private Limited not only cheated the petitioner, they had also cheated one Pandiyan who lodged the complaint against the Managing Director, Director of M/s.Ozone Projects Private Limited and a case in Crime No.10 of 2024 for offence under Sections 406, 420 r/w 34 registered by the respondent Police herein. Thus, the respondent Police treated the petitioner's complaint as civil, on the other hand, an FIR in Crime No.10 of 2024 has been registered on the complaint of said Pandiyan, which is of identical facts. The respondent Police acted in perfunctory manner taking sides depending upon the whims and fancies.

4.The learned Additional Public Prosecutor appearing for the respondent Police strongly objected the submissions of the learned counsel for the petitioner stating that in the report, dated 27.12.2022, the Investigating Officer found that the petitioner's grievances has to be addressed by the Tamil Nadu Real Estate Regulatory Authority or the petitioner can seek return of money from the National Company Law Tribunal. Further, the Court below had also given similar reasons and dismissed the petition under Section 156(3) Cr.P.C. He further submitted that the Sub-Inspector of Police, EDF-I Wing, Team-I, CCB, Vepery, https://www.mhc.tn.gov.in/judis Chennai sent a closure report dated 27.11.2022 to the complainant, wherein it was found that the petitioner purchased a flat in an apartment named “The Metrozone” Flat No.1603, 16th Floor in 'N' Block and paid UDS value of Rs.31,61,000/- and construction cost of Rs.70,61,414/-, in total, the petitioner paid Rs.2,01,77,414/-. The construction agreement was entered between them on 31.08.2010 and thereafter, a Tripartite Agreement was entered between the petitioner's banker Kotak Mahindra Bank Limited and M/s.Ozone Projects Private Limited on 23.09.2010 for Flat No.N-1603. M/s.Ozone Projects Private Limited further collected an additional cost of Rs.7,45,677/- which was also paid. Thereafter, when the flat was inspected, it was found that the flat was incomplete and the petitioner refused to take possession of the property, hence it was found that it is a dispute between the petitioner and the flat promoter. Thereafter, the petitioner was advised to approach the Tamil Nadu Real Estate Regulatory Authority or National Company Law Tribunal and closed the petition. Thereafter, the petitioner approached the Lower Court in Crl.M.P.No.28688 of 2023 and the learned Magistrate by order dated 16.11.2023 gave a similar finding that there is no criminality. He further submitted that the petitioner referring to Crime No.10 of 2024 submitted that the petitioner is also similarly placed and https://www.mhc.tn.gov.in/judis hence, FIR ought to be registered by the respondent, which is not proper. In that case, the defacto complainant Pandian was owning a part of land in the said project which was sold to M/s.Ozone Projects Private Limited and thereafter, there was a buy back arrangement and the defacto complainant therein was allotted two flats in F-1603 and Z-1603 which was handed over to him and later without the knowledge of the defacto complainant therein, the flats were registered in the name of one S.Thirunavukarasu in Document Nos.4223/2023 and 4222/23, hence a complaint was registered and the investigation is in progress. But the petitioner is not similarly placed and hence, he opposed this petition.

5.The learned counsel for the petitioner filed an additional typed set of papers and submitted that in this case also the petitioner purchased a flat in N-1603 for which the entire sale consideration was paid, construction agreement and UDS agreement entered into, the petitioner also availed financial assistance from Kotak Mahindra Bank Limited but when these agreements were in existence, suppressing the same M/s.Ozone Projects Private Limited executed a sale deed for Flat No.F-1603 in favour of one Mr.P.Thirunavukarasu vide Document No.1302 of 2022 registered on https://www.mhc.tn.gov.in/judis 15.03.2022. Hence, it is a clear case of cheating and misappropriation being committed. Further from the typed set of papers, it is seen that M/s.Ozone Projects Private Limited admitted about receipt of money and also informed the petitioner about the work in progress and shortly to deliver the flat. But contrary to the undertaking and agreement, M/s.Ozone Projects Private Limited sold the same property to a third person in a deceitful manner and hence, a clear case of cheating, misappropriation and cheating committed but the Investigating Officer as well as the Lower Court failed to consider these aspects.

6.Considering the submissions made and on perusal of the materials, it is seen that it is not in dispute that the petitioner entered into Agreement for Sale and Construction Agreement on 31.08.2010 and a Tripartite Agreement was entered between the petitioner's banker Kotak Mahindra Bank Limited and M/s.Ozone Projects Private Limited on 23.09.2010. The petitioner sent communication to M/s.Ozone Projects Private Limited which was acknowledged and they also sent a reply stating that the work was in progress and soon to be completed. Later it was found that construction was not fully completed. M/s.Ozone Projects Private Limited having received https://www.mhc.tn.gov.in/judis the entire sale consideration, in a deceitful manner executed a sale deed in favour of a third person for the same property Flat No.N-1603 which was to be handed over to the petitioner. Neither the earlier agreements were cancelled nor the money was returned but the property was sold to one P.Thirunavukarasu which would clearly prove that M/s.Ozone Projects Private Limited and its officials in a collusive manner had committed misappropriation, cheating and forgery cognizable offences which needs to be investigated, since prima facie case made out. This Court finding the complaint of the petitioner not acted upon both by the respondent and the Court below on the cognizable offence made out is not proper and hence hereby set aside the order passed by the learned Metropolitan Magistrate, Court for CCB and CBCID Cases, Egmore, Chennai in Crl.M.P.No.28688 of 2023 dated 16.11.2023 and the closure report of the Inspector of Police dated 27.12.2022. Accordingly, the respondent is directed to register a case on the complaint of the petitioner, conduct investigation against the offender and to file a final report in this case.