The availability of a civil remedy cannot be a ground for quashing a criminal prosecution, and the essential ingredients of the offence of cheating under IPC 420 must be considered in determining the nature of the dispute.

JUDGMENT :

John Michael Cunha, J.

Heard learned Senior Counsel appearing for petitioner and learned Addl. SPP appearing for respondent No.1. Counsel for respondent No.2 is absent and has not addressed any argument.

2. An agreement was entered into between M/s.Prestige Lake View, Project by Prestige Shelters Private Limited as vendors in favour of Mrs.R.Lakshmi respondent No.2 herein (hereinafter referred to as the "complainant"), on 28.01.2005, whereby the aforesaid vendor namely "M/s.Prestige Lake View, Project by Prestige Shelters Private Limited" agreed to sell one residential plot formed in Prestige Lake View, measuring 1200 sq.ft., of the dimension of 30' x 40', for a total sale consideration of Rs.1,50,000/-. As per the terms of the said agreement, on completion of the scheme, the site was agreed to be registered in favour of respondent No.2. The terms of the said agreement having not been adhered to, the second respondent filed a complaint before respondent No.1 Kalasipalya Police, alleging that, by playing fraud and deception, complainant was made to part huge amounts in installments and the vendors failed to transfer the site to the complainant. Based on this complaint, FIR in Crime No.39/2015 was registered against five accused persons. The petitioner herein is shown as accused No.2 as Director of M/s.Prestige Shelters Private Limited.

3. Learned Senior Counsel for petitioner submitted that, the dispute between the parties is purely civil in nature, arising out of a written contract of sale. In respect of breach of the terms of said agreement, petitioner himself had approached the District Legal Services Authority, Bangalore. As per section 22(c) of Legal Services Authority Act 1987, pre-litigation conciliation had commenced and a notice in this regard was issued to respondent No.2 on 20.12.2014. After receipt of the said notice, instant complaint has been filed only to compel and coerce the petitioner to agree to the illegal terms of the complainant. The allegations made in the complaint do not disclose elements of cheating or fraudulent intention or deception on the part of the petitioner. The dispute between the parties is purely civil in nature. The criminal process invoked by the respondent No.2/complainant is mala fide and an abuse of process of court and therefore, FIR registered against petitioner is liable to be quashed.

In support of his submissions, learned Senior Counsel has placed reliance on the decisions of the Hon'ble Supreme Court in the case of ANIL MAHAJAN vs. BHOR INDUSTRIES LTD. & Another, (2005) 10 SCC 228, BINOD KUMAR & Others vs. STATE OF BIHAR & Another, (2014) 10 SCC 663 and INDER MOHAN GOSWAMI & Another vs. STATE OF UTTARANCHAL & Others, (2007) 12 SCC 1.

4. Repelling the contentions, learned Addl. SPP appearing for respondent No.1 State has argued in support of the impugned action, contending that the allegations made in the complaint prima facie disclose the elements of cheating and deception right from inception, making out the offences alleged in the FIR. Pendency of civil proceedings do not debar the criminal court from taking cognizance into the matter when criminal offences are made out. The allegations made in the complaint prima facie disclose commission of criminal offence and having regard to the nature of these allegations, the matter requires to be investigated and hence, there is no reason to quash the proceedings.

5. Considered the rival submissions and perused the records.

Insofar as the proposition of law is concerned, there can be no dispute that when the allegations disclose a civil dispute, the recourse to criminal process would be an abuse of process of court. But in the instant case, the allegations made in the complaint, in my view, clearly make out the ingredients of the offences of cheating and conspiracy, as alleged in the complaint.

6. As already stated above, respondent No.2/complainant has entered into an agreement to purchase a site in the Layout and Township to be for