The main legal point established in the judgment is that a clear and simple breach of contract does not constitute an offence of cheating, and the distinction between 'super built-up area' and 'built-up area' is crucial in determining the nature of the dispute.

JUDGMENT

M.S. Jawalkar, J. - Heard Mr. T. Vaz, learned Counsel for the petitioners, Mr. Pravin Faldessai, learned Additional Public Prosecutor for the respondents No.1 & 2, and Mr. Nigel Da Costa Frias, learned Counsel for respondents No.3 & 4.

2. Rule. The rule is made returnable forthwith with the consent of and at the request of the learned Counsel appearing for the parties. Learned Counsel appearing for the respective respondents waive service.

3. We dispose of the above petitions by a common order, as the prayer in both the petitions relate to quashing and setting aside of FIR No.167/2019, registered at Panaji Police Station, for the offenses punishable under Sections 406 and 420 read with Section 34 of IPC.

4. The petitioners have filed the present Criminal Writ Petitions under Article 226 and 227 of the Constitution of India and also Section 482 of the Criminal Procedure Code for quashing of an FIR No.167/2019.

5. It is the case of the petitioner that the petitioner, through the partnership firm, executed Agreement of Sale with respondent no.3 and his wife and respondent no.4 and his wife, for purchase of two apartments, having super built-up area and handed over the possessions of the flats to the respective purchasers. The petitioner, by writing emails and reminders to respondents no.3 & 4, called upon them to execute Deed of Sale, but the said respondents failed to reply or come forward to execute the Deed of Sale. It is further the case of the petitioner that the said respondents approached National Consumer Disputes Redressal Commission (NCDRC) with grievances that are the subject matter of FIR in question. On 13.12.2018, respondents no.3 & 4 filed a complaint against the petitioner upon which respondent no.2 registered FIR No.167/2019 under Sections 406 & 420 read with Section 34 of IPC.

6. It was alleged by respondents no.3 & 4, in the said complaint dated 13.12.2018, that actually the flat bearing no.B-402 sold to respondent no.3 had 112.72 sq. mts., whereas the Agreement for Sale dated 27.03.2015 stated that an area of 119.58 sq. mt. has been sold to respondent no.3 for which he has paid a sum of Rs. 1,12,13,918/-. Similarly, respondent no.4 has been sold one flat bearing no.G-402 with a built-up area of 111.73 sq. mts. and a built-up area of 115.41 sq. mts. for another flat bearing no.G-401, whereas the Agreement for Sale mentions an area of 118.05 of one flat and an area of 122.43 sq. mts. of another flat, for which he has paid 1,51,36,231/-. Also, an amount of Rs. 7,00,000/- was paid in cash on 13.03.2015, by respondent no.3, towards the logistics fee to the petitioner and the petitioner has denied receiving the said amount and also refused to issue a receipt. It is also alleged in the complaint that both respondents no.3 & 4 were sold an open terrace on the rooftop for which they have paid an amount of Rs. 5,00,000/- and Rs. 3,00,000/-, respectively to the petitioner, which has now become common terrace for all the residents of the building.

7. Respondents no.3 & 4 have alleged that though they have paid valuable consideration to the developer for the premises purchased, it is revealed to them that they have been cheated and fraud has been played on them by the developer and his wife, who have misappropriated their money and have thus committed criminal breach of trust. Accordingly, the said FIR was registered against the petitioners.

8. The learned counsel for the petitioner submitted that on perusal of the complaint and other documents, it can be seen that the dispute is civil and not criminal and no ingredients of cheating are made out by the respondents. The learned Counsel for the petitioner has explained two important concepts of Civil Engineering/Architecture namely, 'built up area' and 'super built-up area' and submitted that the Agreements for Sale executed by respondents no.3 & 4 were for the 'super built-up area' and not for the 'built-up area'. The learned Counsel for the petitioner has admitted receivi