Non-disclosure of a material fact that affects the rights of prospective buyers can constitute cheating, and quashing of proceedings under Section 482 CrPC is not appropriate when a prima facie case is made out and the offenses are triable by a Magistrate.

Kanchan Chakraborty, J:

1) These two applications under Section 482 of the Code of Criminal Procedure have been taken out for quashing the proceedings being C.G.R. 265/2009 pending in the Court of learned Chief Judicial Magistrate, Alipore South 24 parganas arising out of Balygunge police station case no. 9 of 2009 dated 20.1.2009 under Section 420/120B of the IPC. Since in both the applications, quashing of a particular proceedings has been sought for on common causes, they are disposed of together by the following order.

2) One Rohit Shroff filed a petition of complaint in the Court of learned C.J.M., Alipore on 21.1.2009 and the same was referred to Balygunge police station under Section 156

(3) Cr.P.C. for investigation and submit report. On the basis of said F.I.R., the Balygunge police station case no. 9 of 2009 dated 20.1.2009 was started against the petitioners. Rohit Shroff, in his petition of complaint, contended that his family members were in urgent need of a specious office space in an around Salt Lake area. Being attracted by an advertisement in a newspaper of M/s Renault Developers Private Limited, he contacted the petitioners who were representing M/s Renault Developers Private Limited as its Director. They assured Mr. Shroff that they were in a position to fulfill his requirement of a specious office space as they had under taken the project already and that they would provide the office space to Mr. Shroff and his relations by August, 2008, positively, if not earlier. As insisted by the petitioners, Mr. Shroff booked 2176 Sqt. Office space no. 5 on the 5th floor against consideration money of Rs.1,33,80,250/- besides one covered car parking space and open car parking space at premises no. 3A, Rammohan Mullick Gargen Lane, Kol-700010. On 3.9.2007, Mr. Shroff and his relations were induced to pay Rs.56,00,000/-for booking of the said space. On 7.11.2007, Mr. Shroff & his relations were induced by the petitioners to enter into an agreement with M/s Renault Developer Private Limited and to pay Rs.32,00,000/- on 7.11.2007, Rs.10,00,000/- on 4.1.2008, Rs. 12,88,888/- on 6.5.2008 & Rs.20,00,000/- on 30.6.2008, totaling Rs.1,30,80,000/-. In order to convince Mr. Shroff and his relations, the petitioners had taken them to the construction site and assured them that it would be completed within the time scheduled. But, in the utter surprise, Mr. Shroff and her relations found that till that date, the petitioners were not at all ready to provide them with the office space. The petitioners also started avoiding Mr. shroff and her relations willfully and deliberately. Being suspicious, Mr. Shroff and his relations had been to the construction site and found that only super built structure was erected. An enquiry revealed that the petitioners mortgaged/charged the said property and raised huge amount of money to the tune of Rs.50,000000/- from the market and that fact was never disclosed to Mr. Shroff and his relations. Mr. Shroff had written a letter to the petitioners on 6.11.2008 drawing their attention to the serious omission in the matter of not providing to the office space to them by August, 2008 as per the representation and undertaking of the petitioners against payment of money amounting to 1,30,80,000/-. Inspite of receiving the letter, the petitioners neither replied to the same nor made any contact with Mr. Shroff and his relations. Mr. Shroff, the de facto complainant had reasons to believe that the petitioners being actuated by an evil intention of gobbling up the huge amount of money of Mr. Shroff and his relations made false fraudulent misrepresentation of providing them with an office space of their choice which they never intended to provide right from the very inception. They misappropriated the money paid by them dishonestly by entering into a criminal conspiracy amongst themselves by deceitful means. Thereby, they cheated Mr. Shroff and his relations.

3) The petitioners being accused in tha