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2013 Supreme(Guj) 171
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.D.KOTHARI, J.
APURVA NAVNITLAL THAKERSY - Applicant(s)
Versus
STATE OF GUJARAT - Respondent(s)
CRIMINAL MISC.APPLICATION NO. 3356 of 2008
Decided On : 03/05/2013
MR SUDHIR NANAVATI, SENIOR ADVOCATE for the Applicant(s) No. 1 -3 MS AMEE YAJNIK, ADVOCATE for the Respondent(s) No. 2 MR N.J. SHAH, APP for the Respondent(s) No. 1
Headnote:
Criminal Procedure - Section 156(3) - Applicants seek for quashing and setting aside Criminal Complaint - Complainant had purchased flats bearing Unit building known as AKSHAT Complex, In complaint filed for criminal breach of trust, principal grievance of complainant is of some incomplete work in flats, On presentation of complaint before the learned Magistrate, learned Magistrate has passed order to register the complaint and forward the same for inquiry to concerned police station -Held, In case of any dispute or grievance, aggrieved party can avail the remedy under criminal machinery provided, either "the act" complained off, prima facie contains essential ingredient of such offence and/or there exist guilty mind on the part against which grievance is made. Thus, if the complainant is not able to figure out clearly "act" on the part of the accused by linking him with offence, still complainant would have chance to succeed,-at least at initial stage by showing guilty mind on part of such party. Intention is determinative, In absence of both i.e. "the act and mens rea", - as in present case,- the complainant would have tough time to urge his case, case of the complainant fails. In short, alleged non completion of works by applicants, by itself, in the circumstances of the present case, would not attract any offence, complaint deserves to be quashed as grossly delayed complaint, it is not necessary to express any opinion to first point advanced by learned Senior Advocate for applicants learned trial court has passed order mechanically - Petition is allowed.
1. Heard Mr. Sudhir Nanavati, learned Senior Advocate for the applicants and Mr. N.J. Shah, learned A.P.P. for the State.
2. The applicants seek for quashing and setting aside the Criminal Complaint (Inquiry Case) No. 47 of 2008 pending before the learned Judicial Magistrate, First Class, Ahmedabad (Rural).
3. Short facts are that the complainant had purchased flats bearing Unit Nos. 308, 309, 408 and 409 of the building known as AKSHAT Complex in the year 2000. In complaint filed for criminal breach of trust, the principal grievance of the complainant is of some incomplete work in the flats. On presentation of the complaint before the learned Magistrate, the learned Magistrate has passed order to register the complaint and forward the same for inquiry under Section 156(3) Cr.P.C. to the concerned police station.
4. The applicants are developers of the property in question. It is the say of the complainant that he had paid Rs. 3,32,650/-and Rs.9,00,000/- in respect of Flat Nos. 308 and 309 and he had paid Rs.3,32,650/-and Rs.9,00,000/-in respect of Flat Nos. 408 and 409 towards consideration of flats. The main grievance of the complainant is that the lift of the building in question is not working; the second grievance is about the water supply; the third grievance of the complainant is about the incomplete kitchen and the last
grievance is about the incomplete tiles work, and incomplete work of the bathroom. It is the say of the complainant that the applicants had assured him that the incomplete work would be completed within one month and the complainant was cheated by fraudulent and dishonest inducement by the applicants.
5. Mr. Sudhir Nanavati, learned Senior Advocate for the applicants has made three fold submissions. Firstly, that the learned trial court has mechanically passed the order under Section 156(3), Cr.P.C. sending the complaint for police inquiry. Secondly, that such a complaint preferred by the complainant is not maintainable as the grievance is of purely commercial and civil nature and therefore filing of such criminal complaint in respect of such grievance is an abuse of the process of law and thirdly, that the complaint is a gross delayed complaint.
6. Mr. Nanavati has drawn attention to the decision of Hon'ble the Supreme Court in the case of Thermax Limited and others v. K.M. Johny and others reported in (2011) 13 SCC 412. In that case, Hon'ble the Supreme Court allowing the appeal and quashing the complaint filed for the offence under Sections 405, 406, 420 read with Section 34 IPC, held that mere use of expression of cheating or deceiving in the complaint by itself is not sufficient for inferring such intention on the part of the accused. It was also held that when the dispute is of civil nature, remedy of criminal machinery ought not to be resorted as a short cut. Learned Senior Advocate for the applicants in support of his submissions has drawn attention to paragraphs 34 and 37 of the said decision, which reads as under:
“34.The principles enunciated from the abovequoted decisions clearly show that for proceeding under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Sections 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to as a criminal proceeding.
37. It is settled law that the essential ingredient for an office under Section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of Section 420 are not attracted, the prosecution initiate
