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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIRAL R. MEHTA, J.
Bhairavi Apurva Dineshbhai Patel Through Poa Rupeshkumar Prafulchandra Shashtri - Applicant
Versus
State of Gujarat - Respondent
R/Special Criminal Application No. 9077 of 2022
Decided On : 06-10-2022
FIR Quashment - Dispute between parties - Indian Penal Code Sections 406, 420, 114 - The court discussed the allegations of cheating and non-compliance with RERA order against the accused, a partner in a real estate firm. The court emphasized the need for thorough investigation due to the mixed nature of civil and criminal disputes and the prima facie non-genuine conduct of the accused. The court referred to relevant legal principles and cautioned against quashing the FIR at the premature stage.
Fact of the Case:
The complainant booked a bungalow in a scheme by Siddhi Vinayak Developers, paid Rs.68 Lakh, but did not receive possession as promised. The accused, a partner in the firm, was alleged to be involved in the non-compliance.
Finding of the Court:
The court found the conduct of the accused prima facie not genuine and emphasized the need for thorough investigation due to the mixed nature of civil and criminal disputes.
Issues: Dispute over possession and completion of work in a real estate scheme, involvement of a partner in the firm, and the need for thorough investigation.
Ratio Decidendi: The court emphasized the need for thorough investigation due to the mixed nature of civil and criminal disputes and the prima facie non-genuine conduct of the accused.
Final Decision: The petition to quash the FIR was dismissed, and the court highlighted the need for thorough investigation before reaching a decision.
ORDER :
1. By way of this Special Criminal Application under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”), the petitioner – original accused No.2 seeks quashment of the F.I.R. being C.R. No.11196003220550 of 2022 registered with Manjalpur Police Station, District : Vadodara city on 6th August 2022 for the offence punishable under Sections 406, 420 and 114 of the Indian Penal Code.
2. The case of the prosecution, as per the translated version of F.I.R., is as under :
I state my complaint in person that I reside at the aforementioned address with my family and I work at E.R.D.A. company, Makarpura.
The partner and administrator of Siddhi Vinayak Developers Apurva Patel and partner Bhairvi Apurva Patel had started a bungalow scheme named “Maple villa” behind Billabong school, Vadsar ring road in the year 2017. We had come to know about the said scheme through newspaper. Hence, we had decided to purchase bungalow in the “Maple villa” scheme and therefore went to visit the site. Apurva Dinesh Patel was present at the site office and he explained us the site scheme. After showing us the sample house, Apurva Patel told us that construction will be carried out as per the sample house. It is a scheme of 50 bungalows. The cost of the bungalow in the said scheme was Rs.68,00,000/- (All inclusive, no extra cost) and the construction work will be finished by December, 2020; the possession of the house will be given and the sale deed will be executed. He had given such alluring offer and he had given surety. We believed him and trusted him and booked bungalow no.A-46 in the said scheme. Apurva Patel had given us the booking form of bungalow no.A-46, signed by him.
After booking bungalow no.A-46, we made payment of Rs.2,00,001/- as booking amount on 13/11/2017 from my account no.35812783171 of SBI Bank, vide cheque no.103549. Thereafter, as he demanded money for the said bungalow, we had given the following cheques to Apurva Patel: (1) Three cheques on 21/11/2017, one cheque of I.O.B. Bank for Rs.3,00,000/-, second cheque of SBI Bank for Rs.5,00,000/- and third cheque of I.O.B. bank for Rs.5,00,000 vide cheque no.562662. (2) cheque no.687790 of I.O.B. Bank, Manjalpur branch of my account for Rs.5,00,000/- on 24/11/17 (3) cheque no.400309 of I.O.B. Bank for Rs.7,00,000/- on 11/01/19 (4) cheque no.124034 of S.B.I. Bank for Rs.3,00,000/- on 11/01/19 (5) two cheques on 13/02/19, one cheque of S.B.I. Bank vide cheque no.016345 for Rs.6,00,000/-, second cheque of S.B.I. Bank vide cheque no.124035 for Rs.2,00,000/-. All of these cheques were issued in the name of Siddhi Vinayak Developers of Apurva Patel. All of the aforementioned cheques have been cleared in his account. Thus, we have given the amount of Rs.38,00,000/- to Apurva Patel.
After giving him the amount of Rs.38,00,000/-, I had availed the loan of Rs.30,00,000/- from Central Bank of India, Makarpura road branch, vide loan account no.4005872105. The loan amount of Rs.30,00,000/- was transferred by the bank in the account of Siddhi Vinayak Developers of Apurva Patel, on different dates. Thus, we had paid the total amount of Rs.68,00,000/- for the house to Apurva Patel by 13/02/2019. Thereafter on 13/02/2019, Apurva Patel told me, I execute a sale-deed of bungalow No.A-46 in favour of you and you give the remaining payment. But, I told him, the work of house is incomplete yet. To which, Apurva Patel told me, I will complete the remaining work of your bungalow by Holi in March-2019 and you give me cheques of the remaining payment now. Therefore, I gave him cheques of Rs.6,00,000/- and Rs.2,00,000/- for the remaining payment of Rs.68,00,000/- on 13/02/2019 and the cheques got cleared into his account of Siddhi V
Cheating and forgery – A bonafide criminal prosecution cannot be quashed at threshold.
The main legal point established in the judgment is the requirement for allegations to constitute a cognizable offense and the application of the legal maxim 'Caveat Emptor' in property transactions.
High Courts may quash FIRs under Section 482 CrPC only in exceptional circumstances, with a prima facie case against accused warranting investigation.
FIR quashed as allegations fail prima facie to constitute Sections 451,447,506 IPC offences in civil property possession dispute lacking trespass intent and intimidation alarm, preventing abuse of pr....
Inherent powers under Section 482 CrPC do not permit quashing proceedings when prima facie evidence of a crime is present, mandating a trial to ascertain truth.
The power to quash criminal proceedings should be exercised sparingly and only when the allegations do not disclose a prima facie case of a criminal offence.
The main legal point established is that a bona fide claim of right or title can protect a person from being convicted of criminal trespass, even if the claim is ill-founded in law.
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