Mere breach of contract does not amount to fraudulent or dishonest action of accused.

(Petition under Section 482 of Criminal Procedure Code praying to call for the records in C.C.No.1259 of 2002 pending on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai and quash the said proceedings as the complaint does not disclose any offence whatsoever and that the continuation of the proceedings is an abuse of process of law against all the three petitioners.)

The petition is filed seeking quashment of the criminal proceedings in C.C.No.1259 of 2002 pending on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai.

2. The petitioners are the accused in a case under Sections 198, 403, 406, 409, 417, 418, 420, 447 and 448 r/w Section 34 of the Indian Penal Code.

3. The respondent has filed a private complaint alleging as follows:-

The complainant was the sole and absolute owner of the land bearing Door No.3, Lady Madhavan Road, Mahalingapuram, Chennai-34. She entered into an agreement dated 29.5.2000 with the accused who are the builders. The complainant also executed power of attorney on 1.6.2000 in favour of the accused authorising them to promote the land of the complainant. The accused did not put up the elevation as desired by the complainant in the land. Only after persistent demands made by the complainant, the accused modified the elevation. She cancelled the power of attorney granted in favour of the accused on 7.8.2001. Only inferior materials were used in the complainant''s share of flats, whereas superior materials were used in the share of flats of the accused. The accused also executed a memorandum of understanding agreeing to continue the work in accordance with the clauses therein. But the accused failed and neglected to act in accordance with the terms of agreement and the memorandum of understanding.

4. The complainant came to know that the accused had put up the construction deviating from the plan approved by the CMDA. The complainant demanded the accused that 50% of the area constructed over and above the approved plan should be given to the complainant. The accused had applied to CMDA for regularisation of the deviations and violations in the construction after the complainant cancelled the power of attorney executed in favour of the accused. The best parking slots were also taken by the accused. Apart from the above misdeeds, the accused are still possessing the flats belonging to the complainant and are demanding exorbitant amounts from the complainant for completing the remaining works. A legal notice was issued by the complainant calling upon the accused to hand over the possession of flats after deducting Rs.6 lakhs from the amount payable to the accused. Thus, the accused have committed offences punishable under Sections 198, 403, 406, 409, 417, 418, 420, 447 and 448 r/w Section 34 of the Indian Penal Code.

5. The accused have contended in the petition seeking quashment as follows:-

The complainant agreed to refund the sum of Rs.20 lakhs deposited with her on completion of the project without any interest, retaining a sum of Rs.4 lakhs as non-refundable deposit. She had also agreed that in case she failed to complete with the aforesaid conditions, the accused are entitled to retain such portion of the super built up area to the value of Rs.20 lakhs. As per the joint venture agreement dated 29.5.2000, the complainant accepted to retain 48.3% undivided share in the land together with the proportionate constructed area. The complainant started complaining about the various aspects of the construction in order to give trouble to the accused. After several meetings with the complainant in the presence of her advocate, a memorandum of understanding was entered into between the parties on 24.4.2000 wherein she agreed to refund the sum of Rs.14,13,700/- after adjusting the various amount payable to her by the accused. After executing the work, the accused called upon the complainant to pay the said amount to enable the accused to hand over the residential flats. B