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2011 Supreme(Mad) 2479
High Court of Judicature at Madras
R. MALA
Sanjay Kumar Bagrecha
Versus
State rep. by The Inspector of Police C.C.I.W. C.I.D., Dharmapuri
CRL. R.C. Nos. 1199 & 1200 of 2007
Decided On: 29-04-2011
For the Petitioner:K.M. Vijayan Senior Counsel for M/S.La. Law, Advocate.
For the Respondent:S. Rajendiran, Govt. Advocate (Crl.side).
Prima facie evidence of criminal breach of trust and cheating based on the dispute over development charges and completion of development work.
Headnote:
Criminal Breach of Trust - Housing Society Agreement - Sections 406, 408, 409, 420, 477A, 120B and 109 I.P.C. - Summary of Acts and Sections
Fact of the Case:
The petitioner, a partner of 'Sanjay Enterprises', entered into an agreement with a housing society for the sale of housing plots. Disagreement arose regarding the development charges and completion of development work.
Finding of the Court:
The court found that prima facie case existed against the petitioner for the alleged offences under Sections 406, 408, 409, 420, 477A, 120B and 109 I.P.C. The court dismissed the discharge petitions, stating that the ingredients of penal provisions were made out.
Issues: Dispute over development charges, completion of development work, and alleged misrepresentation in the sale agreement.
Ratio Decidendi: The court held that the petitioner's receipt of development charges and the dispute over completion of development work constituted a prima facie case for the alleged offences.
Final Decision: The Criminal Revisions were dismissed, and the order passed by the trial court was confirmed. The trial court was directed to proceed with the case and dispose of it within six months.
1. The revisions have been preferred by the petitioner against the dismissal of discharge petitions, which were passed by the learned Judicial Magistrate No.II, Hosur, in Crl.M.P.Nos.2775 and 2778 of 2006 in C.C.Nos.282 and 283 of 2002, dated 16.07.2007, stating that prima-facie case has been made out against the petitioner to frame charges for the alleged offence under Sections 406, 408, 409, 420, 477A, 120B and 109 I.P.C.
2. The gist and essence of the petitions are as follows:
(i)The petitioner/accused being the partner of the firm 'Sanjay Enterprises', has entered into an agreement of sale with the first accused, who was the President to sell 100 house plots at sale price of Rs.27/- per sq.ft. including the development charges. In pursuance of the sale agreement, piecemeal consideration has been paid and the petitioner received and passed receipts for the same and there is no mis-appropriation of any amount.
(ii)There are breach of conditions of the agreement by the society. The layout plan has been approved by the Director of Country and Town Planning in Pa.Mu.No.16048/93, L.A.3. Dated 30.11.1993, which has been ratified by HNDDA in Na.Ka.No.3278/93, A2 dated 24.01.1996 and as per the layout plan, layout roads, parks and places for public purpose were ear marked and gifted to the Commissioner, Panchayath Union, Hosur.
(iii)As per the recital of the document, the sale price per sq.ft. is Rs.27/- and the total number of plots to be sold is 100 and out of the sale price of Rs.27/-, a sum of Rs.15/-shall be paid being the charge of development and registration shall be made at the guideline value of Rs.12/-.
(iv)The layout of house plots formed in the year 1993. Mud roads and metal roads have been laid even in the year 1993, drainage work has also been done. The Society got the sale deeds for the amount released. It is mutually agreed that the sale deed will be executed at the guideline value to save stamp duty to the Society.
(v)Plantation has been done and 50% of the trees grown up by the sides of the road. The development has been made as on funds available. The Society breached the conditions of the agreement. The Society has not paid for the balance sites. The pick and choose plots and the calculation of development by the Society is wrong.
(vi)There is no false representation on the part of the petitioner and there is no dishonest concealment. There is no breach of terms of agreement on the part of the petitioner and breach of performance is no cheating. There is no entrustment of money to this accused. The amount paid was only a sale consideration in pursuance of agreement. The petitioner was not a paid servant and he has not maintained the Society accounts and there is no falsification of accounts. There is no criminal intention or mensrea on the part of the petitioner/accused. Hence, no prima-facie case has been made out for the offence under Sections 406, 408, 409, 420, 477A, 120B and 109 I.P.C. Hence, the petitioner prayed for discharging the charges levelled against him.
3. The gist and essence of the counter affidavit filed by the respondent/complainant are as follows:
(i) The petitioner is the partner of the partnership firm 'Sanjay Enterprises' and they have entered into an agreement with the Society for sale of housing plots. The petitioner has falsely stated in the agreement that they have laid the roads, drainage, boundary stones and planted trees as per the approved layout plan. The Society was induced by the false representation of the petitioner herein and entered into the sale agreement and parted with huge sum of Rs.40,00,000/- including the development charges.
(ii)The plots were not developed as per the representation made by the petitioner. The drainage was not constructed and the constructed roads were not formed. The members/purchasers, who entered into an agreement with the Society to purchase have started asking for refund of the advance amount. Hence, the Society could not purchase the plots.
