IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.8502 OF 2016 BETWEEN:
1. M/s. Keystone Constructions, A registered partnership Firm Having its registered office at Tuscan Centre, No.70, Infantry Road, Bengaluru – 560 001. Represented by its Authorised Signatory, Sri. Sai Prasad S.
2. M/s. Ozone Shelters Private Limited, A Company incorporated under the provisions of the Companies Act, Having its Registered office At No.38, Ulsoor Road, Bengaluru – 560 042.
Represented by its Senior Vice-President (Legal) Sri. Sunil Raj R.
(By Sri. C.V. Nagesh, Senior Advocate a/w Sri. Raghavendra K., Advocate) AND:
1. The State of Karnataka, By the Station House Officer, HSR Layout Police Station, Bengaluru City – 43.
…Petitioners 2. Sri. Amitav Roy, Aged about 43 years, S/o. Sri. Dipak Ranjan Roy, Resident of the premises bearing No.156, Reliable Residency, Haralur, Agara Post, Bengaluru – 560 043.
...Respondents (By Sri. Vijaya Kumar Majage, Addl. SPP for R1; Sri. H. Pavana Chandra Shetty, Adv. for R2) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 13.07.2016 passed in PCR No.6767/2016 pending on the file of the VI ACMM, Bengaluru and further to quash the FIR filed in Cr.No.554/2016 registered at HSR Layout P.S., Bengaluru VI ACMM, Bengaluru, for the offences which are made penal under Sections 420, 460, 468, 470, 471, 405, 464 of IPC.
This Criminal petition coming on for Admission, this day, the Court made the following:
ORDER Petitioners are builders. They entered into a contract with respondent No.2 for construction and sale of an apartment in the land bearing Sy.No.53/1 and 54 of Kasavanahalli Village, Varthur Hobli, Bengaluru, vide agreement dated 23.03.2011 under the name and style of “Ozone Evergreen Apartments”. In terms of the said agreement, petitioners were required to put respondent No.2 in possession of the apartment on or before 30.11.2011 or within a grace period of three months therefrom subject to compliance of other terms and conditions of the agreement.
2. Respondent No.2 filed a private complaint under Section 200 of Cr.P.C. seeking prosecution of the petitioners for the alleged offences punishable under Sections 420, 464, 460, 468, 405, 470 and 471 of IPC. The grievances raised by respondent No.2 in the aforesaid complaint are that :
(i) Petitioners delayed the project by three years and refused to pay the compensation as agreed under the agreement. It is stated that the complainant had approached the State Consumer Commissioner seeking necessary reliefs against the petitioners and several orders have been passed directing the petitioners to pay compensation;
(ii) Petitioners collected more than 15 crores from the prospective buyers on the guise of making deposit to Bangalore Water Supply and Sewerage Board (BWSSB), but did not deposit the same with BWSSB, instead issued a forged NOC purported to have been issued by the BWSSB towards providing water supply;
(iii) Petitioners/accused collected Stamp duty on the agreement at 1% instead of 0.1%, to make unlawful gain;
(iv) Petitioners/accused have not obtained Occupancy Certificate for the building and the complainant has been informed from reliable sources that the building is constructed in deviation of the sanctioned plan.
3. On receiving the complaint, the learned Magistrate by order dated 13.07.2016 referred the complaint for investigation by HSR Layout police station.
4. The learned Senior Counsel for the petitioners has raised four fold contentions assailing the initiation of criminal action against the petitioners.
Firstly, he contends that for the alleged non-payment of damages, respondent No.2 has already approached the consumer court and has obtained appropriate relief. Non- payment of damages do not invite any penal action against the petitioners.
Secondly, the requisite stamp duty collected from the petitioners has been lawfully paid to the Registration Authorities as reflected in the copies of the agreements produced before this Court. Referring to Article 5 2[3[(e) of the Karnataka Stamp Act, 1957, the learned counsel would submit that as on the date of execution of the agreement, the agreement was required to be stamped with 1% of the stamp duty and therefore, the petitioners have not committed any illegality either in collection of the stamp duty from respondent No.1 or in paying the same to the Registration Authorities.
Thirdly, the petitioners have paid the requisite charges to BWSSB and have obtained NOC from the BWSSB under reference No.CE(M)/ACE(M)-I/TA-9/4036/2005-06 dated 08.08.2005. Therefore, even on this score, the allegations made against the petitioners do not attract the offences alleged in the complaint.
Lastly, the order of taking cognizance by the learned Magistrate suffers from non-application of mind and the same is contrary to the law laid down by the Hon’ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287, which has rendered the impugned proceedings defective in substance and form.
5. Refuting the above contentions, the learned counsel appearing for the complainant/respondent No.2 would submit that the allegations made in the private complaint prima-
facie attract the offences alleged against the petitioners. In terms of the agreement, the petitioners were required to complete the construction and put the complainant in possession of the completed apartment within three months or within the extended grace period or in the alternative to pay damages at the rate of 10% on the amount collected by them. Petitioners failed to abide by the said terms which constrained the complainant to approach the Consumer Court. Even the Consumer Court has passed an order directing the petitioners to pay the compensation. The same does not exonerate the petitioners of the criminal charges for having defaulted in carrying out the terms of the agreement.
6. Regarding payment of stamp duty, learned counsel for the petitioners does not dispute the legal position that in view of the amended provision, petitioners were required to pay 1% percent stamp duty on the consideration amount and accordingly the same has been collected and paid by the petitioners. With regard to ‘No Objection Certificate’ (‘NOC’ for short) obtained from BWSSB, learned counsel has referred to the document relied on by the petitioners dated 08/08/2005 bearing No. CE(M)/ACE(M)-I/TA-9/4036/2005-06 and would submit that the said document relates to M/s. Vaishnavi Heritage and not to the Evergreens Apartment and hence, the said document cannot be relied on. Further, learned counsel for the petitioners has pointed out that the petitioners themselves have sought for necessary information under Right to Information Act, an endorsement has been given by BWSSB to the effect that BWSSB has not issued NOC bearing No.CE(M)/ACE(M)-I/TA-9/ 4036/2005-06 dated 08/08/2005. To clarify this point, learned counsel has drawn my attention to the building licence issued by the BBMP wherein there is a specific reference at Sl.No.3 to the BWSSB proceeding in CE(M)/ACE(M)-I/TA-9/ 4036/2005-06 dated 08/08/2005. These documents prima facie indicate that false and fabricated documents were given to the complainant making it to appear that NOC was granted by BWSSB. Further he contends that the petitioners have not obtained occupancy certificate and therefore there is a clear case of cheating by the petitioners and hence they are liable for prosecution for the alleged offences. He further submits that the petitioners have collected a huge amount of money from as many as 900 apartment owners and have failed to credit the same to the account of BWSSB and thereby the petitioners have committed offence punishable under Section 420 of IPC and allied offences as alleged in the complaint.
7. Placing reliance on the decision of the Hon’ble Supreme Court in the case of SOM MITTAL V. GOVERNMENT OF KARNATAKA, (2008) 3 SCC 753, with reference to para -
9 thereof, learned counsel has emphasized that in the light of the documents produced in proof of the allegations made in the complaint, the proceedings in question cannot be quashed at the crime stage and thus prayed for dismissal of the petition.
8. Learned Addl. SPP appearing for respondent No.1 submitted that the documents submitted by the complainant clearly indicate that BWSSB has not issued any NOC under reference No.CE(M)/ACE(M)-I/TA-9/4036/2005-06 dated 08/08/2005. Reference number therein is overwritten and tampered. This document supports the allegation that to extract money from the complainant, petitioners have played fraud, forgery and falsification of documents. These allegations are required to be investigated and hence he seeks for dismissal of the petition.
9. Considered the submissions and perused the records.
10. There is no dispute regarding the fact that respondent No.2 has entered into an agreement to purchase an apartment from the petitioners. There is also no dispute that in terms of the said agreement, petitioners were required to hand over possession of the said apartment completed in all respects to respondent No.2 within the stipulated period. The facts on record clearly indicate that the petitioners have failed to abide by the terms of the said agreement which constrained respondent No.2 to approach the State Consumer Forum which has issued directions to the petitioners herein to abide by the terms of the said agreement and has also directed to pay compensation to respondent No.2.
11. Learned counsel for the petitioners submits that as against the said order, respondent No.2 has preferred an appeal before the Commissioner, National Consumer Disputes Redressal Commission.
12. It is not in dispute that the petitioners have collected a sum of Rs.1,64,160/- towards BWSSB and BESCOM charges and deposits. But the documents produced by the petitioners indicate that only a sum of Rs.80,282/- is paid to BWSSB towards NOC charges. The agreement discloses that the project undertaken by the petitioners consists of condominium of apartments which means that the petitioners have collected similar amount from other apartment owners, but no documents have been produced to show that the amount of Rs.1,64,160/- collected from the apartment owners was paid to the BESCOM. On the other hand, the very document relied on by the petitioners shows that only a sum of Rs.80,282/- was paid to BWSSB in respect of the entire condominium. Even this document does not relates to Evergreens Apartments. The said document on the face of it indicates that the requisition was made by Vaishnavi Heritage and not by any one of the petitioners. In reference No. CE(M)/ACE(M)-I/TA-9/4036/2005- 06, there is clear overwriting and tampering. The documents produced by respondent No.2 discloses that BWSSB itself has confirmed that it has not issued any NOC vide reference No. CE(M)/ACE(M)-I/TA-9/4026/2005-06 dated 08/08/2005. In the building licence issued by the BBMP, a reference has been made to CE(M)/ACE(M)-I/TA-9/4026/2005-06, thus it is clear that on the strength of fabricated documents, amount was collected by the petitioners from respondent No.2 and other apartment owners and the same has not been credited to the BWSSB.
Since there is tampering of documents purporting to have been issued by BBMP, the matter requires to be investigated.
13. Coming back to the order passed by the learned Magistrate under Section 156(3) of Cr.P.C. is concerned, a perusal of the order sheet maintained in P.C.R.No.6767/2016 indicates that the complaint was presented on 21/06/2016 and thereafter the matter was adjourned to 23/06/2016. The order sheet of the relevant date reads a follows;
“ Case advanced for. Heard Advocate for complainant for referring the matter for police for investigation. Call on for orders on 27/6/2016. “ Thereafter, the matter was adjourned from time to time and finally on 13/07/2016, the learned Magistrate has passed the following order;
“ Heard, the advocate for complainant. Perused the complaint and records found that there are materials to refer the matter to HSR Layout police station for investigation and report. Hence, refer the matter to HSR Layout police station for investigation and report and call on for report.”
If the entire order sheet is perused, it goes to show that the learned Magistrate has considered the averments made in the complaint and having found that the matter requires investigation, has directed investigation under Section 156(3) of Cr.P.C. The records produced by the petitioners disclose that before lodging the private complaint, a report was lodged with the police on 14/05/2014. The respondent No.2 has produced a copy of the same as document No.7. Even in the said report, similar allegations were made. The endorsement on the said document prima facie indicates that no action was taken on the said report. Further, respondent No.2 has also sworn to verifying affidavit. Thus, all the requirements laid down in Priyanka Srivastava’s case have been complied. As a result, this contention is also liable to be rejected.
14. To sum up, the allegations made in the complaint prima facie disclose the ingredients of Section 420 of IPC. The petitioners have produced supporting documents, which disclose the fraud played by the petitioners. There are allegations of tampering public documents. On the strength of these documents, huge amount has been collected from respondent No.2 and other apartment owners in the name of BWSSB.
When the allegations made in the FIR and the documents produced in support of the same discloses commission of the offence, a strong case is made out for thorough investigation into the alleged offences. As a result, the petition is liable to be rejected and accordingly, the petition is dismissed.
Sd/- JUDGE SV/Msu