IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.1094/2012 BETWEEN:
Sri. N. Rajagopal, S/o. Late Narayanappa, Aged about 58 years, R/a. 84/D, 4th Cross, 4th Main, HAL 3rd Stage, Bengaluru – 560 075. ... Petitioner (By Sri. P.N. Nanja Reddy, Advocate) AND:
1. The State, By Jeevanbhimanagar Police Station, Bengaluru – 560 075.
2. Sri. R. Narendra Kumar, S/o K. Rajendran, Aged about 37 years, No.22, 13th Cross, Ganga Apartments, K.H.B. Building, Block-I, Indiranagar, Bengaluru – 560 038. ... Respondents (By Sri. Vijayakumar Majage, Addl. SPP for R1 R2 served and unrepresented) This Criminal Petition is filed u/s.482 of Cr.P.C. praying to quash the entire proceedings in C.C.No.23185/2011 (Cr.No.223/2010) pending on the file of the X Addl. C.M.M., Bengaluru City, registered by the respondent against the petitioner/accused.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard.
Petitioner herein entered into an Agreement to sell an apartment to the complainant under an written agreement dated 14.07.2008. In respect of the said transaction, respondent No.2/complainant lodged a complaint before respondent No.1 alleging that the petitioner herein failed to complete the construction of the apartment and failed to provide basic facilities like electricity, water, sanitary, lift and other civil works, and that the petitioner has breached the terms and conditions of the sale agreement and also violated the provisions of Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972. It is further alleged that petitioner is not a registered and licensed builder as claimed by him. He misrepresented to the complainant that he has obtained license and approved plan from the competent authority. The apartment is constructed in violation of the approved plan.
2. The learned counsel for the petitioner submits that agreement entered into between the petitioner and respondent No.2 contains arbitration clause and the parties are entitled to specifically enforce the terms of the agreement; that the complaint does not disclose any element of cheating or deception by the petitioner and therefore, invocation of criminal process by respondent No.2 is illegal and an abuse of process of Court.
3. The learned Addl. SPP appearing for respondent No.2 disputes the submission and contends that the allegations made in the complaint prima-facie disclose the elements of cheating punishable under Section 420 of IPC. Necessary material in proof of this offence is collected during investigation and charge sheet is already laid against the petitioner. Therefore, there is no ground to quash the proceedings.
4. Respondent No.2 is duly served and unrepresented.
5. On perusal of the averments made in the complaint, I am unable to accept the submission that the averments made therein pertain to enforcement of the agreement to sell, rather, the allegations against the petitioner are that he falsely represented to the petitioner that he was a licensed builder and that he had obtained approved plan for construction of the apartment. Though the remedy of specific enforcement and arbitration is available to the petitioner under the above agreement yet, the allegations made in the complaint prima-facie make out the elements of cheating and deception. The petitioner not being a licensed builder ought not to have entered into agreement with respondent No.2 and could not have constructed the building in violations of the approved plan. In that view of the matter, the contentions urged by the petitioner that the allegations made in the complaint are purely civil in nature, cannot be accepted. Further the allegations made in the petition are sought to be substantiated through cogent material; therefore, it cannot be said that the prosecution launched against the petitioner is false and baseless. As a result, I do not find any reason to quash the proceedings.
Consequently, petition is dismissed.
Sd/- JUDGE SV