Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 7444 of 2018 Petitioner :- Yogendra Kumar Gupta And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manu Khare Counsel for Respondent :- G.A.
Hon'ble Rajesh Dayal Khare,J. Hon'ble Rajiv Gupta,J.
Heard learned counsel for the petitioners and learned A. G. A. for the State.
This writ petition has been filed by the petitioners with a prayer to quash the F. I. R. dated 28.12.2017 which has been registered as Case Crime No. 1675 of 2017, under Sections-34, 406, 409, 420 and 120 IPC, police station Noida Sector 20 district Gautam Budh Nagar so far it relates to the petitioners.
It has been submitted by learned counsel for the petitioners that the petitioners are developers and builders of residential complex/flats and an agreement was entered into between the petitioners and the respondent No.3 for purchase of flat which were developed by the petitioners within the stipulated time and a Tripartite agreement was also entered into between the first informant, M/s Sunworld Residency Pvt. Ltd and the HDFC Bank. Learned counsel for the petitioners contends that due to unavoidable circumstances, some delay occurred in giving possession of the flats and statement has been made on behalf of the petitioners that flats would be ready and handed over within three months. It is contended that now present proceedings has been initiated against the petitioners by respondent No.3 on the ground that the petitioners are not refunding the amount of Rs. 13 lacs alongwith interest which he had invested for purchasing the flat. Learned counsel for the petitioners contends that the respondent No.3 has remedy open to him under The Real Estate (Regulation and Development) Act 2016 which became enforceable w.e.f. 01.5.2016 which was enacted to regulate the transactions regarding sale of flats, plot, apartment or building in relation to real estate project, therefore, initiation of criminal proceedings against the petitioners is bad in law. He further submitted that apart from the bald allegations made in the F. I. R., which is a bundle of lies and product of malice, no credible evidence is forthcoming, even prima facie, indicating that any such incident had taken place, hence the impugned F. I. R. is liable to be quashed.
Per contra, learned A. G. A. submitted that from the perusal of the impugned F. I. R. it cannot be said that no cognizable offence is made out, hence the impugned F. I. R. is not liable to be quashed.
From the perusal of the F.I.R. it appears that on the basis of the allegations made therein prima facie cognizable offence is made out hence, there is no scope for interfering with the impugned F. I. R.
Therefore, the prayer for quashing the impugned F. I. R. is refused. However, considering the submissions advanced by learned counsel for the petitioners and nature of allegations made in the F. I. R., it is directed that the petitioners shall not be arrested in the aforementioned case till submission of police report under Section 173 (2) or till credible evidence is collected, whichever is earlier.
With the aforesaid directions, this writ petition is disposed of finally.
Order Date :- 28.3.2018 faraz