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2013 DIGILAW 259 (GUJ)

APURVA NAVNITLAL THAKERSY v. STATE OF GUJARAT

2013-05-03

R.D.KOTHARI

body2013
JUDGMENT : 1. Heard Mr. Sudhir Nanavati, learned Senior Advocate for the applicants and Mr. N.J. Shah, learned A.P.P. for the State. 2. The applicants seek for quashing and setting aside the Criminal Complaint (Inquiry Case) No. 47 of 2008 pending before the learned Judicial Magistrate, First Class, Ahmedabad (Rural). 3. Short facts are that the complainant had purchased flats bearing Unit Nos. 308, 309, 408 and 409 of the building known as AKSHAT Complex in the year 2000. In complaint filed for criminal breach of trust, the principal grievance of the complainant is of some incomplete work in the flats. On presentation of the complaint before the learned Magistrate, the learned Magistrate has passed order to register the complaint and forward the same for inquiry under Section 156(3) Cr.P.C. to the concerned police station. 4. The applicants are developers of the property in question. It is the say of the complainant that he had paid Rs. 3,32,650/-and Rs.9,00,000/- in respect of Flat Nos. 308 and 309 and he had paid Rs.3,32,650/-and Rs.9,00,000/-in respect of Flat Nos. 408 and 409 towards consideration of flats. The main grievance of the complainant is that the lift of the building in question is not working; the second grievance is about the water supply; the third grievance of the complainant is about the incomplete kitchen and the last grievance is about the incomplete tiles work, and incomplete work of the bathroom. It is the say of the complainant that the applicants had assured him that the incomplete work would be completed within one month and the complainant was cheated by fraudulent and dishonest inducement by the applicants. 5. Mr. Sudhir Nanavati, learned Senior Advocate for the applicants has made three fold submissions. Firstly, that the learned trial court has mechanically passed the order under Section 156(3), Cr.P.C. sending the complaint for police inquiry. Secondly, that such a complaint preferred by the complainant is not maintainable as the grievance is of purely commercial and civil nature and therefore filing of such criminal complaint in respect of such grievance is an abuse of the process of law and thirdly, that the complaint is a gross delayed complaint. 6. Mr. Nanavati has drawn attention to the decision of Hon'ble the Supreme Court in the case of Thermax Limited and others v. K.M. Johny and others reported in (2011) 13 SCC 412 . 6. Mr. Nanavati has drawn attention to the decision of Hon'ble the Supreme Court in the case of Thermax Limited and others v. K.M. Johny and others reported in (2011) 13 SCC 412 . In that case, Hon'ble the Supreme Court allowing the appeal and quashing the complaint filed for the offence under Sections 405, 406, 420 read with Section 34 IPC, held that mere use of expression of cheating or deceiving in the complaint by itself is not sufficient for inferring such intention on the part of the accused. It was also held that when the dispute is of civil nature, remedy of criminal machinery ought not to be resorted as a short cut. Learned Senior Advocate for the applicants in support of his submissions has drawn attention to paragraphs 34 and 37 of the said decision, which reads as under: “34.The principles enunciated from the abovequoted decisions clearly show that for proceeding under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Sections 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to as a criminal proceeding. 37. It is settled law that the essential ingredient for an office under Section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of Section 420 are not attracted, the prosecution initiated is wholly untenable. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contact and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contact and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Inasmuch as there are number of documents to show that the appellant Company had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellant Company amounts to a breach of contract.” 7. Even if the assertion made by the complainant in his detailed complaint are treated to be true, it is not possible to say that any offence, prima facie, is made out. As referred above, the main grievance of the complainant is above referred incomplete works in the flats. It is pertinent to note that no other flat owners have come before the Court with such complaint. This is material because non working of lift or difficulty about water supply or such nature of deficiency are by its very nature common deficiency by which apart from the complainant, other flat owners would also be affected. From the alleged incomplete works about the flat, no such criminal intent on the part of the applicants can be inferred. In absence of any criminal intent, criminal offence as alleged is difficult to infer. Further, the say of the complainant himself is that, about the incomplete works, the applicants had assured him that those works would be completed within one month. Mentioning of the period by the complainant in his complaint filed in 2008 is important and material because complainant had purchased the flats in year 2000. So for alleged incomplete works of the year 2000, alleged to have promised to complete within one month, the complainant has come before the Court in 2008. On the other hand, there is assertion made in paragraph 11 of the petition by the applicants that the alleged incomplete works are already completed to the satisfaction of the complainant. At the time of hearing, learned Senior Advocate for the applicants has also produced xerox copy of the letter written by the complainant wherein it is specifically stated that all the pending/ incomplete works in the flats is now completed. 8. At the time of hearing, learned Senior Advocate for the applicants has also produced xerox copy of the letter written by the complainant wherein it is specifically stated that all the pending/ incomplete works in the flats is now completed. 8. In a case, wherein parties entered into agreement in 2000 and filing of such complaint in 2008, itself shows gross delay. Further, in view of the material produced by the applicants at the time of hearing alleging insufficient and incomplete works already completed to the satisfaction of the complainant therefore to keep the criminal complaint pending would not be in the interest of justice. At the time of hearing, it was also pointed out that there was another dispute between the parties qua eleventh floor and in that respect civil litigation was going on. In that civil litigation, at one stage, parties had come before this Court. The order passed by this Court in that civil litigation has produced at page 33 of the paper book. It was submitted that the dispute of civil litigation is already settled between the parties and the litigation is pending only in respect of the dispute about interest etc. It was submitted by the learned Senior Advocate that the present complaint is filed only on account of that civil dispute. The submission may not be incorrect. 2. 9.1 On the basis of the principle laid down in case of Thermax Limited (supra), it can be said that essential ingredients of Sections 405, 406, 420 IPC are not even prima facie attracted in the present case. If the grievance of the party is of civil nature or dispute is about commercial transaction then filing of the criminal complaint by the complainant, by itself, would not change or alter the nature of the dispute or its transaction. It is the nature of dispute or the transaction, that would decide the nature of remedy i.e. civil or criminal etc. available to the person aggrieved and not vice versa. In other words, be it case of enforcement of any right before civil court or grievance of infringement of any right before criminal court, remedy to the aggrieved party flows from the right of a such party and it cannot be other way round. Remedies are not the sources of right. 3. 9.2 The case can be considered in slightly different manner. Remedies are not the sources of right. 3. 9.2 The case can be considered in slightly different manner. In case of any dispute or grievance, aggrieved party can avail the remedy under criminal machinery provided, either “the act” complained off, prima facie contains essential ingredient of such offence and/or there exist guilty mind on the part against which grievance is made. Thus, if the complainant is not able to figure out clearly “act” on the part of the accused by linking him with offence, still the complainant would have chance to succeed,-at- least at initial stage by showing guilty mind on the part of such party. Intention is a determinative. In absence of both i.e. “the act and mens rea”, – as in the present case,– the complainant would have tough time to urge his case. Therefore, the case of the complainant fails. In short, alleged non completion of works by applicants, by itself, in the circumstances of the present case, would not attract any offence. Further, the complaint deserves to be quashed as grossly delayed complaint. 1. 10. With regard to the complaint about the offence under Section 42 of the Gujarat Ownership Flat Act is concerned, it may be stated that in detail complaint, it was not mentioned as to how and in what respect offence u/s 42 of the Gujarat Ownership Flat Act is committed. No assertion at all in this regard is made. 11. In view of above, it is not necessary to express any opinion to the first point advanced by the learned Senior Advocate for the applicants namely, the learned trial court has passed the order mechanically under Section 156(3), Cr.P.C. 12. In view of above, the petition is hereby allowed and the Criminal Complaint (Inquiry Case) No. 47 of 2008 pending before the learned Judicial Magistrate, First Class, Ahmedabad (Rural) is hereby quashed and set aside. Rule is made absolute.