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CR.MA/9429/2003 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9429 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JAYANTIBHAI
ADARBHAI PATEL & 6 - Applicant(s)
Versus
ATULKUMAR
NARANBHAI PATEL & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SATYAM Y CHHAYA for
Applicant(s) : 1 - 7.
MR MB PARIKH for Respondent(s) : 1,
Public
Prosecutor for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 21/09/2010
ORAL
JUDGMENT
Petitioners
are original accused. Against them respondent No.1 filed complaint
before the learned Magistrate which was sent for investigation under
section 156(3) of the Criminal Procedure Code. In the complaint, it
is alleged, inter alia, that the petitioners are developers. They
had put up a scheme of flats in Kalol town. They had given an
advertisement promising that the scheme of flats will have several
facilities, such as internal road, lighting, telecommunications,
swimming pool, club-house etc. On the basis of such promise, the
complainant was prompted to purchase one of the units for which he
made full payment. However, possession was not given till 9.5.2000
though such possession of flat was to be given by 18th
December 1999. Even thereafter, the scheme did not have several
facilities promised such as, swimming pool, intercom, club-house
etc. It is thus the case of the complainant that the petitioners
committed offences punishable under section 406 and 420 read with
section 114 of the Indian Penal Code.
The
police submitted report dated 23.8.2001 asking for ‘C’ summary. The
learned Magistrate, however, by his impugned order dated 12.12.01
ordered registration of complaint as summons case and has issued
process against the accused under section 406, 420 and 114 of the
Indian Penal Code.
The
petitioners preferred Criminal Revision Application No.44 of 2002
before the Sessions Court, which came to be dismissed by the order
dated 15.2.2003, inter alia, on the ground that the order under
challenge is an interlocutory order.
Counsel
for the petitioners submitted that the dispute is purely of civil
nature. The complainant has already filed a civil suit. If at
all, he could have approached the consumer forum and that no offences
are disclosed. He submitted that all facilities were provided except
swimming pool, that too on account of the resolution passed by the
Society not to construct the swimming pool due to scarcity of water.
He relied on the following two decisions :
Murari
Lal Gupta v. Gopi Singh, (2005) 13 SCC 699.
Order
dated 7.5.2009 of this Court in Criminal Misc. Application No.5868
of 2008 with Special Criminal Application No.1111 of 2008.
Learned
counsel for the complainant, however, submitted that attractive
advertisements were issued making several promises. Upon
completion, number of facilities were not provided. The petitioners
from the inception desired not to fulfill such promises.
I
have also heard the learned APP for the State.
Having
heard the learned advocates for the parties and having perused the
documents on record, I find that the learned Magistrate has
examined all aspects of the matter and passed a discretionary order
to inquire into the allegations for which process has been issued.
It cannot be stated that even if allegations made in the complaint
are taken on face value, it discloses no offence punishable under
the Indian Penal Code. It is true that the complainant has filed a
civil suit. That by itself would not mean that no offences are
disclosed. Further, it is the case of the complainant that the
petitioners-builders though had made number of promises for
providing facilities, majority of them were not implemented.
Whether such intention existed from the outset or whether due to
some later developments, such promises could not be fulfilled are
questions of fact which cannot be examined in a quashing petition and
would depend on the nature of evidence that may be brought on record.
Therefore, no case for quashing is made out.
The
petition is therefore dismissed. Rule is discharged. Interim relief
is vacated.
At
the request of the learned counsel for the petitioners, this order
shall stand stayed till 30th October, 2010.
(Akil
Kureshi, J.)
(vjn)
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