ORDER
K. Ramanna, J.
1. All these 22 Criminal Petitions arise out of the complaints filed by the respective complainants against Joseph Chacko and his staff for the offences punishable under Sections 447, 427, 506, 448, 420, 120-B r/w Section 34 IPC.
2. All these petitions are filed by Jospeh Chacko and his staff, hence they are taken up together for the sake of convenience, heard and being disposed of by a common order.
3. Mr. Joseph Chacko President and Proprietor of the Crown Plaza International Hotels and Resorts is the petitioner in CRL. P. Nos. 2149/2007 TO 2155/2007, 2576/2007 to 2579/2007, 2950/2007 to 2952/2007 and 2702 of 2007.
4. CRL.P. 2163/2007 TO 2169/2007 is filed by the employees of the Crown Plaza International Hotels and Resorts at Hennur, Bangalore.
5. Brief facts of the case leading to these petitions are that, in the year 2003 Joseph Chacko-accused, president and proprietor of the Crown Plaza International Hotels and Resorts at Hennur advertised in a news paper ‘GULF TIMES’ about the upcoming project Crown Plaza International Hotel And Resorts at No. 346, Hennur main road, Bangalore, in which apartments/flats/rooms will be built exclusively for the NRI’s inviting the investors who are interested in purchasing the same, that the same will be consisting of 180 apartments of 5 types as per the approved plan. It is also assured that if the investors enters into a management agreement with the president of Crown Plaza International and resorts that they would be entitled for interest at the rate 30% per annum or out of the profit they gain from the said apartment it would be shared in 45:55 ratio between Joseph Chacko and the investors respectively, after completion of the construction of the apartment, on receipt of full and final payment a sale deed will be executed in their favour. Therefore, some of the complainants/investors booked flats in their names by paying the fixed amount and later, on completion of the project sale deeds came to be executed by Joseph Chacko in favour of the respective investors/purchasers and the same were registered in their name at Sub-registrars office in Bangalore. But the accused failed to hand over possession of the said flat/apartments to the respective purchasers, instead the same has been let out for rents and he was utilizing the same for his personal use, and that the said Joseph Chacko and his staff have threatened the purchasers, and for the past 2 years the accused have been trespassing into their flats.
6. It is further alleged that as per the construction agreement the investors were eligible for 7 days free stay annually, but when they call the staff of the Crown Plaza international to book their apartments in the vacation all the time the staff told them there was no vacancy and when they questioned the staff members abused the investors in filthy language and threatened them with dire consequences and when enquired with Joseph Chacko he gave evasive answers and warned them and that the accused have threatened the investors with dire consequences putting fear in their minds therefore it is alleged that Mr. Joseph Chacko and his staff have hatched a conspiracy committed breach of trust thereby threatening the purchasers to cheat them.
7. Therefore, altogether 70 NRI’s had given a representation to the Hon’ble Chief Minister of Karnataka in December 2006 putting forth their grievances requesting to take necessary action against Mr. Joseph Chacko and his staff and to get them justice, at that time complainants came to know that some of the investors/NRI’s had already requested the CCB, Bangalore to enquire into the petitions given by investors.
8. When the matter stood as aforesaid in furtherance of the complaints filed by some of the complainants in Cr.No. 76 to 81 of 2007 before Hennur Police Station, Bangalore, some of the NRI’s/purchasers have taken possession of the flats with police protection from Manager and Receptionist and when verified in all the apartments almost all the furnitures were missing and the facilities shown in the construction agreement were missing. However, manager promised to provide alt the furnitures within a month but still it is not provided, therefore it is alleged that without the permission and consent of the apartment owners/accused have committed theft of furnitures and other items with a fraudulent and dishonest intention.
9. Therefore, complaints came to be filed against the said Joseph Chacko and his staff for the aforesaid offences and some of the complainants have filed the above complaints in their individual capacity and some have filed the complaints as GPA Holders of the investors and they have produced the copy of sale deeds executed by the accused i.e., Joseph Chacko, the petitioner herein, in favour of respective purchasers and copy of the news paper in which Mr. Joseph Chacko had advertised in Qatar about his upcoming project calling for investors.
10. The complainants in Crl.P.No. 2149, 2150, 2151, 2152, 2153, 2154, 2155 of 2007 i.e., in Cr.No. 76, 77, 78, 79, 80, 81 and 120 of 2007 have filed above complaints before the Hennur police station, Bangalore city, alleging that they paid to the accused Joseph Chacko Rs. 9,42,000/-, 8,99,000/-, 9,42,000/-, 17,63,000/-, 8,34,000/-, 9,42,000/- and 9,16,000/- respectively in respect Flat No. D-229, ST-124, D-237, PH-003, D-226, D-223, D-220[307] respectively and that the registered sale deed have been executed by the said Joseph Chacko in favour of respective investors on 16-12-2003, 05-01-2004, 17-12-2003, 17-12-2003, 28-04-2004, 16-12-2003 and in the month of January 2004 respectively, but that the accused failed to deliver vacant possession of the said flats to the respective purchasers with dishonest intention to cheat the investors.
11. The complainants in Crl.P.No. 2950/2007 and 2951/201 i.e., in Crime No. 152 and 153 of 2007 stated that they have been cheated and threatened by the accused and they were denied of the facilities as assured by the accused in the construction agreement.
12. The complainant in Crl.P.No. 2952/2007 i.e., in CR.No. 190/2007 stated that the without their consent i.e., the consent of the owners the accused have trespassed into the property/apartments and committed theft of furniture’s and that the accused have failed to provide the furnitures and other items to the purchasers/investors as per the construction agreement and that they have been cheated by the petitioners.
13. The complainant in Crl.P.No. 2702/2007 i.e., in Cr.No. 42/2007 stated that he purchased sites from the Joseph Chacko and he had paid valuable sale consideration in full, in turn the Joseph Chacko issued receipt for the same and also given him the GPA executed by the original owner one Ashwathappa. When the complainant asked the Joseph Chacko to execute the original sale deed, he called the complainant to his hotel promising that he would register the sites on 10th October 2006 and he has requested the complainant to stay in his hotel as guests. When the complainant met the accused at his hotel room, the accused and his staff members collected all the original papers with him stating that the same were required for verification for registering the sites in his name but on 10-10-2006 the accused failed to register the sites in his name, and also failed to return the said original documents to the complainant and when questioned by the complainant he was threatened with dire consequences and the accused threatened him with hand pistol as such the complainant has been cheated by the accused Joseph Chacko and his staff.
14. The case in Crl.P.Nos 2576/2007, 2577/2007, 2578/2007, 2579/2007 is that cases came to be registered against the petitioners in Cr.Nos. 71, 72, 73, 74 of 2007 on receipt of writen complaints filed by the complainants alleging that they are the absolute owners of the disputed properties situated at Elysium Township and they had purchased sites form Joseph Chacko and they have developed, promoted and marked the Elysium Township, Byrathi village, Bidarahalli Hobli, Hoskote Taluk and after purchase of the sites they had constructed the compound walls securing the site. During the last week of February 2007 when the omplainants went near the site they were shocked to see that the compound wall was completely demolished, and the graveled roads were erased, corner stones were moved in the entire township and that the accused and his men have destroyed the identity and sell the lands to new buyers under the banner CITY SCAPE PROPERTIES and that the complainants were prevented from entering into their lands and threatened with danger to their life and person.
15. The petitioners in Crl.P.Nos. 2163/2007 to 2169/2007 are the employees of the Crown Plaza International Hotels and Resorts, at Hennur, Bangalore and that all of them were working under the said Joseph Chacko. The cases came to be registered against them along with the said Joseph Chacko in Cr.Nos. 76/2007 to 81/2007 and Cr.No. 120/2007 respectively for the offences punishable under Sections 448, 420, 406, 506 and 120-B of IPC.
16. During the course of arguments, some proposals were put forth on behalf of the petitioners in all these cases and to that effect, learned Counsel for the petitioner placed written proposal in Crl.P.No. 2149/2007. There are 84 complainants in all these cases and each of the 84 complainants will be paid a stun of Rs. 3,60,000/- along with 8% interest on the same for 3 years as such in total Rs. 3,60,000/- + 86,400 = Rs. 4,46,400/- will be paid to the investors within six months from the date of settlement and the said amount of Rs. 3,60,000/- is the consideration reflecting in all the sale deeds by which the concerned property was transferred to these complainants. The individual variations in respective claims that may arise needs to be gone through by an independent agency, agreed by both parties. If the present proposal is agreeable to all the parties, the petitioner would file a formal undertaking to this effect before this Court.
17. Sri K.M. Nataraj, learned Counsel for respondent No. 3 prepared a chart stating that there are 78 registered members of CPIL flat owners’ Association and 32 non registered members and the total area of the Crown Plaza International Flat is 66,542 sq.fi The total area held by the members of Crown Plaza International Flat is 59,183 Sq.ft. The balance available would be 2,658 Sq.ft. and he had also prepared a chart stating the cost of the each flat purchased and the prevailing market value, but the written proposal put forth by each of the parties is not accepted and therefore, heard the arguments of the learned Counsel appearing on both sides and perused the records.
18. During the course of arguments, learned Counsel for the petitioner in Crl.P.Nos. 2576 to 2579/2007 i.e., in Crime Nos. 71/07 to 74/07 submitted that the dispute is entirely civil in nature regarding investment for profit and getting the expected return from invested monies and the registration of the FIR for civil remedies is a clear abuse of process of law. Being a civil dispute, it has an effect of wresting of civil remedies from the accused, through criminal process. To continue the prosecution would be of abuse of process of law as the same has a tendency to degenerate into a weapon of harassment and prosecution. The allegation made in the complaint does not disclose the ingredients of the provisions of Section 447, 506 r/w Section 34 of IPC.
19. It is further contended that in all 84 investors/N.R.Is showed interest and entered into an agreement and invested about 7.5 Crores in all from 16-12-2003 to 11.5.2005 and after construction of 100 flats/apartments, 60 of 84 N.R.Is. got the sale deed registered in their names but the complainants stated that they were not given possession, which is incorrect. Many grievances of the complainants are that they are not getting any profit out of their investment even though the petitioner/accused is renting out the same to the customers and their apprehension is that the petitioner/accused is getting all the profit obtained out of their investment and in some cases, sale deeds were not registered. It is argued that 17 complainants pertain to one at the same branch of Crown Plaza International are identical in nature. The contents of the complaint discloses that in the year 2003, the petitioner accused floated an investment plan “Crown Place International Hotels and Resorts at Hennur” and the advertisements were published inviting investors. The profit from investment is said to be 30%. The said project was in the nature of Hotel containing Apartments/flats/rooms. There were to be five types of flats: (1) pent house, (2) luxury aptts. (3) semi-luxury aptts. (4) standard aptts., and 5) studio aptts.
20. The allegations made in the complaint in Crime No. 76/07 is that the petitioners failed to give possession of flat No. D-229, which was registered in his favour on 16.12.2003, when the complainant went to take possessions, the petitioner and his staff and some goondas threatened the complainant and the said flat/apartment were rented out It is argued by the counsel for the petitioners that when the possession was not given to them, question of letting out the apartment does not arise and therefore, a false complaint has been made against him to harass. The investment made by the complainant by entering into an agreement does not constitute an offence of cheating and so also, even though the allegations are made in the complaint does not attract the provisions of Section 420, 506 of IPC, a false case has been registered against him and there is no criminal conspiracy of either cheating or breach of trust.
21. Therefore, it is contended that the allegations made in the complaint is purely of civil in nature and the remedy available for the complainants is to approach the civil Court. It is submitted that some of the complaints have been filed by the alleged power of attorney holders of the complainants with a sole intention to harass the petitioner. Therefore, it is argued that there is no offence of breach of trust or criminal conspiracy and they have no intention to cheat the N.R.Is nor they have threatened any N.R.Is or their family members/complainants. Therefore, the registration of the case is purely an abuse of process of law. Hence, the same is liable to be quashed as the dispute is entirely civil in nature.
22. Learned Counsel for the petitioners in all these cases relied on the following decisions:
State of Karnataka v. L. Muniswamy and Ors. wherein it has been held that the “High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed”.
CENTRAL BUREAU OF INVESTIGATION, SPE, SIU(X), NEW DELHI wherein, it has been held that quashing of complaint – when justified – Act constituting both civil and criminal wrong – Civil suits for recovery of dues compromised on receiving payments from the companies concerned – Even if offence of cheating is prima facie constituted, compromise decree passed in such suits would amount to compounding of offence of cheating.
G. Sagar Suri and Anr. v. State of U.P. and Ors. (2002) 2 SCC 636 wherein, it has been held that “Section 482 and 227, 239 and 245 – Jurisdiction of High Court under, for quashing criminal proceedings – Held, can be exercised even when application for discharge of the accused pending with the trial Judge – Such power should be exercised cautiously to prevent abuse of process of court – Omnibus statement of misrepresentation and absence of details as to how the complainant was duped”.
Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. wherein, it has been held that “when can criminal proceedings be quashed at preliminary stage by High Court under – Summons issued on a complaint filed by a trustee alleging that Secretary and Manager of the trust property in conspiracy with the co-trustee and his wife crated tenancy in respect of the property in favour of the co-trustee’s wife.”
Ram Biraji Devi and Anr. v. Umesh Kumar Singh and Anr. wherein, it has been held that “inherent jurisdiction of High Court – When to be exercised – Held, should be exercised in extreme exceptions.”
State of Haryana and Ors. v. Bhajanlal and Ors. 1992 SCC (Cri) 426 wherein, the Apex Court has stated the circumstances where extraordinary power under Section 482 Cr.P.C. can be exercised by the High Court, among them one of the circumstance is that “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
Minu Kumari and Anr. v. State of Bihar and Ors. wherein, it has been held that “Quashing of criminal proceedings – Inherent power of High Court – exercise of, when justified – Held, inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in Section 482 – Power to be exercised to prevent abuse of process of court – But, should not be exercised to stifle a legitimate prosecution – High Court should retrain from giving a prima facie decision where entire facts are incomplete and hazy, more so when evidence not collected and produced before the Court and the issues involved, whether factual or legal, cannot be seen in their true perspective without sufficient material-Yet, no hard and fast rule can be laid down for exercise of this extra-ordinary jurisdiction.”
Therefore, the learned Counsel for the petitioners prayed for allowing of all these petitions and quashing the F.I.R. registered against the petitioners.
23. On the other hand, leaned S.P.P. Sri Dorai Raju appearing for the respondent/State submitted that petitioners Joseph Chacko and his staff are before this Court only to take a chance. The said Joseph Chacko with a sole intention to deceive the innocent investors i.e., N.R.Is received from them huge amount by promising them to allot the flats/apartments and in furtherance of the said promise, executed sale deeds to some of the investors but failed to give possession of the flat/apartments to the purchasers/investors and when the purchasers/complainants went near the spot, they found that the flats/apartments were in occupation of some tenants and that the accused was collecting and utilising the rents. Therefore, it is argued that there is criminal conspiracy in between the petitioners and his employees to see that the purchasers/investors should not get the benefit from their investments and when they questioned the accused/petitioners to hand over the possession, the said Joseph Chacko and his staff threatened the investors/complainants with dire consequence and to that effect some of the complainants have made some statements and the blood relatives of the investors are also threatened by the accused/petitioners. More over, most of the complainants made representation and complaints to the Chief Minister of Karnataka when he visited abroad and the petitioner/Joseph Chacko herein appears to be a builder had cheated several N.R.Is in abroad and in India and that several cases have been registered against him and his staff and the same are still under investigation and the I.Os have arrested the accused in some cases and in some cases they could not arrest since they are absconding and that the petitioners/accused are not co-operating with the I.Os to complete the investigation. Therefore, the allegations made in the complaint prima facie prove that there is sufficient material to show the ingredients of the offence. Therefore, it is not proper to quash the proceedings and hence, prays for dismissal of all these petitions.
24. On the other hand, Sri K.M. Nataraj, learned Counsel appearing for the respondent No. 3/complainante submitted that the inherent powers of this Court can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with statutory power of police to conduct investigation in a cognizable offence. In this behalf, he has relied on a decision reported in case of State of Karnataka and Anr. v. Pastor P. Raju 2006 AIR SCW 3916 wherein, it has been held thus:
There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the incharge of the police station concerned to the Magistrate empowered to take cognizance of the offence. Section Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence.
25. Having heard the arguments of the learned Counsel appearing on both sides, now I proceed to see whether there is any prima facie case to quash the criminal proceedings i.e., F.I.Rs when the matter is still under investigation?
26. The law is well-settled that the jurisdiction to quash a complaint, F.I.R. or a charge-sheet should be exercised sparingly and only in exceptional cases and the Courts should not ordinarily interfere with the investigation of cognizable offences. However, the law is equally settled that where the allegations made in the F.I.R. or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the F.I.R. or complaint may be quashed in exercise of powers under Section 482 Cr.P.C. In the leading case of State of Haryana v. Bhajan Lal and Ors. reported in 1992 SCC (Cri.) 426 wherein, certain guidelines were issued for exercise of inherent powers under Section 482 Cr.P.C. and also in exercise of power under Article 226 of the Constitution by the High Courts wherein it has been held that “the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of the rear cases. It was further held that the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint.
27. In view of the above referred decision and settled principles of law, now I proceed to see the materials placed on record; the petitioner Joseph Chacko induced the investors/complainants who are N.R.Is with a false promise that he would allot flats/apartments and collected huge amount but not allotted the same to some of the complainants. Amongst 84 complainants, the petitioner has executed sale deed to some of the complainants but has not given possession to them. When the power of attorney holders and kith and kin’s appearing on behalf of the investors approached the petitioners/accused to take possession of the flats/apartments, the petitioner i.e., the said Joseph Chacko and his employees threatened them with dire consequences. The allegations made in the complaint as well as the statements recorded by the I.O. clearly indicates that the accused/Joseph Chacko has collected huge amount from the N.R.Is by promising them to give vacant possession of flats/apartments but the same was not given to them and the complaints also discloses that, the ingredients of Section 420, 406 and 120-B of IPC as well as 506 of IPC are made out as there is specific averment in the complaint that the petitioner and his employees threatened some of the investors and some relatives of the investors when they approached the petitioners for taking possession of the flats/apartments. There are specific allegations even against the employees of the said Joseph Chacko which constitute cognizable offences. Therefore, there is a prima facie case against the petitioners disclosing the ingredients of the offence. This Court and the Apex Court in many of the cases has clearly held that if a prima facie case is made out disclosing the ingredients of the offence, the Court should not quash the complaint.
Of course, learned Counsel for the petitioners contended that the N.R.Is who invested the amount and the Joseph Chacko has in turn executed sale deed to some of the customers and the provisions of IPC are not at all applicable and the investors cannot chose to file a complaint before the police against Joseph Chacko and his employees and that the allegations made in the complaint are purely civil in nature and the remedy available for the complainant is to approach the Civil Court.
28. In case of Kamala Devi Aggarwal v. State of West Bengal reported in 2001 Cri.L.J. 4733, Lalmuni Devi v. State of Bihar and T.S. Rajamoni v. Randip Barua reported in 2001 Cri.L.J. 4144 it has been held that the mere fact that the dispute is of civil nature cannot be made a ground for quashing an F.I.R. In many times, a wrong gives rise to a civil as well as criminal cause of action and in certain cases both the remedies can be simultaneously invoked by an aggrieved person. In every criminal action for cheating or breach of trust, the aggrieved person has a right to invoke civil remedy also. Therefore, it is not proper to quash an F.I.R. or a complaint merely on the ground that the dispute gives rise to a civil action also and the same is a matter of fact to be proved after trial.
29. More over, in the decision of the Supreme Court reported in 2006 AIR SCW 3916 in case of State of Karnataka and Anr. v. Pastor. P. Raju, it has been held that inherent powers can be exercised to quash the proceedings pending in any Court but the power cannot be exercised to interfere with statutory power of police to conduct investigation in a cognizable offence. In the instant case, the petitioners approached this Court during June, 2007 and the complaints came to be filed against them between March and June of 2007, as such, there is no sufficient time for the I.O. to complete the investigation for the purpose of framing the charge. The allegations in the complaint clearly warrants thorough investigation to find out the truth or otherwise of the complaint and hence, the order of the learned Magistrate taking cognizance against the petitioners is justifiable. Mere fact that the dispute is civil in nature could not be made a ground for quashing the complaint or F.I.R. In the present case, the allegations made in the complaint clearly constitute a cognizable offence justifying the registration of a case and investigation thereon and this case does not fall under the cases wherein, this Court can exercise the inherent powers to quash the F.I.R. itself. The investigation is still under progress and no report as contemplated under Section 173 of Cr.P.C. has been submitted by the I.Os of the concerned police station to the Magistrate empowered to take cognizance of the offence. Therefore, in view of the above facts and circumstances of the case and in view of the settled principles of law, it is not proper to stop the entire investigation by quashing the proceedings initiated against the petitioners, but if the I.O. files the charge sheet, the petitioners are at liberty to seek for discharge before the trial Court, if they are so advised.
30. Accordingly, all these criminal petitions are dismissed as devoid of any merit.