SHARADA PROPERTIES BANGALORE Vs. NIRMAL KUMAR MISRA

JUDGEMENT

(1.) THIS petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners who are the accused in C. C. No. 8478 of 1999 on the file of the Court of IV Additional Chief Metropolitan Magistrate, bangalore City seeking for quashing the above proceedings pending against them for the offences punishable under Sections 406 and 420 of the Indian Penal Code by the impugned order dated 14-7-1999 passed by the learned Magistrate.

(2.) THE respondents herein filed a complaint in the Trial Court against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code alleging that they have entered into an agree ment dated 13-5-1997 with the respondents according to the terms of which the first petitioner undertook to procure 1/11th undivided share in the site bearing No. 15, Khata No. 497/2 situated in Gurukamathanapalya, K. R. Puram, Bangalore for a consideration of Rs. 87,000. 00. The respondents granted the right to construct a residential flat either directly or through a contractor in favour of the petitioner under the said agreement. Respondents also engaged the first petitioner to build the flat and the first petitioner agreed to sell the said flat for Rs. 12,10,520. 00 after completion of the construction before the end of 1997. It is the further case of the respondents that they have made a part payment of Rs. 5,05,001. 00 towards the value of the said flat and the balance amount of Rs. 4,18,001. 00 has to be paid by them after the completion of the construction of the flat. It is the further case of the complainant that the respondents sent an intimation letter dated 24-10-1997 informing them that the construction of flat in the second floor was completed and it was ready for occupation and demanded them to pay the balance amount due by them as mentioned in the agreement Rs. 7,05,519. 00 before 20-11-1997. The first petitioner demanded an additional sum of Rs. 53,580. 00 claiming the same towards the alleged extra built-up area. The complainant thereafter visited the flat along with one mr. N. Srinivasan, Consulting Engineer, Bangalore and found that the construction has not been completed and that the said flat was not ready for occupation. The said Consulting Engineer also furnished a certificate confirming that the said flat was not fit for occupation. Thereafter, the first respondent sent a letter dated 5-11-1997 informing the first petitioner that the construction of flat was not completed and requested for furnishing the certified final measurements regarding the chargeable area. First petitioner sent a reply to that letter on 11-11-1997 without furnishing the final measurements. Thereafter the first respondent wrote another letter dated 14-11-1997 and once again requested the first petitioner to expeditiously furnish the data in support of its claim of additional built-up area. A reply was sent to the said letter on 25-11-1997 by the first petitioner. Subsequently, the second petitioner held out threats that if the respondents fail to pay the balance amount due by them, the flat would be sold to some other person. Immediately thereafter the respondent got issued a notice dated 26-11-1997 calling upon the petitioner to complete the flat in all respects and to execute a registered sale deed in respect of 1/11th undivided share in the land and to hand over possession of the same to them. The first petitioner in collusion with the 6th petitioner entered into negotiations to sell the said flat and ultimately sold the said flat to one Mr. Premanand Baindoor for a sum of Rs. 6. 33 lakhs. With these allegations, the respondents filed the complaint alleging that the petitioners committed offences of cheating and misappropriation of amount paid by them punishable under Sections 406 and 420 of the Indian Penal Code. The learned Magistrate on receiving the complaint referred the matter for. investigation under Section 156 (3) of the Code of Criminal Procedure. Thereafter, the police conducted investigation and submitted a 'b' report. However, the learned magistrate permitted the complainants to prove the case against the petitioners and after recording the sworn statement of the respondent 1, the learned Magistrate passed the impugned order directing to register a case against the petitioners for the offences punishable under Sections 406 and 420 of the Indian Penal Code. The said order is now challenged before this Court in the present petition.

(3.) I have heard the arguments advanced by the learned Counsel appearing on both sides.