V.MOIDU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the accused in C.C.No.159 of 2019 on the files of the Judicial Magistrate of First Class-IV, Kozhikode. The case originated from Annexure I complaint filed by the 2nd respondent containing the following allegations;

(2.) The accused had advertised about the proposal to construct a residential-cum-commercial complex in 72 cents of land in Kasaba amsom in Kozhikode. Being impressed by the Brochure of the project, the complainant contacted the accused and was told that construction will commence immediately on receipt of licence from the Calicut Corporation and will be completed in eighteen months. Believing the accused, the complainant entered into a Memorandum of Understanding ("MoU" for short) on 7/10/2014 for purchase of commercial space admeasuring 2701 sq.feet of the super built-up area and 1.57% undivided interest in the land. Out of the total consideration of Rs.1,76,53,200.00, the complainant paid Rs.76,50,000.00 in advance. Contrary to the assurance, the construction did not commence either on the cut off date of 31/12/2014 or any time thereafter. As it became apparent that the construction will never commence, the complainant demanded refund of the advance amount with compensation at the rate of 1% per month, as per clause 10.3 of the Memorandum of Understanding. The accused not only refused to refund the amount, but came out with a false story of having already paid back the amount advanced. Learned counsel for the petitioner contended that the allegations in the complaint, even if accepted in toto, can constitute only a civil dispute and the learned Magistrate had grossly erred in taking cognisance of the offence punishable under Sec. 420 of IPC. In support of the contention that the dispute is civil in nature, the counsel drew attention to Annexure XV plaint in the civil suit filed by the 2 nd respondent based on the same cause of action and Annexure XVIII judgment, rejecting the suit for non-payment of court fees. It is then argued that the petitioner was unable to effect the promised construction as the application for building permit was rejected by the Calicut Corporation. In Annexure II MoU itself, it is made clear that commencement of the construction is dependant on grant of sanction and permit by the Calicut Corporation. Referring to Annexure V order of the Corporation rejecting the application for permit and Annexure VI order of the Tribunal for Local Self Government Institutions, partly allowing the appeal against Annexure V order, it is submitted that the petitioner had taken genuine and sincere efforts to construct the building, but could not succeed in the efforts due to the obstinate stand of the Corporation that it will not issue the building permit. Hence, the petitioner was forced to abandon the project.

(3.) It is submitted that the whole amount of Rs.76,50,000.00 paid as advance was repaid to the 2nd respondent by way of demand drafts and cheques. In fact, the 2 nd respondent had issued Annexure XII acknowledging receipt of the amount due to him and the payment is reflected in the petitioner's bank statement. It is contended that, failure to construct the building being for reasons beyond the petitioner's control and the entire advance amount having been repaid, prosecution of the petitioner for the offence of cheating is an abuse of process of court.