DHARMESHBHAI RAJNIKANTBHAI MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this application under S. 482 of the Criminal Procedure Code (hereinafter referred to as 'Code'); the applicants have prayed for quashing and setting aside the FIR lodged by respondent no.2 with Kuvadava Police Station registered as CR. No.I-160 of 2011 for alleged offences u/Ss. 406, 420 and 114 of Indian Penal Code.

(2.) HEARD Mr. N.D. Nanavaty, learned Senior Advocate for Mr. Shakeel A. Qureshi for the applicants, Ms. Moxa Thakkar, learned APP. for respondent - State and Mr. K.B.Anandjivala for Mr. Krunal Shahi for respondent no.2.

(3.) MR . Nanavaty submitted that on the facts of this case, the first informant had entered into banakhat on 21.1.2011, which is registered and the first informant has admittedly received an amount of Rs. 5 lacs as earnest money and the banakhat recites that it is for total consideration of Rs.12,82,350/-. The banakhat further recites that it is an agreement to sell (without possession). Mr. Nanavaty therefore submitted that by agreement to sell the vendor has agreed to sell property for ascertained amount and the said would never amount to entrustment of property nor can it be amount to dominion over the property and therefore, the basic ingredients of criminal breach of trust being entrustment of the property as per Section 405 of Indian Penal Code is absent in the instant case. Mr. Nanavaty submitted that similarly ingredients of section 415 of the Indian Penal Code are also totally absent. Mr. Nanavaty further relying upon the provisions of section 415 submitted that all that is done is that banakhat i.e. agreement to sell is executed and that too 'without possession'. Mr. Nanavaty submitted that the applicants have neither acquired title nor the property is delivered, nor property is detained by the applicants. Mr. Nanavaty submitted that even assuming without admitting that the allegations levelled in the FIR are true, such omission or not fulfilling the terms of the contract would neither amount to cheating nor criminal breach of trust. Mr. Nanavaty submitted that in the facts of the case, no damage is caused worth the name as the first informant is in possession of the land in question. Mr. Nanavaty submitted that no title is passed in favour of the applicants and no sale-deed is executed and therefore, the ingredients of section 415 are totally absent in the instant case so as to constitute an offence of cheating. Mr. Nanavaty submitted that the impugned FIR does not disclose any offence committed by the first informant and the impugned FIR is false and frivolous which is filed after a delay of eight months only with a malafide and with ulterior motive and to get more price in the real estate at Rajkot. Mr. Nanavaty therefore submitted that the impugned FIR is lodged to convert condition of contract into a criminal proceedings. Mr. Nanavaty therefore submitted that the application deserves to be allowed.