SURESH BABU Vs. STATE AND ORS.

JUDGEMENT

(1.) The petitioner/A3 in Crime No. 155 of 2015 has come forward with this application to quash the FIR which is filed against him for offences under Ss. 406 and 420 of IPC. The case of the prosecution is that during the year 2012 the defacto complainant, intended to purchase a house and hence, approached the accused persons who were running the construction/real estate business in the name and style of M/s. Unitech Ltd.. The said company developed individual 'Villas' at Nallambakkam Village, Chengalpet Taluk, Kancheepuram District. The accused persons took the complainant to the said place and showed Plot Nos. 37, 42, 78, 86, 48, 51, 56 to her. Out of the said plots, the defacto complainant selected Plot No. 42. A1, one Kalaivani also agreed to construct a house for the complainant in the said Plot. They also showed a fully constructed house to the complainant. On the next day when the complainant was ready and willing to part with 10% of the total amount, she was informed that Plot No. 42 was sold out and that if she wishes, she may take plot No. 37 as all the houses will be looking identical. Since No. 37 is not a lucky number, the complainant refused. But the accused persons pacified her by saying that they do not want to lose a customer like the complainant and that they would change the plot number as 38 A and would construct a house for her within one year. Believing the same, on 27.06.2012, she parted with a sum of Rs. 6,52,790/ - out of which Rs. 50,000/ - was taken as token advance for construction and the remaining amount as the undivided share amount for her plot. Since the door number was changed to 38A as per the wish and will of the complainant, the accused persons demanded a further sum of Rs. 4,51,283/ - in excess. When questioned, the accused persons stated that the said plot is a corner plot with free flow of air and that the complainant can put up an garden in that. Since the accused party accepted for the change of plot number as per her wish, the complainant accepted to pay the said amount. On 14.08.2012, she remitted Rs. 60,00,000/ - through RTGS. After completion of the construction, the accused persons informed the complainant about the same through telephone. When the complainant demanded for completion certificate, the accused persons threatened her saying that if she does not accept the said house, she has to pay 5% interest for the balance amount to be remitted by her. Since the accused persons cheated her, she came forward to file a private complaint before the learned Magistrate, on whose orders, the present complaint in Crime No. 155 of 2015 for the offences u/s. 406 and 420 IPC, was registered.

(2.) Learned Senior Counsel appearing for the petitioner/third accused would submit that though the construction of the said 'Villa' was completed as per the agreement, the complainant had not chosen to take possession and settle the balance dues. She had refused to take possession saying one reason or the other. He would further submit that even if there is any violation in the agreement, the complainant should have invoked Arbitration proceedings as per clause 38 of the agreement for construction of row house apartment dated 29.06.2012.

(3.) However, the complainant had chosen to file a complaint u/s. 156[3] Cr.P.C. It is the further submission of the learned Senior Counsel that the learned Magistrate had issued orders to register the case, without taking into consideration, the nature of the case and the said order was passed in total non -application of mind. In support of his contention, he would relied upon the following decisions: -