SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Jinas P.A vs State Of Kerala on 8 January, 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941

Crl.MC.No.930 OF 2018

FIR NO.1000/2016 OF CHOTTANIKKARA POLICE STATION

PETITIONER/ACCUSED:

JINAS P.A
AGED 50, THE MANAGING DIRECTOR,GALAXY HOMES
PVT.LTD., ERNAKULAM.

BY ADVS.
SRI.K.R.VINOD
SMT.M.S.LETHA

RESPONDENTS:

1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, KOCHI -31.

2 GOPU G.
AGED 38, S/O.T.K.GANGADHARAN PILLAI,GALAXY
GREENWOODS VILLA NO.8, VENNIKULAM,CHOTTANIKKARA,
ERNAKULAM – 689 544.

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
28.10.2019, THE COURT ON 08.01.2020 PASSED THE FOLLOWING:
Crl.M.C.No.930/2018
2

R.NARAYANA PISHARADI, J
************************
Crl.M.C.No.930 of 2018
——————————————–
Dated this the 7th day of January, 2020

ORDER

The petitioner is the accused in the case registered as

Crime No.1000/2016 of the Chottanikkara police station under

Sections 406 and 420 I.P.C.

2. The aforesaid case was registered against the

petitioner on the basis of the first information statement given to

the police by the second respondent (hereinafter referred to as

‘the complainant’).

3. The material averments in the first information

statement given to the police by the complainant are as follows:

The complainant had purchased a villa constructed by the

accused in the year 2010 as per an agreement. The accused has

not provided recreation space in the compound of the villa as per

Rule 31(iii) of the Kerala Panchayat Building Rules, 2011. Inspite
Crl.M.C.No.930/2018
3

of repeated demands made by the complainant and the other

persons who owned villas in the residential complex, no such

facility has been provided by the accused. The accused has

cheated the complainant and the other persons who reside in the

villas.

4. This petition is filed under Section 482 Cr.P.C for

quashing Annexure-A6 first information report (FIR) registered

against the petitioner on the basis of the first information

statement given to the police by the complainant.

5. Notice was served on the second respondent but he

has not chosen to appear and contest the case. Heard learned

counsel for the petitioner and the learned Public Prosecutor.

6. Learned counsel for the petitioner has contended that

the complainant had entered into an agreement with the

petitioner in the year 2010, entrusting the construction of the

villa to him. The Kerala Panchayat Building Rules, 2011

(hereinafter referred to as ‘the Rules’) was not in force at that

time. Therefore, the allegation that the petitioner has not

complied with the requirements under Rule 31(iii) of the Rules,
Crl.M.C.No.930/2018
4

has no legs to stand on. Learned counsel for the petitioner also

contended that, even if it is accepted that there was any

agreement between the petitioner and the complainant with

regard to providing of recreational space, non-compliance with

such a stipulation in the agreement, amounts to only a breach of

contract and the offence punishable under Section 420 I.P.C will

not be attracted. Learned counsel for the petitioner further

contended that the averments in the first information statement

given to the police by the complainant do not attract the

ingredients of the offence of cheating as defined under Section

415 I.P.C.

7. Learned Public Prosecutor has not pointed out, how

the Rules which came into force only in the year 2011, would be

applicable to the construction of the villa which was made as per

an agreement executed in the year 2010.

8. The Rules came into force only on 14.02.2011. Rule

31(iii) of the Rules reads as follows:

“All new developments including land
subdivisions, plot developments and pooling of land
Crl.M.C.No.930/2018
5

owned by different owners shall be subject to the
following, namely,

(iii) When the area of the land under
development work, layout or subdivision (exceeding
ten plots) is 50 ares or more, 10% of the total area
shall be provided for recreational open spaces and
shall be suitably located to be accessible to the
residents of the locality: The open space shall be
provided exclusive of streets, culde-sacs, water body
or swimming pools:”

9. It is evident that Rule 31 applies only to new

development of lands and plots and it does not apply to any

development of land which had already commenced before it

came into force.

10. Before the Rules came into force, the Kerala

Municipality Building Rules, 1999 were applicable to Panchayats.

In the instant case, the villa purchased by the complainant is

situated in a Panchayat. Rule 50(1) of the Kerala Municipality

Building Rules, 1999 provides that any residential apartment

having more than 12 dwelling units in a single plot or single

building shall be provided with a recreational space of suitable
Crl.M.C.No.930/2018
6

size. Rule 50(2) of the aforesaid Rules provides that the

recreational space as per sub-rule (1) shall have not less than

6% of the total floor area of the units taken together and a

minimum 35% of such recreational space shall be provided

outside the building on the ground itself. However, Rule 50(1)

and Rule 50(2) of the Kerala Municipality Building Rules, 1999

are applicable only to an apartment as defined under Rule 2(g) of

the aforesaid Rules and the aforesaid provisions are not

applicable to any villa which is an independent building. Rule

2(g) of the Kerala Municipality Building Rules states that the word

‘apartment’ is synonymous with residential flat.

11. Even if it is accepted that the petitioner had agreed to

provide recreational space or other facilities in the compound of

the villa of the complainant, non-compliance with such stipulation

in the agreement, if any executed between the petitioner and the

complainant, will amount to only a breach of contract unless it is

shown that even at the time of entering into the agreement, the

petitioner had dishonest intention of not providing such facilities.

Mere breach of a stipulation in the agreement will not amount to
Crl.M.C.No.930/2018
7

an offence of cheating which is defined under Section 415 I.P.C

and the offence punishable under Section 420 I.P.C.

12. There is distinction between mere breach of contract

and the offence of cheating. Mere breach of contract cannot give

rise to criminal prosecution for cheating unless fraudulent or

dishonest intention is shown right at the beginning of the

transaction. To hold a person guilty of cheating it is necessary to

show that he had fraudulent or dishonest intention at the time of

making the promise. From his mere failure to keep up the

promise subsequently such a culpable intention right at the

beginning, that is, when he made the promise, cannot be

presumed.

13. In the instant case, there is no allegation in the first

information statement given to the police by the complainant

that the petitioner had dishonest intention of not providing

recreational space when he entered into the agreement for

construction of the villa with the complainant.

14. Section 405 I.P.C shows that the ingredients of the

offence of criminal breach of trust are the following: i) a person
Crl.M.C.No.930/2018
8

should have been entrusted with property, or entrusted with

dominion over property; ii) that person should dishonestly

misappropriate or convert to his own use that property, or

dishonestly use or dispose of that property or wilfully suffer any

other person to do so; and iii) that such misappropriation,

conversion, use or disposal should be in violation of any direction

of law prescribing the mode in which such trust is to be

discharged, or of any legal contract which the person has made,

touching the discharge of such trust.

15. In the instant case, the complainant has no grievance

that the money, if any, entrusted by him with the petitioner was

used by the petitioner in any manner in violation of the

stipulations contained in the agreement executed between him

and the petitioner. Therefore, the offence punishable under

Section 406 I.P.C is also not attracted.

16. In the aforesaid circumstances, continuation of the

criminal proceedings against the petitioner would be an abuse of

process of law. The proceedings initiated against him pursuant

to Annexure-A6 FIR are liable to be quashed.
Crl.M.C.No.930/2018
9

17. Consequently, the petition is allowed. The entire

proceedings against the petitioner based on Annexure-A6 FIR in

Crime No.1000/2016 of Chottanikkara police station, are hereby

quashed.

(sd/-)

R.NARAYANA PISHARADI, JUDGE
jsr/04/01/2020
Crl.M.C.No.930/2018
10

APPENDIX
PETITIONER’S EXHIBITS:

ANNEXURE A1 THE COPY OF THE AGREEMENT FOR
CONSTRUCTION THAT WAS EXECUTED BETWEEN
THE COMPANY OF THE PETITIONER WITH THE
2ND RESPONDENT

ANNEXURE A2 THE COPY OF THE BUILDING PERMIT DATED
25.06.2010 ISSUED BY THE THIRUVANIYOOR
GRAMA PANCHAYAT

ANNEXURE A3 THE COPY OF THE RECEIPT ISSUED BY THE
2ND RESPONDENT ACKNOWLEDGING THE
COMPLETED VILLA.

ANNEXURE A4 SER THE PHOTOGRAPHS SHOWING THE VILLA
COMPLEX ALONG WITH COMMON AREA
FACILITIES.

ANNEXURE A5 THE COPY OF THE SALE SALE DEED
NO.2351/2010 OF THE 2ND RESPONDENT AND
HIS WIFE WHEREIN THE RESIDENTIAL
BUILDING IS CONSTRUCTED BY THE
PETITIONER.

ANNEXUR A6 THE CERTIFIED COPY OF THE FIR AND FIS
IN CRIME NO.1000/2016 OF CHOTTANIKKARA
POLICE STATION.

RESPONDENTS’ EXHIBITS: NIL

TRUE COPY

PS TO JUDGE

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation