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
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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
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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
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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
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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
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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.
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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
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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