M. Rajan vs The State of Karnataka and Others

Rathnakala, J.—1. First respondent/Police have registered a complaint against the petitioner in respect of offence under Sections 448 and 420 of IPC.

As per the allegation in the complaint, the complainant is a Developer and entered into an agreement with the joint owners one C.G. Krishna Das Nair and the petitioner herein on 2.2.2005 to construct an Apartment building. Accordingly, he constructed the Apartment. As per the agreement, 60% of the building belongs to him and 40% to the owners. He has taken 60% of the flat and in respect of 40% i.e., five flats, two flats each have been handed over to them and flat No. 202 on the second floor was kept pending in view of the dispute between the land owners. It was under lock and was in the custody of the complainant. The accused illegally occupied the disputed flat without his notice and also without notice to the co-owner C.G. Krishna Das Nair and has rented the flat to a third party.

Sri. Dinesh Gaonkar, learned Counsel for the petitioner submits that, as such the dispute, if any, between the petitioner and C.G. Krishna Das Nair about the ownership of the flat, is not a concern of the Developer. Having put up the construction and on taking over his portion of the flats i.e., 60% in the constructed area, the complainant has no subsisting interest in the property. C.G. Krishna Das Nair though was a party to the Joint Development Agreement, actually had no subsisting interest in the said construction. He was only arrayed as a necessary party to the agreement. C.G. Krishna Das Nair has filed an original suit in O.S. No. 27276/2012 against the petitioner, Developer and the Commissioner of B.B.M.P., for partition of the flat in question and the matter is still pending before the Trial Court. The ingredients of either Section 448 or Section 420 of IPC are not attracted in the given facts and circumstances of the case and the complaint filed is pure abuse of process of law and is liable to be quashed.

Learned H.C.G.P. for respondent No. 1/State submits that, the complaint allegation discloses that after construction, the possession and custody of the flat had continued with the Builder only, in view of the dispute between the petitioner and C.G. Krishna Das Nair. Under the circumstance, the petitioner since has forcibly taken over the possession and occupied the same, which discloses commission of non-cognizable offence, the FIR cannot be quashed.

Second respondent though represented is not present.

In the light of the said submission and also the documents borne on record, it emanates that the complainant being the Developer entered into Joint Development Agreement with the petitioner herein and one C.G. Krishna Das Nair; as per the agreement, builder was entitled for 60% of the constructed flats, which on his own showing has been taken over by him. The question is, whether the acts alleged against the petitioner attracts the offence under Sections 448 and 420 of IPC. To prove an offence of trespass, there shall be a house-trespass as contemplated under Section 442 of I.P.C., which reads thus:

"442. House trespass. - Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".

Again the main ingredients of Section 442 being the criminal trespass, we have to fall back upon Section 441 of IPC, which enumerates criminal trespass thus:

"441. Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,

is said to commit "criminal trespass".

It is not the case of the complainant that the petitioner had entered into the building with an intent to commit any offence. Interestingly, he has not mentioned the date on which the petitioner allegedly occupied the flat. As per the submission of Sri. Dinesh Gaonkar, he has rented out the flat in the year 2007 itself. The complainant completed the construction and handed over possession of five flats in his favour, which are agreed upon in the Development Agreement. Hence, there was no necessity for him to commit the offence of criminal trespass more specifically house-trespass. Since he has rented out the flat to the tenant, said Krishna Das Nair is said to have filed original suit seeking partition of his 56.57% portion in the flat in question, the question of criminal trespass and house-trespass as contemplated under Sections 441 and 442 of IPC not being attracted, no case can be made out for the offence under Section 448 of IPC.

The Apex Court in the case of Bishan Dass v. State of Punjab and Another, reported in , (2014) 15 SCC 242, has held thus:

"The essential ingredients to attract Section 420 of IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being convened into a valuable security and (iii) mens rea of the accused at the time of making the inducement".

In V.Y. Jose v. State of Gujarat and Another [, (2009) 3 SCC 78), the Apex Court observed thus:

"An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

i) deception of a person either by making a false or misleading representation or by other action or omission.

(ii) fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

In Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Another. [, (2000) 4 SCC 168], the Apex Court held:

"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not to or omit to do if he were not so deceive. In the first class of cases the inducing must be fraudulent or dishonest.

In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one.

It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. 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, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show 11 that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed".

On the showing of the complainant himself, he is not the lawful owner of the flat in question nor is the lawful custodian of the flat also. The dispute being commercial in nature between the petitioner and Krishna Das Nair in respect of the flat in question, no offence of cheating can be inferred against the petitioner. Before bringing the ingredients of Section 420 of IPC, there shall be a dishonest fraudulent intention on the part of the offender to induce the victim to deliver any property or to make him consent that any person shall retain any property, to do or omit to do anything which he would not have done or omitted and which act has resulted in damage or harm to the complainant. But it is not so in the case of the complainant herein. There is no allegation of false representation by the petitioner to the complainant. He has not delivered any property acting on any dishonest representation made by the petitioner. That being so, no case under Section 420 of IPC can be gathered from the complaint allegation. It is a matter of 2011. The civil case between the petitioner and Krishna Das Nair is said to be pending. Under the circumstance, registration of the very complaint itself is an abuse of process of law and needs to be quashed under the jurisdiction of Section 482 of Cr.P.C.

The petition is allowed. The F.I.R. in Crime No. 93/2011 registered by first respondent/Police is quashed.