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TMI Blog2009 (4) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal gain as the market value of the said property was about Rs. 28 lakhs. 3. The following facts are admitted. The land in question was acquired in the year 1985-86. The society formed a layout and sites were allotted to its members. However, few sites remained vacant. One of the persons whose lands were acquired for the society, namely, Munivenkatappa (father of Gopal) allegedly had requested the society to release one acre of land for his personal use, pursuant whereto, the society resolved to release 337" x 132" of land in favour of his family. Another application was filed by M. Gopal, son of said Munivenkatappa, in terms whereof request was again made to the said society for allotment of the land. The said request was received on 27.3.2006 and allotment of a site bearing No. 509 measuring 30' x 40' for a sum of Rs. 2,40,000/- was made and a deed of sale was executed in his favour on 7.4.2006. A possession certificate was also issued. Within a period of three months, said Gopal sold the said property in favour of Hanumanthegowda for a sum of Rs. 28,00,000/-. However, in the sale deed, the consideration amount was shown as Rs. 10,20,000/-. 4. Indisputably, a comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was filed by the appellant, inter alia, alleging: "10. The Complainant further submits while allotting site No. 509 to Sri Gopal the Accused have played a big fraud on the society. They do not know that there is already a site bearing No. 142 which is existing on the same land. The Accused have shifted site No. 509 on site No. 142 and registered the same in favour of Sri Gopal. The Complainant has obtained a certified copy of site No. 142 and site No. 509 and surprised to find both the schedules one and the same. The sub registrar K R Puram Bangalore who is having the copy of approved plan of Sadananda Nagar Layout with him should have observed this fraud and objected for registering this site. While shifting any site by the society in the approved plan the society will have to obtain permission from the commissioner TPM Bangalore Development Authority which the Accused have failed to do the same. BDA has not released this site at all. 11. The Complainant humbly submits Sri Gopal or any of his family members are not eligible for any site from the society since the society has already given 1.00 acre of land to their family way back in 1986 itself. The accused have made Sri Gopa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings." 9. Mr. G.V. Chandrashekar, learned counsel appearing on behalf of appellant would urge:- i. Appellant being a member of the society and having an interest in the running of the affairs thereof could maintain the aforementioned complaint petition. ii. The allegations made in the complaint petition disclosed a cognizable offence and, thus, the High Court committed a serious error in passing the impugned judgment. iii. Although Gopal or for that matter Hanumanthegowda had not been made as accused, they can be summoned at a later stage wherefor such an application can be filed in the inquiry or trial. iv. Section 415 of the IPC providing for commission of an act of cheating also in respect of the property, the High Court committed a serious error in opining that no case has been made out for issuance of summons against the respondents. 10. Mr. S.N. Bhat and Ms. Kiran Suri, learned counsel appearing on the behalf of the respondents, on the other hand, would contend: i. No deception within the meaning of Section 415 of the IPC having been committed by the respondents, the learned Magistrate committed a serious error of law in taking cognizance of an offence under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not." 13. The primary allegation against the respondents in the complaint petition does not make out an offence only under the provisions of Section 109 of the Act as contended by Mr. Bhat but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although ostensibly the amount of Rs. 10,20,000/- has been shown to be amount of consideration in the registered document. It may be true that the question as to whether the report of the Registrar can be relied upon for the purpose of showing as to how the act of cheating has been committed by the respondents is a matter which must be considered at the time of trial but there cannot be any doubt whatsoever that so long as the report is not set aside, the same could form the basis for forming of an opinion at least for the purpose of proceeding against the respondents that they manipulated the records of the cooperative society to make unlawful gain for themselves and causing unlawful loss to the society. In Indian Oil Corpn. (supra) whereupon Ms. Suri has placed strong reliance, this Court in the facts and circumstances of the case therein although opined that no case of "criminal breach of trust" as defined under Section 405 of the IPC has been made out, holding: "32. The essential ingredients of the offence of 'cheating' are: (i) deception of a person either by making a false or misleading representation or by other action or omission, (ii) fraudulent or dishonest inducement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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