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TMI Blog2019 (10) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as held by the High Court, is also no ground for quashing. Though the contract is of civil nature, if there is an element of cheating and fraud it is always open for a party in a contract, to prosecute the other side for the offences alleged. Mere filing of a suit or complaint filed under Section 138 of the N.I. Act, 1881 by itself is no ground to quash the proceedings. While considering the petition under Section 482 of Cr.P.C., we are of the view that the High Court also committed an error that there is a novation of the contract in view of the subsequent agreement entered into on 08.11.2012. Whether there is novation of contract or not and the effect of such entering into the contract is a matter which is required to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Land Developers and Builders Pvt. Ltd., (2) D.T. Santhosh (3) D.C. Thamanna (4) Smt. K.G. Pramila and (5) M/s. Sri Sai Developers for the alleged offences under Sections 403, 406, 420, 506(B) of the Indian Penal Code. There is also a susequent complaint by the same complainant on 27th November, 2015 which is registered as P.C.R. No.14420 of 2015, which is subseqently numbered as CC No.54 of 2016 (after filing of the chargesheet dated 22nd December, 2015) against the accused therein namely (1) M/s. Pramila Santhosh Land Developers and Builders Pvt Ltd. (2) D.T. Santhosh and (3) Smt. K.G. Pramila for the alleged offences under Sections 417, 418, 420, 422, 120(B) read with Section 34 of IPC and for offences under the Prevention of Money Lau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents have already sold the land covered by Survey Nos.115 and 117 to M/s. Sri Sai Developers on 7th June, 2012, with a dishonest intention respondents have played fraud and cheated the appellant by receiving huge sum of ₹ 9 Crores (Rupees Nine crores), by including the lands covered by Survey Nos.115 and 117 also. Further alleging that when the demand was made to comply with the terms of the contract, the respondents have threatened the complainant, as such the respondents are liable to be punished for offences under Sections 403, 406, 420, 506(B) of IPC. 5. Further alleging that after filing of the first criminal complaint, the respondents have threatened and pressurised the appellant and the second complaint was filed. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under Sections 417, 418, 420, 422 and 120(B) read with Section 34, IPC and the provisions of Prevention of Money Laundering Act. 6. At this stage, it is to be noticed that in the second complaint, after investigation, chargesheet is also filed and C.C. is numbered. 7. The High Court has allowed the petitions filed under Section 482, Cr.P.C. by the respondents-accused mainly on the ground that in view of the agreement entered into on 08.11.2012, there is a novation of the contract between the parties. Further the High Court has disbelieved the Schedule to the MOU dated 08.11.2012 on the ground that the additional pages were not paginated. Further on the grounds that the appellant has already filed a civil suit for reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c case of the appellant that the lands covered by Survey Nos.115 and 117 of Ballur Village were sold even prior to the first agreement, as such respondents have committed an act of cheating. It is also the specific case of the appellant that two cheques were issued by respondents-accused by way of security for the amount of ₹ 9 crores which is advance but the account of such cheques was closed even prior to entering into the Agreement itself. The second complaint filed by the appellant is self-explanatory and he is forcefully made to sign the sale deed which were executed subsequently for the lands covered by Survey Nos.115 and 117 of Ballur Village. Mere filing of the suits for recovery of the money and complaint filed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o on 08.11.2012. Whether there is novation of contract or not and the effect of such entering into the contract is a matter which is required to be considered only after trial but not at the stage of considering the application under Section 482, Cr.P.C. 10. Learned senior counsel Sri R. Basant appearing for the accused, in support of his case, relied on the judgment of this Court in the case of S.W. Palanitkar and Ors. vs. State of Bihar and Anr. (2002) 1 SCC 241 and submitted that every breach of contract may not result in a penal offence, but in the very same judgment, this Court has held that breach of trust with mens rea gives rise to a criminal prosecution as well. In a given case, whether there is any mens rea on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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