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TMI Blog2018 (11) TMI 1846X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to quash FIR No. 0139/2014 dated 20.08.2014. During the pendency of the appeal in this Court, Respondent No. 1 filed charge sheet dated 03.08.2018 in the Court of Metropolitan Magistrate, Patiala House Court, Delhi against the Appellants herein. Thus, by way of amendment to the main prayer in the appeal, Appellants have also prayed for quashing of charge sheet dated 03.08.2018. Appellants seek quashing of the FIR dated 20.08.2014 and the charge sheet dated 03.08.2018. Facts 3. This appeal is by an Accused against whom a FIR was lodged on 20.08.2014, in respect of disputes arising out of the agreement dated 03.06.1993 entered into between the Appellant No. 1 i.e. Mr. Anand Kumar Mohatta and the complainant i.e. Ansal Properties & Infrastructure Ltd. The FIR was lodged about 21 years after the agreement. Initially, the FIR was also lodged against the wife of the Appellant No. 1 i.e. Mrs. Shobha Anand Mohatta, but no offence has been made out against her after investigation. 4. The agreement entered into by the two parties is with regard to the development of the property owned by the Appellants. This property is situated at 20, Feroz Shah Road, New Delhi, which falls under Lut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of trust. Moreover, assuming that the Respondent No. 2 had a grievance only about the retention of money, the redressal ought to have been sought before a Civil Court. Therefore, the lodging of the FIR was mala fide in nature and done with the intention to pressurize the Appellants to agree to certain new terms and conditions of the agreement to which the Appellants did not want to proceed with. 8. It is the case of the complainant-Respondent No. 2 that the Appellant No. 1 is guilty of the offence Under Section 406 since he had clandestinely and surreptitiously transferred the subject property in the name of his wife i.e. Appellant No. 2. This was done to defeat the agreement dated 03.06.1993. It is also said that the Appellants are guilty of abusing the process of Court by undervaluing the property in a collusive suit before the Bombay High Court and thus wrongly transferred the property. 9. The High Court, however, disposed of the Appellants' petition filed Under Section 482 on the ground that the petition has been filed pre-maturely as the case is still at the stage of investigation. The High Court directed the investigation to proceed and further directed the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. State government of NCT, places reliance on the charge sheet to submit that the Appellants have committed an offence punishable Under Section 406 by not returning the amount of Rs. One Crore advanced by the Respondent No. 2. Conclusion 15. First, we would like to deal with the submission of the learned Senior Counsel for the Respondent No. 2 that once the charge sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat (2011) 7 SCC 59. In the case of Joseph Salvaraj A. (supra), this Court while deciding the question whether the High Court could entertain the 482 petition for quashing of FIR, when the charge sheet was filed by the police during the pendency of the 482 petition, observed: 16. Thus, from the general conspectus of the various Sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1 and there was therefore no question of Appellants having been entrusted with their own property, and that too by the complainant, who had merely entered into a development agreement in respect of the property. 19. Lastly, we find that the FIR and the charge sheet essentially charged the Petitioner for an offence Under Section 406 of the Code of Criminal Procedure for retaining the amount of Rs. One crore which was advanced to him by the Respondents at the time of entering into the development agreement. Whether an offence Under Section 406 made out 20. It is necessary to refer to Sections 405 and 406 of the Indian Penal Code in order to ascertain, whether in the facts and circumstances of the present case, an offence Under Section 406 is made out against the Appellants. Section 405 and 406 of the Indian Penal Code reads as follows: 405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 03.06.1993. 22. Two things are significant in the transaction between the parties. Firstly, that the occasion for returning the amount i.e. the developer handing over the possession of the area of the owner's share to the owner in the group housing complex, has not occurred. According to the Appellants, the contract stands frustrated because no group housing can be legally built on 20 Feroz Shah Road, New Delhi since it falls in the Lutyens Bungalow Zone. Appellant No. 1 has therefore, terminated the contract. Further, the amount has been retained by him as a security because not only is there any handing over of constructed portion, the complainant has also got into part possession of the property and has not handed it back. Also, the complainant has failed to get the property vacated from the tenant's possession. 23. We, thus find that it is not possible to hold that the amount of Rs. One crore which was paid along with the development agreement as a deposit can be said to have been entrustment of property which has been dishonestly converted to his own use or disposed of in violation of any direction of law or contract by the Appellant. The Appellants have not use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused. (4) Where, the allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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