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TMI Blog2006 (7) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... is the Vice President of the first petitioner company. The accused floated a scheme called Golden Heights Plots. Those who have subscribed ₹ 1,00,000/- became the members of the said scheme. Under the said scheme, plots will be allotted to the members to an extent of 500 square yards each for a total consideration of ₹ 4,80,000/-. ₹ 1,00,000/- has to be paid initially and thereafter ₹ 10,560/- has to be paid for 35 months and in the 36th month a sum of ₹ 10,000/- has to be paid. 3. The complainant alleged that the company agreed to sell plot No. 323 and represented that they would arrange a loan, but failed to arrange the same, therefore, he started paying installments @ ₹ 5,000/- per month from August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and to return the amount as per the terms of Clause 17 of the agreement. 5. As the complainant brought recommendation, the company was willing to give a plot to him, but he again failed to pay the instalments regularly as stipulated by the company, therefore, the earlier allotment stood cancelled. The company changed the allotment of plot to GH-335 instead of 323. The company also raised a dispute with regard to the total amount of dues and sought for fresh settlement of account. By the letter dated 27-08-2004, the company stated that after cancellation of the plot, it was allotted to another person and he was given alternative plot. If he is not willing to take the alternative plot, he may take back his amount by intimating the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her he is entitled to any relief by raising a civil dispute? 8. The learned Counsel for the petitioners in support of his contentions placed reliance on the following Judgments: In S.W. Palanitkar and Ors v. State of Bihar and Ors. 2002 (1) ALD (Cri.) 108 the Supreme Court, while dealing with Sections 405 and 406 of I.P.C., observed as follows: Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a Civil Court but a breach of trust with mens rea gives to a criminal prosecution as well. The ingredi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import.... 10. In Hridaya Ranjan Pd. Verma v. State of Bihar AIR 2000 SC 2341 the Supreme Court, while dealing with Section 415 of I.P.C., held as follows: The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions clearly indicates that unless there is fraudulent intention or breach of trust with mens rea, a criminal prosecution cannot be maintained though it may amount to civil wrong. 13. The learned Counsel for the first respondent complainant relied on the following Judgments in support of his contention that the prosecution can be maintained even if the civil remedy is also available. 14. In Trisuns Chemical Industry v. Rajesh Agarwal the Supreme Court, while dealing with the scope of Section 482 of Cr.P.C., held as follows: Quashing of FIR or a complaint in exercise of inherent powers of the High Court should be limited to very extreme exceptions. Provision incorporated in the agreement for referring the disputes to arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position as indicated above. But, in the present case, from the inception the complainant does not plead that the accused had any fraudulent intention to defraud him to part with the money. Prima facie, it disclosed that the complainant himself failed to pay the instalments as per the agreement and the accused company was trying for an amicable solution to give an opportunity to the complainant to pay the entire money and when ultimately he failed to pay the entire money as agreed by him on different occasions, they alleged to have repaid the entire amount and he received it under protest, therefore, whether the complainant failed to pay the instalments as per the terms of agreement, whether the accused are entitled to cancel the allotment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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