Sandeep N. Bhatt, J.

1. It transpires that during the pendency of this application, a subsequent development has taken place by way of executing a sale-deed in favour of the original complainant and as per the submission made by the applicants, the possession is also handed over. Accordingly, draft amendment is filed before this Court.

Draft amendment is allowed. The same shall be carried out at the earliest.

2. By way of present application, the applicants-original accused have prayed for the following reliefs:-

"9(A) be pleased to quash the FIR/Complaint registered with Nesvad Police Station, Mahuva, District-Bhavnagar vide C.R. No. I-23/2018 U/Ss 406, 420, 120B & 114 IPC qua the present applicants.

(B) pending admission and/or final disposal of this application, be pleased to stay further proceedings of C.R. No. I-23/2018 registered with Nesvad Police Station, Mahuva, Bhavnagar qua the present applicants.

(C) pass such orders as thought fit in the interest of justice."

3. Heard Mr. Uday Vyas, learned advocate for the applicants; Mr. A.J. Yagnik, learned advocate for the respondent no.2-complainant and Mr. Dhawan Jayswal, APP for the respondent No. 1-State. Matter is heard for final disposal.

4. Mr. Dhawan Jayswal, learned APP has tendered a copy of report dated 01.07.2023 prepared by Unarmed Head Constable, Mahuva Police Station, whereby it was informed that the complaint is filed by one Nathalal Bhanjibhai Gohil, residing at Mumbai against the present applicants and other accused persons, which is registered as C.R. No. I-23 of 2018 for the offences punishable under Sections-406, 120, 120B & 114 of IPC. The tenure of the report suggested that now the investigation is carried out in pursuance of the complaint and it is found that the construction carried out by the accused persons are not in proper manner and the materials used as per the requirement, which are also not in a good condition. It is also reflected from the report that the the statements of 48 witnesses were recorded, who are residing in Regency Megacity, in which 11 witnesses are not traceable. It is further noted that other witnesses are residing outside the village, therefore, investigating officer has called them and asked about the execution of sale-deed, therefore, in total, the sale-deeds were executed for the 43 persons and 04 witnesses are not traceable. It is also reflected from the report that till date the sale-deed of present applicant is not executed. However, the police has stated that since the necessary facilities are not provided by the builder at the time of launching of scheme, the offence of cheating and breach of trust is registered against the applicants.

5. On relying upon the report submitted by Investigating Officer, learned APP has submitted that this Court may consider the totality of facts and circumstances of the case as well as consider the fact that now the chargesheet is filed and trial is already commenced.

6. Mr. Uday Vyas, learned advocate for the applicants submit that in view of the subsequent development, which was otherwise in nature of civil dispute and pursuant to that, the complainant and other persons have already availed the remedy before the appropriate forum by way of consumer complaint. He has further submitted that now in view of the subsequent development, whereby the sale-deed is executed and the possession is also handed over to the present complainant and many of the people of the flat, who came forward for execution of the sale-deed. In view of this fact, he submitted that though charge-sheet is filed and trial has commenced, this proceeding is required to be quashed as now the grievance of the complainant, which is essentially of the civil nature, is also now addressed by way of execution of sale-deed in his favour and by handing over the possession of the said premises.

7. Furthermore, by relying upon the judgment of the Hon'ble Apex Court in the case of Satishchandra Ratanlal Shah Vs. State of Gujarat & Anr. reported in 2020 (1) GLR 510, he has submitted that in the context of contracts distinction between mere breach of contract and cheating depends upon fraudulent inducement and 'mens rea'. He has further submitted by relying on the judgment of State of Haryana Vs. Bhajan Lal reported in AIR 1992 SC 604, this Court should exercise the power under Section-482 of Cr.P.c As no fruitful purpose would be served to proceed with the trial Court.

8. Per contra, Mr. Yagnik, learned advocate for the respondent no.2-complainant has strongly opposed the prayer made in the present application and submitted that similarly situated persons have also filed the applications to implead as a party in the present proceeding as they were affected by such action of the present applicants, who are accused in the impugned complaint in question. He has further submitted that merely settlement with the original complainant does not absolve the present applicants from the regress of the criminal prosecution as other many persons are not also received the possession of the flats after paying the entire amount towards the consideration. He has further submitted that such a case should be considered where it relates to the scheme promoted by the present accused, where many members paid the amount towards the flat, many of them have not yet received possession of the flat neither have get the benefit of sale-deed in their favour. Therefore, he has submitted that this Court should take strict view in the matter, more particularly, charge-sheet is filed and now the trial is in progress; witnesses are examined. He has therefore submitted that though the present complainant has received the possession of the premises and sale-deed executed in his favour that itself is not sufficient aspect to quash the criminal proceedings pursuant to the FIR which is registered by the complainant, more particularly, considering the subsequent development, he has submitted that the offence, which is committed by the present accused should be considered as an offence against the society and in such cases, the Court should not exercise discretion. Lastly, he has submitted that this Court is slow in exercising the discretion after chargesheet is filed. Therefore, no exceptional treatment should be granted to the present applicants.

9. Per contra, Mr. Dhawan Jayswal, learned APP has supported the submissions made by Mr. Yagnik, learned advocate for the complainant and relied on the report, which is submitted by the Investigating Officer, which was referred herein above.

10. Before proceeding for further discussion about the matter, in view of submission made at bare by learned advocate Mr. Yagnik that now charge-sheet is filed and trial has commenced and therefore, this Court may not exercise inherent powers under Section-482 of Cr.P.C. following paragraph from the judgment reported in 2019 (11) SCC 706 in the case of Anand Kumar Mohatta and Anr. Vs. State (Govt. of NCT of Delhi) Department of Home and Anr. in Paragraphs-14 & 16 held as under:-

"14. 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 Gujarat2. 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 committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not."

16. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending 2 (2011) 7 SCC 59 with the trial court3. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."

Therefore, in peculiar facts of the present case, this Court is inclined to exercise inherent powers even after trial is commenced as in the judgment of Anand Kumar Mohatta and Anr. (supra) is trying to abuse of process of law.

11. I have considered the submissions made at the bar. I have also considered the fact that from the tenure of the FIR, it transpires that the dispute is essentially pertain to non-execution of documents and by not handing over the possession of the flat, for which the complainant has paid the amount to the partnership firm of the present applicants-accused. It also transpires that upon inquiry about the possession as well as sale-deed to be executed by the accused persons in favour of the complainant, the complainant has threaten by the employees of the present applicants. In sum and substance, the complaint is filed being C.R. No. I-23 of 2018 for the offences under Sections-406, 420, 120B & 114 of the IPC by making allegations to the above effect. I have also perused the order passed by this court on earlier occasion on 12.02.2018, which reproduced as under:-

"Since this Court is not inclined to entertain present application, learned advocate Mr.U.I. Vyas for the applicants states at bar that the applicants are ready and willing to handover possession of the flat in question to the respondent No. 2 and, therefore, notice may be issued for the limited purpose of exploring possibility of settlement.

In light of the statement made at bar, Registry is directed to issue notice for the limited purpose of exploring possibility of settlement, making it returnable on 27.02.2018. Learned A.P.P. Ms.H.B. Punani waives service of notice for the respondent-State."

12. Pursuant to on that order, thereafter, a sale-deed is executed and possession is handed over to the present complainant. The sale-deed is already on record of this application, which is executed on 24.05.2028. It transpires from the report of the Investigating Officer that there are further 43 sale-deeds were also executed in favour of persons and some of them are witnesses of the present proceedings. Therefore, in above background, considering the Section-405, 406, 420 and 415 of the IPC is required to be considered, which are reproduced as under:-

"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 discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

406.Punishment for criminal breach of trust.-Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

415.Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.

Illustrations:-

(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e) A, by pledging as diamond articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A Intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.

(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.

420.Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

13. It is also fruitful to refer some judgments for the consideration of case of the applicants.

"(1) 2019 (9) SCC 148

Satishchandra Ratanlal Shah Vs. State of Gujarat & Anr. in Paragraphs-11 to 15"

14. Considering the above fact and considering the allegations made in the FIR, prima-facie, no offence under Sections-406, 420 of IPC is made out against the present applicants. A mere breach of promise, agreement or contract does not, ipso facto, constitute offence of the criminal breach of trust contained in Section-405 of IPC without there being case of entrustment. For now considering the charges under Section-415 punishment under Section-420 of IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. The mere inability of applicants to give possession of flats cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest shown right at the beginning of the transaction as it is this mens rea which is the crux of the offence. Even if all the flats in complaint and charge-sheet are taken on therein fact value, or inducement could be found. Considering the fact that the dispute which is arising pursuant to the possession of the flat and execution of the sale-deed, which is now executed by the applicants, no fruitful purpose would now be served to continue with the proceedings, more particularly, it is true that this Court is reluctant, where chargesheet is filed and criminal trial is commenced pertaining to the present case. It transpires from the order dated 12.02.2018 passed by a co-ordinate bench of this Court that the notice is issued for this limited purpose and pursuant to that notice, the applicants have acted upon. Therefore, pending this application, exceptional circumstances and considering the judgment of Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, no fruitful purpose would be served to continue with the proceedings of criminal case and considering the judgment cited at the bar by the learned advocate for the applicants, which is applicable to the present case, this is a fit case to exercise the inherent powers under Section 482 of the Code.

15. Further, it will also be fruitful to mention the judgment of Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus-

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration 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 sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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 in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

16. In the facts and circumstances of the case, this application is allowed. The proceedings of the Criminal Case No. 1338 of 2019 pending before the concerned trial Court arising from the FIR being C.R. No. I-23 of 2018 registered with Nesvad Police Station, Mahuva, District-Bhavnagar, as well as subsequent proceedings, if any, arising out of the same FIR are hereby quashed and set aside qua the applicants herein.

17. Learned APP shall supply the copy of the report to the learned advocate for the complainant as well as to the learned advocate for the applicants-accused persons.

18. Learned APP has also submitted that though some documents are executed, still more persons are required to be executed the sale-deed and to get the possession.

19. Rule is made absolute to the aforesaid extent. Direct service is permitted.

ORDER IN CRIMINAL MISC.APPLICATION (FOR JOINING PARTY):-

20. As the main matter itself is disposed of today, the Criminal Misc. Application for Joining Party would not survive and therefore, the same is disposed of accordingly.

21. The Criminal Misc. Application, if any, is also disposed of accordingly.