Sri Abdul Latheef Jabbar Vs. State Of Karnataka - Court Judgment

Excerpt:
1 r reserved on :18. 09.2024 pronounced on :21. 10.2024 in the high court of karnataka at bengaluru dated this the21t day of october, 2024 before the hon'ble mr. justice m. nagaprasanna criminal petition no.6658 of2024c/w criminal petition no.5089 of2024criminal petition no.5807 of2024criminal petition no.5922 of2024criminal petition no.6166 of2024criminal petition no.6436 of2024criminal petition no.6766 of2024criminal petition no.6846 of2024in criminal petition no.6658 of2024between:1. . sri kirti k. mehta s/o late sri kantilal mehta aged about68years. 2 . sri pratik k. mehta s/o sri kirti k. mehta aged about41years. residing at no.301 moudgal homes, no.6 upper pipeline road kumara park west bengaluru – 560 020. 2 ... petitioners (by sri g.s.venkat subba rao, advocate) and:1. . state of karnataka by sampigehalli police station represented by state public prosecutor high court of karnataka bengaluru – 560 001. 2 . sri arshad quasim dabapu aged about41years s/o mr. ali moula dabapu residing at flat2001batch b, ali ahba towers aj khalidiya abu dhabi, uae permanant address and having no.60/29, flat no.25 veppery high road veppery, chennai – 600 003. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; sri k.g.aiyappa, advocate for r-2) this criminal petition is filed under section482of cr.p.c., praying to quash the fir and complaint lodged against the petitioners in cr.no.369/2024 by the1t respondent police i.e., sampigehalli police station, sampigehalli, bangalore for the offences p/u/s406 420 of ipc, pending on the file of iv addl. cmm, bengaluru vide annexures-a and b respectively. 3 in criminal petition no.5089 of2024between:1. . abdul latheef jabbar @ ameen jabbar proprietor of m/s. s.a.enterprises aged about50years, having its office at: no.29, 15th cross, kanaka nagar, r.t.nagar, bengaluru-560 032. 2 . sri anoop lobo s/o late william lobo aged about45years authorized signatory of m/s. s.a. enterprises, residing at no.51, lobo nivas, 1st cross, kempegowda rk hegde nagar, bengaluru – 560 077. ... petitioners (by sri venkatesh r.bhagat, advocate) and:1. . the state of karnataka by sampigehalli police staiton, represented by state public prosecutor, high court of karnataka, high court building, bengaluru – 560 001. 2 . sri anurag sharma aged about44years. 4 3 . smt. indrani sharma aged about42years. sl.no.2 and3are r/o amber-71, emerald hills, sector65 gurgaon – 122 010 haryana. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; sri asim malik, advocate for r-2 and r-3) this criminal petition is filed under section482of cr.p.c., praying to quash the fir and complaint registered by the respondent no.1 sampigehalli police dated1005.2024, in cr.no.267/2024 for the offences p/u/s406 420, 120-b r/w sec.34 of ipc at annexure a and b pending on the file of the4h acmm bengaluru as these petitioners are concerned. in criminal petition no.5807 of2024between: s. abdul khadar jabbar s/o jabbar mohammed siddique aged about48years, residing at no.29/1, 1st floor, 15th cross, kanakanagar r.t.nagar, bengaluru – 560 032. ... petitioner (by sri shridhara k., advocate) 5 and:1. . state of karnataka by sampigehalli police, represented by state public prosecutor, high court building, ambedkar beedi, bengaluru – 560 001. 2 . smt. vijayalakshmamma m.s., w/o ramesh yellappa aged about49years, residing at no.98, d-5 block, 4th floor, kendriya vihar, b.b.road yelahanka, bengaluru north, bengaluru – 560 064. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; sri k.g.aiyappa, advocate for r-2) this criminal petition is filed under section482of cr.p.c., praying to quash the complaint dated0508.2023 and fir in cr.no.278/2023 and all further proceedings initiated by the respondent police pending on the file of the honble iv a.c.m.m at bengaluru for the offences p/u/s406 417, 420 r/w34of ipc of sampigehalli police station so for as the petitioner is concerned. in criminal petition no.5922 of2024between:1. . sri kirti k. mehta s/o late sri kantilal mehta6aged about68years. 2 . sri pratik k. mehta s/o sri kirti k. mehta aged about41years. both residing at no.301, moudgal homes, no.6, upper pipeline road, kumara park west, bengaluru – 560 023. ... petitioners (by sri g.s.venkat subba rao, advocate) and:1. . state of karnataka by sampigehalli police station, represented by state public prosecutor high court of karnataka bengaluru – 560 001. 2 . sri anurag sharma aged about44years s/o sri prafulla kumar sharma. 3 . smt. indrani sharma aged about42years, w/o mr. anurag sharma no.2 and3both residing at amber-71, emerald hills sector-65, gurgaon – 122 010 haryana. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; 7 sri k.g.aiyappa, advocate for r-2 and r-3) this criminal petition is filed under section482of cr.p.c., praying to quash the fir complaint lodged against the petitioners in cr.no.267/2024 by the1t respondent police that is sampigehalli police station, sampigehalli, bengaluru for the offences p/u/s406 420, 120-b, 34 of ipc., pending on the file of the iv acmm vide annexure a and b respectively. in criminal petition no.6166 of2024between:1. . sri abdul latheef jabbar aged about50years s/o sri mohammed siddeque proprietor m/s. s.a.enterprises residing at no.29, 15th cross, kanaka nagar, bengaluru north r.t.nagar, bengaluru – 560 032. 2 . sri moin @ abdul khadar jabbar aged about48years s/o sri jabbar mohammed siddique residing at no.29/1, 1st floor, 15th cross, kanaka nagar, bengaluru north, r.t.nagar, bengaluru – 560 032. 3 . sri anoop lobo aged about45years s/o late william lobo residing at no.51, lobo nivas1t cross, kempegowda layout, nagenahalli, r.k.hegde nagar8bengaluru north, dr.shivarama karanth nagar, bengaluru – 560 077. 4 . sri mohammed nizamuddin aged about59years, c/o abdul jabbar musa residing at: no.10, 3rd cross, chikkanna layout, shampur main road, bengaluru north bengaluru – 560 045. ... petitioners (by smt.nayana tara b.g., advocate) and:1. . state of karnataka by sampigehalli police station, represented by state public prosecutor, high court of karnataka bengaluru – 560 001. 2 . smt. nivedita desai aged about53years w/o sri ajay r.desai d/o s.b.udoshi residing at flat no.404, ‘k’ block, purva venezia, near madar diary yelahanka new town, bengaluru – 560 064. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; sri k.g.aiyappa, advocate for r-2) 9 this criminal petition is filed under section482of cr.p.c., praying to quash the fir and complaint lodged against the petitioners in cr.no.325/2024 by the1t respondent police i.e., sampigehalli police station, sampigehalli, bengaluru for the offences p/u/s406 420, 120b, 342, 506, 149 of ipc pending on the file of iv addl.c.m.m., bengaluru vide annexure-a and b respectively. in criminal petition no.6436 of2024between:1. . sri kirti k. mehta s/o late sri kantilal mehta aged about68years. 2 . sri pratik k. mehta s/o sri kirti k. mehta aged about41years. both residing at m/s. unishire homes l.l.p srve no.78, thanisandra k.r.puram hobli bengaluru city – 560 016. presently residing at: moudagal homes no.6 upper pipeline road kumara park west bengaluru – 560 023. ... petitioners (by sri g.s.venkata subba rao, advocate) 10 and:1. . state of karnataka by sampigehalli police station represented by state public prosecutor high court of karnataka bengaluru – 560 001. 2 . smt. nivedita a. desai aged about52years d/o mr.s.b.udoshi. 3 . sri nikhil udoshi aged about47years s/o mr.s.b.udoshi no.2 & 3 both residing at k-404 purvankara venezia michelangelo, yelahanka new town near mother diary bengaluru – 560 063. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; sri asim malik, advocate for r-2 & r-3) this criminal petition is filed under section482of cr.p.c., praying to quash the fir and complaint lodged against the petitioners in cr.no.325/2024 by the1t respondent police i.e., sampigehalli police station, sampigehalli, bangalore for the offences p/u/s406 420, 120(b), 342, 506, 149 of ipc, pending on the file of iv addl. cmm, bengaluru vide annexure-a and b respectively. 11 in criminal petition no.6766 of2024between:1. . sri kirti k.mehta s/o late sri kantilal mehta, aged about68years. 2 . sri pratik k. mehta s/o sri kirti k.mehta, aged about41years. both residing at m/s. unishire homes l.l.p srve no.78, thanisandra k.r.puram hobli, bengaluru city – 560 016. presently both residing at: no.301, moudgal homes, no.6, upper pipeline road kumara park west bengaluru – 560 023. ... petitioners (by sri g.s.venkat subba rao, advocate) and:1. . state of karnataka by samapigehalli police station, represented by state public prosecutor, high court of karnataka, bengaluru – 560 001. 2 . smt.swetha tyagi aged about43years, 12 w/o mr.tushar tyagi. 3 . smt.tushar tyagi aged about44years, w/o mr.vinod kumar tyagi both residing at sjr verity viva-106, hosa road, kasavanahalli, bengaluru – 560 035. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; sri k.g.aiyappa, advocate for r-2 and r-3 ) this criminal petition is filed under section482of cr.p.c., praying to quash the fir and complaint lodged against the petitioners in cr.no.184/2024 by the1t respondent police i.e., sampigehalli p.s, sampigehalli, bengaluru for the offences p/u/s420 406, 120(b) r/w sec.34 of ipc pending on the file of iv acmm, court bengaluru, vide annexure a and b. in criminal petition no.6846 of2024between:1. . sri kirti k. mehta s/o late sri kantilal mehta, aged about68years. 2 . sri pratik k. mehta s/o sri kirti k. mehta, aged about41years. both residing m/s. unishire homes l.l.p13srve no.78, thanisandra k.r.puram hobli, bengaluru city – 560 016. presently residing at no.301 moudgal homes, no.6 upper pipeline road kumara park west bengaluru – 560 023. ... petitioners (by sri g.s.venkat subba rao, advocate) and:1. . state of karnataka by sampigehalli police station, represented by state public prosecutor, high court of karnataka, bengaluru – 560 001. 2 . sri kuldeep chaudhary aged about41years, s/o sri roop singh, director, nikulsan technologies, no.176, sec -10 f.villa no.26 krishna north wood apartment sampige, bengaluru – 560 064. ... respondents (by sri b.n.jagadeesha, addl.spp for r-1; sri k.g.aiyappa, advocate for r-2 and r-3) this criminal petition is filed under section482of cr.p.c., praying to quash the fir and complaint lodged against the petitioners in cr.no.287/2024 by the1t respondent police i.e., sampigehalli p.s., sampigehalli, 14 bangalore, for the offences p/u/s420 406, 120(b) r/w sec.34 of ipc pending on the file of iv acmm, bengaluru, vide annexure a and b. these criminal petitions having been heard and reserved for orders on1809.2024, coming on for pronouncement this day, the court made the following:- coram: the hon'ble mr justice m.nagaprasanna cav order the petitioners in these cases are either developers or former directors or those who have come into the shoes of developers. the complainants in all these cases are different home buyers from m/s unishire homes llp. the grievance of different complainants in all these cases is common. therefore, facts obtaining in criminal petition no.6658 of 2024 are noticed in entirety and facts obtaining in other petitions are succinctly narrated.2. facts, in brief, germane are as follows: the petitioners in criminal petition no.6658 of 2024 are the partners of the company, a limited liability partnership concern said to be incorporated under the limited liability partnership act, 2008 in the name and style of m/s unishire homes llp (hereinafter 15 referred to as ‘the company’ for short). the petitioners claim to have resigned from the partnership way back in the year 2015 and claim to be disassociated with the company. the petitioners, on the request of existing partners to continue to be the authorized signatories, the 1st petitioner is said to have continued as authorized signatory, but however, they did not engage in the day- to-day affairs of the company. the averment in the petition is that the company takes up development of immovable property in sy.no.78 of thannisandra village, k.r.puram hobli, bangalore south taluk in all measuring 2 acres 33.5 guntas by entering into a joint development agreement (‘jda’ for short) with land owners. for the purpose of developing the property, the company had availed financial assistance from one m/s vistra itcl limited. after the financial assistance availed of by the petitioners, a tripartite agreement was entered into between the company, m/s vistra itcl limited and a third entity who agreed to fund in the project and complete the project i.e., m/s s.a. enterprises. 2.1. the petitioners further aver that the complainant failed to get the sale deed registered despite communication of two mails 16 calling upon him to come forward to get the sale deed registered in terms of agreement of sale entered into on 19-02-2013 between the company and the complainant. it is further averred that despite several requests and demands made by the company, the complainant failed to get the sale deed registered in terms of the agreement of sale. owing to the failure of the complainant in coming forward and paying the balance sale consideration, the apartments were sold in favour of third parties. it is then, the complainant has registered the complaint. this is the broad allegation against the company and m/s s.a. enterprises, who got into the shoes of the company for completion of the project, in all these petitions and accordingly, the complainants have registered their respective complaints in all these cases.3. heard sri g s venkat subba rao, learned counsel appearing for petitioners in crl.p.nos.6658 of 2024, 5922 of 2024, 6436 of 2024, 6766 of 2024 and 6846 of 2024; sri venkatesh r bhagat, learned counsel appearing for petitioners in crl.p.no.5089 of 2024; sri shridhara k, learned counsel appearing for petitioner in crl.p.no.5807 of 2024; smt nayana tara b g, learned counsel 17 appearing for petitioners in crl.p.no.6166 of 2024; sri k g aiyappa, learned counsel appearing for respondent no.2 in crl.p.no.6658 of 2024, 5807 of 2024 and 6166 of 2024; for respondents 2 and 3 in crl.p.nos.5922 of 2024, 6766 of 2024 and 6846 of 2024; sri asim malik, learned counsel appearing for respondents 2 and 3 in crl.p.no.5089 of 2024 and crl.p.no.6436 of 2024 and sri b n jagadeesha, learned additional state public prosecutor for respondents no.1 in all the petitions.4. the learned counsel appearing for the petitioners sri g.s. venkat subba rao in few of the petitions and sri venkatesh r bhagath in few of the petitions and smt. b.g. nayana tara in one of the petitions have projected common submissions. the submissions of these learned counsel are that the issue in the lis is purely contractual or at best a civil dispute between the complainants and the petitioners and it is sought to be given a colour of crime. the fir ought not to have been registered by the police in such matters and it should have been at best left to be decided by the commercial courts or the civil courts as the case would be. registration of crime is an abuse of the process of law. 18 the company is not made an accused since the petitioners have left the company long ago. the company ought to have been made an accused. the petitioners kirti k.mehta and pratik k.mehta who are the petitioners in most of the petitions have no liability since they had left the company. the learned counsel sri venkatesh r bhagath appearing for the petitioners in few of the cases would contend that the petitioner m/s s.a. enterprises has no privity of contract with the complainants. the contract is between the complainants and the company, entered into by way of an agreement to sell. due to the delay in the project, m/s s.a. enterprises come in, by funding the project to its completion and by funding the project, they are now facing criminal proceedings. he would adopt remainder of the submissions of the learned counsel sri g.s.venkat subba rao as projected.5. the learned counsel smt. nayana tara b.g., appearing in criminal petition no.6166 of 2024 would submit that the petitioners therein have been unnecessarily dragged into these proceedings. 1st petitioner is the proprietor of s.a.enterprises, 2nd petitioner is his brother, 3rd petitioner is the employee of s.a.enterprises and 4th 19 petitioner is the service provider of s.a. enterprises who are given a job of construction and completion. they are not aware of any dispute between the complainants or the company. the reminder of the submissions is again adopted by the learned counsel. all the learned counsel, in unison, would seek quashment of the crime so registered against these petitioners.6. per contra, the learned counsel representing the complainants would refute the submissions of every learned counsel to contend that the issue is not purely civil in nature. the home buyers who had paid 90% of sale consideration at the time when agreements were entered into with the company, kirti k.mehta and pratik k.mehta have sold the property to third party only on the score that the mail was not replied by them. therefore, the issue is both civil and criminal and the two can run simultaneously. the project for which the agreement was entered into did not get complete for more than 8 years and the company bring in m/s s.a. enterprises which also did not complete the project. to-ay the home buyers who have deposited most of the amount for the purpose of their homes have neither the homes nor the money. 20 this is a clear case of criminal breach of trust is the submission of the learned counsel.7. i have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.8. to consider the issue projected before this court i.e., whether the crime should be quashed or otherwise, a little walk in the history would be necessary. on 23-09-2011 m/s unishire homes llp is incorporated. the company enters into a jda with the land owners on 24-02-2012. the complainants in all these cases, though on different dates, enter into agreements of sale. therefore, if story would commence from noticing the agreement of sale would suffice. the sale agreement, as observed, happens on 19-02-2013. it is between home buyers and the company. the schedule apartment appended to the agreements of sale is different in each of the cases as they are different home buyers. certain covenants in the agreement of sale are required to be noticed and they read as follows:21. “…. …. …. now this memorandum of sale agreement witnesseth as follows:1. the confirming party/developer shall allot, construct and sell and the purchaser shall purchase the "c" schedule apartment for a valuable consideration of rs. 8190425/- (rupees eighty one lakh ninety thousand four hundred and twenty five only) inclusive of taxes and other charges as an absolute estate free from all encumbrances, subject to the terms and conditions contained hereunder. the sale consideration of the apartment has been bifurcated in the following manner: sl. description amount no.(rs.) 01 land cost 2736596/- 02 construction cost (including non refundable/transferable club house deposit, generator charges/deposit, 5343554/- service tax, vat, legal charges electrical services charges & car park) total sale consideration 8080150/- 03 maintenance deposit payable at the time 110275/- of registration or possession whichever is earlier total 8190425/- 2: the purchaser agree to pay the total sale consideration along with the payment towards other charges in the following manner. sl. description of installment amount no.(rs.) 01 booking amt paid through neft axis30000/- 12345010356 02 on signing the memorandum of sale 1316030/- agreement 03 on completion of foundation 1212023/- 04 on completion of basement roof slab 646412/- 05 on completion of ground floor roof slab 404008/- 22 06 on completion of 1st floor slab 323206/- 07 on completion of 2nd floor slab 323206/- 08 on completion of 3rd floor slab 323206/- 09 on completion of 4th floor slab 323206/- 10 on completion of 5th floor slab 323206/- 11 on completion of 6th floor slab 323206/- 12 on completion of 7th floor slab 323206/- 13 on completion of 8th floor slab 323206/- 14 on completion of 9th floor slab 323206/- 15 on completion of 10th floor slab 323206/- 16 on completion of 11th floor slab 323206/- 17 on completion of 12th floor slab 323206/- 18 on completion of flooring 242405/- 19 on possession or registration whichever 80802/- is earlier 20 maintenance deposit 110275/- total 8190425/- 3: the purchaser covenants to pay the amount as per the schedule of payments mentioned herein above either by way of local cheque/demand draft/pay order. that each installment shall become due for payment on the 7th day of dispatch of demand letter by the confirming party/developer. the purchasers shall not delay, or withhold the payments due under any circumstances whatsoever. that in the event of the purchasers delaying, withholding or committing default in the payment, the confirming party/developer shall be entitled to charge cumulative the interest @ 2% per month for the period of delay of the installment amount. in case the payments are released by the housing financial institutions, purchaser shall ensure that they are released on time and the delay if any will result in payment of interest as mentioned… 4: that if the purchaser commits default for the second time in the payment of the installments or commits breach of the terms with regard to the payment schedule or failure to observe and perform any of the terms and conditions of this memorandum of sale agreement or if the delay in paying anyone installment exceeds 15 days, the confirming party/developer shall give a 7 (seven) days written notice to 23 the purchaser to pay the amounts due along with interest. if the purchaser fails to pay the amount due, the confirming party/developer shall have the right to cancel this memorandum of sale agreement without any further notice. the refund of the advance amount paid shall be returned after deduction of 20% of the basic cost and will be paid only within 30 days of the resale of the "c" schedule apartment and as per the norms of cancellation mentioned in this memorandum of sale agreement. the confirming party/developer has informed the purchaser that the delay/default in the payment of installment amount would affect the entire project and expose the confirming party/developer to financial loss and will also affect the interest of the other purchasers and will delay the completion of the project and therefore, under the circumstances, the confirming party/developer reserves its right to cancel this memorandum of sale agreement after giving due notice as mentioned above. 4.1: the purchaser covenants with the confirming party/developer that the difference (increase or decrease) in area up to 2% of the total agreed saleable area shall be ignored by both the parties. any difference in excess of 2% of the total agreed saleable area will be valued at the same rate as mentioned hereinabove and the consideration shall be adjusted accordingly in the final installment. in case of disagreement regarding the area calculations between the parties, the decision of the project architects shall be final and binding on both the parties to this memorandum of sale agreement; 4.2: the purchaser covenants not to object in any manner whatsoever to the confirming party/developer retaining the balance undivided share of land or undertaking any further construction activities in the "a" schedule property in the event of any additional floor area ratio being sanctioned in future or due to other reasons enabling the confirming party/developer to further construct on the "a" schedule property or with the acquisition of the transferrable developmental rights. the purchaser shall not object to utilizing such additional floor area ratio/transferrable developmental rights for the construction of additional area and the purchaser covenants not to hinder or obstruct the progress of the construction of the building/s or any part thereof 24 in any manner and shall not raise any objection on whatsoever ground including dust, noise, pollution, nuisance or annoyance that may be caused due to such construction nor will the purchaser hinder the use of the specified car parking areas/terraces areas/basement area allotted specifically to the other purchasers in the event of such additional floor area ratio. however, the confirming party/developer shall take necessary precaution/steps at the time of such construction. 4.3: without prejudice to any of the terms and conditions of this memorandum of sale agreement, the confirming party/developer shall have the necessary lien and first charge on the "b" and "c" schedule property for all amounts that is due by the purchasers and liable to be paid under this memorandum of sale agreement and the confirming party/developer shall be entitled to recover and receive the same from the purchaser and until such time the purchaser settles the amount payable to the confirming party /developer towards the cost of the "b" and "c" schedule property, the confirming party/developer shall be entitled to withhold delivery of possession of the "b" and "c" schedule property and during the said period the purchasers shall be liable to pay the maintenance for any other charges including incidental charges that may be incurred by the confirming party/developer and against the receipt of full payment thereof and other charges as and when paid by the purchaser including the interest accrued thereto, shall deliver possession of the "b" and "c" schedule property to the purchaser. 4.4: the purchaser, if a non resident of india, shall be solely responsible for complying with the necessary formalities as laid down in foreign exchange management act 1999 (fema), reserve bank of india acts & rules (rbi) made there under or any other statutory amendments/modifications made thereof and all other applicable laws including that of remittance of payments, acquisition, sale, transfer of immovable property, etc., and provide the confirming party/developer with such permissions, approvals which would enable the confirming party/developer to fulfill its obligations under this agreement. the purchaser agrees that in the event of any failure on their part to comply with the applicable guidelines issued by rbi, the purchaser alone shall be liable for any action under fema. the purchaser shall keep the 25 confirming party/developer fully indemnified and harmless in this regard. whenever there is a change in the residential status of the purchasers subsequent to the signing of this agreement it shall be the sole responsibility of the purchaser to intimate the same in writing to the confirming party/developer immediately and comply with necessary formalities if any under the applicable laws. the confirming party/developer shall not be responsible towards any third party payments, remittances on behalf of any purchasers and such third party shall not have any right in this application/allotment of the schedule 'c' apartment in any way and the confirming party/developer shall issue the payment receipts in favour of the purchasers only. completion and possession a: the confirming party/developer hereby agrees to handover the "c schedule apartment within 36 months from the date of commencement certificate issued by bbmp subject to receiving the entire sale consideration and all sums and charges payable towards amenities, taxes, charges etc mentioned in this memorandum of sale agreement b: the confirming party/developer shall be entitled to a grace period of six (6) months from the agreed date for delivery of possession of the "c" schedule apartment and the purchaser shall not question any delay not exceeding six (6) months and cannot make it a ground to defer payments due as per the schedule of payment. c: in case of modifications/additional works to the apartment as may be requested by the purchaser, (and if the same is accepted by the confirming party/developer and the cost of modification received in full in advance), the time fixed for handing over possession shall get extended proportionately to enable the confirming party/developer to comply the request of purchaser. d: the confirming party/developer will be handing over the apartment block in the complex in a phased manner. 26 e: the confirming party/developer shall not be liable for delays on account of non availability or scarcity of cement, steel and other construction material/s, civil commotion or force majeure or by any act of god or if the delay is as a result of any rule, regulation, law or notification of the government or municipal authority or any court or any other public or competent authority prohibiting construction activities or non-payment or delayed payment of installments by a large number of purchasers and in any of the aforesaid events, the confirming party/developer shall be entitled to reasonable extension of time for delivery of possession of the completed apartments including the "c" schedule property and the monies till then paid by the purchaser under this memorandum of sale agreement shall not be refunded. f: the confirming party developer will make every effort to obtain water supply and sewage connection common for the apartment blocks and electrical connection to the individual apartment within the stipulated time. however, responsibility shall be accepted by the confirming party/developer for delays in obtaining such connections, clearances required, from the statutory authorities. the purchaser shall not be entitled to claim any damage / losses against the confirming party/developer on the ground of such delay. e: in the event of delay in obtaining permanent connections, confirming party/developer shall arrange to have temporary connections at the cost of the purchaser until the permanent connections are obtained, to enable purchaser to occupy the "c" schedule apartment. h: the confirming party/developer will substantially complete all common amenities / facilities/clubhouse within a period of six (6) months from the date of handing over the apartment to the purchaser and the purchaser accepts the same. the purchaser shall take possession within 15 days from date of intimation. in case of delay in taking possession, the purchaser shall 27 pay rs 5/- per sft per month on the total super built-up area to the confirming party/developer towards holding charges plus bear the proportionate maintenance cost. 5: the allotment of the car park shall been made by the confirming party/developer and as per the confirming party/developer's working plan. confirming party / developer reserves the right to allot exclusive car parking usage rights at the basement or stilt level and the purchaser shall have no right to object such allotment. 6: delay compensation a: in case of delay in delivery of the apartment beyond the grace period for reasons other than force majeure, the confirming party/developer shall pay the purchaser a delay compensation calculated at rs.5/- per square feet per month of delay till the date of "intimation of handing over". b: the purchaser will not be eligible for any kind of compensation; b(i): in case of delay in payment of 2 installments or above (after considering a grace period of 15 days from due date); b(ii): in case of transfer/assignment of the rights of the "c" schedule property to another purchaser or on cancellation. the new purchaser will not be eligible for any delay compensation. b(iii): the delay compensation wherever payable will be paid to purchaser only at the time of registration or subsequently. 7: the "c" schedule property shall be registered in the name of the purchaser or in the name of their immediate family member/s provided the necessary documents are substantiated by the purchaser as per the requirements of the confirming party /developer. 28 8: all costs, charges and stamp duty, registration charges, professional /legal charges and expenses in connection with the preparation and execution of sale deed shall be borne by the purchaser as relating to purchase of the “b” & “c” schedule property in terms of this memorandum of sale agreement. the purchaser agrees to execute the sale deed in terms of the draft prepared by the confirming party/developer’s counsel and shall co-operate for the registration of the sale deed in pursuance of this agreement. the sale deed and its registration process shall be completed through the confirming party/developer’s counsel only and the puyrchaser is / are liable to pay the expenses and the professional fees stipulated by the builder in respect thereto and the purchaser hereby consents the same. khatha transfer9 the purchaser, upon securing registration of the sale deed, is entitled to obtain the transfer of khata in the name of the purchaser and at the cost of the purchaser from the jurisdictional revenue authorities and the confirming party/developer shall sign necessary consent letters. 9(i): the purchaser shall bear all expenses relating to bifurcation/transfer of khata, payment of property tax as applicable, electrical meter transfer charges, etc, that may be levied as and when applicable. 10: cancellation acceptance of cancellation under special circumstances: a: the purchaser covenants and assures the confirming party/developer, that the purchasers shall complete the transaction in all respects and agree not to withdraw from the transaction for any reason(s) or ground(s) including delay etc as the entire project and the construction of the apartments has been undertaken under an integrated scheme of construction for the benefit of the various prospective purchaser and in view of the commitment made to the purchaser of the 29 apartments including the purchasers herein and that cancellation will affect the funding of the project resulting in delays and that the interests of other purchaser of apartment will be affected. b: in case the purchaser intends to cancel due to any extraordinary situation or compelling circumstances or reasons that are not within the control of the purchaser, the purchaser shall submit a cancellation request in writing to the confirming party/developer. the confirming party/developer at its sole discretion (depending on the market situation) on a case to case basis may consider the request for cancellation. that on acceptance of the cancellation request, the confirming party/developer shall try to identify a prospective purchaser of the "c" schedule apartment along with the "b" schedule property. the purchasers herein agrees to wait for the refund of money till the new purchaser pays the full consideration or the project is completed. the purchaser shall not have any right to seek any compensation or interest if the delay is due to any reason in the prospective purchaser not being identified. c: cancellation charges- cancellation charges shall be rs.4,00,000/- (rupees four lakhs only) which shall be deducted from the amounts returnable to the purchaser and the purchaser has agreed to the said covenant and shall not raise any objections. d. time to refund- the amount payable to the purchaser subject to the deductions as recorded herein, shall be refunded only after the sale of the "c" schedule apartment and on receipt of the amount from the prospective purchaser that under no circumstances the confirming party/developer shall pay the amount on its own. e: that if the payment from the prospective purchaser is received in installments. the same shall be paid mutatis mutandis to the purchaser herein. 30 f: that until the sale with the new purchaser is concluded in all respects, the outgoing purchaser shall not demand the refund of the amount payable consequent to the cancellation. however, the purchaser shall also be entitled to identify the prospective purchaser for the acquisition of the "b" and "c" schedule property. g: the purchaser covenants to adhere to the above procedure and under no circumstances, the purchaser shall not demand refund of the advance paid deviating from the above procedure. h: cancellation by confirming party/developer:- the confirming party/developer has the right to cancel this memorandum of sale agreement in case the purchaser does not honour the payments as agreed, subject to grace period and issue of 7 days notice as mentioned in this agreement. 11: transfer/resale- the purchaser shall not be entitled to transfer/assign rights under this agreement in favor of any one within period of one year from the date of memorandum of sale agreement executed. on completion of one year from the date of memorandum of sale agreement, purchaser is allowed to transfer the rights under this memorandum of sale agreement to any third party with prior written approval of confirming party/developer/s and on payment of rs 200/- per square feet on super build up area towards administrative charges and transfer fee against the said payment. 12:the vendor covenants with the purchaser that: a: the "a" schedule property and the "b" schedule property is not the subject matter of any litigation; b: that the vendors shall keep the purchaser sufficiently indemnified against all encumbrances, damages, attachments occasioned / suffered by the purchaser on account of any action, omission or commission of the vendors or any person claiming through them in respect of the "a" and "b" schedule property. c: the vendors and all persons claiming through them shall, at the request of the purchaser, do or cause to be done all acts, deeds and things as shall lawfully and reasonably be required 31 for securing possession and enjoyment of the "b" schedule property as absolute vendors thereof.” (emphasis added) time schedule for payment of the amount is indicated. the complainants have paid `81,90,425/- and the figure varies on the dimension of the apartment. nonetheless, every home buyer in these cases have deposited 90% or above of the entire amount. the agreement was between the company and the complainants. the name of the apartment complex was ‘unishire terraza’. contrary to the projection that was made in the agreement to sell, the project did not get complete within 36 months. comes the year 2018. the completion of the project is handed over to m/s s.a. enterprises. it is said that m/s s.a. enterprises did progress the project to a certain extent. after the claim of completion of the project comes the communication/mail on 30-10-2021. it reads as follows: “unishire [ceec]. ceec@unishire.com sat, oct 30, 2021 at 5:04 p m to: arshad1983@gmail.com cc: saenterprises2003@gmail.com bcc:rahul.gaggar@nipponindiaim.com,mehernosh bharucha@nipponindiaamc.com 32 dear esteemed home buyer. greetings we take this opportunity on the auspicious occasion of onset of diwali to inform you on the completion of our stakeholders unishire terraza. we are extremely grateful for the support rendered from our home buyers and stakeholders to enable completion of the project despite the numerous challenges we as an organization are facing as well as the general real estate situation prevalent across the country for the past several years. we are proud to inform that unishire terraza project has received completion clearance from the fire force department on 29-09-2021. we had submitted the requisition for grant of occupancy certificate from bbmp which was duly acknowledged on 14-09-2021 by the department. please click on the below mentioned link to view the latest photos of site during inspection by the fire force department, bbmp as well as the clearance letters from both the departments: https://drive.google.com/drive/folders/1uiv6bqlqlcr- fv9ihrtdj5yawbabxv3p?.usp=sharing we are glad to inform you that about 70% of the home buyers have already registered their homes and are commencing occupation from 31st october, 2021. in view of the various legal challenges being faced by the organization from the lender, we urge you to make the balance payments and procure the noc from the lender without further delay and register your apartment within 15 days from this intimation in your best interests of becoming the rightful legal owner of the apartment. failing which applicable holding charges will be imposed along with any other consequential costs/risks associated thereof. thanking you for unishire homes llp33authorized signatory” (emphasis added) the communication is not from m/s s.a. enterprises, but it is from authorized signatory of the company. the communication indicates that the company was glad to inform that 70% of home buyers have already registered their homes and have been commencing their occupation from 31-10-2021 and the company was proud to announce that completion clearance and grant of occupancy certificate would come about immediately. six months thereafter comes the second mail. it reads as follows: “tue, apr 12, 2022 at 2:22 pm unishire [ceec]. to: arshad1983@gmail.com cc: rahul gaggar@nipponindiaim.com, pradeep. khanna@nipponindiaim.com dear sir we are delighted to inform you that the occupancy certificate (oc) for the project unishire terraza has been obtained. kindly come forward to register your apartment within 10 days from this communication failing which holding charges and other levies would be applicable. thanking you for unishire homes llp34authorised signatory” (emphasis added) it indicates that the company is delighted to inform that occupancy certificate for the project –unishire terraza has been obtained and therefore, the complainants were asked to come forward within 10 days to register the apartments, failing which holding charges and other levies would become applicable. this was a white lie and an eye wash by the company, to hoodwink the poor home buyers, as there was no occupancy certificate in place as on 12-04-2022. therefore, this was a false assurance. the occupancy certificate admittedly comes about only on 14-12-2023. these are undisputed facts.9. what happens in the interregnum is shocking, the company sells the very property, for which the complainants had paid 90% of the amount, in favour of third parties. this is again an undisputed fact that the petitioners, kirti k.mehta and pratik k.mehta have sold the properties. after the complainants coming to know that the properties to which they had paid 90% of the 35 amount or even more have been sold in favour of third parties without any intimation, the complainants register the complaint before the jurisdictional police. the complaint is necessary to be noticed and it reads as follows: ”to the inspector of police sampigehalli police station bangalore from mr. arshad qasim dabapu (41 years) flat 2001 block b, al ahlia towers al khalidiya abu dhabi uae. subject: complaint on cheating and fraud for reselling our (original buyers) flats in their project unishire terazza by unishire homes llp - mr kirti k. mehta & mr. pratik mehta and sa enterprise-- abdul jabbar (ameen) & anoop lobo dear sir, myself, arshad qasim dabapu holding passport number m2960187 and an nri working in uae had booked a flat with unishire terazza by the developer unishire homes llp. i have a sale agreement with unishire homes llp dated 19 february 2013, certificate no.in-ka43409209526260l against flat no a1- 1001, type-3.5bhk, super built up area - 2005 sft. the total value of the flat at the time of purchase was rs. 81,90,425 (rupees eighty one lakhs, ninty thousand four hundred and twenty five only) of which the payments were made by self. i have paid a booking amount of rs. 3,00,000 on 11 december 2012 and an agreement signing amount of rs. 13,16,030 in the month of february 2013. post payments were made as per payment schedule related to stages of the project, these were disbursed directly by me from my nri account at axis bank. by 36 this time (2015) 95% of our payment was done to unishire homes llp. around this time 2015-16 is when unishire stranded the project. there were not reachable for any answers related to the project, i was clueless and stranded in mid project status. a couple of co- buyers made and a team and tried resolving the issues with them as we were all stuck will payments made and the project was going nowhere. after a few years of drama and no show, a couple of years later, sa enterprise, who were then contractors of the project took over to complete the project and apparently, sa enterprise were given the responsibility to sell the remaining unsold units of the project too. the project work restated with a lot of struggles in coming to any common grounds with ameen and his right-hand man anoop lobo, it was only anoop lobo who would front any conversation (as and when he wishes) on behalf of ameen of sa enterprise or pratik mehta of unishire. somehow after a lot of struggle and worries of 6 more years, in apr 2022, i got an email from unishire homes that they have received the oc for unishire terazza and i should now register my flat! however, when i asked them to show us the oc, they refrained and failed to ever show the oc to any buyer. till date, no one has seen the oc of the project. i had informed them i will pay the full amount for the project which was done on apr 2022 by then 100% of the flat value was been paid. i had got the noc on may 6 from vistra that all the payments have been completed and the unit shall stand released if the payment has been made to the escrow account of unishire which i had made the payments in april 2022. i had informed anoop i will come for the registration and to show the oc of the project which was as well not done after making all the payments. after several calls and meeting for oc but there was none given despite an official commitment by unshire that they have received the oc. i wanted to move ahead and close it and get flat to my name. in august 2023, i started reaching out to mr anoop to come to india for 37 registration and my calls were unanswered. after many calls and messages to which mr.anoop lobo replied that they are not allowing any registration currently and will keep me updated which got us thinking as to how he can stop us from registering a flat i have paid for and have all the papers for. i have been constantly calling/messaging then since then but anoop and ameen were both untraceable. it is in jan 2024, that i discovered that our flat has been double sold to another party and now we have procured a copy of their ec which shows that the flat has been sold to them in dec 2023. while i entered as a buyer in unishire terrazza in february 2013, i was assured the handover of the flats in 36 months as per the signed agreement copy. from 2016 its been a delay of more than 8 years from the promised delivery date and despite all odds i had ended up knowing that unishire/sa enterprises have committed a fraud and left us in lurch by illegally selling our flats to some other buyers. this is absolutely devastating as we have been striving hard to digest such a delay and the inconsistencies and non-cooperation from them for years. this fraud by unishire was the last thing to add to our misery and consistent despair for more than a decade. i am looking forward for your intervention and assistance to rightfully get back our flats at the earliest. please find attached the following as supporting to our fir against cheating and fraud by unishire homes llp and sa enterprise.1. sales agreement first buyers – arshed qasim dabapu 2. receipts of payments 3. noc from vistara and proof of payment to escrow account- final payment making it 100% payment done.4. ec of second buyer.” (emphasis added) 38 registration of the complaint leads to registration of crime in crime no.369 of 2024 for offences punishable under sections 406 and 420 of the ipc. the contention is that the issue is purely civil in nature and would not attract the ingredients of sections 406 and 420 of the ipc. therefore, it becomes necessary to notice section 406 of the ipc. it reads as follows: “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.” section 406 of the ipc has its ingredients in section 405 of the ipc. it 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 discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. explanation 1.—a person, being an employer of an establishment whether exempted under section 17 of the employees' provident funds and miscellaneous provisions act, 1952 (19 of 1952), or not]. who deducts the employee's contribution from the wages payable to the employee for credit to a provident fund or family pension fund established by any law for the time being in force, shall be deemed to have been 39 entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. explanation 2.—a person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the employees' state insurance fund held and administered by the employees' state insurance corporation established under the employees' state insurance act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.” section 405 mandates that any person dishonestly misappropriates the property of the victim which has been entrusted to him by way of property or otherwise is said to be committing criminal breach of trust. the other offence is the one punishable under section 420 of the ipc. section 420 of the ipc reads as follows: “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.” 40 for an offence to become punishable under section 420 supra, the ingredients found in section 415 are necessary to be present. section 415 of the ipc reads as follows: “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.” any person who with dishonest intention lures the victim to enter into any contract or transfer of funds is said to be committing the offence of cheating. whether the role of each of the petitioners would meet the ingredients of sections 405 and 415 of the ipc is required to be noticed. kirti k.mehta and pratik k.mehta, who are directors of the company are petitioners in most of the petitions. it is they who have received 90% of the sale consideration from the hands of the complainants/home buyers 11 years ago. pratik k.mehta is said to be the authorized signatory of the company. though these two have claimed to have resigned, the mails are sent by them to all the complainants asking them to come forward 41 and register the sale deeds. though they have projected themselves to have resigned, but have not in fact did so.10. the role of abdul latheef jabbar, petitioner in criminal petition no.6166 of 2024 and criminal petition no.5089 of 2024 is that he is the proprietor of m/s s.a. enterprises. he was entrusted with completion of construction work of the project. the said petitioner is said to have conspired with the company in demanding money from home buyers by false occupancy certificates and is also illegally involved in re-selling the apartment of the home buyers to third parties without the consent of these home buyers. abdul khadar jabbar, petitioner in criminal petition no.5807 of 2024 and criminal petition no.6166 of 2024 is the brother of abdul latheef jabbar whose role is narrated hereinabove. though he was an office bearer of m/s s.a. enterprises, he is said to have threatened and harassed the home buyers and is said to be closely involved with m/s s.a. enterprises. the other accused is one anoop lobo who is the companion of abdul latheef jabbar and is the authorized signatory of m/s s.a. enterprises and who on false hopes demanded money and entered into sale deeds with third parties. the 42 ingredients of criminal breach of trust, in the opinion of the court, are on the face of it, made out in the case at hand. therefore, these petitioners are made accused in the crime. accused nos. 1 and 2 are kirti k.mehta and pratik k.mehta in whose favour the agreements of sale were executed. accused no.3 is abdul latheef jabbar, proprietor of m/s s.a. enterprises. accused no.4 is abdul khadar jabbar, brother of abdul latheef jabbar. accused no.5 is anoop lobo, the signatory of the sale deeds in favour of third parties and accused no.6 is the purchaser of the property from the hands of the proprietor of m/s s.a. enterprises. if the facts obtaining as narrated hereinabove are fitted to the ingredients of sections 406 and 420 of the ipc as obtaining in section 405 and 415 of the ipc, it would undoubtedly meet the ingredients. generally section 406 – criminal breach of trust and section 420 – cheating would not go hand in hand. the facts obtaining in the case at hand projects such peculiarity that they go hand in hand.11. the amount that was paid by each of the home buyers was for the purpose of getting their respective apartments. 90 to 95% of the amount has been paid by each of the home buyers. 43 therefore, the said amount is kept in trust with the petitioners, kirti k.mehta an pratik k.mehta. on the basis of mails that were not answered which were by themselves on blatant falsehood that occupancy certificate was received, the petitioners have sold the properties to third parties. today the home buyers whose dream has been shattered, neither have the hard earned money, nor the apartments with them, but are unnecessarily drawn into these litigations on account of fraud played by the petitioners, kirti k.mehta an pratik k.mehta. they projected themselves to have given up every responsibility of the company. as a matter of fact, they are the ones who are running the company even today as mails have emanated from them and not from m/s s.a. enterprises. therefore, a clear case of cheating and criminal breach of trust is prima facie made out against these two petitioners.12. the proprietor of m/s s.a. enterprises who has indulged in subsequent demand of money from the home buyers cannot be left of the hook, as the matter is still at the stage of investigation. the role of m/s s.a. enterprises would come out with clarity when the investigation would get complete and the police would file their 44 final report. insofar as the brother of abdul latheef jabbar is concerned, no offence even prima facie is made against him i.e., abdul khadar jabbar. therefore, permitting any investigation against him would become abuse of the process of law. merely because he is the brother of accused no.3 without any role being attributed to him, the investigation cannot be permitted against him. therefore, the petition filed is entertainable only insofar as abdul khadar jabbar is concerned and not against any other accused.13. plethora of judgments are relied on by the learned counsel appearing for the petitioners in these cases to project that the issue is purely civil in nature and should not be permitted to be continued. the judgments so relied on are as follows: (1) vesa holdings private limited and another v. state of kerala and others – (2015) 8 scc293 (2) vijay kumar ghai and others v. state of west bengal and others – (2022) 7 scc124 (3) mitesh kumar j.sha v. state of karnataka and others – (2022) 14 scc572 45 (4) radheyshyam and others v. state of rajasthan and another – (2024) scc online sc2311(5) lalit chaturvedi and others v. state of uttar pradesh – (2024) scc online sc171 (6) naresh kumar and another v. state of karnataka and another – (2024) scc online sc268 (7) dinesh gupta v. state of uttar pradesh and another – (2024) scc online sc34 while there can be no qualm about the principles so laid down or elucidated by the apex court in all the aforesaid judgments, they are not, on the face of them, applicable to the facts obtaining in the case at hand. they are all judgments which resulted in quashment of proceedings on breach of agreements or breach of jdas or agreements registered for the purpose of recovery of money. the facts in the case at hand project different issues where criminal breach of trust and cheating are clearly made out against these petitioners in terms of what is narrated hereinabove.14. it becomes germane to notice a judgment of the coordinate bench in the case of kirti k.mehta and another46v. state of karnataka and others1. these petitions were filed by kirti k.mehta and pratik k.mehta on the same set of facts projecting the very same grounds. the coordinate bench has by its judgment rejected every one of the contentions. the coordinate bench has held as follows: “…. …. ….4. the allegations made in both the first information is that the first informant had paid huge money to the petitioners herein who are the partners of m/s. unishire homes l.l.p. company, towards purchase of apartment in an under construction project. since the petitioners were facing serious financial difficulties, they had handed over the project to m/s. s.a.enterprises represented by abdul latheef jabbar. afteconstruction of the apartment building was completed, the apartment for which the first informants had paid huge advance sale consideration was sold to a third party through registered sale deeds, for which the petitioners herein and the aforesaid abdul latheef jabbar are parties. it is in this background, the first informants had approached the police. being aggrieved by the criminal proceedings registered on the basis of the first information submitted by respondent no.2, petitioners are before this court.5. learned counsel for the petitioners having reiterated the grounds urged in the petition submits that the dispute is civil in nature. the allegation is that of violation of the contract. respondent no.2 instead of approaching the civil court, has initiated criminal proceedings only with an intention to coerce and harass the petitioners. he submits that in identical circumstances, this court in crl.p.no.2874/2024 which was filed by the petitioners, has granted interim order. 1 criminal petition no.3118 of 2024 and connected case decided on 2nd april, 2024 47 6. per contra, learned hcgp has opposed the petition. she submits that the petitioners have received 90% of the sale consideration under an agreement from respondent no.2 in crl.p.no.3118/2024 and from respondent no.2 in crl.p.no.2879/2024, petitioners have received a sum of rs.64,60,000/- out of the sale consideration of rs.67,08,380/-. in both the cases, petitioners have received 90% of the sale consideration from the intending purchasers and sale agreement was also executed in their favour. subsequently, petitioners have connived with accused nos.1 to 3 and have executed sale deeds in favour of third parties in respect of the apartments which were subject matter of the sale agreements executed in favour of the respondent no.2-first informants. she submits that in addition to these cases, several other cases of similar nature are also registered against the petitioners. investigation in the case is under progress. accordingly, she prays to dismiss the petitions.7. from a perusal of the material available on record, it is seen that the petitioners who are partners of m/s. unishire homes l.l.p. company, have received 90% of the sale consideration under two separate sale agreements from the first informants. subsequently, the under construction project was handed over by the petitioners to m/s. s.a.enterprises, who inturn has completed the project. the petitioners hereinwho had entered into an agreement for sale of apartments in favour of first informants, have joined hands with m/s. s.a.enterprises who is also arrayed as an accused in the fir and have executed sale deeds in respect of the apartment which was the subject matter of sale agreements, in favour of third party after receiving sale consideration from the third party.8. learned hcgp has brought to the notice of this court several other similar cases have been registered against the petitioners herein and similar modus operandi is found in all the cases. fir has been registered in the present two cases against the accused for the offences punishable under sections 420, 406, 120b, 34 ipc. petitioners who have received 90% of sale consideration from the intending purchasers who are the first informants in the present case, have joined hands with 48 the other accused persons and have sold the property for which they had received advance consideration in favour of third parties by executing sale deeds.9. petitioners who had received advance sale consideration from the first informants under the sale agreements, have dishonestly misappropriated the amount received and have dishonestly disposed of the property which was the subject matter of the sale agreements. the first informants had paid advance sale consideration to the petitioners herein since the petitioners had assured that they would sell the property which is the subject matter of sale agreements in their favour. the material on record would also go to show that the petitioners and the other accused have created sale deeds in favour of third parties in similar manner after receiving huge sale consideration from many others and several similar other criminal cases are registered against the accused before the very same police station. the allegations found in the first information has the necessary ingredients for invoking the alleged offences against the petitioners herein. it cannot be said that there is absolutely no material as against the petitioners for prosecuting them for the alleged offences.10. in crl.p.no.2874/2024, since it was found that advance sale consideration was received by m/s. s.a.enterprises represented by abdul latheef jabbar and the petitioners herein had not received any sale consideration from the first informant in the said case, this court has granted an interim order infavour of the petitioners. however, in the present case, it is the petitioners who have received 90% advance sale consideration from the first informants, and therefore, the reasons assigned by this court in crl.p.no.2874/2024 while granting the interim order cannot be applicable to the facts of this case.11. the hon'ble supreme court in the case of sanapareddy maheedhar seshagiri vs state of a.p.-. (2007)13 scc165 at paragraph 31, has observed as under:49. /p>"31. a careful reading of the above noted judgments makes it clear that the high court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the fir does not disclose commission of any offence or that the allegations contained in the fir do not constitute any cognizable offence or that the prosecution is barred by law or the high court is convinced that it is necessary to interfere to prevent abuse of the process of the court. in dealing with such cases, the high court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. the people and the society have a legitimate expectation that those committing offences eitheragainst an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. therefore, while deciding a petition filed for quashing the fir or complaint or restraining the competent authority from investigating the allegations contained in the fir or complaint or for stalling the trial of the case, the high court should be extremely careful and circumspect. if the allegations contained in the fir or complaint discloses commission of some crime, then the high court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. the high court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the fir or the complainant. the high court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the fir or complaint. such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. however, if the high court is satisfied that the complaint does not disclose commission of any offence or 50 prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under section 482 cr.p.c.12. under the circumstances, i am of the opinion that the prayer made by the petitioners to quash the fir cannot be granted. accordingly, the petitions are dismissed.” (emphasis supplied) the coordinate bench observes the role of the petitioners, the role of m/s s.a. enterprises and criminality shrouded in the entire episode of crime. the dismissal of these petitions was challenged by kirti k.mehta and pratik k.mehta before the apex court. the apex court, in terms of its order dated 10-07-2024, has rejected the s.l.p. by the following order: “upon hearing the counsel, the court made the following: order heard mr. vijay k.sagar, learned counsel, appearing for the petitioners. we see no reason to interfere with the impugned order. the special leave petition is, accordingly, dismissed. pending applications(s), if any, stand closed.” therefore, identical arguments being rejected has had the imprimatur of the apex court. even otherwise, it is well settled 51 principle of law that a fact can give rise to two proceedings – one civil and other criminal. merely because, in the first blush, it appears to be civil, it need not result in quashment of criminal law being set into motion, if prima facie criminality is found in such complaints.15. it becomes germane to notice the judgment of the apex court in the case of kamal shivaji pokarnekar v. state of maharashtra2 wherein it is held as follows: “…. …. ….5. quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the magistrate, it is open to the high court to quash the same. it is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. if it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the high court to interfere [state of karnataka v. m. devendrappa, (2002) 3 scc89:2002. scc (cri) 539]. .6. defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. at that stage, the only question relevant is whether the averments in 2 (2019) 14 scc35052 the complaint spell out the ingredients of a criminal offence or not [indian oil corpn. v. nepc (india) ltd., (2006) 6 scc736: (2006) 3 scc (cri) 188]. . … … … 9. having heard the learned senior counsel and examined the material on record, we are of the considered view that the high court ought not to have set aside the order passed by the trial court issuing summons to the respondents. a perusal of the complaint discloses prima facie, offences that are alleged against the respondents. the correctness or otherwise of the said allegations has to be decided only in the trial. at the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. if the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.” (emphasis supplied) the apex court holds that criminal proceedings should be quashed if the complaint does not disclose any offence or is frivolous or vexatious and further holds that criminal complaints sometimes cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. the apex court, further, in the case of priti saraf v. state (nct of delhi)3, has held as follows:3. (2021) 16 scc14253 “…. …. ….30. be it noted that in the matter of exercise of inherent power by the high court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the court. the criminal procedure code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the high court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/fir/charge-sheet in exercise of its inherent jurisdiction.31. in the instant case, on a careful reading of the complaint/fir/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. the ingredients of the offences under sections 406 and 420ipc cannot be said to be absent on the basis of the allegations in the complaint/fir/charge- sheet. we would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the high court under section 482crpc for quashing such proceedings.32. we have perused the pleadings of the parties, the complaint/fir/charge-sheet and orders of the courts below and have taken into consideration the material on record. after hearing the learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. the high court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. the high court has primarily adverted on two circumstances, 54 (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and; (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. both the alleged circumstances noticed by the high court, in our view, are unsustainable in law. the facts narrated in the present complaint/fir/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. in fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under sections 415, 418 and 420 ipc.” (emphasis supplied) the apex court reiterates that a proceeding may give rise to both criminality and a remedy that is civil in nature. simply because there is a remedy provided for breach of contract initiated at the instance of the appellants therein, it would not come to the conclusion that it is only a civil remedy.16. what is narrated hereinabove is a seriously disputed question of fact, which requires evidence and may be further trial. in such cases, the apex court holds that exercise of jurisdiction under section 482 of the cr.p.c. should be extremely limited. the 55 apex court in the case of kaptan singh v. state of uttar pradesh4, has held as follows: “…. …. …. “9.1. at the outset, it is required to be noted that in the present case the high court in exercise of powers under section 482 crpc has quashed the criminal proceedings for the offences under sections 147, 148, 149, 406, 329 and 386 ipc. it is required to be noted that when the high court in exercise of powers under section 482 crpc quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned magistrate for the offences under sections 147, 148, 149, 406, 329 and 386 ipc and even the learned magistrate also took the cognizance. from the impugned judgment and order [radhey shyam gupta v. state of u.p., 2020 scc online all 914]. passed by the high court, it does not appear that the high court took into consideration the material collected during the investigation/inquiry and even the statements recorded. if the petition under section 482 crpc was at the stage of fir in that case the allegations in the fir/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. however, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the court is required to consider the material/evidence collected during the investigation. even at this stage also, as observed and held by this court in a catena of decisions, the high court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the high court is exercising the appellate jurisdiction and/or conducting the trial. as held by this court 4 (2021) 9 scc3556 in dineshbhai chandubhai patel [dineshbhai chandubhai patel v. state of gujarat, (2018) 3 scc104: (2018) 1 scc (cri) 683]. in order to examine as to whether factual contents of fir disclose any cognizable offence or not, the high court cannot act like the investigating agency nor can exercise the powers like an appellate court. it is further observed and held that that question is required to be examined keeping in view, the contents of fir and prima facie material, if any, requiring no proof. at such stage, the high court cannot appreciate evidence nor can it draw its own inferences from contents of fir and material relied on. it is further observed it is more so, when the material relied on is disputed. it is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 9.2. in dhruvaram murlidhar sonar [dhruvaram murlidhar sonar v. state of maharashtra, (2019) 18 scc191: (2020) 3 scc (cri) 672]. after considering the decisions of this court in bhajan lal [state of haryana v. bhajan lal, 1992 supp (1) scc335:1992. scc (cri) 426]. , it is held by this court that exercise of powers under section 482 crpc to quash the proceedings is an exception and not a rule. it is further observed that inherent jurisdiction under section 482 crpc though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. it is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under section 482 crpc. similar view has been expressed by this court in arvind khanna [cbi v. arvind khanna, (2019) 10 scc686: (2020) 1 scc (cri) 94]. , managipet [state of telangana v. managipet, (2019) 19 scc87: (2020) 3 scc (cri) 702]. and in xyz [xyz v. state of gujarat, (2019) 10 scc337: (2020) 1 scc (cri) 173]. , referred to hereinabove. 9.3. applying the law laid down by this court in the aforesaid decisions to the facts of the case on hand, we are of 57 the opinion that the high court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under section 482 crpc.10. the high court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. the high court has lost sight of crucial aspects which have emerged during the course of the investigation. the high court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of mamta gupta accused 2 and munni devi under which according to accused 2 ms mamta gupta, rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. it is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be rs 25 lakhs and with no reference to payment of rs 25 lakhs to ms munni devi and no reference to handing over the possession. however, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be rs 35 lakhs out of which rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to accused 2. whether rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. it is also required to be considered that the first agreement to sell in which rs 25 lakhs is stated to be sale consideration and there is reference to the payment of rs 10 lakhs by cheques. it is a registered document. the aforesaid are all triable issues/allegations which are required to be considered at the time of trial. the high court has failed to notice and/or consider the material collected during the investigation.11. now so far as the finding recorded by the high court that no case is made out for the offence under section 406 ipc is concerned, it is to be noted that the high court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the high court the same is required to be considered in the civil proceedings. there the high court has committed an error. even the high court has failed to notice that another fir has been lodged against the 58 accused for the offences under sections 467, 468, 471 ipc with respect to the said alleged joint notarised affidavit. even according to the accused the possession was handed over to them. however, when the payment of rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. therefore, at this stage to opine that no case is made out for the offence under section 406 ipc is premature and the aforesaid aspect is to be considered during trial. it is also required to be noted that the first suit was filed by munni devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. nothing is on record that any suit for specific performance has been filed. be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.12. therefore, the high court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the high court was exercising the appellate jurisdiction and/or conducting the trial. the high court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under section 482 crpc.13. even the high court has erred in observing that original complaint has no locus. the aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the high court. however, when it is specifically stated in the fir that munni devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.14. in view of the above and for the reasons stated above, the impugned judgment and order [radhey shyam gupta v. state of u.p., 2020 scc online all 914]. passed by 59 the high court quashing the criminal proceedings in exercise of powers under section 482 crpc is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. it is made clear that the observations made by this court in the present proceedings are to be treated to be confined to the proceedings under section 482 crpc only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. the present appeal is accordingly allowed.” (emphasis supplied) in the light of the aforesaid circumstance and the role of these petitioners, except abdul khadar jabbar, the case needs to be investigated to bring these petitioners to books.17. the home buyers, who with all fond hopes of having own houses in the city of bangalore – house in the nature of an apartment, invest all their life fortunes into the company, which projects development of a livable apartment complex. the fond hopes are stage by stage shattered, either by the delay or the developers indulging in the acts which have now become the crime. the mails that are communicated to these complainants, are only an eye wash, as no occupancy certificate was even in their hands when they asked these home buyers to pay 5% or 10% of the 60 remaining amount and get their sale deeds registered. the communications did not indicate that in the event the home buyers do not come forward for registration of sale deeds, the apartment would be sold to third parties. what was communicated was holding charges would become applicable. therefore, prima facie these accused have played fraud, on the poor home buyers who are now left high and dry without the money that they have invested long ago and without the apartment with them, which they were hoping to have as a dream home. by the fraud of these petitioners, the dreams of poor home buyers are crushed. the developers cannot play with the lives of home buyers, except save in certain circumstances where there is clear breach of contract or a particular home buyer is having an axe to grind against the developers. the subject case forms a classic illustration of the acts of the accused, except one, where the ingredients of criminal breach of trust and cheating, on the home buyers, is prima facie met, as the agreements entered into with the home buyers by the accused were after receiving 90 or 95% of the total sale consideration and notwithstanding this, those very apartments which formed the part of the agreement are sold to third parties. therefore, the crime so 61 registered against the accused cannot be quashed except qua abdul khadar jabbar.18. for the aforesaid reasons, the following: order (i) the criminal petitions qua all the accused, except one, would stand rejected. (ii) the criminal petition qua the accused abdul khadar jabbar stands allowed. (iii) the impugned proceedings only against abdul khadar jabbar who is accused no.2 in crime no.278 of 2023 and accused no.4 in crime no.325 of 2024 of sampigehalli police station, pending before iv additional chief metropolitan magistrate, bangalore stand quashed. (iii) interim order of any kind if operating, shall stand dissolved. sd/- (m. nagaprasanna) judge bkp ct:mj

Judgment:

1 R Reserved on :

18. 09.2024 Pronounced on :

21. 10.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE21T DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.6658 OF2024C/W CRIMINAL PETITION No.5089 OF2024CRIMINAL PETITION No.5807 OF2024CRIMINAL PETITION No.5922 OF2024CRIMINAL PETITION No.6166 OF2024CRIMINAL PETITION No.6436 OF2024CRIMINAL PETITION No.6766 OF2024CRIMINAL PETITION No.6846 OF2024IN CRIMINAL PETITION No.6658 OF2024BETWEEN:

1. . SRI KIRTI K. MEHTA S/O LATE SRI KANTILAL MEHTA AGED ABOUT68YEARS. 2 . SRI PRATIK K. MEHTA S/O SRI KIRTI K. MEHTA AGED ABOUT41YEARS. RESIDING AT NO.301 MOUDGAL HOMES, NO.6 UPPER PIPELINE ROAD KUMARA PARK WEST BENGALURU – 560 020. 2 ... PETITIONERS (BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE) AND:

1. . STATE OF KARNATAKA BY SAMPIGEHALLI POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . SRI ARSHAD QUASIM DABAPU AGED ABOUT41YEARS S/O MR. ALI MOULA DABAPU RESIDING AT FLAT2001BATCH B, ALI AHBA TOWERS AJ KHALIDIYA ABU DHABI, UAE PERMANANT ADDRESS AND HAVING NO.60/29, FLAT NO.25 VEPPERY HIGH ROAD VEPPERY, CHENNAI – 600 003. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI K.G.AIYAPPA, ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED AGAINST THE PETITIONERS IN CR.NO.369/2024 BY THE1T RESPONDENT POLICE I.E., SAMPIGEHALLI POLICE STATION, SAMPIGEHALLI, BANGALORE FOR THE OFFENCES P/U/S406 420 OF IPC, PENDING ON THE FILE OF IV ADDL. CMM, BENGALURU VIDE ANNEXURES-A AND B RESPECTIVELY. 3 IN CRIMINAL PETITION No.5089 OF2024BETWEEN:

1. . ABDUL LATHEEF JABBAR @ AMEEN JABBAR PROPRIETOR OF M/S. S.A.ENTERPRISES AGED ABOUT50YEARS, HAVING ITS OFFICE AT: No.29, 15TH CROSS, KANAKA NAGAR, R.T.NAGAR, BENGALURU-560 032. 2 . SRI ANOOP LOBO S/O LATE WILLIAM LOBO AGED ABOUT45YEARS AUTHORIZED SIGNATORY OF M/S. S.A. ENTERPRISES, RESIDING AT No.51, LOBO NIVAS, 1ST CROSS, KEMPEGOWDA RK HEGDE NAGAR, BENGALURU – 560 077. ... PETITIONERS (BY SRI VENKATESH R.BHAGAT, ADVOCATE) AND:

1. . THE STATE OF KARNATAKA BY SAMPIGEHALLI POLICE STAITON, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, BENGALURU – 560 001. 2 . SRI ANURAG SHARMA AGED ABOUT44YEARS. 4 3 . SMT. INDRANI SHARMA AGED ABOUT42YEARS. SL.NO.2 AND3ARE R/O AMBER-71, EMERALD HILLS, SECTOR65 GURGAON – 122 010 HARYANA. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI ASIM MALIK, ADVOCATE FOR R-2 AND R-3) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT REGISTERED BY THE RESPONDENT NO.1 SAMPIGEHALLI POLICE DATED1005.2024, IN CR.NO.267/2024 FOR THE OFFENCES P/U/S406 420, 120-B R/W SEC.34 OF IPC AT ANNEXURE A AND B PENDING ON THE FILE OF THE4h ACMM BENGALURU AS THESE PETITIONERS ARE CONCERNED. IN CRIMINAL PETITION No.5807 OF2024BETWEEN: S. ABDUL KHADAR JABBAR S/O JABBAR MOHAMMED SIDDIQUE AGED ABOUT48YEARS, RESIDING AT NO.29/1, 1ST FLOOR, 15TH CROSS, KANAKANAGAR R.T.NAGAR, BENGALURU – 560 032. ... PETITIONER (BY SRI SHRIDHARA K., ADVOCATE) 5 AND:

1. . STATE OF KARNATAKA BY SAMPIGEHALLI POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, AMBEDKAR BEEDI, BENGALURU – 560 001. 2 . SMT. VIJAYALAKSHMAMMA M.S., W/O RAMESH YELLAPPA AGED ABOUT49YEARS, RESIDING AT NO.98, D-5 BLOCK, 4TH FLOOR, KENDRIYA VIHAR, B.B.ROAD YELAHANKA, BENGALURU NORTH, BENGALURU – 560 064. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI K.G.AIYAPPA, ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED0508.2023 AND FIR IN CR.NO.278/2023 AND ALL FURTHER PROCEEDINGS INITIATED BY THE RESPONDENT POLICE PENDING ON THE FILE OF THE HONBLE IV A.C.M.M AT BENGALURU FOR THE OFFENCES P/U/S406 417, 420 R/W34OF IPC OF SAMPIGEHALLI POLICE STATION SO FOR AS THE PETITIONER IS CONCERNED. IN CRIMINAL PETITION No.5922 OF2024BETWEEN:

1. . SRI KIRTI K. MEHTA S/O LATE SRI KANTILAL MEHTA6AGED ABOUT68YEARS. 2 . SRI PRATIK K. MEHTA S/O SRI KIRTI K. MEHTA AGED ABOUT41YEARS. BOTH RESIDING AT NO.301, MOUDGAL HOMES, NO.6, UPPER PIPELINE ROAD, KUMARA PARK WEST, BENGALURU – 560 023. ... PETITIONERS (BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE) AND:

1. . STATE OF KARNATAKA BY SAMPIGEHALLI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . SRI ANURAG SHARMA AGED ABOUT44YEARS S/O SRI PRAFULLA KUMAR SHARMA. 3 . SMT. INDRANI SHARMA AGED ABOUT42YEARS, W/O MR. ANURAG SHARMA NO.2 AND3BOTH RESIDING AT AMBER-71, EMERALD HILLS SECTOR-65, GURGAON – 122 010 HARYANA. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; 7 SRI K.G.AIYAPPA, ADVOCATE FOR R-2 AND R-3) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE FIR COMPLAINT LODGED AGAINST THE PETITIONERS IN CR.NO.267/2024 BY THE1t RESPONDENT POLICE THAT IS SAMPIGEHALLI POLICE STATION, SAMPIGEHALLI, BENGALURU FOR THE OFFENCES P/U/S406 420, 120-B, 34 OF IPC., PENDING ON THE FILE OF THE IV ACMM VIDE ANNEXURE A AND B RESPECTIVELY. IN CRIMINAL PETITION No.6166 OF2024BETWEEN:

1. . SRI ABDUL LATHEEF JABBAR AGED ABOUT50YEARS S/O SRI MOHAMMED SIDDEQUE PROPRIETOR M/S. S.A.ENTERPRISES RESIDING AT NO.29, 15TH CROSS, KANAKA NAGAR, BENGALURU NORTH R.T.NAGAR, BENGALURU – 560 032. 2 . SRI MOIN @ ABDUL KHADAR JABBAR AGED ABOUT48YEARS S/O SRI JABBAR MOHAMMED SIDDIQUE RESIDING AT NO.29/1, 1ST FLOOR, 15TH CROSS, KANAKA NAGAR, BENGALURU NORTH, R.T.NAGAR, BENGALURU – 560 032. 3 . SRI ANOOP LOBO AGED ABOUT45YEARS S/O LATE WILLIAM LOBO RESIDING AT NO.51, LOBO NIVAS1T CROSS, KEMPEGOWDA LAYOUT, NAGENAHALLI, R.K.HEGDE NAGAR8BENGALURU NORTH, DR.SHIVARAMA KARANTH NAGAR, BENGALURU – 560 077. 4 . SRI MOHAMMED NIZAMUDDIN AGED ABOUT59YEARS, C/O ABDUL JABBAR MUSA RESIDING AT: NO.10, 3RD CROSS, CHIKKANNA LAYOUT, SHAMPUR MAIN ROAD, BENGALURU NORTH BENGALURU – 560 045. ... PETITIONERS (BY SMT.NAYANA TARA B.G., ADVOCATE) AND:

1. . STATE OF KARNATAKA BY SAMPIGEHALLI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . SMT. NIVEDITA DESAI AGED ABOUT53YEARS W/O SRI AJAY R.DESAI D/O S.B.UDOSHI RESIDING AT FLAT NO.404, ‘K’ BLOCK, PURVA VENEZIA, NEAR MADAR DIARY YELAHANKA NEW TOWN, BENGALURU – 560 064. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI K.G.AIYAPPA, ADVOCATE FOR R-2) 9 THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED AGAINST THE PETITIONERS IN CR.NO.325/2024 BY THE1T RESPONDENT POLICE i.e., SAMPIGEHALLI POLICE STATION, SAMPIGEHALLI, BENGALURU FOR THE OFFENCES P/U/S406 420, 120B, 342, 506, 149 OF IPC PENDING ON THE FILE OF IV ADDL.C.M.M., BENGALURU VIDE ANNEXURE-A AND B RESPECTIVELY. IN CRIMINAL PETITION No.6436 OF2024BETWEEN:

1. . SRI KIRTI K. MEHTA S/O LATE SRI KANTILAL MEHTA AGED ABOUT68YEARS. 2 . SRI PRATIK K. MEHTA S/O SRI KIRTI K. MEHTA AGED ABOUT41YEARS. BOTH RESIDING AT M/S. UNISHIRE HOMES L.L.P SRVE NO.78, THANISANDRA K.R.PURAM HOBLI BENGALURU CITY – 560 016. PRESENTLY RESIDING AT: MOUDAGAL HOMES NO.6 UPPER PIPELINE ROAD KUMARA PARK WEST BENGALURU – 560 023. ... PETITIONERS (BY SRI G.S.VENKATA SUBBA RAO, ADVOCATE) 10 AND:

1. . STATE OF KARNATAKA BY SAMPIGEHALLI POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . SMT. NIVEDITA A. DESAI AGED ABOUT52YEARS D/O MR.S.B.UDOSHI. 3 . SRI NIKHIL UDOSHI AGED ABOUT47YEARS S/O MR.S.B.UDOSHI NO.2 & 3 BOTH RESIDING AT K-404 PURVANKARA VENEZIA MICHELANGELO, YELAHANKA NEW TOWN NEAR MOTHER DIARY BENGALURU – 560 063. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI ASIM MALIK, ADVOCATE FOR R-2 & R-3) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED AGAINST THE PETITIONERS IN CR.NO.325/2024 BY THE1T RESPONDENT POLICE I.E., SAMPIGEHALLI POLICE STATION, SAMPIGEHALLI, BANGALORE FOR THE OFFENCES P/U/S406 420, 120(B), 342, 506, 149 OF IPC, PENDING ON THE FILE OF IV ADDL. CMM, BENGALURU VIDE ANNEXURE-A AND B RESPECTIVELY. 11 IN CRIMINAL PETITION No.6766 OF2024BETWEEN:

1. . SRI KIRTI K.MEHTA S/O LATE SRI KANTILAL MEHTA, AGED ABOUT68YEARS. 2 . SRI PRATIK K. MEHTA S/O SRI KIRTI K.MEHTA, AGED ABOUT41YEARS. BOTH RESIDING AT M/S. UNISHIRE HOMES L.L.P SRVE NO.78, THANISANDRA K.R.PURAM HOBLI, BENGALURU CITY – 560 016. PRESENTLY BOTH RESIDING AT: NO.301, MOUDGAL HOMES, No.6, UPPER PIPELINE ROAD KUMARA PARK WEST BENGALURU – 560 023. ... PETITIONERS (BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE) AND:

1. . STATE OF KARNATAKA BY SAMAPIGEHALLI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU – 560 001. 2 . SMT.SWETHA TYAGI AGED ABOUT43YEARS, 12 W/O MR.TUSHAR TYAGI. 3 . SMT.TUSHAR TYAGI AGED ABOUT44YEARS, W/O MR.VINOD KUMAR TYAGI BOTH RESIDING AT SJR VERITY VIVA-106, HOSA ROAD, KASAVANAHALLI, BENGALURU – 560 035. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI K.G.AIYAPPA, ADVOCATE FOR R-2 AND R-3 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED AGAINST THE PETITIONERS IN CR.NO.184/2024 BY THE1T RESPONDENT POLICE i.e., SAMPIGEHALLI P.S, SAMPIGEHALLI, BENGALURU FOR THE OFFENCES P/U/S420 406, 120(B) R/W SEC.34 OF IPC PENDING ON THE FILE OF IV ACMM, COURT BENGALURU, VIDE ANNEXURE A AND B. IN CRIMINAL PETITION No.6846 OF2024BETWEEN:

1. . SRI KIRTI K. MEHTA S/O LATE SRI KANTILAL MEHTA, AGED ABOUT68YEARS. 2 . SRI PRATIK K. MEHTA S/O SRI KIRTI K. MEHTA, AGED ABOUT41YEARS. BOTH RESIDING M/S. UNISHIRE HOMES L.L.P13SRVE No.78, THANISANDRA K.R.PURAM HOBLI, BENGALURU CITY – 560 016. PRESENTLY RESIDING AT No.301 MOUDGAL HOMES, NO.6 UPPER PIPELINE ROAD KUMARA PARK WEST BENGALURU – 560 023. ... PETITIONERS (BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE) AND:

1. . STATE OF KARNATAKA BY SAMPIGEHALLI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU – 560 001. 2 . SRI KULDEEP CHAUDHARY AGED ABOUT41YEARS, S/O SRI ROOP SINGH, DIRECTOR, NIKULSAN TECHNOLOGIES, No.176, SEC -10 F.VILLA NO.26 KRISHNA NORTH WOOD APARTMENT SAMPIGE, BENGALURU – 560 064. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI K.G.AIYAPPA, ADVOCATE FOR R-2 AND R-3) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT LODGED AGAINST THE PETITIONERS IN CR.NO.287/2024 BY THE1T RESPONDENT POLICE i.e., SAMPIGEHALLI P.S., SAMPIGEHALLI, 14 BANGALORE, FOR THE OFFENCES P/U/S420 406, 120(B) R/W SEC.34 OF IPC PENDING ON THE FILE OF IV ACMM, BENGALURU, VIDE ANNEXURE A AND B. THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR

ORDER

S ON1809.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV

ORDER

The petitioners in these cases are either developers or former Directors or those who have come into the shoes of developers. The complainants in all these cases are different home buyers from M/s Unishire Homes LLP. The grievance of different complainants in all these cases is common. Therefore, facts obtaining in Criminal Petition No.6658 of 2024 are noticed in entirety and facts obtaining in other petitions are succinctly narrated.

2. Facts, in brief, germane are as follows: The petitioners in Criminal Petition No.6658 of 2024 are the partners of the Company, a Limited Liability Partnership concern said to be incorporated under the Limited Liability Partnership Act, 2008 in the name and style of M/s Unishire Homes LLP (hereinafter 15 referred to as ‘the Company’ for short). The petitioners claim to have resigned from the partnership way back in the year 2015 and claim to be disassociated with the Company. The petitioners, on the request of existing partners to continue to be the authorized signatories, the 1st petitioner is said to have continued as authorized signatory, but however, they did not engage in the day- to-day affairs of the Company. The averment in the petition is that the Company takes up development of immovable property in Sy.No.78 of Thannisandra Village, K.R.Puram Hobli, Bangalore South Taluk in all measuring 2 acres 33.5 guntas by entering into a Joint Development Agreement (‘JDA’ for short) with land owners. For the purpose of developing the property, the Company had availed financial assistance from one M/s Vistra ITCL Limited. After the financial assistance availed of by the petitioners, a tripartite agreement was entered into between the Company, M/s Vistra ITCL Limited and a third entity who agreed to fund in the project and complete the project i.e., M/s S.A. Enterprises. 2.1. The petitioners further aver that the complainant failed to get the sale deed registered despite communication of two mails 16 calling upon him to come forward to get the sale deed registered in terms of agreement of sale entered into on 19-02-2013 between the Company and the complainant. It is further averred that despite several requests and demands made by the Company, the complainant failed to get the sale deed registered in terms of the agreement of sale. Owing to the failure of the complainant in coming forward and paying the balance sale consideration, the apartments were sold in favour of third parties. It is then, the complainant has registered the complaint. This is the broad allegation against the Company and M/s S.A. Enterprises, who got into the shoes of the Company for completion of the project, in all these petitions and accordingly, the complainants have registered their respective complaints in all these cases.

3. Heard Sri G S Venkat Subba Rao, learned counsel appearing for petitioners in Crl.P.Nos.6658 of 2024, 5922 of 2024, 6436 of 2024, 6766 of 2024 and 6846 of 2024; Sri Venkatesh R Bhagat, learned counsel appearing for petitioners in Crl.P.No.5089 of 2024; Sri Shridhara K, learned counsel appearing for petitioner in Crl.P.No.5807 of 2024; Smt Nayana Tara B G, learned counsel 17 appearing for petitioners in Crl.P.No.6166 of 2024; Sri K G Aiyappa, learned counsel appearing for respondent No.2 in Crl.P.No.6658 of 2024, 5807 of 2024 and 6166 of 2024; for respondents 2 and 3 in Crl.P.Nos.5922 of 2024, 6766 of 2024 and 6846 of 2024; Sri Asim Malik, learned counsel appearing for respondents 2 and 3 in Crl.P.No.5089 of 2024 and Crl.P.No.6436 of 2024 and Sri B N Jagadeesha, learned Additional State Public Prosecutor for respondents No.1 in all the petitions.

4. The learned counsel appearing for the petitioners Sri G.S. Venkat Subba Rao in few of the petitions and Sri Venkatesh R Bhagath in few of the petitions and Smt. B.G. Nayana Tara in one of the petitions have projected common submissions. The submissions of these learned counsel are that the issue in the lis is purely contractual or at best a civil dispute between the complainants and the petitioners and it is sought to be given a colour of crime. The FIR ought not to have been registered by the Police in such matters and it should have been at best left to be decided by the Commercial Courts or the civil Courts as the case would be. Registration of crime is an abuse of the process of law. 18 The Company is not made an accused since the petitioners have left the Company long ago. The Company ought to have been made an accused. The petitioners Kirti K.Mehta and Pratik K.Mehta who are the petitioners in most of the petitions have no liability since they had left the Company. The learned Counsel Sri Venkatesh R Bhagath appearing for the petitioners in few of the cases would contend that the petitioner M/s S.A. Enterprises has no privity of contract with the complainants. The contract is between the complainants and the Company, entered into by way of an agreement to sell. Due to the delay in the project, M/s S.A. Enterprises come in, by funding the project to its completion and by funding the project, they are now facing criminal proceedings. He would adopt remainder of the submissions of the learned counsel Sri G.S.Venkat Subba Rao as projected.

5. The learned counsel Smt. Nayana Tara B.G., appearing in Criminal Petition No.6166 of 2024 would submit that the petitioners therein have been unnecessarily dragged into these proceedings. 1st petitioner is the proprietor of S.A.Enterprises, 2nd petitioner is his brother, 3rd petitioner is the employee of S.A.Enterprises and 4th 19 petitioner is the service provider of S.A. Enterprises who are given a job of construction and completion. They are not aware of any dispute between the complainants or the Company. The reminder of the submissions is again adopted by the learned counsel. All the learned counsel, in unison, would seek quashment of the crime so registered against these petitioners.

6. Per contra, the learned counsel representing the complainants would refute the submissions of every learned counsel to contend that the issue is not purely civil in nature. The home buyers who had paid 90% of sale consideration at the time when agreements were entered into with the Company, Kirti K.Mehta and Pratik K.Mehta have sold the property to third party only on the score that the mail was not replied by them. Therefore, the issue is both civil and criminal and the two can run simultaneously. The project for which the agreement was entered into did not get complete for more than 8 years and the Company bring in M/s S.A. Enterprises which also did not complete the project. To-ay the home buyers who have deposited most of the amount for the purpose of their homes have neither the homes nor the money. 20 This is a clear case of criminal breach of trust is the submission of the learned counsel.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

8. To consider the issue projected before this Court i.e., whether the crime should be quashed or otherwise, a little walk in the history would be necessary. On 23-09-2011 M/s Unishire Homes LLP is incorporated. The Company enters into a JDA with the land owners on 24-02-2012. The complainants in all these cases, though on different dates, enter into agreements of sale. Therefore, if story would commence from noticing the agreement of sale would suffice. The sale agreement, as observed, happens on 19-02-2013. It is between home buyers and the Company. The schedule apartment appended to the agreements of sale is different in each of the cases as they are different home buyers. Certain covenants in the agreement of sale are required to be noticed and they read as follows:

21. “…. …. …. NOW THIS MEMORANDUM OF SALE AGREEMENT WITNESSETH AS FOLLOWS:

1. The CONFIRMING PARTY/DEVELOPER shall allot, construct and sell and the PURCHASER shall purchase the "C" Schedule Apartment for a valuable consideration of Rs. 8190425/- (Rupees Eighty One Lakh Ninety Thousand Four Hundred and Twenty Five only) inclusive of taxes and other charges as an absolute estate free from all encumbrances, subject to the terms and conditions contained hereunder. The sale consideration of the apartment has been bifurcated in the following manner: Sl. Description Amount No.(Rs.) 01 Land Cost 2736596/- 02 Construction Cost (Including Non refundable/Transferable Club House deposit, generator Charges/Deposit, 5343554/- Service Tax, Vat, Legal Charges Electrical Services Charges & Car Park) Total Sale Consideration 8080150/- 03 Maintenance Deposit payable at the time 110275/- of Registration or Possession whichever is earlier Total 8190425/- 2: The PURCHASER agree to pay the total sale consideration along with the payment towards other charges in the following manner. Sl. Description of Installment Amount No.(Rs.) 01 Booking Amt paid through NEFT AXIS30000/- 12345010356 02 On Signing the Memorandum of Sale 1316030/- Agreement 03 On Completion of Foundation 1212023/- 04 On Completion of Basement Roof Slab 646412/- 05 On Completion of Ground Floor Roof Slab 404008/- 22 06 On Completion of 1st Floor Slab 323206/- 07 On Completion of 2nd Floor Slab 323206/- 08 On Completion of 3rd Floor Slab 323206/- 09 On Completion of 4th Floor Slab 323206/- 10 On Completion of 5th Floor Slab 323206/- 11 On Completion of 6th Floor Slab 323206/- 12 On Completion of 7th Floor Slab 323206/- 13 On Completion of 8th Floor Slab 323206/- 14 On Completion of 9th Floor Slab 323206/- 15 On Completion of 10th Floor Slab 323206/- 16 On Completion of 11th Floor Slab 323206/- 17 On Completion of 12th Floor Slab 323206/- 18 On Completion of Flooring 242405/- 19 On Possession or Registration whichever 80802/- is earlier 20 Maintenance Deposit 110275/- Total 8190425/- 3: The PURCHASER covenants to pay the amount as per the schedule of payments mentioned herein above either by way of Local Cheque/Demand Draft/Pay Order. That each installment shall become due for payment on the 7th day of dispatch of demand letter by the CONFIRMING PARTY/DEVELOPER. The PURCHASERS shall not delay, or withhold the payments due under any circumstances whatsoever. That in the event of the PURCHASERS delaying, withholding or committing default in the payment, the CONFIRMING PARTY/DEVELOPER shall be entitled to charge cumulative the interest @ 2% Per month for the period of delay of the installment amount. In case the payments are released by the Housing Financial institutions, PURCHASER shall ensure that they are released on time and the delay if any will result in payment of interest as mentioned… 4: That if the PURCHASER commits default for the second time in the payment of the installments or commits breach of the terms with regard to the payment schedule or failure to observe and perform any of the terms and conditions of this Memorandum of Sale Agreement or if the delay in paying anyone installment exceeds 15 days, the CONFIRMING PARTY/DEVELOPER shall give a 7 (seven) days written notice to 23 the PURCHASER to pay the amounts due along with interest. If the PURCHASER fails to pay the amount due, the CONFIRMING PARTY/DEVELOPER shall have the right to cancel this Memorandum of Sale Agreement without any further notice. The refund of the advance amount paid shall be returned after deduction of 20% of the Basic cost and will be paid only within 30 days of the resale of the "C" Schedule apartment and as per the norms of cancellation mentioned in this Memorandum of Sale Agreement. The CONFIRMING PARTY/DEVELOPER has informed the PURCHASER that the delay/default in the payment of installment amount would affect the entire project and expose the CONFIRMING PARTY/DEVELOPER to financial loss and will also affect the interest of the other purchasers and will delay the completion of the Project and therefore, under the circumstances, the CONFIRMING PARTY/DEVELOPER reserves its right to cancel this Memorandum of Sale Agreement after giving due notice as mentioned above. 4.1: The PURCHASER covenants with the CONFIRMING PARTY/DEVELOPER that the difference (increase or decrease) in area up to 2% of the total agreed Saleable Area shall be ignored by both the Parties. Any difference in excess of 2% of the total agreed saleable area will be valued at the same rate as mentioned hereinabove and the consideration shall be adjusted accordingly in the final installment. In case of disagreement regarding the area calculations between the parties, the decision of the Project Architects shall be final and binding on both the parties to this Memorandum of Sale Agreement; 4.2: The PURCHASER covenants not to object in any manner whatsoever to the CONFIRMING PARTY/DEVELOPER retaining the balance undivided share of land or undertaking any further construction activities in the "A" Schedule Property in the event of any additional Floor Area Ratio being sanctioned in future or due to other reasons enabling the CONFIRMING PARTY/DEVELOPER to further construct on the "A" Schedule Property or with the acquisition of the Transferrable Developmental Rights. The PURCHASER shall not object to utilizing such additional Floor Area Ratio/Transferrable Developmental Rights for the construction of additional area and the PURCHASER covenants not to hinder or obstruct the progress of the construction of the building/s or any part thereof 24 in any manner and shall not raise any objection on whatsoever ground including dust, noise, pollution, nuisance or annoyance that may be caused due to such construction nor will the PURCHASER hinder the use of the specified Car Parking Areas/Terraces Areas/Basement area allotted specifically to the other purchasers in the event of such additional Floor Area Ratio. However, the CONFIRMING PARTY/DEVELOPER shall take necessary precaution/steps at the time of such construction. 4.3: Without prejudice to any of the terms and conditions of this Memorandum of Sale Agreement, the CONFIRMING PARTY/DEVELOPER shall have the necessary lien and first charge on the "B" and "C" Schedule Property for all amounts that is due by the PURCHASERS and liable to be paid under this Memorandum of Sale Agreement and the CONFIRMING PARTY/DEVELOPER shall be entitled to recover and receive the same from the PURCHASER and until such time the PURCHASER settles the amount payable to the CONFIRMING PARTY /DEVELOPER towards the cost of the "B" and "C" Schedule Property, the CONFIRMING PARTY/DEVELOPER shall be entitled to withhold delivery of possession of the "B" and "C" Schedule Property and during the said period the PURCHASERS shall be liable to pay the maintenance for any other charges including incidental charges that may be incurred by the CONFIRMING PARTY/DEVELOPER and against the receipt of full Payment thereof and other charges as and when paid by the PURCHASER including the interest accrued thereto, shall deliver possession of the "B" and "C" Schedule Property to the PURCHASER. 4.4: The PURCHASER, if a non resident of India, shall be solely responsible for complying with the necessary formalities as laid down in Foreign Exchange Management Act 1999 (FEMA), Reserve Bank of India Acts & Rules (RBI) made there under or any other statutory amendments/modifications made thereof and all other applicable laws including that of remittance of payments, acquisition, sale, transfer of immovable property, etc., and provide the CONFIRMING PARTY/DEVELOPER with such permissions, approvals which would enable the CONFIRMING PARTY/DEVELOPER to fulfill its obligations under this Agreement. The PURCHASER agrees that in the event of any failure on their part to comply with the applicable guidelines issued by RBI, the PURCHASER alone shall be liable for any action under FEMA. The PURCHASER shall keep the 25 CONFIRMING PARTY/DEVELOPER fully indemnified and harmless in this regard. Whenever there is a change in the residential status of the PURCHASERS subsequent to the signing of this Agreement it shall be the sole responsibility of the PURCHASER to intimate the same in writing to the CONFIRMING PARTY/DEVELOPER immediately and comply with necessary formalities if any under the applicable laws. The CONFIRMING PARTY/DEVELOPER shall not be responsible towards any third party payments, remittances on behalf of any PURCHASERS and such third party shall not have any right in this application/allotment of the Schedule 'C' Apartment in any way and the CONFIRMING PARTY/DEVELOPER shall issue the payment receipts in favour of the PURCHASERS only. COMPLETION AND POSSESSION a: The CONFIRMING PARTY/DEVELOPER hereby agrees to handover the "C Schedule Apartment within 36 months from the date of commencement certificate issued by BBMP subject to receiving the entire sale consideration and all sums and charges payable towards amenities, taxes, charges etc mentioned in this Memorandum of Sale Agreement b: The CONFIRMING PARTY/DEVELOPER shall be entitled to a grace period of six (6) months from the agreed date for delivery of possession of the "C" Schedule Apartment and the PURCHASER shall not question any delay not exceeding six (6) months and cannot make it a ground to defer payments due as per the schedule of payment. c: In case of modifications/additional works to the Apartment as may be requested by the PURCHASER, (and if the same is accepted by the CONFIRMING PARTY/DEVELOPER and the cost of modification received in full in advance), the time fixed for handing over possession shall get extended proportionately to enable the CONFIRMING PARTY/DEVELOPER to comply the request of PURCHASER. d: The CONFIRMING PARTY/DEVELOPER will be handing over the Apartment block in the complex in a phased manner. 26 e: The CONFIRMING PARTY/DEVELOPER shall not be liable for delays on account of non availability or scarcity of Cement, Steel and other construction material/s, civil commotion or Force Majeure or by any Act of God or if the delay is as a result of any Rule, regulation, law or notification of the Government or Municipal Authority or any Court or any other Public or Competent Authority prohibiting construction activities or non-payment or delayed payment of installments by a large number of purchasers and in any of the aforesaid events, the CONFIRMING PARTY/DEVELOPER shall be entitled to reasonable extension of time for delivery of possession of the completed Apartments including the "C" Schedule Property and the monies till then paid by the PURCHASER under this Memorandum of sale Agreement shall not be refunded. f: The CONFIRMING PARTY DEVELOPER will make every effort to obtain water supply and sewage connection common for the apartment Blocks and electrical connection to the individual apartment within the stipulated time. However, responsibility shall be accepted by the CONFIRMING PARTY/DEVELOPER for delays in obtaining such connections, Clearances required, from the statutory authorities. The PURCHASER shall not be entitled to claim any damage / losses against the CONFIRMING PARTY/DEVELOPER on the ground of such delay. e: In the event of delay in obtaining permanent connections, CONFIRMING PARTY/DEVELOPER shall arrange to have temporary connections at the cost of the PURCHASER until the permanent connections are obtained, to enable PURCHASER to occupy the "C" Schedule Apartment. h: The CONFIRMING PARTY/DEVELOPER will substantially complete all common amenities / facilities/clubhouse within a period of six (6) months from the date of handing over the apartment to the PURCHASER and the PURCHASER accepts the same. The PURCHASER shall take possession within 15 days from date of intimation. In case of delay in taking possession, the PURCHASER shall 27 pay Rs 5/- per sft per month on the total Super Built-up Area to the CONFIRMING PARTY/DEVELOPER towards holding charges plus bear the proportionate maintenance cost. 5: The allotment of the Car Park shall been made by the CONFIRMING PARTY/DEVELOPER and as per the CONFIRMING PARTY/DEVELOPER'S working plan. CONFIRMING PARTY / DEVELOPER reserves the right to allot exclusive car parking usage rights at the Basement or Stilt Level and the PURCHASER shall have no right to object such allotment. 6: DELAY COMPENSATION a: In case of delay in delivery of the apartment beyond the grace period for reasons other than Force Majeure, the CONFIRMING PARTY/DEVELOPER shall pay the PURCHASER a Delay compensation calculated at Rs.5/- per Square feet per month of delay till the date of "intimation of handing over". b: The PURCHASER will not be eligible for any kind of Compensation; b(i): In case of delay in payment of 2 installments or above (after considering a grace period of 15 days from due date); b(ii): In case of Transfer/assignment of the Rights of the "C" Schedule Property to another PURCHASER or on Cancellation. The new PURCHASER will not be eligible for any delay compensation. b(iii): The Delay Compensation wherever payable will be paid to PURCHASER only at the time of Registration or subsequently. 7: The "C" Schedule Property shall be registered in the name of the PURCHASER or in the name of their immediate family member/s provided the necessary documents are substantiated by the PURCHASER as per the requirements of the CONFIRMING PARTY /DEVELOPER. 28 8: All costs, charges and stamp duty, registration charges, professional /Legal charges and expenses in connection with the preparation and execution of Sale Deed shall be borne by the PURCHASER as relating to purchase of the “B” & “C” Schedule Property in terms of this Memorandum of Sale Agreement. The PURCHASER agrees to execute the Sale Deed in terms of the draft prepared by the CONFIRMING PARTY/DEVELOPER’s Counsel and shall co-operate for the registration of the Sale Deed in pursuance of this agreement. The Sale Deed and its registration process shall be completed through the CONFIRMING PARTY/DEVELOPER’s Counsel only and the PUYRCHASER is / are liable to pay the expenses and the professional fees stipulated by the Builder in respect thereto and the PURCHASER hereby consents the same. KHATHA TRANSFER9 The PURCHASER, upon securing registration of the Sale Deed, is entitled to obtain the transfer of Khata in the name of the PURCHASER and at the cost of the PURCHASER from the jurisdictional revenue authorities and the CONFIRMING PARTY/DEVELOPER shall sign necessary consent letters. 9(i): The PURCHASER shall bear all expenses relating to bifurcation/Transfer of khata, payment of property Tax as applicable, Electrical Meter Transfer Charges, etc, that may be levied as and when applicable. 10: CANCELLATION Acceptance of Cancellation under special circumstances: a: The PURCHASER covenants and assures the CONFIRMING PARTY/DEVELOPER, that the PURCHASERS shall complete the transaction in all respects and agree not to withdraw from the transaction for any reason(s) or ground(s) including delay etc as the entire project and the construction of the apartments has been undertaken under an integrated scheme of construction for the benefit of the various prospective PURCHASER and in view of the commitment made to the PURCHASER of the 29 Apartments including the PURCHASERS herein and that cancellation will affect the funding of the project resulting in delays and that the interests of other PURCHASER of apartment will be affected. b: In case the PURCHASER intends to cancel due to any extraordinary situation or compelling circumstances or reasons that are not within the control of the PURCHASER, the PURCHASER shall submit a Cancellation request in writing to the CONFIRMING PARTY/DEVELOPER. The CONFIRMING PARTY/DEVELOPER at its sole discretion (depending on the market situation) on a case to case basis may consider the request for Cancellation. That on acceptance of the cancellation request, the CONFIRMING PARTY/DEVELOPER shall try to identify a prospective PURCHASER of the "C" Schedule Apartment along with the "B" Schedule Property. The PURCHASERS herein agrees to wait for the refund of money till the new PURCHASER pays the full consideration or the project is completed. The PURCHASER shall not have any right to seek any compensation or interest if the delay is due to any reason in the prospective PURCHASER not being identified. c: Cancellation Charges- Cancellation charges shall be Rs.4,00,000/- (Rupees Four Lakhs only) which shall be deducted from the amounts returnable to the PURCHASER and the PURCHASER has agreed to the said covenant and shall not raise any objections. d. Time to Refund- The amount payable to the PURCHASER subject to the deductions as recorded herein, shall be refunded only after the sale of the "C" Schedule apartment and on receipt of the amount from the prospective purchaser that under no circumstances the CONFIRMING PARTY/DEVELOPER shall pay the amount on its own. e: That if the payment from the prospective purchaser is received in installments. the same shall be paid mutatis mutandis to the PURCHASER herein. 30 f: That until the sale with the new PURCHASER is concluded in all respects, the Outgoing PURCHASER shall not demand the refund of the amount payable consequent to the cancellation. However, the PURCHASER shall also be entitled to identify the prospective purchaser for the acquisition of the "B" and "C" Schedule Property. g: The PURCHASER covenants to adhere to the above procedure and under no circumstances, the PURCHASER shall not demand refund of the advance paid deviating from the above procedure. h: CANCELLATION BY CONFIRMING PARTY/DEVELOPER:- The CONFIRMING PARTY/DEVELOPER has the right to cancel this Memorandum of Sale Agreement in case the PURCHASER does not honour the payments as agreed, subject to grace period and issue of 7 days notice as mentioned in this Agreement. 11: TRANSFER/RESALE- The Purchaser shall not be entitled to Transfer/Assign rights under this Agreement in favor of any one within period of one year from the date of Memorandum of sale agreement executed. On completion of one year from the date of Memorandum of sale agreement, Purchaser is allowed to transfer the rights under this Memorandum of sale agreement to any third party with prior written approval of Confirming party/Developer/s and on payment of Rs 200/- per square feet on super build up area towards administrative charges and transfer fee against the said payment. 12:The VENDOR covenants with the PURCHASER that: a: The "A" Schedule Property and the "B" Schedule Property is not the subject matter of any litigation; b: That the VENDORS shall keep the PURCHASER sufficiently indemnified against all encumbrances, damages, attachments occasioned / suffered by the PURCHASER on account of any action, omission or commission of the VENDORS or any person claiming through them in respect of the "A" and "B" Schedule Property. c: The VENDORS and all persons claiming through them shall, at the request of the PURCHASER, do or cause to be done all acts, deeds and things as shall lawfully and reasonably be required 31 for securing possession and enjoyment of the "B" Schedule Property as absolute VENDORS thereof.”

(Emphasis added)

Time schedule for payment of the amount is indicated. The complainants have paid `81,90,425/- and the figure varies on the dimension of the apartment. Nonetheless, every home buyer in these cases have deposited 90% or above of the entire amount. The agreement was between the Company and the complainants. The name of the Apartment complex was ‘Unishire Terraza’. Contrary to the projection that was made in the agreement to sell, the project did not get complete within 36 months. Comes the year 2018. The completion of the project is handed over to M/s S.A. Enterprises. It is said that M/s S.A. Enterprises did progress the project to a certain extent. After the claim of completion of the project comes the communication/mail on 30-10-2021. It reads as follows: “Unishire [CEEC]. ceec@unishire.com Sat, Oct 30, 2021 at 5:04 P M To: arshad1983@gmail.com Cc: saenterprises2003@gmail.com Bcc:Rahul.Gaggar@nipponindiaim.com,Mehernosh Bharucha@nipponindiaamc.com 32 Dear Esteemed Home Buyer. Greetings We take this opportunity on the auspicious occasion of onset of Diwali to inform you on the completion of our stakeholders Unishire Terraza. We are extremely grateful for the support rendered from our home buyers and stakeholders to enable completion of the project despite the numerous challenges we as an organization are facing as well as the general real estate situation prevalent across the country for the past several years. We are proud to inform that Unishire Terraza project has received Completion Clearance from the Fire Force Department on 29-09-2021. We had submitted the requisition for grant of Occupancy Certificate from BBMP which was duly acknowledged on 14-09-2021 by the department. Please click on the below mentioned link to view the latest photos of site during inspection by the Fire Force Department, BBMP as well as the clearance letters from both the departments: https://drive.google.com/drive/folders/1uiv6bqlqLcr- fV9ihrtDJ5yawbAbxv3p?.usp=sharing We are glad to inform you that about 70% of the home buyers have already registered their homes and are commencing occupation from 31st October, 2021. In view of the various legal challenges being faced by the Organization from the lender, we urge you to make the balance payments and procure the NOC from the lender without further delay and register your apartment within 15 days from this intimation in your best interests of becoming the rightful legal owner of the apartment. Failing which applicable holding charges will be imposed along with any other consequential costs/risks associated thereof. Thanking you For Unishire Homes LLP33Authorized Signatory”

(Emphasis added)

The communication is not from M/s S.A. Enterprises, but it is from authorized signatory of the Company. The communication indicates that the Company was glad to inform that 70% of home buyers have already registered their homes and have been commencing their occupation from 31-10-2021 and the Company was proud to announce that completion clearance and grant of occupancy certificate would come about immediately. Six months thereafter comes the second mail. It reads as follows: “Tue, Apr 12, 2022 at 2:22 PM Unishire [CEEC]. To: arshad1983@gmail.com Cc: Rahul Gaggar@nipponindiaim.com, Pradeep. Khanna@nipponindiaim.com Dear Sir We are delighted to inform you that the Occupancy Certificate (OC) for the project Unishire Terraza has been obtained. Kindly come forward to register your apartment within 10 days from this communication failing which holding charges and other levies would be applicable. Thanking you For Unishire Homes LLP34Authorised Signatory”

(Emphasis added)

It indicates that the Company is delighted to inform that occupancy certificate for the project –Unishire Terraza has been obtained and therefore, the complainants were asked to come forward within 10 days to register the apartments, failing which holding charges and other levies would become applicable. This was a white lie and an eye wash by the Company, to hoodwink the poor home buyers, as there was no occupancy certificate in place as on 12-04-2022. Therefore, this was a false assurance. The occupancy certificate admittedly comes about only on 14-12-2023. These are undisputed facts.

9. What happens in the interregnum is shocking, the Company sells the very property, for which the complainants had paid 90% of the amount, in favour of third parties. This is again an undisputed fact that the petitioners, Kirti K.Mehta and Pratik K.Mehta have sold the properties. After the complainants coming to know that the properties to which they had paid 90% of the 35 amount or even more have been sold in favour of third parties without any intimation, the complainants register the complaint before the jurisdictional Police. The complaint is necessary to be noticed and it reads as follows: ”To The inspector of Police Sampigehalli Police Station Bangalore From Mr. Arshad Qasim Dabapu (41 Years) Flat 2001 Block B, Al Ahlia Towers Al Khalidiya Abu Dhabi UAE. Subject: Complaint on Cheating and Fraud for reselling our (original buyers) flats in their project Unishire Terazza by Unishire Homes LLP - Mr Kirti K. Mehta & Mr. Pratik Mehta and SA Enterprise-- Abdul Jabbar (Ameen) & Anoop Lobo Dear Sir, Myself, Arshad Qasim Dabapu holding Passport number M2960187 and an NRI working in UAE had booked a flat with Unishire Terazza by the developer Unishire Homes LLP. I have a Sale agreement with Unishire Homes LLP dated 19 February 2013, certificate No.IN-KA43409209526260L against flat no A1- 1001, type-3.5BHK, super built up area - 2005 sft. The total value of the flat at the time of purchase was Rs. 81,90,425 (Rupees Eighty one lakhs, ninty thousand four hundred and twenty five only) of which the payments were made by self. I have paid a booking amount of Rs. 3,00,000 on 11 December 2012 and an agreement signing amount of Rs. 13,16,030 in the month of February 2013. Post payments were made as per payment schedule related to stages of the project, these were disbursed directly by me from my NRI Account at Axis Bank. By 36 this time (2015) 95% of our payment was done to Unishire Homes LLP. Around this time 2015-16 is when Unishire stranded the project. There were not reachable for any answers related to the project, I was clueless and stranded in mid project status. A couple of co- buyers made and a team and tried resolving the issues with them as we were all stuck will payments made and the project was going nowhere. After a few years of drama and no show, a couple of years later, SA enterprise, who were then contractors of the project took over to complete the project and apparently, SA enterprise were given the responsibility to sell the remaining unsold units of the project too. The project work restated with a lot of struggles in coming to any common grounds with Ameen and his right-hand man Anoop Lobo, It was only Anoop Lobo who would front any conversation (as and when he wishes) on behalf of Ameen of SA enterprise or Pratik Mehta of Unishire. Somehow after a lot of struggle and worries of 6 more years, in Apr 2022, I got an email from Unishire Homes that they have received the OC for Unishire Terazza and I should now register my flat! However, when I asked them to show us the OC, they refrained and failed to ever show the OC to any buyer. Till date, no one has seen the OC of the project. I had informed them I will pay the full amount for the project which was done on Apr 2022 by then 100% of the Flat value was been paid. I had got the NOC on May 6 from Vistra that all the payments have been completed and the unit shall stand released if the payment has been made to the escrow account of Unishire which I had made the payments in April 2022. I had informed Anoop I will come for the registration and to show the OC of the project which was as well not done after making all the payments. After several calls and meeting for OC but there was none given despite an official commitment by Unshire that they have received the OC. I wanted to move ahead and close it and get flat to my name. In August 2023, I started reaching out to Mr Anoop to come to India for 37 registration and my calls were unanswered. After many calls and messages to which Mr.Anoop Lobo replied that they are not allowing any registration currently and will keep me updated which got us thinking as to how he can stop us from registering a flat I have paid for and have all the papers for. I have been constantly calling/messaging then since then but Anoop and Ameen were both untraceable. It is in Jan 2024, that I discovered that our flat has been double sold to another party and now we have procured a copy of their EC which shows that the flat has been sold to them in Dec 2023. While I entered as a buyer in Unishire Terrazza in February 2013, I was assured the handover of the flats in 36 months as per the signed agreement copy. From 2016 its been a delay of more than 8 years from the promised delivery date and despite all odds I had ended up knowing that Unishire/SA enterprises have committed a fraud and left us in lurch by illegally selling our flats to some other buyers. This is absolutely devastating as we have been striving hard to digest such a delay and the inconsistencies and non-cooperation from them for years. This fraud by Unishire was the last thing to add to our misery and consistent despair for more than a decade. I am looking forward for your intervention and assistance to rightfully get back our flats at the earliest. Please find attached the following as supporting to our FIR against cheating and fraud by Unishire Homes LLP and SA enterprise.

1. Sales Agreement first buyers – Arshed Qasim Dabapu 2. Receipts of payments 3. NOC from Vistara and Proof of Payment to Escrow account- Final payment making it 100% Payment done.

4. EC of Second buyer.”

(Emphasis added)

38 Registration of the complaint leads to registration of crime in Crime No.369 of 2024 for offences punishable under Sections 406 and 420 of the IPC. The contention is that the issue is purely civil in nature and would not attract the ingredients of Sections 406 and 420 of the IPC. Therefore, it becomes necessary to notice Section 406 of the IPC. It reads as follows: “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.” Section 406 of the IPC has its ingredients in Section 405 of the IPC. It 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 discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. Explanation 1.—A person, being an employer of an establishment whether exempted under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not]. who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been 39 entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation 2.—A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.” Section 405 mandates that any person dishonestly misappropriates the property of the victim which has been entrusted to him by way of property or otherwise is said to be committing criminal breach of trust. The other offence is the one punishable under Section 420 of the IPC. Section 420 of the IPC reads as follows: “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.” 40 For an offence to become punishable under Section 420 supra, the ingredients found in Section 415 are necessary to be present. Section 415 of the IPC reads as follows: “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.” Any person who with dishonest intention lures the victim to enter into any contract or transfer of funds is said to be committing the offence of cheating. Whether the role of each of the petitioners would meet the ingredients of Sections 405 and 415 of the IPC is required to be noticed. Kirti K.Mehta and Pratik K.Mehta, who are Directors of the Company are petitioners in most of the petitions. It is they who have received 90% of the sale consideration from the hands of the complainants/home buyers 11 years ago. Pratik K.Mehta is said to be the authorized signatory of the Company. Though these two have claimed to have resigned, the mails are sent by them to all the complainants asking them to come forward 41 and register the sale deeds. Though they have projected themselves to have resigned, but have not in fact did so.

10. The role of Abdul Latheef Jabbar, petitioner in Criminal Petition No.6166 of 2024 and Criminal Petition No.5089 of 2024 is that he is the proprietor of M/s S.A. Enterprises. He was entrusted with completion of construction work of the project. The said petitioner is said to have conspired with the Company in demanding money from home buyers by false occupancy certificates and is also illegally involved in re-selling the apartment of the home buyers to third parties without the consent of these home buyers. Abdul Khadar Jabbar, petitioner in Criminal Petition No.5807 of 2024 and Criminal Petition No.6166 of 2024 is the brother of Abdul Latheef Jabbar whose role is narrated hereinabove. Though he was an office bearer of M/s S.A. Enterprises, he is said to have threatened and harassed the home buyers and is said to be closely involved with M/s S.A. Enterprises. The other accused is one Anoop Lobo who is the companion of Abdul Latheef Jabbar and is the authorized signatory of M/s S.A. Enterprises and who on false hopes demanded money and entered into sale deeds with third parties. The 42 ingredients of criminal breach of trust, in the opinion of the Court, are on the face of it, made out in the case at hand. Therefore, these petitioners are made accused in the crime. Accused Nos. 1 and 2 are Kirti K.Mehta and Pratik K.Mehta in whose favour the agreements of sale were executed. Accused No.3 is Abdul Latheef Jabbar, Proprietor of M/s S.A. Enterprises. Accused No.4 is Abdul Khadar Jabbar, brother of Abdul Latheef Jabbar. Accused No.5 is Anoop Lobo, the signatory of the sale deeds in favour of third parties and accused No.6 is the purchaser of the property from the hands of the proprietor of M/s S.A. Enterprises. If the facts obtaining as narrated hereinabove are fitted to the ingredients of Sections 406 and 420 of the IPC as obtaining in Section 405 and 415 of the IPC, it would undoubtedly meet the ingredients. Generally Section 406 – criminal breach of trust and Section 420 – cheating would not go hand in hand. The facts obtaining in the case at hand projects such peculiarity that they go hand in hand.

11. The amount that was paid by each of the home buyers was for the purpose of getting their respective apartments. 90 to 95% of the amount has been paid by each of the home buyers. 43 Therefore, the said amount is kept in trust with the petitioners, Kirti K.Mehta an Pratik K.Mehta. On the basis of mails that were not answered which were by themselves on blatant falsehood that occupancy certificate was received, the petitioners have sold the properties to third parties. Today the home buyers whose dream has been shattered, neither have the hard earned money, nor the apartments with them, but are unnecessarily drawn into these litigations on account of fraud played by the petitioners, Kirti K.Mehta an Pratik K.Mehta. They projected themselves to have given up every responsibility of the Company. As a matter of fact, they are the ones who are running the Company even today as mails have emanated from them and not from M/s S.A. Enterprises. Therefore, a clear case of cheating and criminal breach of trust is prima facie made out against these two petitioners.

12. The proprietor of M/s S.A. Enterprises who has indulged in subsequent demand of money from the home buyers cannot be left of the hook, as the matter is still at the stage of investigation. The role of M/s S.A. Enterprises would come out with clarity when the investigation would get complete and the Police would file their 44 final report. Insofar as the brother of Abdul Latheef Jabbar is concerned, no offence even prima facie is made against him i.e., Abdul Khadar Jabbar. Therefore, permitting any investigation against him would become abuse of the process of law. Merely because he is the brother of accused No.3 without any role being attributed to him, the investigation cannot be permitted against him. Therefore, the petition filed is entertainable only insofar as Abdul Khadar Jabbar is concerned and not against any other accused.

13. Plethora of judgments are relied on by the learned counsel appearing for the petitioners in these cases to project that the issue is purely civil in nature and should not be permitted to be continued. The judgments so relied on are as follows: (1) Vesa Holdings Private Limited and another v. State of Kerala and others – (2015) 8 SCC293 (2) Vijay Kumar Ghai and others v. State of West Bengal and others – (2022) 7 SCC124 (3) Mitesh Kumar J.Sha v. State of Karnataka and others – (2022) 14 SCC572 45 (4) Radheyshyam and others v. State of Rajasthan and another – (2024) SCC OnLine SC2311(5) Lalit Chaturvedi and others v. State of Uttar Pradesh – (2024) SCC OnLine SC171 (6) Naresh Kumar and another v. State of Karnataka and another – (2024) SCC OnLine SC268 (7) Dinesh Gupta v. State of Uttar Pradesh and another – (2024) SCC OnLine SC34 While there can be no qualm about the principles so laid down or elucidated by the Apex Court in all the aforesaid judgments, they are not, on the face of them, applicable to the facts obtaining in the case at hand. They are all judgments which resulted in quashment of proceedings on breach of agreements or breach of JDAs or agreements registered for the purpose of recovery of money. The facts in the case at hand project different issues where criminal breach of trust and cheating are clearly made out against these petitioners in terms of what is narrated hereinabove.

14. It becomes germane to notice a judgment of the coordinate Bench in the case of KIRTI K.MEHTA AND ANOTHER46V. STATE OF KARNATAKA AND OTHERS1. These petitions were filed by Kirti K.Mehta and Pratik K.Mehta on the same set of facts projecting the very same grounds. The coordinate Bench has by its judgment rejected every one of the contentions. The coordinate Bench has held as follows: “…. …. ….

4. The allegations made in both the first information is that the first informant had paid huge money to the petitioners herein who are the partners of M/s. Unishire Homes L.L.P. Company, towards purchase of apartment in an under construction project. Since the petitioners were facing serious financial difficulties, they had handed over the project to M/s. S.A.Enterprises represented by Abdul Latheef Jabbar. Afteconstruction of the apartment building was completed, the apartment for which the first informants had paid huge advance sale consideration was sold to a third party through registered sale deeds, for which the petitioners herein and the aforesaid Abdul Latheef Jabbar are parties. It is in this background, the first informants had approached the police. Being aggrieved by the criminal proceedings registered on the basis of the first information submitted by respondent no.2, petitioners are before this Court.

5. Learned Counsel for the petitioners having reiterated the grounds urged in the petition submits that the dispute is civil in nature. The allegation is that of violation of the contract. Respondent no.2 instead of approaching the civil court, has initiated criminal proceedings only with an intention to coerce and harass the petitioners. He submits that in identical circumstances, this Court in Crl.P.No.2874/2024 which was filed by the petitioners, has granted interim order. 1 Criminal Petition No.3118 of 2024 and connected case decided on 2nd April, 2024 47 6. Per contra, learned HCGP has opposed the petition. She submits that the petitioners have received 90% of the sale consideration under an agreement from respondent no.2 in Crl.P.No.3118/2024 and from respondent no.2 in Crl.P.No.2879/2024, petitioners have received a sum of Rs.64,60,000/- out of the sale consideration of Rs.67,08,380/-. In both the cases, petitioners have received 90% of the sale consideration from the intending purchasers and sale agreement was also executed in their favour. Subsequently, petitioners have connived with accused nos.1 to 3 and have executed sale deeds in favour of third parties in respect of the apartments which were subject matter of the sale agreements executed in favour of the respondent no.2-first informants. She submits that in addition to these cases, several other cases of similar nature are also registered against the petitioners. Investigation in the case is under progress. Accordingly, she prays to dismiss the petitions.

7. From a perusal of the material available on record, it is seen that the petitioners who are partners of M/s. Unishire Homes L.L.P. Company, have received 90% of the sale consideration under two separate sale agreements from the first informants. Subsequently, the under construction project was handed over by the petitioners to M/s. S.A.Enterprises, who inturn has completed the project. The petitioners hereinwho had entered into an agreement for sale of apartments in favour of first informants, have joined hands with M/s. S.A.Enterprises who is also arrayed as an accused in the FIR and have executed sale deeds in respect of the apartment which was the subject matter of sale agreements, in favour of third party after receiving sale consideration from the third party.

8. Learned HCGP has brought to the notice of this Court several other similar cases have been registered against the petitioners herein and similar modus operandi is found in all the cases. FIR has been registered in the present two cases against the accused for the offences punishable under Sections 420, 406, 120B, 34 IPC. Petitioners who have received 90% of sale consideration from the intending purchasers who are the first informants in the present case, have joined hands with 48 the other accused persons and have sold the property for which they had received advance consideration in favour of third parties by executing sale deeds.

9. Petitioners who had received advance sale consideration from the first informants under the sale agreements, have dishonestly misappropriated the amount received and have dishonestly disposed of the property which was the subject matter of the sale agreements. The first informants had paid advance sale consideration to the petitioners herein since the petitioners had assured that they would sell the property which is the subject matter of sale agreements in their favour. The material on record would also go to show that the petitioners and the other accused have created sale deeds in favour of third parties in similar manner after receiving huge sale consideration from many others and several similar other criminal cases are registered against the accused before the very same police station. The allegations found in the first information has the necessary ingredients for invoking the alleged offences against the petitioners herein. It cannot be said that there is absolutely no material as against the petitioners for prosecuting them for the alleged offences.

10. In Crl.P.No.2874/2024, since it was found that advance sale consideration was received by M/s. S.A.Enterprises represented by Abdul Latheef Jabbar and the petitioners herein had not received any sale consideration from the first informant in the said case, this Court has granted an interim order infavour of the petitioners. However, in the present case, it is the petitioners who have received 90% advance sale consideration from the first informants, and therefore, the reasons assigned by this Court in Crl.P.No.2874/2024 while granting the interim order cannot be applicable to the facts of this case.

11. The Hon'ble Supreme Court in the case of SANAPAREDDY MAHEEDHAR SESHAGIRI VS STATE OF A.P.-. (2007)13 SCC165 at paragraph 31, has observed as under:

49. /p>

"31. A careful reading of the above noted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of any offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences eitheragainst an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the FIR or complaint or restraining the competent authority from investigating the allegations contained in the FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the FIR or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or 50 prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C.

12. Under the circumstances, I am of the opinion that the prayer made by the petitioners to quash the FIR cannot be granted. Accordingly, the petitions are dismissed.” (Emphasis supplied) The coordinate Bench observes the role of the petitioners, the role of M/s S.A. Enterprises and criminality shrouded in the entire episode of crime. The dismissal of these petitions was challenged by Kirti K.Mehta and Pratik K.Mehta before the Apex Court. The Apex Court, in terms of its order dated 10-07-2024, has rejected the S.L.P. by the following order: “UPON hearing the counsel, the Court made the following:

ORDER

Heard Mr. Vijay K.Sagar, learned counsel, appearing for the petitioners. We see no reason to interfere with the impugned order. The Special Leave Petition is, accordingly, dismissed. Pending applications(s), if any, stand closed.” Therefore, identical arguments being rejected has had the imprimatur of the Apex Court. Even otherwise, it is well settled 51 principle of law that a fact can give rise to two proceedings – one civil and other criminal. Merely because, in the first blush, it appears to be civil, it need not result in quashment of criminal law being set into motion, if prima facie criminality is found in such complaints.

15. It becomes germane to notice the judgment of the Apex Court in the case of KAMAL SHIVAJI POKARNEKAR v. STATE OF MAHARASHTRA2 wherein it is held as follows: “…. …. ….

5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere [State of Karnataka v. M. Devendrappa, (2002) 3 SCC89:

2002. SCC (Cri) 539]. .

6. Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in 2 (2019) 14 SCC35052 the complaint spell out the ingredients of a criminal offence or not [Indian Oil Corpn. v. NEPC (India) Ltd., (2006) 6 SCC736: (2006) 3 SCC (Cri) 188]. . … … … 9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the trial court issuing summons to the respondents. A perusal of the complaint discloses prima facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.” (Emphasis supplied) The Apex Court holds that criminal proceedings should be quashed if the complaint does not disclose any offence or is frivolous or vexatious and further holds that criminal complaints sometimes cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. The Apex Court, further, in the case of PRITI SARAF v. STATE (NCT OF DELHI)3, has held as follows:

3. (2021) 16 SCC14253 “…. …. ….

30. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.

31. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge- sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482CrPC for quashing such proceedings.

32. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the courts below and have taken into consideration the material on record. After hearing the learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, 54 (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and; (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC.” (Emphasis supplied) The Apex Court reiterates that a proceeding may give rise to both criminality and a remedy that is civil in nature. Simply because there is a remedy provided for breach of contract initiated at the instance of the appellants therein, it would not come to the conclusion that it is only a civil remedy.

16. What is narrated hereinabove is a seriously disputed question of fact, which requires evidence and may be further trial. In such cases, the Apex Court holds that exercise of jurisdiction under Section 482 of the Cr.P.C. should be extremely limited. The 55 Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH4, has held as follows: “…. …. …. “9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914]. passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court 4 (2021) 9 SCC3556 in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC104: (2018) 1 SCC (Cri) 683]. in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC191: (2020) 3 SCC (Cri) 672]. after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC335:

1992. SCC (Cri) 426]. , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC686: (2020) 1 SCC (Cri) 94]. , Managipet [State of Telangana v. Managipet, (2019) 19 SCC87: (2020) 3 SCC (Cri) 702]. and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC337: (2020) 1 SCC (Cri) 173]. , referred to hereinabove. 9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of 57 the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the 58 accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914]. passed by 59 the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed.” (Emphasis supplied) In the light of the aforesaid circumstance and the role of these petitioners, except Abdul Khadar Jabbar, the case needs to be investigated to bring these petitioners to books.

17. The home buyers, who with all fond hopes of having own houses in the City of Bangalore – house in the nature of an apartment, invest all their life fortunes into the Company, which projects development of a livable apartment complex. The fond hopes are stage by stage shattered, either by the delay or the developers indulging in the acts which have now become the crime. The mails that are communicated to these complainants, are only an eye wash, as no occupancy certificate was even in their hands when they asked these home buyers to pay 5% or 10% of the 60 remaining amount and get their sale deeds registered. The communications did not indicate that in the event the home buyers do not come forward for registration of sale deeds, the apartment would be sold to third parties. What was communicated was holding charges would become applicable. Therefore, prima facie these accused have played fraud, on the poor home buyers who are now left high and dry without the money that they have invested long ago and without the apartment with them, which they were hoping to have as a dream home. By the fraud of these petitioners, the dreams of poor home buyers are crushed. The developers cannot play with the lives of home buyers, except save in certain circumstances where there is clear breach of contract or a particular home buyer is having an axe to grind against the developers. The subject case forms a classic illustration of the acts of the accused, except one, where the ingredients of criminal breach of trust and cheating, on the home buyers, is prima facie met, as the agreements entered into with the home buyers by the accused were after receiving 90 or 95% of the total sale consideration and notwithstanding this, those very apartments which formed the part of the agreement are sold to third parties. Therefore, the crime so 61 registered against the accused cannot be quashed except qua Abdul Khadar Jabbar.

18. For the aforesaid reasons, the following:

ORDER

(i) The Criminal Petitions qua all the accused, except one, would stand rejected. (ii) The Criminal Petition qua the accused Abdul Khadar Jabbar stands allowed. (iii) The impugned proceedings only against Abdul Khadar Jabbar who is accused No.2 in Crime No.278 of 2023 and accused No.4 in Crime No.325 of 2024 of Sampigehalli police station, pending before IV Additional Chief Metropolitan Magistrate, Bangalore stand quashed. (iii) Interim order of any kind if operating, shall stand dissolved. Sd/- (M. NAGAPRASANNA) JUDGE Bkp CT:MJ