K.Chandrasekhar v. Thakur Construction Company, Hyderabad

(1) This criminal petition has been filed under section 482 cr. P. C. Invoking the inherent jurisdiction of this court to quash the criminal prosecution launched against the petitioners - accused in c. C. No. 241 of 1991 on the file of the court of the xvii metropolitan magistrate, hyderabad.

(2) The accusation levelled against the petitioners - accused springs out of an agreement dated 10 - 8 - 1987 whereunder the 1st respondent - complainant undertook to construct flats for the petitioners - accused herein. The complaint is that eventhough the flats have been constructed as per the said agreement dated 10 - 8 - 1987 and even more plinth area has been allotted than originally agreed for still there was a balance amounting to rs. 1,53,965/ - which also represents the balance of 2% of the cost of the original construction at the rate of rs. 130/ - per square feet plus extra works said to have been done. The offences alleged against the petitioners - accused are under secs. 420 and 442 ipc.

(3) It is contended by the learned counsel for the petitioners - accused that the prosecution launched against the petitioners - accused are clear abuse of process of law, inasmuch as the same is purely civil in nature and the very contents of the complaint filed against the petitioners - accused disclose apparently that the breach of agreement is non - payment of the amount said to be due and as such there is no element of cheating or other offence alleged under section 442 ipc.

(4) Sri v. Pattabhi, learned counsel for the 1st respondent - complainant vehimently contends that the agreement dated 10 - 8 - 1987 also gives rise to a criminal prosecution punishable under sections 420 and 442 ipc, inasmuch as the petitioners - accused were having bad faith and were bent upon occupying the flats after allowing the 1st respondent - complainant to spend huge amounts and make constructions and as such the criminal prosecution is not barred. The learned additional public prosecutor supports the arguments of mr. V. Pattabhi.

(5) Having heard the learned counsel for all the parties and having scanned through the material on record particularly the complaint filed against the petitioners - accused, i am of the considered view that this is a lis which is purely of civil in nature and there is no element of criminal act either punishable under section 420 ipc or 442 ipc or otherwise. As such the criminal prosecution launched against the petitioners - accused is liable to be quashed. However, i make it clear that if the 1st respondent - complainant feels that there is a breach of contract of agreement dated 10 - 8 - 1987 and that the cause of action arose on 12 - 2 - 1990 as stated in the complaint and that the petitioners - accused are due to pay the amounts to it, this order of mine will not preclude the 1st respondent - complainant to initiate such civil action as it may deem fit and proper.

(6) Subject to the above observations, the criminal prosecution launched against the petitioners - accused in c. C. No. 241 of 1991 on the file of the xvii metropolitan magistrate, hyderabad is quashed and the criminal petition is allowed accordingly.