Sng Developers Ltd & ANR v. Col Balmukund Prasad

$~14 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2663/2012 & Crl. MA 13520/2012 SNG DEVELOPERS LTD & ANR ..... Petitioners Through Mr. Sanjay Sehgal, Adv.

versus COL BALMUKUND PRASAD ..... Respondent Through Mr. Tarkeshwar Nath, Adv.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

O R D E R

% 22.11.2016 1.

By this petition two petitioners i.e. M/s SNG Developers Ltd. and its Managing Director Mr. Avneesh Kumar Singh seek quashing of complaint case No. 162/1/12 under Sections 420/406/384 IPC titled as 'Col. Balmukund Prasad vs. SNG Developers Ltd.'

2.

In the complaint it is alleged by the complainant that he was allured by the petitioners by advertisement for booking a commercial space in shopping mall "SNG Plaza" Greater Noida, U.P. Believing statements of the petitioners, the complainant booked space and was allotted a commercial space on 24th February, 2005 bearing Nos. GF-42 & GF-43 with the space area of 592 sq. ft. each on the ground floor for a total consideration of ₹35,16,480/-. The complainant met demands of the petitioners as per tabulation given. However, the petitioners changed the super area of shop from 592 sq. ft. to 739 sq ft and demanded additional sum of ₹10,15,247/-

by letter dated 28th May, 2007. The petitioner made the said payment also on 12th June, 2007 whereafter he received demand letter dated 6th October, 2007 for payment of 12th instalment i.e. the penultimate instalment, though the said penultimate instalment was to be obtained after obtaining completion certificate. When the complainant contacted the petitioners for completion certificate, same was not only refused to him but he was also threatened of dire consequences. Thus the complainant was compelled to part with the 12th i.e. the penultimate instalment also of ₹3,20,520/- on 20th November, 2007. Despite the contract providing for possession to be handed over within 36 months from the date of commencement of construction, even after the delay of seven months from the promised date, no possession was handed over. Alleging false promises, extortion and cheating, the complaint was filed. Vide order dated 27th June, 2012 learned Metropolitan Magistrate summoned the petitioners for the afore noted offences. Hence, the present petition.

3.

The contention of the learned counsel for the petitioners is that while issuing summons, the court failed to notice that there was neither any extortion nor cheating nor there was any criminal breach of trust. From the allegations as set out in the complaint and deposed to by the complainant, ingredients of three offences were not made out. Delay in handing over of possession was due to various factors beyond the control of the petitioners, one of them being regular default in making payments by the complainant as per schedule. Even the increased area was given as per the terms and conditions at the past rates and not at the prevailing rates. 4.

Though the petitioners contend that there was delay in making

payment of instalments, however, the same is denied by the complainant. The petitioners also contend that the super area was increased with the consent of the complainant, which fact is also denied by the complainant. 5.

Issues raised by the petitioners can be decided during trial after evidence is adduced by the parties. At this stage this court cannot assess the relative merits of the case of the two parties and come to conclusion that there was no dishonest intention on the part of petitioners or the fact that the possession could not be handed over due to delay in payments by the complainant or due to faults of the petitioners. All these issues can be effectively dealt in trial.

6.

Consequently, the present petition and the application are dismissed since contentions raised do not fall in any of the illustrations provided by the Supreme Court in the decision reported as 1992 Supp (1) SCC 335 State of Haryana v. Bhajan Lal.

MUKTA GUPTA, J NOVEMBER 22, 2016 'sm'