TMI Blog2019 (3) TMI 1879X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioned plan for the property in question from the competent authority and had also cleared her bank dues and, so it cannot be said that any kind of cheating is attributable to petitioner- Meera Goyal and respondent-Ashok Kumar, who was a broker. Judicial notice can be taken note of the settled legal position that criminal proceedings are not to be initiated casually and before issuing the process, criminal court has to exercise great deal of caution, which has not been adhered to, by the courts below in this case. Considering that arbitration proceedings in respect of Agreement to Sell in question are still pending, this Court would refrains from commenting upon the merits of dispute between the parties but would certainly like to clarify in unequivocal terms that the element of cheating alleged is lacking in the instant case. This Court is therefore of the considered opinion that criminal proceedings against Meera Goyal and Ashok Kumar ought to be dropped, as ingredients of offence of cheating are lacking in the instant case. It prima facie appears that Complainant- Priti Saraf s failure to perform Agreement to Sell cannot be justified because lease of subject property ended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to Sell. According to petitioner- Meera Goyal, notice of 30th January, 2013 terminating Agreement to Sell of 24th December, 2011 was served upon complainant-Priti Saraf, which was never challenged by her and instead of availing civil remedies, complainant-Priti Saraf has invoked criminal proceedings. According to learned Senior Counsel for petitioner- Meera Goyal, she had obtained sanctioned plan from the competent authority and had obtained clearance from the bank and she had performed her part of Agreement, and therefore, she was justified in forfeiting the earnest money, for which no criminal prosecution can be launched. Learned senior counsel for petitioner- Meera Goyal pointed out that apart from the earnest money, she had received part of sale consideration of ₹5.40 crores, which after termination of Agreement to Sell of 24th December, 2011 was returned to complainant-Priti Saraf and in terms of Article-5 of Agreement to Sell, petitioner- Meera Goyal was justified in forfeiting the earnest money. It was pointed out complainant had failed to provide the drawings within the timeline provided in Agreement to Sell and later on, it was provided and thereafter land of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria (2012) 5 SCC 370; Dalip Singh Vs. State of U.P.(2010) 2 SCC 114 to submit that Meera Goyal and Ashok Kumar have no right to approach this Court at this initial stage, as cognizance against them, has been taken after due application of mind. It is pointed out by learned counsel for complainant-Priti Saraf that property in question was divided into four parts and the complainant-Priti Saraf was allured to pay almost twice of market rate with the intention of cheating and to play fraud upon her. It is vehemently submitted that petitioner- Meera Goyal had entered into Agreement to Sell with the intention of cheating and thus, prima facie case for cheating against petitioner- Meera Goyal and Ashok Kumar is made out. Learned counsel for complainant-Priti Saraf supported the impugned order and submitted that the criminal and civil proceedings can go on simultaneously and since prima facie case of cheating is made out against Meera Goyal and Ashok Kumar, therefore, Meera Goyal s petition deserves dismissal. Learned senior counsel appearing for Priti Saraf and Rohit Saraf [in Crl.M.C. 1718/2017] submitted that Meera Goyal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ors. (2011) 8 SCC 161. Upon hearing and on perusal of impugned orders, material on record and the decisions cited, I find that earnest money was received by petitioner-Meera Goyal in terms of Agreement to Sell in question and there is no basis to conclude that the earnest money received by her was used in clearing her bank dues of Rupees Eighteen Crores (₹18,00,00,000/-). Notice to perform Agreement to Sell and subsequent Termination Notice of 30th January, 2013, was duly served by petitioner- Meera Goyal on 30th January, 2013 upon complainant-Priti Saraf. It is so evident from complainant s reply of 26th February, 2013 which was sent to petitioner s Notice terminating Agreement to Sell of 24th December, 2011. Pertinently, as per complainant s reply, deadline of 24th March, 2012 stood novated. Petitioner- Meera Goyal, had obtained sanctioned plan for the property in question from the competent authority and had also cleared her bank dues and, so it cannot be said that any kind of cheating is attributable to petitioner- Meera Goyal and respondent-Ashok Kumar, who was a broker. Supreme Court in Indian Oil (supra) has taken notice of the growing tendency in busines ..... X X X X Extracts X X X X X X X X Extracts X X X X
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