Quash of a Criminal Case - Related to a already ended Civil Case
Padma
(Querist) 20 December 2010
This query is : Resolved
Respected Members
Please advise me on the following
My brother booked a flat in March 2006 with a reputed builder by taking a bank loan ( bank authorised by the builder)
He was paying the instalments even before they became due. However, due to the miscommunication between the subordinate staff , a few of the staff started demanding instalments from my brother even before they became due and when we went in person to ask the staff why they are asking money when they are not due, they threatned us to surrender the flat (because the flat cost in that area had risen by 50% since the time we booked and the initial commission was taken by a staff who no longer existed in the company at that time - october 2006)
Hence from the next payment - november 2006 , my brother sent all the payments through BANK CHEQUE and then through RPAD. All of them were acknowledged and the payments were realised by the builder's staff but they did not construct our flat alone and left it halfway (without doing the interiors), but the other flats in the said place was constructed. When we approached the Managing Director of the company, he also refused to further talk to us after realising the entire money (around 25 lakhs) We were paying the EMI to the bank without any due and without our flat being constructed. Our flat was due to be handed to us in the month of September 2007, but since our flat remained as it is, we sent a letter to the MD, asking politely as to when the flat will be handed to us and sent subsequent remainders till March 2008. Most of the houses were occupied in that area whereas our house was not constructed. In june 2008, the builder's company filed 2 cases - one against my brother and one on my mother.
Against my brother it was a civil case - wherein the builder mentioned that my brother did not pay instalments to him on time, hence he did not construct the flat and said that there has been a increase in the construction material cost hence my brother has to pay the escalated cost of RS 5 lakhs so that he can construct the house, else he will give back the amount already procured from my brother towards instalments after deducting the handling charges.
Against my mother it was a criminal case - wherein it was said that my mother shouted at the builders office on a particular date and said that her son (my brother -f lat owner) of the flat will not pay the instalments and they have to construct the house and mentioned that my mother used abusive language on the staff of the builder and because of which they were stunned , shocked etc. Also many statements made on the criminal case was relating to the non payment of instalment by my brother - which is untrue and the main reason for filing such a criminal case is so that we will surrender the flat to the builder and they can sell the flat for a higher amount - that is for 50 lakhs or more than that.
We got STAY from the HIGH COURT for both these cases during AUGUST 2008.
Subsequently, we presented a petition in the HIGH COURT and proved that
We have paid all the instalments on time
We have not defaulted any payment
There is no clause mentioned for escalated construction costs in the construction agreement
We have paid in excess to the builder but it is vengeance on the part of the subordinates that this case has emerged and requested that the flat be constructed as per the agreement, excess amount be refunded back to us, then the request for giving the documents concering the flat be given to us, and finally the false criminal case be withdrawn by the builder.
We won in our civil case, and as per the advise of the honorable judge, the builder constructed our flat and handed the documents to us. But the excess amount was not refunded to us. We did not ask the amount from the builder. We got possession of the flat in DECEMBER 2008.
The CIVIL CASE is over but the CRIMINAL CASE is continuing
The builder's representative told us that he will withdraw the criminal case , but till now he has not withdrawan the case or vacated the stay that we got in August 2008.
Once in every 2 months , the criminal case comes for hearing and my mother appears for the case at the magistrate court.
Since we have the stay, she presents a memo in person to the magistrate and the case gets adjourned.
In the last hearing the magistrate himself advised my mother to inform all these facts in the high court and get the criminal case quashed so that he can end the case in the Magistrate Court also.
Moreover, for the past 1 year the complainant is not coming to the court and only his advocate is coming. The complainant is the authorised signatory of the builder and we heard that he has left the company.
Also this is a private case.
We have proofs to state that the statements made in the criminal case is false.
For quashing the false criminal case, now what should we do?
Can my mother file a petition in the high court for the same as PARTY IN PERSON?
If so, after explaing the facts and validating the same, how long will this take to get over?
Or will going to LOK ADALAT solve this issue.
What is the procedure to approach the same?
Also the other party - the builder or his representative will not come to the lok adalat. But we have facts and proofs to state all this is false and has happened because of the subordinate of the builder. Can one party go to lok adalat in the given circumstances?
Or is there any other alternative mode to solve this case
Please advise
Thanks,
Padma
Padma
(Querist) 21 December 2010
Sir - thanks for your advise.
The magistrate says he cannot do anything at the magistrate court as we have taken a stay from the high court and the complainant has not been attending the case at the magistrate's court , also they did not vacate the stay so procured by us.
Hence the magistrate has asked us to approach the high court to quash the case by telling all the facts - which is what i want to know - can it be done through lok adalat or should we approach the high court to obtain the quash order
Once we obtain the quash order, the magistrate has asked to bring us the orders to the magistrate's court and present the same, so that he can dismiss the same based on the order of the high court.
Hence, please advise on the QUASH
Thanks
Swami Sadashiva Brahmendra Sar
(Expert) 22 December 2010
Civil and criminal trials are different and independent. Finding of fact by civil court has no bearing on criminal court and vice versa.
Ajay Bansal
(Expert) 23 December 2010
SEE A.I.R. MANUALS.
