HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.5832 OF 2020
ORDER:
The present Criminal Petition is filed to quash the proceedings in Crime No.154 of 2020 pending on the file of Central Crime Station, Hyderabad Commissionerate. The petitioner herein is sole accused in the said crime. The offences alleged against him are under Sections - 406, 420 and 506 of IPC.
2. Heard Mrs. D. Padmavathi, learned counsel for the petitioner, and Mr. M. Naga Raghu, learned counsel for respondent No.2 - de facto complainant and learned Assistant Public Prosecutor appearing on behalf of respondent No.1 - State.
3. Respondent No.2 has made the following allegations against the petitioner herein:
(i) Respondent No.2 used to visit Manea Saloon, situated at Banjara Hills. The petitioner herein met her there itself. He is the owner of Tour Secure Solutions Private Limited. With the said acquaintance, they became close to each other;
(ii) Out of the said acquaintance, the petitioner herein requested respondent No.1 to give an amount of Rs.23.00 lakhs for developing his Company, and on the assurance KL,J Crl.P. No.5832 of 2020 2 of petitioner that he will induct respondent No.2 as a Director in his company, and believing him bona fidely, she has paid the said amount to the petitioner on 27.06.2019 vide cheque No.007781 drawn on ICICI Bank, Banjara Hills, Hyderabad;
(iii) The petitioner has paid an amount of Rs.15,000/- towards salary to respondent No.2 from his personal account for the period from July, 2019 to July, 2020;
(iv) The petitioner herein has lured respondent No.2 by showing some photographs and by stating that he has acquaintance with important leaders of BJP including Mr. C. Venkataraman and that there is one post in BPCL and he will see that the said post would be given to respondent No.2. Thus, the petitioner requested her to transfer an amount of Rs.1.00 Crore to the credit of his company within ten(10) days, so that he will see that she gets that post;
(v) Believing the version of petitioner, she has credited the said amount of Rs.1.00 Crore through RTGS on 31.08.2019 from her account. Thereafter, neither he arranged the said post in BPCL, nor repaid the amount to her. When she requested the petitioner to repay the said amount, he threatened her; and KL,J Crl.P. No.5832 of 2020 3
(vi) Thus, according to respondent No.2, the petitioner herein induced her and cheated her.
4. The learned counsel for the petitioner would submit that there is abnormal delay of one year in lodging the complaint. There is loan agreement dated 27.06.2019 between the petitioner and respondent No.2, but respondent No.2 has intentionally suppressed the said fact in the present complaint dated 21.10.2020. He would further submit that respondent No.2 has lodged a complaint with Banjara Hills Police Station on 16.09.2020, and the petitioner herein has filed an application seeking anticipatory bail in an unregistered crime. In the said anticipatory bail application viz., Crl.M.P. No.1843 of 2020, the police have filed counter wherein they have specifically mentioned about the contents of the complaint dated 16.09.2020 made by respondent No.2. The contents of the complaint dated 16.09.2020 and the contents of the present complaint are contradictory to each other. The disputes between the petitioner and respondent No.2 are civil in nature and they are with regard to the said loan agreement. Respondent No.2 has implicated the petitioner in the present case and she is trying to criminalize the civil proceedings.
5. On the other hand, Mr. M. Naga Raghu, learned counsel for respondent No.2 would submit that the contents of the complaint would constitute the offences alleged against the petitioner herein. There is a promise by the petitioner that he would see a post arranged in BPCL to respondent No.2 by using his contacts with leaders in KL,J Crl.P. No.5832 of 2020 4 power. Under the loan agreement dated 27.06.2019, the amount paid was only Rs.23.00 lakhs and the same is nothing to do with the present complaint and the amount of Rs.1.00 Crore paid by respondent No.2 to the petitioner. Respondent No.2 has lodged the complaint on 16.09.2020 with Banjara Hills Police Station and since the amount of Rs.1.00 Crore is involved, the police have sent the said file to Central Crime Station, Hyderabad. There is an endorsement to the said effect in Crime No.154/2020. There are several factual aspects which are to be investigated into by the Investigating Officer. The petitioner is on anticipatory bail and, therefore, he can co-operate with the Investigating Officer in concluding the investigation in the present crime. Instead of doing so, the petitioner herein has approached this Court by way of filing the present application. There is no suppression of fact. The transactions under the loan agreement and the present transaction are entirely different. Just because there is an allegation that the dispute is civil in nature, the present complaint cannot be quashed.
6. The learned Assistant Public Prosecutor, on instructions, would submit that the delay, jurisdiction and that a Company is not added as accused are all the matters to be investigated by the Investigating Officer. The Investigating Officer has recorded the statements of three witnesses. The petitioner instead of co-operating with the Investigating Officer filed the present petition to quash the proceedings in the present complaint. With the said contentions, the KL,J Crl.P. No.5832 of 2020 5 learned Assistant Public Prosecutor and the learned counsel for respondent No.2 sought to dismiss the present petition.
7. The above stated facts would reveal that the petitioner and respondent No.2 are known to each other. The said acquaintance is not in dispute. It is also not in dispute that there is a loan agreement between the petitioner and respondent No.2 dated 27.06.2019, and respondent No.2 has paid an amount of Rs.23.00 lakhs towards loan under the said agreement. According to the petitioner, he has repaid the said amount, which is a factual aspect to be investigated into by the Investigating Officer. In the counter filed by the Banjara Hills Police Station in an anticipatory bail application filed vide Crl.M.P. No.1843 of 2020 on the file of the IV Additional Metropolitan Sessions Judge, Hyderabad, there is a reference of complaint dated 16.09.2020 lodged by respondent No.2 herein. According to the learned counsel for the petitioner, there is improvement with regard to the allegations made in the present complaint dated 05.10.2020, when compared to the complaint dated 16.09.2020. Perusal of the counter filed in Crl.M.P. No.1843 of 2020 and the present complaint dated 05.10.2020 would show that there are no serious contradictions. Prima facie, it appears that the said contradictions are minor in nature. All the said aspects are factual aspects, which are to be investigated into by the Investigating Officer. The delay in lodging the complaint is also a matter to be investigated into as held by the Hon'ble Supreme Court.
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8. As stated above, prima facie, there are specific allegations against the petitioner herein. Initially, respondent No.2 has extended an amount of Rs.23.00 lakhs to the petitioner herein, and according to the petitioner, he has repaid the same. As discussed supra, it is a factual aspect which has to be investigated into by the Investigating Officer during the course of investigation. According to respondent No.2, the petitioner herein has induced respondent NO.2 saying that he would get a post in BPCL by using his contacts with present leaders in power including Mr. C. Venkataraman and, thus, he has taken an amount of Rs.1.00 Crore. Admittedly, the said amount is a big amount. There is specific mention in the complaint that she has sent the said amount through RTGS to his account from her account in ICICI Bank vide cheque No.001787. There is also specific allegation that when respondent No.2 enquired him with regard to fulfillment of his promise in arranging post as well as repayment of said amount, the petitioner threatened her. Thus, there are several factual aspects to be investigated by the Investigating Officer. Prima facie, the contents of the complaint constitute the offence alleged against the petitioner herein.
9. The learned counsel for the petitioner by referring to the transaction of BITCOIN and entries in the Passbook, would submit that the petitioner herein has repaid the entire amount and he is not due and liable to pay any amount to respondent No.2. By placing reliance on the judgment of Apex Court in Vesa Holdings P. Ltd. v.
KL,J Crl.P. No.5832 of 2020 7 State of Kerala1, the learned counsel for the petitioner would submit that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. By referring to the said principle, the learned counsel for the petitioner would submit that there are contradictions in the complaint dated 16.09.2020 and in the present complaint dated 05.10.2020. In the present complaint, there is no mention about the initial inducement, and according to respondent No.2, the loan agreement is nothing to do with the allegations made against the petitioner in the present complaint. Therefore, it is a factual aspect to be investigated into by the Investigating Officer including the contradictions as contended by the learned counsel for the petitioner.
1 . (2015) 8 SCC 293 KL,J Crl.P. No.5832 of 2020 8
10. By placing reliance on the principle laid down by the Apex Court in Sushil Sethi v. The State of Arunachal Pradesh2, the learned counsel for the petitioner would submit that the police have not made the company as an accused though the amount was alleged to have been transferred into company's account. Whereas, the learned counsel for respondent No.2 would submit that in the said case, the company entered into an agreement after ten years. Therefore, the principle laid down in the said decision is not applicable to the facts of the present case.
11. In view of the said submission and also in view of the specific allegation against the petitioner herein and also the contention of the petitioner that the amount was transferred into the company account and that the company is not an accused etc., are all factual aspects which are to be investigated into by the Investigating Officer. It is also relevant to note that the Investigating Officer is having power to add or delete any person during the course of investigation. Therefore, on the said ground also, Crime No.154 of 2020 cannot be quashed.
12. In Kamal Shivaji Pokarnekar v. The State of Maharashtra3 the Apex Court has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or 2 . (2020) 3 SC 240 3 . AIR 2019 SC 847 KL,J Crl.P. No.5832 of 2020 9 oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash same. It was not necessary that, a meticulous analysis of case should be done before trial to find out whether case would end in conviction or acquittal. If it appeared on a reading of complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during trial, might lead to acquittal, were not grounds for quashing complaint at threshold. At that stage, only question relevant was whether averments in complaint spell out ingredients of a criminal offence or not. The Court has to consider whether complaint discloses that prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out in complaint, criminal proceeding shall not be interdicted.
13. In view of the law laid down by the Apex Court, as discussed supra, prima facie, there are specific allegations against the KL,J Crl.P. No.5832 of 2020 10 petitioner herein. The details of inducement, modus operandi, details of payment of amount etc. are specifically mentioned in the complaint, and prima facie constitute a cognizable offence. Therefore, according to this Court, it is not a fit case to quash the proceedings by exercising power of this Court under Section 482 of Cr.P.C. The petitioner failed to establish any ground to quash the proceedings in the said crime and accordingly the present petition fails.
14. In the result, the present Criminal Petition is dismissed. As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 5th March, 2021 Mgr