THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No. 13385 OF 2016
O R D E R:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking to quash the proceedings against the petitioner in C.C.No.104 of 2015 on the file of the XVII Additional Chief Metropolitan Magistrate, Hyderabad (arising out of Crime No.218/2013). The petitioner herein is the accused No.1 in the Calendar Case and the offences alleged against him are under Section 406, 420, 384, 506 of the Indian Penal Code r/w.34 of the IPC.
2. Heard learned counsel for the petitioner and learned Additional Public Prosecutor, for respondent State and perused the record.
3. Briefly, the facts of the case are that this petitioner who was arrayed as Accused No.1, alleged to have contacted the defacto complainant through one Mohd.Mehaboob Khan. As the defacto complainant was in need of Rs.25 lakhs, he contacted this petitioner and petitioner promised to provide finance, if the properties are mortgaged. Accordingly, the defacto complainant mortgaged properties to an extent of 144 Sq.Yards including 2 built-up area and an amount of Rs.25 lakhs was received. There was simultaneously an agreement of sale-cum-GPA with possession in favour of Accused Nos.3 and 4 who are friends of this petitioner, at the instance of this petitioner. The said GPA with possession is apart from the mortgage deed which was already executed. In the GPA, the defacto complainant found that the amount was mentioned as Rs.35 lakhs. Though, the defacto complainant repaid the amount to this petitioner, the GPA was not cancelled and accused were asking to register another property to execute cancellation deed.
4. Basing on the said complaint, the Police Musheerabad investigated and filed charge sheet against this petitioner and 4 others.
5. This Court vide order dt.19.02.2016 in Crl.P.No.2058 of 2016, quashed the proceedings against Accused No.2, having found that Accused No.2 was only a person who introduced the defacto complainant to this petitioner and the transactions were in between this petitioner and defacto complainant.
6. Learned Counsel for the petitioner submits that the transactions are purely civil in nature and there is no question of cheating, for the reason of the facts not reflecting any 3 intention to cheat, from the inception. Unless such intention can be deduced from the facts of the case, subsequent failure to adhere to the agreement or contract, will not amount to an offence of cheating or criminal mis-appropriation.
7. In support of his arguments, he relied upon the Judgments of Honourable Supreme Court in;
a) International Advanced Research Centre for Power Metallurgy and New Materials (ARCI) and others v. Nimra Cerglass Technics Private Limited and another1
b) Mohd.Khalid Khan v. State of Uttar Pradesh and another2
c) Vesa Holdings Private Limited v. State of Kerala3
8. On the other hand, learned counsel appearing for the defacto complainant would submit that the facts narrated by the defacto complainant make out an offence of cheating and criminal mis-appropriation, for which reason the proceedings before the trial Court should continue.
9. Having gone through the charge sheet and the statements, the defacto complainant is alleging that this petitioner was 1 (2016) 1 SCC 348 2 AIR 2015 Supreme Court 3656 3 (2015) 8 SCC 293 4 complicit in inducing the defacto complainant into executing two deeds which are mortgage deed and also the Agreement of Sale-cum-GPA with possession. Having received the said amounts it is the case of the defacto complainant that the petitioner and others failed to cancel the Agreement of sale- cum-GPA, as agreed earlier.
10. From the facts of the case, there is prima facie evidence of mis-representation and inducement. As argued by the counsel for the petitioner, whether there was intent on the part of the petitioner at the very inception cannot be decided in the present application. Why two deeds were executed at the earliest point of time and after alleged payment of the outstanding, why the petitioner and others failed to cancel the Agreement of Sale- cum-GPA but threatening, according the defacto complainant, are all questions that can only be decided during the course of trial. For the said reasons, the petition lacks merits and liable to be dismissed.
11. Accordingly, the Criminal Petition is dismissed. Needless to say that the observations made in this criminal petition are only for the purpose of deciding whether inherent powers under Section 482 of the Cr.P.C. can be invoked to quash the 5 proceedings at the threshold without a trial. The learned Magistrate shall draw his own conclusions on the basis of evidence adduced during the course of trial.
As a sequel thereto, miscellaneous applications pending, if any, in this criminal petition, shall stand closed.
___________________ K.SURENDER, J Dt.: 11.11.2022 tk 6 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.13385 OF 2016 Dt. 11.11.2022 tk