THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.10574 of 2022
ORDER:
1. This Criminal Petition is filed to quash the proceedings against the petitioner/A1 in C.C.No.3885 of 2022 on the file of XVII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad for the offences under Sections 406 and 420 of IPC.
2. The 2nd respondent namely H.Ramesh filed complaint before the Jubilee Hills Police stating that he is the owner of H.No.1016/A admeasuring 720 sq.yds in Road No.51, Jubilee Hills out of a total extent of 1422 sq.yds of the petitioner in the year 1996. In the sale deed executed in favour of the 2nd respondent by the GPA holder of the petitioner, road was shown on the northern side of the plot. However, the GHMC Vigilance cell issued notice on 11.01.2022 stating that the approach road to his house is encroached land forming part of the green belt. If the approach road is closed, the 2nd respondent will not have ingress and egress facility to his property and the petitioner herein had fraudulently 2 misrepresented that the northern side of the plot was road and sold it to him, suppressing that it was GHMC property. For the said reason, on the basis of a complaint by 2nd Respondent, police investigated and filed charge sheet for the offence under Sections 406 and 420 of IPC.
3. Learned counsel appearing for the petitioner would submit that there is no fraudulent inducement made by the petitioner herein, who had sold his plot in the year 1996 itself to the 2nd respondent through GPA holder(A2). In fact, the 2nd respondent, has written to the society, which is Jubilee Hills Cooperative House Building Society for modification of the approved plan and for regularization of the approach road, which is to the Northern side of his plot. The 2nd respondent had addressed letters to the MCH, the Society and also the Municipal Commissioner in the said regard. In the said circumstances, when the 2nd respondent was having knowledge about all the facts, the question of cheating by the petitioner does not arise. Accordingly, prayed to quash the proceedings. In support of his contentions, he relied on the following judgments: i) State of Haryana and others v. 3 Bhajanlal and others1; ii) Prof. R.K.Vijayasarathy v. Sudha Seetharam2; iii) Binod Kumar and others v. State of Bihar3; iv) Mitesh Kumar J. Sha v. State of Karnataka4; v) Randheer Singh v. State of U.P5 and vi) Mohammed Ibrahim and others v. State of Bihar6.
4. On the other hand, learned counsel appearing for the 2nd respondent would submit that it is a clear case of cheating committed by the petitioner with the help of A2. Having knowledge that the northern side of the plot was not road, but the property of the GHMC, it was falsely mentioned as road when the plot was sold to the 2nd respondent. It is the responsibility of the petitioner to give ingress and egress to the plot of the 2nd respondent through his plot. Earlier, the plot was 1422 sq.yds which had access and the petitioner had cheated the 2nd respondent by selling half of the plot by showing the land belonging to MCH as the road for approach, for the said reason, the proceedings cannot be quashed and 1 1992 Supp(1) Supreme Court Cases 335 2 (2019) 16 SCC 739 3 (2014) 10 SCC 663 4 2021 SCC OnLine SC 976 5 2021 SCC OnLine SC 942 6 (2009) 8 SCC 751 4 the petitioner has to be tried for the offence of cheating and criminal misappropriation.
5. Admittedly, half of the plot which belongs to this petitioner was sold in the year 1996. The present complaint is filed after 26 years stating that this petitioner has cheated him. The 2nd respondent had approached both the municipal authorities and also the society for regularizing the approach road, which is on the northern side of his plot. He also field W.P.No.7936 of 2005 before this Court and this Court by order dated 09.12.2009 left option open to the 2nd respondent to make appropriate representation seeking permission for usage of the land which belongs to the GHMC and he was using it as ingress and egress to the plot.
6. To attract an offence of cheating, there has to be fraudulent inducement by a person and believing the same, the person induced should have delivered property. In the present case, plot was purchased in the year 1996 and 2nd respondent also constructed the building in the said land and was using northern side of the road. He was making attempts by approaching the Society and also municipal authorities and 5 the Courts to get access to his plot from the northern side. After 26 years, it cannot be said that the 2nd respondent did not have knowledge about the said issue pertaining to the plot which he purchased in the year 1996.
7. Further, to attract an offence of criminal misappropriation under Section 406 of IPC, it has to be established that the petitioner was entrusted with certain property which was converted to his own use by criminal misappropriation. There is no such allegation in the complaint. In the present facts of the case, the 2nd respondent having purchased the plot in the year 1996 and having knowledge about ingress and egress to the plot and having taken steps before the various forums, cannot now allege that he was cheated by the petitioner herein after a period of 26 years. The remedy against the petitioner is by approaching the Civil Court as the petitioner is bound to give ingress and egress to the plot which he has sold to the 2nd respondent.
8. On the facts of the case, none of the ingredients of either cheating punishable under Section 420 or criminal 6 misappropriation punishable under Section 406 of IPC are made out against this petitioner.
9. It is not out of place to mention that the petitioner had in fact given GPA in respect of the plot to A2. It was A2, who had registered the plot in favour of 2nd respondent herein. It cannot be said that the 2nd respondent, without looking into any of the issues pertaining to the plot had purchased the same in the year 1996.
10. In the result, the proceedings against the petitioner in C.C.No.3885 of 2022 on the file of XVII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, are hereby quashed.
11. Accordingly, the Criminal Petition is allowed. Consequently, miscellaneous applications pending, if any, shall stand disposed.
__________________ K.SURENDER, J Date:03.03.2023 kvs 7 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.10574 of 2022 Dated: 03.03.2023 kvs 8