HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition Nos. 12942, 12944, 12945, 12951, 12958, 8958 of 2018, 2098 of 2019, 1190 & 1298 of 2020 Criminal Petition No.12942 of 2019 Between:
Habib Abdul Razzaq Baghdadi @ Hadi Ali & 4 Ors ... Petitioners/A1 to A4 & A9 And The State of Telangana & other ...
Respondent/Complainant
DATE OF JUDGMENT PRONOUNCED : 05.09.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
Wish to see their fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 12942,12944,12945,12951,12958,8958,8878 of 2018,2098 of 2019, 1190 & 1298 of 2020 Crl.P.No.12942 of 2019 % Dated 05.09.2023 #Habib Abdul Razzaq Baghdadi @ Hadi Ali&4 Ors ...Petitoners/A1 to A4 & A9 And $ The State of Telangana ... Respondent/Complainant ! Counsel for the Petitioners: Sri K.V.Raghuveer ^ Counsel for the Respondents: Public Prosecutor >HEAD NOTE:
? Cases referred 1 (2008) 13 SCC 678 2 (2015) 11 SCC 776 3 2013(3) SCC 330 4 (2008) 5 SCC 668 5 2022 SCC Online Jhar 654 6 (2023) 2 SCC 195 7(2009) 8 SCC 751 8 AIR 1992 SC 604 9 (2015) 6 Supreme Court Cases 287 10 (2022) 5 Supreme Court Cases 639 11 (2019) 16 Supreme Court Cases 272 12 (2015) 13 Supreme Court Cases 689 13 (2020) 14 Supreme Court Cases 552 14 AIR 2019 Supreme Court 847 3 THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION Nos. 12942, 12944, 12945, 12951, 12958, 8958, 8878 OF 2018, 2098 OF 2019, 1190 & 1298 OF 2020 COMMON ORDER:
1. Criminal Petition No.12942 of 2018 is filed to quash the proceedings in FIR No.249 of 2018, dated 20.08.2018 on the file of Narayanaguda Police Station, Hyderabad.
2. The 2nd respondent filed a private complaint before the IX Additional Chief Metropolitan Magistrate at Hyderabad against these petitioners, who are arrayed as A1 to A4, A9 and seven others. In the complaint, it is alleged that he purchased 500 sq.yds plot situated at Hi-Grove County County in Manneguda Village, Pudur Mandal, Vikarabad District on 21.05.2018 through GPA holder A-12. The owner was A11. It is alleged that A9/M/s.Hira Multi Construction Ventures Private Limited represented by A1 to A4 converted land into non-agricultural land for the purpose of residential plots for construction of houses. A11 purchased a plot on 20.11.2010. In the year 2015, A11 visited the site and found that Golf Course was coming up. 4 Then A11 approached A2 and enquired about his plot from A2, who gave assurance that when the project would be complete, the cost of plot would increase several times. However, A11 through A12 sold the plot to the defacto complainant by way of registered sale deed dated 21.05.2018.
3. The 2nd respondent visited the site on 08.07.2018. However, he was not permitted to enter into his plot in the venture. On enquiry, he came to know that A10 was given agreement-cum- GPA by A1 to A9. It was further informed that A1 to A9 have no connection whatsoever with the said development of Gulf Course and it is for A10 to develop the said land in accordance with the DTCP layout. Both the complainant and A11 requested the petitioners herein to handover their plot, however, there was no use. For the reason of selling the plot without the consent of A11 and handing it over to A10 on 03.08.2016, complaint was filed. Since the 2nd respondent incurred wrongful loss, private complaint was filed.
4. Learned Magistrate referred the case for the purpose of investigation to Narayanaguda Police, which was registered as 5 Crime No.249 of 2018 dated 20.08.2018 for the offences under Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and Section 83 of Stamps and Registration Act.
5. Criminal Petition No.12944 of 2018 is filed to quash the proceedings in FIR No.246 of 2018, dated 17.08.2018 on the file of Narayanaguda Police Station, Hyderabad.
6. The 2nd respondent filed a private complaint before the IX Additional Chief Metropolitan Magistrate at Hyderabad against these petitioners, who are arrayed as A1 to A4, A9 and seven others. In the complaint, it is alleged that he purchased 785.02 sq.yds plot situated at Hi-Grove County in Manneguda Village, Pudur Mandal, Vikarabad District on 05.03.2018 from A11. It is alleged that A9/M/s.Hira Multi Construction Ventures Private Limited represented by A1 to A4 converted the land into non- agricultural land for the purpose of residential plots for construction of houses. A11 purchased a plot on 20.11.2010. In the year 2015, A11 visited the site and found that Golf Course was coming up. Then A11 approached A2 and enquired about his plot from A2, who gave assurance that when the project would be 6 complete, the cost of plot would increase several times. A11 sold the plot to the defacto complainant by way of registered sale deed dated 05.03.2018.
7. The 2nd respondent visited the site on 08.07.2018. However, he was not permitted to enter his plot in the venture. On enquiry, he came to know that A10 was given agreement-cum-GPA by A1 to A9. It was further informed that A1 to A9 have no connection whatsoever with the said development of Gulf Course and it is for A10 to develop the said land in accordance with the DTCP layout. Both the complainant and A11 requested the petitioners herein to handover their plot, however, no plot was given. For the reason of selling the plot without the consent A11 and handing it over to A10 on 03.08.2016, the 2nd respondent incurred wrongful loss, as such private complaint was filed.
8. Learned Magistrate referred the case for the purpose of investigation to Narayanaguda Police, which was registered as Crime No.249 of 2018 dated 20.08.2018 for the offences under Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and Section 83 of Stamps and Registration Act.
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9. Criminal Petition No.12945 of 2018 is filed to quash the proceedings in FIR No.250 of 2018, dated 20.08.2018 on the file of Narayanaguda Police Station, Hyderabad.
10. The 2nd respondent filed a private complaint before the IX Additional Chief Metropolitan Magistrate at Hyderabad against these petitioners, who are arrayed as A1 to A4, A9 and seven others. In the complaint, it is alleged that he purchased 500 sq.yds plot situated at Hi-Grove County in Manneguda Village, Pudur Mandal, Vikarabad District on 05.03.2018 from A11. It is alleged that A9/M/s.Hira Multi Construction Ventures Private Limited represented by A1 to A4 converted land into non- agricultural land for the purpose of residential plots for construction of houses. A11 purchased a plot on 20.11.2010. In the year 2015, A11 visited the site and found that Golf Course was coming up. Then A11 approached A2 and enquired about his plot from A2, who gave assurance that when the project would be complete, the cost of plot would increase several times. A11 sold the plot to the defacto complainant by way of registered sale deed dated 05.03.2018.
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11. The 2nd respondent visited the site on 08.07.2018. However, he was not permitted to enter his plot in the venture. On enquiry, he came to know that A10 had given agreement-cum-GPA by A1 to A9. It was further informed that A1 to A9 have no connection whatsoever with the said development of Gulf Course and it is for A10 to develop the said land in accordance with the DTCP layout. Both the complainant and A11 requested the petitioners herein to handover their plot, however, no plot was given. For the reason of selling the plot without the consent of A11 and handing it over to A10 on 03.08.2016 and thereby causing wrongful loss, private complaint was filed.
12. Learned Magistrate referred the case for the purpose of investigation to Narayanaguda Police, which was registered as Crime No.250 of 2018 dated 20.08.2018 for the offences under Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and Section 83 of Stamps and Registration Act.
13. Criminal Petition No.12958 of 2018 is filed to quash the proceedings in FIR No.251 of 2018, dated 20.08.2018 on the file of Narayanaguda Police Station, Hyderabad. 9
14. The 2nd respondent filed a private complaint before the IX Additional Chief Metropolitan Magistrate at Hyderabad against these petitioners, who are arrayed as A1 to A4, A9 and seven others. In the complaint, it is alleged that he purchased 500 sq.yds plot situated at Hi-Grove County in Manneguda Village, Pudur Mandal, Vikarabad District on 21.05.2018 through GPA holder A12. The owner was A11. It is alleged that A9/M/s.Hira Multi Construction Ventures Private Limited represented by A1 to A4 converted land into non-agricultural land for the purpose of residential plots for construction of houses. A11 purchased a plot on 20.11.2010. In the year 2015, A11 visited the site and found that Golf Course was coming up. Then A11 approached A2 and enquired about his plot from A2, who gave assurance that when the project would complete, the cost of plot would increase several times. However, A11 through A12 sold the plot to the defacto complainant through registered sale deed dated 21.05.2018.
15. The 2nd respondent visited the site on 08.07.2018. He was not permitted to enter into his plot in the venture. On enquiry, he 10 came to know that A10 was given agreement-cum-GPA by A1 to A9. It was further informed that A1 to A9 have no connection whatsoever with the said development of Golf Course and it is for A10 to develop the said land in accordance with the DTCP layout. Both the complainant and A11 requested the petitioners herein to handover their plot. However, there was no use. For the reason of selling the plot without the consent of A11 and handing it over to A10 on 03.08.2016, petitioner incurred wrongful loss.
16. Learned Magistrate referred the case for the purpose of investigation to Narayanaguda Police, which was registered as Crime No.251 of 2018 dated 20.08.2018 for the offences under Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and Section 83 of Stamps and Registration Act.
17. Criminal Petition No.12951 of 2018 is filed to quash the proceedings in FIR No.80 of 2018, dated 10.08.2018 on the file of Chengomol Police Station, Vikarabad District for the offences under Sections 406 & 420 IPC.
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18. The 2nd respondent filed a complaint with Police Station Chengamol, Vikarabad on 10.08.2018 stating that she, her husband and other family members were owners of Acs.24.27 guntas of land in Manneguda Sarfekhas village. They executed an agreement of sale-cum-GPA vide document No.2820 of 2007 registered at SRO, Vikarabad, in favour of Hira Management Consultants Private Limited (not accused). The petitioners have cheated the 2nd respondent to enter into the deed.
19. On 29.04.2016, the company namely M/s.Hira Multi Construction Ventures Private Limited formerly known as M/s.Hira Management Consultants Private Limited executed sale deed in its favour and transferred Acs.16.22 guntas of land. Further, the company sold the land making into small plots to customers without paying any money to them. For the said reason, all these petitioners, who are the Managing Director, Directors of M/s.Hira Management Consultants Private Limited and subsequently changed the name as 'M/s.Hira Multi Construction Ventures Private Limited have cheated them. 12
20. On the basis of the said complaint, Chengumol police station, registered FIR No.80 of 2018 for the offence under Sections 406 and 420 of IPC.
21. Criminal Petition No.8958 of 2018 is filed to quash proceedings in FIR/Crime No.65 of 2018 on the file of Chengumol Police Station, Vikarabad for the offences under Sections 406 and 420 IPC.
22. The 2nd respondent filed a complaint with Police Station Chengamol, Vikarabad on 07.07.2018 stating that he purchased land to an extent of 9680 sq.yds at Manneguda Village through registered sale deed dated 28.10.2017 from one Syed Moizudddin, who purchased the said land from the petitioners under registered sale deed dated 25.04.2016. The land of the defacto complainant is adjacent to land belonging to the petitioners and their family members and the same was being developed by M/s.Kancharla Constructions Private Limited. On the assurance given by the petitioners that the adjacent land is being developed into Gulf Course, the defacto complainant purchased the land from his vendor.
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23. On 06.07.2018, when the complainant visited his land, the security staff of M/s.Kancharla Constructions Private Limited prevented him from entering into his land. On enquiry, the defacto complainant came to know that the entire land is being developed covered by Development Agreement executed by the petitioners and their family members in favour of the company. The defacto complainant though tried, could not contact the petitioners. Even though the defacto complainant personally enquired with 1st petitioner before purchasing the subject land from his vendor, he deliberately suppressed the fact that the said land was covered by the DGPA, thus cheated the defacto complainant.
24. On the basis of the said complaint, Chengumal police station, registered FIR No.65 of 2018 for the offence under Sections 406 and 420 of IPC.
25. Criminal Petition No.2098 of 2019 is filed by the petitioner to quash proceedings in Crime No.173 of 2018 on the file of Chengomul Police Station, Vikarabad for the offences under Sections 447, 427 & 504 of IPC.
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26. The 2nd respondent/defacto complainant filed written complaint on 17.12.2018 addressed to Chengomul police station that she purchased 500 sq.yds of plot from petitioner on 18.09.2010. She fenced her plot and ten days prior to the complaint, when she went to see the property, she saw some people developing the property. The 2nd respondent contacted 1st petitioner and questioned as to who was developing the plot and the petitioner informed that he was sending his son Mohammed Hadi Ali. Mohammed Hadi Ali went to the plot and threatened the 2nd respondent that there is no plot and they will not give any plot. Aggrieved by the plot being taken for development without her permission, criminal complaint was filed.
27. The Chengomul police station registered the case for the offences under Sections 447, 427 & 504 of IPC against the petitioner, which is pending investigation.
28. Criminal Petition No.8878 of 2018 is filed to quash the proceedings against the petitioners/A1 to A4 in FIR No.6 of 2018 dated 30.01.2018 on the file of Chengomol Police Station, 15 Vikarabad for the offences under Sections 447, 427, 406, 420 and 506 of IPC.
29. The 2nd respondent/defacto complainant filed a complaint with Station House Officer, Chengomul Police Station stating that he purchased plot No.449 admeasuring 500 sq.yds situated at Hi-Grove County, Manneguda village from the petitioners herein. The defacto complainant has placed fencing around his plot. However, when he went to the plot, he saw that the fencing was damaged and some people were developing the property into Golf Course. He called A1, who informed that he would send his son/2nd petitioner. The 2nd petitioner went to the premises and threatened the 2nd respondent that there is no plot and he can do whatever he wants. For the said reason of being cheated and giving his plot for development without his permission, criminal complaint was filed and the same was registered as Crime No.6 of 2018 for the offences under Sections 447, 427, 406, 420 and 506 of IPC.
30. Criminal Petition Nos.1190 & 1298 of 2020: 16
On the basis of the complaint filed by the 2nd respondent with Chengamolu police station, a crime No.173 of 2018 was registered for the offences under Sections 420, 406, 447, 506 r/w 34 of IPC. The allegation of the 2nd respondent is that in the month of July, 2007, Rs.12.00 lakhs was paid for purchasing two plots of each 500 sq.yds bearing plot Nos.549 and 550 in Hi- Grove Country, situated at Manneguda village. The said plots were registered on 18.09.2010 by A1/1st petitioner.
31. In the year 2018, when the 2nd respondent and his family members went to the plot, they came to know that the plots were given for development to M/s.Kancharla Constructions Private Limited and they entered into development agreement with A1 and their family members. The 2nd respondent met K.Pruthvi Reddy, Managing Director of M/s.Kancharla Constructions, who informed that they have entered into development agreement with A1 and others, to develop the land into Golf Course-cum- residential gated community. It was further informed that the developer had nothing to do with any alleged cheating committed by the petitioners, who have sold the plots to the 2nd respondent. 17 Further, K.Pruthvi Reddy, Managing Director of M/s.Kancharla Constructions Private Limited promised to give two new plots to the 2nd respondent herein.
32. The said case was transferred to Economic Offences Wing, CID, Hyderabad. Additional Superintendent of Police had conducted investigation and filed charge sheet against the petitioners herein for cheating the 2nd respondent. Petitioners sold the plots to 2nd respondent and subsequently without permission and consent of 2nd respondent gave the said land for the purpose of development to M/s.Kancharla Constructions Private Limited.
33. All these Criminal Petitions are being disposed by way of this Common Order since the crux of the grievance in all the complaints is the Development Agreement-General Power of Attorney between M/s.Hira Multi Constructions Ventures Private Limited and M/s.Kancharla Constructions Private Limited, leading to wrongful loss to the 2nd Respondents in all the cases.
34. Arguments of learned counsel for the petitioners: 18
Sri D.V.Sitarama Murthy, learned Senior Counsel appearing for the petitioners would submit that the petitioners are owners and possessors of land to an extent of Acs.193.00 guntas at Manneguda Village. Plots were sold to 26 persons to an extent of Acs.7.00. The company M/s.Hira Management Consultants Private Limited decided to develop land into golf course and residential community, entered into Development Agreement with M/s.Kancharla Constructions Private Limited. Even before entering into development agreement, petitioner/Habib Abdul Razzaq Al Baghdadi (Hadi Ali) informed all the 26 plot owners about the development of land and gave option for plot of equal extent in the developed area or refund the money. Out of 26 plots, five sale deeds were cancelled and amounts were refunded to the purchasers. 11 plots were purchased by developer and 10 persons got plots in new Layout.
35. Senior counsel further argued that the Petitioners entered into three registered development agreements-cum-General Power of Attorney in favour of M/s.Kancharla Constructions Private Limited in the year 2016. In each of the development 19 agreements, a clause was included that the company would retain an extent of Acs.7.00 out of Acs.50.00 in Sy.No.80 of Manneguda village to compensate the parties to whom the land owner has earlier sold plots. Out of the extent of Acs.193.00, Acs.7.00 would be demarcated and separated in the supplementary agreement. Accordingly, the details of 26 plot owners were also given in the three documents. The development agreement further stipulates that only after execution of supplementary agreement, sanction of the layout of DTCP, there would be allocation of plots to the land owners and development. However, no supplementary agreement was entered into in between M/s.Hira Multi Constructions Ventures Private Limited and M/s.Kancharla Constructions Private Limited.
36. The question of cheating the defacto complainant of their land does not arise since no title was transferred to M/s.Kancharla Constructions Private Limited. The plots sold to the customers/defacto complainant are safe and question of deceiving the 2nd respondents does not arise. 20
37. Further, a notice was issued to M/s.Kancharla Constructions Private Limited on 01.06.2018 for canceling the development agreement since M/s.Kancharla Constructions Private Limited had committed defaults and irregularities in the violation of the development agreement-cum-GPA. On 04.07.2018, petition was filed under Section 9 of the Arbitration and Conciliation Act, 1996 before the Chief Judge, City Civil Court, Hyderabad and same is pending for appointment of an Arbitrator.
38. Learned Senior Counsel further submits that in Criminal Petition No.8958 of 2018, there is no contractual relation between the petitioner and the defacto respondent/complainant. The 2nd respondent is a stranger to the petitioners. He purchased Acs.2.00 by registered sale deed dated 18.10.2017 from one Syed Moizuddin, which is after execution of three Development Agreement-GPAs in the year 2016. All the DAGPAs are registered and in public domain. For the said reason, the 2nd respondent ought to have taken due diligence before purchase. Further, prior to the purchase of Acs.2.00 from the said Syed Moizuddin, the 21 defacto complainant had purchased 80,000 sq.yds from M/s.Kancharla Constructions Private Limited in the year 2016 and 2017. The said sale deeds were un-authorizedly executed by M/s.Kancharla Constructions Private Limited as GPA holders of the petitioners. As seen from the documents, it is clear that the 2nd respondent was aware of the contents of the DAGPAs executed by the petitioners, which excludes Acs.7.00 of land. In the said circumstances, when there is no contractual relationship between the 2nd respondent and the petitioners and the defacto complainant being a stranger to the petitioners, none of the ingredients of any of the provisions under Sections 420 and 406 of IPC are made out.
39. Learned Senior Counsel relied on the judgment of the Hon'ble Supreme Court in the case of Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others 3, the Hon'ble Supreme Court held that the documents which are of unimpeachable character, can be considered in a proceeding under Section 482 of Cr.P.C. The law was reiterated by the 3 (2008) 13 SCC 678 22 Hon'ble Supreme Court in HMT Watches Limited v. M.A.Abida and others 4 and also in Rajiv Thapar and others v. Madan Lal Kapoor 5.
40. Relying on the judgment in the case of Maksud Saiyed v. State of Gujarat 6, learned Senior Counsel argued that the company M/s.Hira Management Consultants Private Limited was not made as an accused. There are no allegations against the petitioners either personal or in discharge of their statutory duty in the capacity of Directors, accordingly, no vicarious liability can be attached to these petitioners. In case of S.K.Goel and others v. State of Jharkhand and another 7, the High Court of Jharkhand quashed the FIR on the ground of the company not being made as an accused.
41. In P.Nagender Yadav v. State of Telangana and another 8, the Hon'ble Supreme Court held that while exercising jurisdiction 4 (2015) 11 SCC 776 5 2013(3) SCC 330 6 (2008) 5 SCC 668 7 2022 SCC OnLine Jhar 654, 8 (2023) 2 SCC 195 23 under Section 482 of Cr.P.C, the High Court has to look into the facts of the case to see whether the dispute is civil in nature and given cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, criminal proceedings can be quashed to prevent abuse of process of Court.
42. In Mohd.Ibrahim v. State of Bihar 9, the Hon'ble Supreme Court observed that to attract an offence of cheating, the following are the essential ingredients:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
43. Learned Senior Counsel further submitted that proceedings fall within the parameters of 1,5, 7 in the case of State of Haryana v. Bhajan Lal 10's case, which are as follows: 9
(2009) 8 SCC 751 24 "(1) Where the allegations made in the first information report or the complaint, event if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
44. Finally, learned Senior Counsel submitted in Criminal Petition No.12942, 12944, 12945 and 12958 of 2018, the complaints were referred by the Magistrate in violation of the directions of the Hon'ble Supreme Court in Priyanka Srivastava and another v. State of Uttar Pradesh and others 11. In none of the cases affidavits are filed to inform the Court that the defacto complainant had approached the Station House Officer and if complaint was declined, he has approached superior officer as required under Section 154 of Cr.P.C. The Hon'ble Supreme Court in Babu Venkatesh and others v. State of Karnataka 10 AIR 1992 SC 604 11 (2015) 6 Supreme Court Cases 287 25 and another 12 had quashed the proceedings when the affidavits were not filed in accordance with the directions in Priyanka Srivastava's case (supra).
45. Learned counsel appearing on behalf of the respondents/defacto complainants would submit that the petitioners have indulged in dishonestly cheating the purchasers. Though the plots were sold to the defacto complainants, development agreement-cum-GPA was entered into with M/s.Kancharla Constructions Private Limited leading to the defacto complainants loosing their property purchased from petitioners. Since cases are under investigation, this Court may not thwart the investigation which is at the initial stage and the investigation may go on. Only for the reason of there being a civil remedy, it cannot be said that when criminal offences are committed in the very same transactions, the parties cannot resort to filing criminal complaints.
46. Learned counsel relied on the judgment of Hon'ble Supreme Court in the case of Saraswatibai v. Lalitabai 13. The Hon'ble 12 (2022) 5 Supreme Court Cases 639 26 Supreme Court had set aside an order of quashing the FIR by High Court when there was prima facie material against the accused. The Hon'ble Supreme Court held that the High Court was not justified in interfering with the criminal proceedings in exercise of power under Section 482 of Cr.P.C, when Prima facie ingredients of offences are made out.
47. In Kamlesh Kumari and others v. State of Uttar Pradesh 14, the Hon'ble Supreme Court upheld the dismissal order of the Allahabad High Court refusing to quash criminal proceedings in property transactions. The Hon'ble Supreme Court held that if the allegations disclose a civil dispute, the same will not be a ground to hold that criminal proceedings should not continue.
48. In K.Jagadish v. Udaya Kumar G.S and another 15, the Hon'ble Supreme Court held that in transactions, disputes may be both civil and criminal. Only for the reason of availing civil 13 (2019) 16 Supreme Court Cases 272 14 (2015) 13 Supreme Court Cases 689 15 (2020) 14 Supreme Court Cases 552 27 remedy would not mean that the criminal proceedings cannot continue.
49. In Sau.Kamal Shivaji Pokarnekar v. State of Maharashtra and others 16, the Hon'ble Supreme Court held that criminal complaints cannot be quashed at the initial stage and correctness or otherwise of the allegations in the complaint can be decided during trial.
50. As seen from the record, M/s.Hira Multi Constructions Ventures Private Limited represented by its directors (formerly known as M/s.Hira Management Consultants Private Limited) had entered into DGPA with M/s.Kancharla Constructions Private Limited. In the said agreements, both the companies had dealt with 26 plots of land which was sold earlier to the DGPAs being executed. Both have knowledge that the plots of purchasers form part and parcel of the development agreement. However, Acs.7.00 was agreed to be kept aside. 16
AIR 2019 Supreme Court 847 28
51. The agreement between M/s.Hira Multi Constructions Ventures Private Limited and M/s.Kancharla Constructions Private Limited resulted in purchasers of the plots losing their plots where they were specified and demarcated earlier. However, there was an agreement to allot plots separately. But the fact remains that the plot owners were deprived of their plot and were not given possession of any plot alternatively. The said agreement between M/s.Hira Multi Constructions Ventures Private Limited and M/s.Kancharla Constructions Private Limited has resulted in wrongful loss to the purchasers of the plots.
52. To attract an offence of cheating, the essential requirements are i) practice of deception; ii) wrongful loss to the person deceived. M/s.Kancharla Constructions Private Limited dealt with the plots already sold and having knowledge entered into DGPA. Such agreements resulted in wrongful loss to the plot purchasers and attract the offence of cheating. Only for the reason of there being a mention in DGPAs that an extent of Acs.7.00 would be separated to be handed over to the plot purchasers will not suffice. Having agreed, the plot purchasers 29 were not handed over any alternate site. The transactions in question cannot be said to be purely civil in nature and subject matter of civil dispute to be agitated before the civil Court. The acts committed by M/s.Kancharla Constructions Private Limited also attract an offence of cheating.
53. The Managing Director of the company can be held to be liable in the present facts of the case. Only for the reason of being Directors and signatories to the DGPAs, it cannot be said that all the directors can be made vicariously liable. In all the complaints, it is specifically mentioned that Habib Abdul Razzak Baghdadi @ Hadi Ali and his son Mohammed Hadi Ali were approached and transactions were done, both at the time of purchasing the property and also subsequently when the plot purchasers realized that they have been cheated. The petitioners Mrs.Khatija Begum W/o.Mr.Habib Abdul and Mrs.Huda Hadi Ali cannot be mulcted with criminal liability in the present facts of the case only for the reason of they being signatories to the DGPAs in the absence of any role whatsoever attributed to them 30 in the transactions apart from being signatories to the said documents.
54. Criminal Petition Nos.12942, 12944, 12945 and 12958 of 2018 Learned Senior Counsel submitted in all these petitions that there is violation of directions of Hon'ble Supreme Court in Priyanka Srivastava's case (supra). In none of these cases, the defacto complainants have approached the police and there is no affidavit filed along with the complaint to that effect.
55. As already stated, all these cases are outcome of the grievance of the defacto complainants with respect to three DGPA's entered into in between M/s.Hira Multi Constructions Ventures Private Limited and M/s.Kancharla Constructions Private Limited. Since the core issue is the same in all the cases, there need not be multiple FIRs in respect of the very same allegations. The investigating agency can as well file one charge sheet in similar offences. Under Section 220 of Cr.P.C, which is enabling provision, permits the Court to try a person for more than one offence in one trial. Though, it cannot be said that 31 trying offences separately would be an illegality. However, to avoid multiple charge sheets and the cases being tried before different courts, law recognizes that common trial of series of acts so connected together forming the same transaction. The defacto complainants in all the four cases are aggrieved by their plots being taken away on account of the agreement between two companies. Having registered one offence, the subsequent complaints can be treated as Section 161 Cr.P.C statements in the very same case and there is no necessity to register multiple FIRs.
56. Since the cases have already been transferred and now being investigated by the EOW, CID, Telangana State, Hyderabad, the present complaints can also be investigated by the EOW, CID. However, the proceedings against petitioners 3 & 4, who are A3 and A4 in FIR Nos.249, 246, 250 & 251 of 2018, are hereby quashed for the reason of the petitioners 3 and 4 being made vicariously liable only for the reason of being directors in the company.
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57. In Maqsood Saiyed's case (supra), the Hon'ble Supreme Court held that unless it is shown that the Directors are personally liable for any offences, they cannot be prosecuted since IPC does not contain any provision for attracting vicarious liability on the part of the Directors in a company.
58. Criminal Petition No.12951 of 2018 The 2nd respondent and others have admittedly executed a general power of attorney in favour of M/s.Hira Management Consultants Private Limited for developing their lands and to receive sale proceeds from the intending purchasers. The said registered deed was executed in the year 2007 in the office of the Sub Registrar at Vikarabad. The allegation is that they did not have an opportunity to go through the documents. Further, the company had executed AGPAs in favour of M/s.Kancharla Constructions Private Limited. The AGPA was executed in the year 2007 by way of registered deed. Subsequently, the petitioners have acted in accordance with the power of attorney given in their favour.
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59. The dispute if any, is purely civil in nature and the petitioners cannot be mulcted with criminal liability. If the defacto complainant and others are aggrieved by the acts of the petitioners to be in violation of AGPA executed in the year 2007 or that they did not have knowledge of the contents of AGPA executed in the year 2007 and the same can be agitated before a civil Court and not by way of criminal complaint filed 11 years after the AGPA being executed in favour of the petitioners.
60. Accordingly, all the proceedings against the petitioners in FIR No.80 of 2018 on the file of Chengomol Police Station, Vikarabad District are hereby quashed for the reason of the 2nd respondent admitting that they have consented for giving AGPA in the year 2007 in favour of the petitioners. There is no element of deceit to infer an offence of cheating. There are no ingredients to attract an offence of criminal misappropriation either.
61. Criminal Petition No.8958 of 2018 The grievance of the defacto complainant is that he had purchased Acs.2.00 of land totally 9680 sq.yds from his vendor Syed Moizuddin on 28.10.2017 through registered sale deed 34 bearing No.3586 of 2017. The said Syed Moizuddin is arrayed as a witness in the charge sheet which is already filed. The said Moizuddin had purchased the land from these petitioners rep. by by GPA holder who is 1st petitioner on 25.04.2016 vide document No.270 of 2016.
62. The said Moizuddin is not made as an accused either in the FIR or in the subsequent charge sheet which is filed. The main grievance of the defacto complainant is with respect to agreement of three DGPAs executed in favour of M/s.Kancharla Constructions Private Limited in the year 2016.
63. The DGPAs are registered documents and the defacto complainant had purchased the property from Moizuddin. Subsequent to entering into AGPAs, there is no grievance of the 2nd respondent against Syed Moizuddin or M/s.Kancharla Constructions Private Limited purchasing the land in question. It is an admitted fact that the 2nd respondent had purchased 80,000 sq.yds from M/s.Kancharla Constructions Private Limited over a period from 01.10.2016 to 21.06.2017 under six different sale deeds.
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64. Learned Public Prosecutor stated that the charge sheet is already filed in the case. A copy of the said charge sheet is filed before the Court. In the said charge sheet, it is alleged that the petitioners have deceived L.W.1/defacto complainant and L.W.2/vendor of defacto complainant including the developer/L.W.7, Managing Director of M/s.Kancharla Constructions Private Limited.
65. Admittedly, there is no transaction in between the defacto complainant and the petitioners. Even according to the complaint, the vendor of L.W.1 namely Syed Moizuddin/L.W.2 had sold it to the defacto complainant. Admittedly, there is no grievance as against L.W.2/vendor, who sold the land to the defacto complainant nor M/s.Kancharla Constructions Private Limited, who entered into development agreement having knowledge about plot being sold to different purchasers. The defacto complainant had purchased 80,000 sq.yds from M/s.Kancharla Constructions Private Limited.
66. Nothing is entrusted to the petitioners herein by the defacto complainant to attract an offence of criminal misappropriation 36 punishable under Section 406 of IPC. Further, the defacto complainant, as seen from his transactions of purchasing 80,000 sq.yds from M/s.Kancharla Constructions Private Limited, and Acs.2.00 from L.W.2, had knowledge of all the transactions of the Golf course project development by M/S Kancharla Constructions.
67. There is no transaction in between the petitioners and the defacto complainant. The crux of the allegation is that the purchasers have incurred losses on account of agreement in between M/s.Kancharla Constructions Private Limited and M/s. Hira Multi Constructions Ventures Private Limited. There is no act of deception played by these petitioners as against 2nd respondent is concerned and all the documents are registered documents. In the present facts of the case, no offence is made out against the petitioners herein. Accordingly, all the proceedings against petitioners in FIR No.65 of 2018 on the file of P.s.Chengomol, Vikarabad District and consequent Final report are hereby quashed.
68. Criminal Petition Nos.1190 & 1298 of 2018 & 2098/2019: 37
All the three petitions are filed in one case. It is submitted by the learned Public Prosecutor that charge sheet is filed in the said case against A1 to A5 for the offences under Sections 420, 406, 447 and 506 r/w Section 34 of IPC.
69. The defacto complainant is the daughter of the purchaser. The allegation is that A1 and others have sold the plot to the father of the defacto complainant. Without taking permission or written consent, the said plot was given to M/s.Kancharla Constructions Private Limited for the purpose of development. Curiously, though M/s.Kancharla Constructions Private Limited had knowledge about the plots being earlier sold, they have entered into development agreement with A1 company, but M/s.Kancharla Constructions Private Limited is not made as an accused in the charge sheet. No reasons are cited. As already stated, M/s.Hira Multi Constructions Ventures Private Limited and M/s.Kancharla Constructions Private Limited are both responsible for the wrongful loss which occurred to the defacto complainant.
70. However, the allegations against A4 and A5 cannot be sustained. They are only signatories to the documents which were executed. In the charge sheet, M/s.Hira Multi 38 Constructions Ventures Private Limited is made as A1. Except stating that A4 and A5, who are signatories to the documents, no other allegations are made in the final report. The proceedings against A4 and A5, who are added as accused making them vicariously liable on behalf of M/s.Hira Multi Constructions Ventures Private Limited cannot be sustained.
71. Accordingly, the proceedings against A4 and A5 mentioned in the charge sheet as well as in Crime No.173 of 2018 on the file of Chengoomul Police Station, Vikarabad District, are hereby quashed.
72. Criminal Petition No.1190 of 2020 is filed to quash proceedings in C.C.No.330 of 2020 on the file of II Metropolitan Magistrate, Cyberabad against the petitioners and Criminal Petition No.1298 of 2020 is filed to quash the issuance of NBWs dated 30.01.2020 on the file of II Metropolitan Magistrate, Cyberabad at L.B.Nagar. NBWs issued against A4 and A5 are hereby quashed. However, petitioners 2 and 3/A2 and A3 shall appear before the concerned Magistrate within six weeks from 39 today and upon such surrender, NBWs shall be recalled on such terms and conditions as the Learned Magistrate deems fit.
73. Criminal Petition No.8878 of 2018 The grievance of the defacto complainant is that the plot was over on account of agreement between M/s.Hira Multi Constructions Ventures Private Limited and M/s.Kancharla Constructions Private Limited. As already found, wrongful loss is caused to the purchaser of plot. However, 3rd and 4th petitioners, who are signatories to the documents, cannot be made vicarously liable. Accordingly, the proceedings against petitioners 3 and 4/A3 and A4 in FIR No.6 of 2018 on the file of Chengomol Police Station, Vikarabad and transferred to EOW, Hyderabad are hereby quashed.
74. Though learned Public Prosecutor submitted that Syed Moizuddin who is the defacto complainant herein had sold the land in favour of K.Santosh Reddy on 16.11.2017 itself and do not intend to investigate into the case since the subsequent purchaser has not filed the case, however, on the basis of the allegations made in the complaint, petition is decided 40 accordingly. It is for the police to file final report in accordance with the investigation.
75. In the result, Criminal Petition Nos.12942, 12944, 12945 and 12958, 8878, 1190 and 2098 of 2019 are partly allowed, Criminal Petition Ns.12951 & 8958 of 2018 & 1298 of 2020 are allowed. Consequently, miscellaneous applications, if any, shall stand closed.
_________________ K.SURENDER, J Date: 05.09.2023 Note: LR copy to be marked B/o.kvs 41 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION Nos. 12942, 12944, 12945, 12951, 12958, 8958, 8878 OF 2018, 2098 OF 2019, 1190 & 1298 OF 2020 Dt. 05.09.2023 Kvs