Telangana High Court
Namburu Subash And 6 Others vs Sajja Prabhakar And Another on 6 June, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.1 of 2022
O R D E R:
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This Criminal Revision Case is filed by the petitioners-A1 to A7 aggrieved by the order dated 26.12.2019 passed in Crl.M.P.No.1306 of 2019 in C.C.No.1643 of 2018 on the file of the XIV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
2. The respondent No.1 was the complainant. He filed a private complaint on 14.02.2018 against the petitioners herein alleging them for the offences under Sections 120-B, 406, 418 and 420 read with Section 34 of IPC. Vide order dated 19.11.2018, the learned XIV Additional Chief Metropolitan Magistrate, Hyderabad took cognizance against the petitioners for the offences under Sections 120-B, 406, 418 and 420 read with Section 34 of IPC The same was numbered as C.C.No.1643 of 2018. The petitioners filed a discharge petition under Sections 245(2) and 258 of the Cr.P.C., 1973 on 07.02.2019 vide Crl.M.P.No.1306 of 2019 in C.C.No.1643 of 2018. The said petition was dismissed by the XIV Additional Chief Metropolitan Magistrate, Hyderabad vide impugned order dated 26.12.2019. Aggrieved by the said dismissal of the discharge petition filed by them, the petitioners preferred this Revision.
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3. Heard Sri Yelamanchali Shiva Santosh Kumar, the learned counsel representing Sri TRVSSSV Prasad, the learned counsel for the petitioners- A1 to A7 on record, Sri P. Krishna Prakash, the learned counsel for the respondent No.1-complainant and the learned Additional Public Prosecutor representing respondent No.2.
4. Learned counsel for the revision petitioners submitted that the allegations in the complaint taken on their face value would not establish any factual foundation to the required ingredients of the offences alleged to be committed under Sections 120-B, 406, 417, 420 read with Section 34 of IPC. The trial court applied a general precept of law that everything could be seen at trial which would make an easy and formulaic adjudication, but was in complete abdication of the responsibility cast upon it to atleast properly understand the facts. The facts alleged in the complaint would by no stretch of imagination would attribute criminality. It was evident from the uncontested facts that it was only a civil dispute with no element of criminality of any nature. It was a textbook case for the exercise of revision powers to discharge the petitioners, as a pure civil dispute was given a criminal cloak. The criminal complaint was filed four years after a civil suit vide O.S.No.825 of 2014 was filed by the complainant and suppression of the said fact by itself was sufficient to allow the revision case as the 3 Dr.GRR, J Crl.R.C.No.1 of 2022 complaint was a copy paste of the civil suit. As per the precedential authority of the Hon'ble Apex Court in M/s. Indian Oil Corporation Vs. NEPC India Limited 1, the criminal court should never be permitted to be abused as a forum to pressurize and settle purely civil disputes. Allowing this criminal trial would lead to complete miscarriage of justice by harassing one with the machinery of criminal justice system.
4.1. The complainant alleged that he obtained some rights as an agreement holder to the agreement dated 22.04.1998. As such, his remedy was purely civil as contained in the agreement itself. The agreement by itself would not lead to any direct right in the property as it was an unregistered document. The very nature of the agreement was that if the land was reverted back, land owners would execute registered deeds in favour of parties of the second part, failing which suit for specific performance could be preferred. The complainant to secure any right in the property must receive a successful decree of the civil court inter alia proving that he performed the obligations under the agreement dated 22.04.1998 and that his alleged rights as an agreement holder would continue to subsist and had not been parted away with. The complainant could not do that till date. The civil suit filed by the complainant vide O.S.No.825 of 2014 was pending for adjudication of application under Order VII Rule 11(a) and (d) for lack 1 (2006) 6 SCC 736 4 Dr.GRR, J Crl.R.C.No.1 of 2022 of cause of action, as it was filed as a partition suit. The complainant admittedly received consideration (whether full or partial) atleast to an extent of Rs.4 crores to part away his rights as an agreement holder. It was crystal clear from the counter filed by him in the discharge petition before the trial court, that by itself would show that his rights as an agreement holder stood varied in some form and manner on receipt of valuable consideration. It was an utter abuse of process that such an admitted fact was suppressed and a private criminal complaint was filed four years later based on alleged rights as an agreement holder under the agreement dated 22.04.1998. Suppressing the civil proceedings and filing a complaint basing entirely on the averments in the plaint itself would show that the allegations in the complaint were utterly shorn of any criminality whatsoever. The bare facts taken from the complaint would fail to satisfy the ingredients of the offences mentioned in the complaint as taken cognizance of. Permitting prosecution in a highly belated criminal case wholly without any factual foundation to continue, would amount to a complete miscarriage of justice. Continuation of prosecution was only to harass the petitioners, as such, prayed to allow the revision by setting aside the order of the trial court in dismissing the discharge petition filed by the petitioners. 5
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5. The learned counsel for respondent No.1-complainant on the other hand contended that the judgment under revision was pronounced on 26.12.2019, but the present revision was filed on 31.12.2021 without explaining the delay in presentation of the revision. The material filed along with the revision petition would clearly establish that all the documents filed have to be established during the course of trial. Hence, it was not a fit case to be considered for discharge. Section 258 of Cr.P.C. had no application to the facts of the present case. The trial court rightly dismissed the above petition for discharge holding that a detailed enquiry was necessary into the case and that the allegations and counter allegations could not be decided at the present stage unless full-fledged trial was conducted. 5.1. Learned counsel for the respondent No.1-complainant further contended that as per the contention of the petitioners-accused, the respondent No.1 sold away his share to petitioner No.4-A4 for Rs.7,00,00,000/- by executing the agreement of sale on 28.08.2006. In fact, there were two sale agreements that took place between the respondent No.1 and A4. As per the sale agreement dated 28.08.2006, the respondent No.1 sold away part of his share for Rs.7,00,00,000/- and the petitioner No.4 failed to perform his part of contract and paid only Rs.4,00,00,000/- under five receipts and he had not paid the remaining balance amount of 6 Dr.GRR, J Crl.R.C.No.1 of 2022 Rs.3,00,00,000/- to the respondent No.1 and fabricated some receipts with the help of petitioner No.1. The respondent No.1 sold only part of his share and the same was evident from the legal notice dated 16.08.2013 issued on behalf of petitioner No.4/A4 to the owners of the property with a copy to the respondent No.1. The respondent No.1 executed sale agreement in favour of petitioner No.4 as part of his share for Rs.7,00,00,000/- and executed the agreement of sale in two original copies. One original copy was with the respondent No.1 and another original copy was with the petitioner No.4-A4. On the same day, a supplementary agreement of sale was also entered by the respondent No.1 and petitioner No.4 and the same was also reduced into two original copies.
5.2. He further submitted that one Pendurthi Chandramohan Chowdhary attested his signature on all the four sale agreements and supplementary agreements. The petitioner No.4, the respondent No.1 and Pendurthi Chandramohan Chowdhary were present, except them nobody was present. Later, the petitioner No.4 failed to fulfill his part of contract and the agreement dated 28.08.2006. If really, the petitioner No.4 was claiming his right in the share of the respondent, he might have filed a suit for specific performance of an agreement of sale against the respondent. The respondent was not aware of the transactions that took place in between petitioner No.4- 7 Dr.GRR, J Crl.R.C.No.1 of 2022 A4 and petitioner No.1-A1 that A4 should not enter into any type of sale agreements and sale transactions in pursuance of the agreement dated 28.08.2006 and also supplementary agreement dated 28.08.2006 with petitioner No.1, petitioner No.4 and their nominees. 5.3. He further submitted that as there were disputes between the respondent No.1 and petitioner No.1, petitioner No.4 agreed for the proposal made by the respondent in the presence of Pendurthi Chandramohan Chowdhary. The alleged receipts passed by the respondent No.1 were not correct and those receipts were fabricated, because the attestors of the receipts were not present and subsequently the accused might have obtained the signatures of the attestors on the receipts dated 30.08.2006 and 27.01.2007. In fact, on 24.01.2007, petitioner No.4 paid an amount of Rs.1,00,00,000/- to the respondent and also petitioner No.4 gave photostat copy of the receipt to the respondent No.1 in which there was no signature of attestors in the receipts dated 24.01.2007. With regard to receipts dated 02.02.2007, they were fabricated and forged documents. In fact, petitioner No.4-A4 paid only Rs.4,00,00,000/- to the respondent and failed to pay the remaining Rs.3,00,00,000/- to the respondent till today. As such, the agreement dated 28.08.2006 had no value as A4 failed to fulfill his part of the contract. If really, A4 paid Rs.3,00,00,000/- on 02.02.2007 in the 8 Dr.GRR, J Crl.R.C.No.1 of 2022 presence of Pendhurti Chandramohan Chowdhary, he might have requested him to attest his signatures as an attestor on the receipts dated 02.02.2007. In fact, the alleged attestors on the alleged receipts would not have attended at the time of passing of the same by the respondent in favour of A4. The attestors were the close persons of petitioner No.1. Had the respondent No.1 sold away his share for Rs.7,00,00,000/- to A4, the A1 to A3 might have obtained the affidavit of the respondent No.1 and also signatures as an attestor on the conveyance deed. The petitioners 2 and 3, the original land owners ought to have issued legal notice to the respondent No.1 to enquire with regard to sale of his rights to A4, the alleged nominee of petitioner No.1. The said aspect would show as to how the petitioners played fraud against the respondent No.1 for their wrongful gain. 5.4. He further submitted that the land owners Smt. P. Rukmini and Smt. M. Krishnaveni executed two registered special power of attorneys in favour of the petitioner No.1-A1 and in favour of the respondent No.1 and P. Satyanarayana Rao. In the conveyance deed dated 07.07.2008, vide document No.5145 of 2008, it was clearly mentioned about the special power of attorneys executed by Smt. P. Rukmini and Smt. M. Krishnaveni in favour of the respondent No.1 and petitioner No.1-A1. The respondent No.1 was no way concerned with regard to entering of sale agreements by the 9 Dr.GRR, J Crl.R.C.No.1 of 2022 petitioner No.1-A1 with the petitioner No.4-A4. The petitioner No.4 had no right in the share of the respondent No.1. If really, the petitioner No.1 purchased the share of the respondent through the petitioner No.4, he might have mentioned the same fact in the conveyance deed. That itself would show how the petitioner No.1 and petitioner No.4 colluded together for their wrongful gain.
5.5. He further submitted that one A. Veerabhadra Rao filed O.S.No.1029 of 2013 before the III Additional District Judge, Ranga Reddy District in which the petitioner No.1-A1 filed I.A.Nos.812 of 2013 and 813 of 2013 and also filed counter affidavit in I.A.No.724 of 2013 in which A1 had not mentioned about purchasing of the share of the respondent from A4. In fact, the petitioner No.1 clearly mentioned in his affidavit in O.S.No.1029 of 2013 that A4, A. Verabhadra Rao and B. Kanthamma were no way concerned with the agreement of contract dated 22.04.1998. If the same was true, then there was no explanation as to why A1 paid Rs.25,00,000/- to B. Kanthamma and Rs.48,00,000/- to A. Veerabhadra Rao.He further submitted that a full-fledged trial would need to be conducted for establishing the alleged offences for which cognizance was taken of by the trial court and prayed to dismiss the revision with exemplary costs. 10
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6. The learned Additional Public Prosecutor supported the orders of the trial court in dismissing the discharge petitions filed by the revision petitioners and contended that the guilt or innocence of the revision petitioners could be established only after a full-fledged trial and prayed to dismiss the revision. He further contended that the order of taking cognizance was not challenged by the revision petitioners.
7. On hearing the arguments of both the learned counsel, the points for consideration before this Court are as follows:
1. Whether there is any delay in filing the revision?
2. Whether the trial court committed any illegality or irregularity in dismissing the discharge petition filed by the petitioners-accused Nos.1 to 7?
3. Whether a civil wrong was converted into a criminal case?
4. Whether there was any material consistent with the accusation made by the complainant to frame charges for the alleged offences under Sections 120-B, 406, 418 and 420 read with Section 34 of IPC against the petitioners-
accused Nos.1 to 7?
8. Before answering the above points, it is considered necessary to go through the facts stated by the complainant in his private complaint. The respondent No.1-complainant stated in his complaint that the accused No.1 was his partner and both carried on Real Estate business for a considerable 11 Dr.GRR, J Crl.R.C.No.1 of 2022 time and subsequently, some misunderstanding arose between them and thereafter both were doing their businesses independently. The accused No.2 was the brother of A1. A1 and A2 were partners of A3 firm. A4 was one of the co-sharers under the Agreement of Contract dated 22.04.1998 and A5 was the wife of A4 and A6 & A7 were the children of A4. All the accused conspired and colluded together and caused loss to the complainant and cheated the complainant with a fraudulent intention. 8.1. The complainant further submitted that the family members of one Thota China Sitaramayya approached the complainant and A1 and informed them that their father Thota China Sitaramayya purchased the land to an extent of Acs.95-24 guntas in Sy.Nos.208 to 213 in Kondapur Village, Hyderabad vide registered sale deeds bearing document Nos.664/1961 and 1269/B1/1961 registered in the office of Sub-Registrar, Hyderabad. The family members of Thota China Sitaramayya informed the complainant and A1 that their lands were acquired by the Government as surplus land and the same was allotted to the Social Welfare Department and thereafter, the above mentioned land was given to 8th Battalion. The family members of Thota China Sitaramayya informed the complainant and A1 that they were not in a position to get back their lands from the Government and they had no financial capacity and also they had no legal knowledge to get back their 12 Dr.GRR, J Crl.R.C.No.1 of 2022 land from the Government. As per the negotiations, which took place in the month of February, 1998 in between the family members of Thota China Sitaramayya, the complainant and A1 pertaining to the landed property, the complainant and A1 obtained legal opinion and came to know that there was a little chance to get back the lands of some of the family members. Smt. P. Rukmini and Smt. M. Krishnaveni, who were the daughters of Thota China Sitaramayya and the said fact was informed to the family members of Thota China Sitaramayya. On that, Smt. P. Rukmini executed two registered Special Power of Attorneys in favour of the complainant and also in favour of A1 on 18.04.1998 vide registered document No.32 of 1998, registered in the office of Sub-Registrar, Nellore. Smt. M. Krishnaveni also executed a Special Power of Attorney in favour of the complainant and in favour of A1 on 13.04.1998 vide registered document No.63 of 1998, registered in the office of the Sub-Registrar, Ranga Reddy District. 8.2. The complainant further submitted that again on 20.04.1998, negotiations took place in between the complainant, A1, Smt. B. Kanthamma, A. Veerabhadra Rao, G. Satyanarayana (petitioner No.4-A4) and the family members of Thota China Sitaramayya and subsequently, on 22.04.1998, an agreement of contract was entered by A1 and others as second part and the family members of Thota China Sitaramayya as first 13 Dr.GRR, J Crl.R.C.No.1 of 2022 party. As per the recitals of the agreement of contract dated 22.04.1998, the first party agreed to take 40% of share and agreed to give 60% of share to the second party. First party to the Agreement of Contract expressed their intention that they were not in a position to invest single pie to get back their land from the Government and that the second party had to invest the amount with regard to filing of cases before different courts by engaging efficient advocates and also to spend more time with regard to attending courts and offices of the Revenue Department. For that,the second party agreed and entered into an Agreement of Contract on 22.04.1998 with the family members of Thota China Sitaramayya.
8.3. The complainant further submitted that he along with A1 paid an amount of Rs.50,000/- to the family members of Thota China Sitaramayya and obtained receipt from them. Again an amount of Rs.50,000/- was paid on 13.07.1998 to the son of Thota China Sitaramayya. As per the agreement, the complainant got 20% share, A1 got 20% share, Smt. B. Kanthamma got 7.5% share, A. Veerabhadra Rao got 5% share and G. Satyanarayana got 7.5% share in the property mentioned in the Agreement of Contract dated 22.04.1998. Smt. P Rukmini, Smt. M. Krishnaveni and their family members got 40% share in the property. Subsequently, an oral understanding took place between A1, Smt. P. Rukmini and Smt. M. 14 Dr.GRR, J Crl.R.C.No.1 of 2022 Krishnaveni and the shares of complainant and A1 were enhanced from 20% to 25% and the shares of Smt. P. Rukmini, Smt. M. Krishnaveni and their family members got reduced to 30%.
8.4. The complainant further submitted that he and his partners filed Writ Petitions before the High Court of Andhra Pradesh vide W.P.No.28157 of 1998 and other Writ Petitions questioning the orders passed by the Special Officer and competent authority under Urban Land Ceiling Act and the same was allowed in favour of the first party. Aggrieved by the said order, the Special Officer and Competent Authority, ULC, Hyderabad, preferred an appeal before the Hon'ble Apex Court in Civil Appeal Nos.5314 to 5319 of 2000. The Hon'ble Supreme Court of India in its judgment dated 11.08.2016, allowed the appeal filed by the State against some of the family members of Thota China Sitaramayya, but dismissed the appeals filed by the State against Smt. P. Rukmini and M. Krishnaveni. As per the judgment of the Hon'ble Apex Court, Smt. P. Rukmini and Smt. M. Krishnaveni got an extent Acs.8-58 cents of land each and both were entitled to an extent of Acs.17-16 cents in Sy.Nos.208 and 209 of Kondapur Village, Serilingampally Mandal of Ranga Reddy District. The Urban Ceiling Authority had given physical possession of the land to Smt. P. Rukmini and M. Krishnaveni on 06.02.2008. But the said fact was suppressed by A1, 15 Dr.GRR, J Crl.R.C.No.1 of 2022 Smt. P. Rukmini and Smt. M. Krishnaveni. On 01.08.2013, the Government of Andhra Pradesh released the balance land of an extent of Acs.18-34 gts. to Smt. P. Rukmini and Smt. M. Krishnaveni in Sy.Nos. 208 and 209 of Kondapur Village, Serilingampally Mandal of Ranga Reddy District and handed over the said land to Smt. P. Rukmini and Smt. M. Krishnaveni in the month of August 2013. Thus, the total extent of Acs.36-01 gts. of land was released by the Government of Andhra Pradesh in Sy.Nos.208 and 209 of Kondapur Village to Smt. P. Rukmini and Smt. M. Krishnaveni. 8.5. The complainant further submitted that he got 25% share in Acs.36- 01 gts. of land as per the Agreement of Contract dated 22.04.1998. A1, Smt. P. Rukmini and Smt. M. Krishnaveni conspired together and hatched a plan to cause loss to the complainant and others and with an intention to cheat him, executed a Conveyance Deed dated 07.07.2008 in favour of A3 M/s. Sumeru Infrastructure Park represented by its Managing Partner, A1. 8.6. The complainant further submitted that he invested huge amounts and also spent his valuable time to get back the land mentioned in the Agreement of Contract dated 22.04.1998 whereas, A1, P. Rukmini and M. Krishnaveni along with other accused conspired and cheated the complainant for wrongful gain and executed a Conveyance Deed in favour of A3 by playing fraud against the complainant.
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Dr.GRR, J Crl.R.C.No.1 of 2022 8.7. The complainant further submitted that he approached P. Rukmini and M. Krishnaveni and demanded them to execute registered sale deed in his favour pertaining to his share. They promised that they would settle the issue and would execute the registered sale deed in his favour, but contrary to their promise, they executed another deed of conveyance dated 04.09.2013 vide document No.2905/2013 in favour of A3 firm represented by A1.
8.8. The complainant further submitted that A4 colluded with A1 and A2 and got issued legal notice through his Advocate on 16.08.2013 and demanded the first party to execute the sale deed in his favour pertaining to his share in respect of Agreement of Contract dated 22.04.1998 and A4 suppressed that he obtained registered sale deeds from A3 firm represented by A2 in the name of his wife A5 and in favour of his son A6. A3 firm represented by A2 executed a registered sale deed in favour of A5 and A6 in the month of March, 2013 vide registered document Nos.5265 of 2013 and 5266 of 2013 dated 26.03.2013. Again on 26.11.2015, A3 firm represented by A2 executed a registered sale deed in favour of A7. A1 to A3 had no absolute title over the property. A3 firm had no right to execute the sale deeds in favour of A5, A6 and A7 and those documents were fabricated and fictitious.
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9. The complainant examined himself and also some other witnesses in support of his claim.
10. Considering the statements of the complainant and other witnesses and the documents produced by the complainant, the trial court took cognizance of the offences under Section 120-B, 406, 418 and 420 read with Section 34 of IPC against A1 to A7. The case was numbered as C.C.No.1643 of 2018. Subsequently, the petitioners filed a discharge petition under Sections 245(2) and 258 of Cr.P.C.. Section 258 of Cr.P.C. had no application to the facts of the case as it was pertaining to the trial of summons cases. Section 245 of Cr.P.C. was pertaining to trial of warrant cases by the Magistrates and the correct provision applicable for filing a discharge petition by the petitioners-A1 to A7 was under Section 245(2) of Cr.P.C.. The trial court, on considering the contents of the discharge petition filed by the petitioners-A1 to A7 as well as the counter filed by the respondent No.1-complainant and on hearing both the learned counsel on record representing the parties and the documents filed along with the complaint by the complainant observed that:
"12. Whatever it may be from the above discussion, it is apparent that there is a clear dispute about the share of the property and which prima facie strengthens the contention of the respondent/complainant for the offence under sections 406, 420 of IPC. So, on plain perusal of the entire record, this Court observed that there is a prima facie case 18 Dr.GRR, J Crl.R.C.No.1 of 2022 levelled against A1 to A7 which needs a detailed enquiry. At this stage, without conducting an inquiry, this Court cannot decide the contentions raised by the petitioners in discharge petition, and it will be decided only after the full-fledged trial. Hence, this Court felt the present petition is pre-matured and this petition is dismissed."
P O I N T No.1:-
Whether there is any delay in filing the revision?
11. The contention of the learned counsel for the respondent No.1 was that there was delay in filing the revision and no explanation was given by the revision petitioners with regard to the said delay. The order under revision was pronounced on 26.12.2019, but the revision was filed on 31.12.2021. As seen from the record, the petition for discharge filed by the revision petitioner was dismissed on 26.12.2019. A copy application for the same was filed on 27.12.2019 and the copy was made ready on 06.01.2020. The period of limitation for filing the criminal revision was 90 days under Entry 131 of the Schedule to the Limitation Act, 1963. Ordinarily, the limitation period would have ended on 06.04.2020. Due to pandemic, the Hon'ble Apex Court suspended the period of limitation of all the proceedings between the period 15.03.2020 to 02.10.2021 vide orders in Miscellaneous Application No.665 of 2021 in SMW (C) No.3 of 2020 dated 23.09.2021. The Hon'ble Apex Court further directed that in all the cases, where the limitation would ordinarily be expiring between the period 19 Dr.GRR, J Crl.R.C.No.1 of 2022 15.03.2020 to 02.10.2021, there would be an additional limitation period of 90 days with effect from 03.10.2021, notwithstanding the actually available balance period of limitation. In the present case, the limitation would have expired on 06.04.2020, which would fall between the stated period between 15.03.2020 to 02.10.2021. As such, 90 days period with effect from 03.10.2021 would end on 01.01.2022. The present petition was filed on 31.12.2021, as such, the petition was filed within the period of limitation and this Court does not find any merit in the contention of the learned counsel for the respondent No.1-complainant with regard to the delay in filing the petition.
P O I N T Nos. 2 and 3:
2. Whether the trial court committed any illegality or irregularity in dismissing the discharge petition filed by the petitioners-accused Nos.1 to 7?
3. Whether a civil wrong was converted into a criminal case?
12. As seen from the contents of the complaint, the complaint was made on the basis of an inchoate and uncrystallized contractual right from an agreement dated 22.04.1998. The complaint was made 4 years after filing the suit numbered as O.S. No. 825 of 2014 which involved identical facts. The same would prima facie disclose that adjudication was purely civil in nature 20 Dr.GRR, J Crl.R.C.No.1 of 2022 and the lis at best is a mere breach of contract going by the complaint averments. The land owners were not shown as accused in the complaint. In the counter filed by the complainant in Crl.M.P.No.1306 of 2019, the complainant accepted that the petitioner No.4-A4 acted as a conduit for the 1st Petitioner and purchased his rights (whether fully or partially) by way of an agreement dated 28.08.2006. He agreed upon receipt of part of the consideration out of Rs.7,00,00,000/- in the agreement dated 28.08.2006. He admitted receipt of Rs.4,00,00,000/-, though not the entire sum as claimed in the discharge petition. Thus, as seen from the uncontroverted facts, the complainant entered into an agreement dated 28.08.2006 to sell his rights arising out of the agreement dated 22.04.1998, and received atleast an amount of Rs 4,00,00,000 / - as valuable consideration towards the same. Once there was an agreement dated 28.08.2006 to sell the complainant's right as an agreement holder under the agreement dated 22.04.1998 to the 4th petitioner and admitted the receipt of valuable sale consideration of Rs.4,00,00,000/-, the allegations miserably fail to disclose the commission of any criminal offence.
The complainant failed to disclose about the agreement dated 28.08.2006 and receipt of valuable consideration of Rs.4,00,00,000/- in pursuant to the agreement dated 28.08.2006 in his complaint dated 14.02.2018 but accepted the same only in his counter dated 18.10.2019 in Crl.M.P. No.1306 of 2019 in C.C.No.1643 of 2018.
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13. The contention of the learned counsel for the petitioners was that 4th petitioner in turn entered into an agreement dated 28.08.2006 to sell all the rights purchased from the complainant to the 1stpetitioner herein, and the said document was filed along with the discharge petition. The documentary evidence filed along with the discharge petition would disclose that the 1stpetitioner purchased out the shares of other parties of the second part to the agreement dated 22.04.1998, and the landowners accordingly executed the registered deeds dated 07.07.2008 and 04.09.2013 in favour of the 3rd petitioner partnership firm, of which the 1st petitioner was the Managing Partner. Regardless of dispute with regard to receipt of consideration in full, the transaction would disclose that it was purely civil in nature. All the parties of the second part to the agreement dated 22.04.1998 would be considered as mere agreement holders, until the land-owners validly conveyed the property to them by way of a registered instrument. It was only a mere possibility at the time of the agreement dated 22.04.1998 to convey the land that would be reverted back to the original landowners from the State Government. If such conveyance was at variance to the rights of any agreement holder in terms of the agreement dated 22.04.1998, it would amount to breach of the agreement dated 22.04.1998 and the agreement holder could only seek specific performance from the landowners. It would show that the transaction was quintessentially civil in nature, shorn of any 22 Dr.GRR, J Crl.R.C.No.1 of 2022 criminality. An agreement to transfer immovable property at a future date for services rendered would not effect any transfer, until a registered conveyance deed was executed.
14. The complainant filed O.S.No.825 of 2014 on 31.10.2014, four years prior to filing the present complaint on 14.02.2018. However, he failed to state about the civil case filed by him. The contents of the plaint in O.S.No.825 of 2014 were exactly similar to the contents of the complaint filed by the respondent No.1-complainant on 14.02.2018. It would clearly show that the same averments of an entirely civil in nature were encapsulated in the present complaint to give it a criminal colour. The contents of the complaint dated 14.02.2018 were literally mirror of the plaint averments in O.S.No.825 of 2014.
15. The Hon'ble Apex Court in Mohd. Ibrahim & Ors. Vs. State of Bihar& Anr. 2 held that:
7. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment.
Criminal courts should ensure that proceedings before it 2 (2009) 8 SCC 751 23 Dr.GRR, J Crl.R.C.No.1 of 2022 are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See: G. Sagar Suri v. State of U.P. [2000 (2) SCC 636] and Indian Oil Corporation vs. NEPC India Ltd. [2006 (6) SCC 736].
16. The Hon'ble Apex Court in M/s. Indian Oil Corporation Vs. NEPC India Limited (1 supra) also deprecated the growing tendency in business circles to convert purely civil disputes into criminal cases and held that:
"...This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
17. It was also held that if all the allegations in the complaint were taken at their face value, there would be no case of 'criminal breach of trust'. The mere fact that the complaint would relate to a commercial transaction or breach of contract, for which a civil remedy was available or had been availed, was not by itself a ground to quash the criminal 24 Dr.GRR, J Crl.R.C.No.1 of 2022 proceedings. The commercial transaction or dispute may also involve criminal offence. Hence, it is considered necessary to answer point No.4. P O I N T No.4:-
Whether there was any material consistent with the accusation made by the complainant to frame charges for the alleged offences under Sections 120-B, 406, 418 and 420 read with Section 34 of IPC against the petitioners-accused Nos.1 to 7?
SECTION 406 of IPC:-
18. Section 406 of IPC deals with punishment for criminal breach of trust. Criminal breach of trust is defined in Section 405 of IPC. Section 405 of IPC makes it manifest that when a person is entrusted with the property, or with any dominion over property, and if he dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, then the person is said to have committed the offence of criminal breach of trust. The explanations 1 and 2 appended to S. 405 make the position very clear that only when there is an entrustment of some property to the accused and when they consequently dishonestly misappropriate the said property or convert it to their own use or dispose of such property, it is only then that S. 405 is attracted. The illustrations (a) to (f) given under S. 405 amplify the above position. An 25 Dr.GRR, J Crl.R.C.No.1 of 2022 allegation of entrustment of property to the petitioners and consequent breach of such trust is a sina qua non ingredient to constitute the offence punishable under Section 406 of IPC.
19. As seen from the present facts and circumstances, there is absolutely no allegation whatsoever that any property belonging to the complainant was entrusted to the petitioners in any manner. Without any entrustment of property at all, the consequent breach of trust does not arise. The complainant is a mere agreement holder pursuant to the terms of the agreement dated 22.04.1998, and there is no entrustment of property by any stretch of interpretation by the complainant to the petitioners. Therefore, on the face of the allegations as contained in the complaint, there was absolutely no offence whatsoever to be constituted against the petitioners for the offence of criminal breach of trust punishable under Section 406 of the IPC.
SECTION 417 of IPC:-
20. Section 417 deals with punishment for cheating. 'Cheating' is defined in Section 415 of IPC. The Hon'ble Apex Court in Hridaya Rangan Prasad Verma and Ors. Vs. State of Bihar and Anr.3 held that: 3
2000 (4) SCC 168 26 Dr.GRR, J Crl.R.C.No.1 of 2022 "Section 415 of IPC which defines cheating requires -
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that perSon in body mind, reputation or property.
In the definition there are set forth two separate classes of acts which the person deceived may be induced to do. in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.
Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
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Dr.GRR, J Crl.R.C.No.1 of 2022
21. From the ingredients of Section 415 of IPC, deception is the quintessence of the offence of cheating. For a person to be guilty of cheating another person, there must be an allegation that a false representation was made by the accused to the person deceived knowing fully well that the said representation was false to his knowledge at the time of making it and thereby he must induce the person deceived to deliver any property to him and consequently the person deceived must sustain damage or harm either in body, mind, reputation or to any property.
22. As per the facts of the prosecution case taken as it is, there is not even a whisper that the petitioners made any false representation to the complainant. The basic postulate for comprising an offence under Section 415 of IPC is missing in the gravamen of allegations against the petitioners. From a reading of the averments in the complaint in entirety and accepting the said allegations to be true, the ingredient of intentional inducement on the part of the petitioners right from the beginning of the agreement dated 22.04.1998, is wholly absent, as such, no offence punishable under Section 417 of IPC is constituted against the petitioners.
SECTION 420 OF IPC:-
23. Section 420 of the IPC deals with punishment for Cheating and dishonestly inducing delivery of property. The ingredients of Section 415 28 Dr.GRR, J Crl.R.C.No.1 of 2022 of IPC is essential while dealing with the ingredients of Section 420 of IPC as well. Since the ingredients of Section 415 of IPC are not found, there cannot be an offence under Section 420 of IPC also. As per Section 420 of IPC, there should not only be cheating under Section 415, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived;
(i) to deliver any property to any person, OR
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
24. It is not the case of the complainant that any of the petitioners herein tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it the case of the complainant that they offered him any fraudulent or dishonest inducement to deliver to them any of his property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. As such, no offence punishable under Section 420 of the IPC is made out against the petitioners herein.
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Dr.GRR, J Crl.R.C.No.1 of 2022 SECTION 120-B:-
25. Section 120-B deals with punishment for criminal conspiracy. Section 120-A defines what is criminal conspiracy. To constitute criminal conspiracy. There must be an agreement between two or more persons to do or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means. The essence of a criminal conspiracy, punishable under S.120-B, is an agreement to do an illegal act. The term "illegal" is defined under S. 43 of the IPC. The definition makes it manifest that it is applicable only to a fact or situation which is an offence or which is prohibited by law. Unless the facts and circumstances would disclose commission an offence under Sections 406, 417 or 420, there exists no question of an agreement with any other person to do an illegal act or an offence or even to do an act which is not illegal by illegal means.
26. Further, it is essential under Section 120-A of IPC that there should be meeting of minds between the conspirators for the intended object of committing an illegal act or committing an act which is not illegal, by illegal means. Except for using the word "conspire", there is absolutely nothing in the averments of the complaint connecting the petitioners herein with the commission of the crime of criminal conspiracy. The complaint 30 Dr.GRR, J Crl.R.C.No.1 of 2022 averments do not reveal any story of conspiracy. No offence punishable under S. 120-B is made out and constituted from the facts of the case. SECTION 34 of IPC:-
27. The essence of Section 34 lies in common intention, which denotes action in concern and necessarily postulates a pre-arranged plan, and a prior meeting of minds. Conjoint intention is key. The common intention must be there prior to the commission of any offence, and each and every one must be aware of the act to be committed. In the averments of the complaint, except for alleged disjointed acts by the petitioners, there is no factual foundation whatsoever to evidence of any sort of pre-arranged plan between the petitioners. In fact, the petitioners could not have possibly entered into any plan, for they are not the original landowners. The common intention must be in relation to a criminal act. As there is no such criminal act punishable under Sections 406, 417, and 420 of IPC, no offence is constituted under Section 34 of IPC, on the present facts emanating from the record.
28. As such, the trial court erred in not considering that there is no sufficient material on record to substantiate the allegations against the petitioners. The Trial Court proceeded in an entirely mechanical manner without making any attempt to appreciate the facts of the case, which were 31 Dr.GRR, J Crl.R.C.No.1 of 2022 civil in nature and the transaction between the parties was without any elements of criminal offence. The trial court failed to see that the complaint was insufficient to disclose the commission of any offence under Sections 120B, 406, 417, 420 read with Section 34 of IPC.
29. In the result, the Criminal Revision Case is allowed setting aside the order dated 26.12.2019 passed in Crl.M.P.No.1306 of 2019 in C.C.No.1643 of 2018 on the file of the XIV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad and the petitioners-A1 to A7 are discharged from the alleged offences under Sections 120-B, 406, 417, 420 read with Section 34 of IPC.
As a sequel miscellaneous applications pending in this appeal, if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 06 -06-2024.
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