Andhra Pradesh High Court - Amravati
Uriti Seetharam vs State Of Ap on 26 October, 2024
APHC010873842018
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
SATURDAY ,THE TWENTY SIXTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NO: 12519/2018
Between:
Uriti Seetharam ...PETITIONER/ACCUSED
AND
State Of Ap and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/accused:
1. MEKA RAHUL CHOWDARY
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. P SRI RAM
The Court made the following:
2
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ORDER:
This criminal petition is filed under Section 482 of Criminal
Procedure Code (for short "Cr.P.C.") to quash the charge sheet in
C.C.No.588 of 2017 on the file of the Judicial Magistrate of
the I Additional Chief Metropolitan Magistrate, Visakhapatnam,
registered for the offence punishable under Sections 420, 323, 406,
477A read with 156 (3) of Indian Penal Code (for short "I.P.C.").
2) Petitioner herein is the accused. Respondent No.2 is the
complainant. Respondent No.2 herein filed private complaint under
Sections 190 and 200 Cr.P.C. before the Metropolitan Magistrate's
Court, Visakhapatnam alleging that he is the absolute owner of
Ac.5-00 of land bearing Survey No.275/1A situated at Adivivaram
village, Chinagadila Mandal, Visakhapatnam District. Way back in
the year 2003 the accused along with another person by name
Namburi Venkata Surya Varaha Ramakrishna Rao approached the
complainant while he was at Visakhapatnam and said that they are
the residents of Visakhapatnam and they will look after the affairs of
the property i.e., Ac.5-00 of land which belongs to the complainant
and in pursuance of it they obtained "Angikara Oppanda patram"
from the complainant, as per the said document the accused along
with the another person secured the intending purchasers and also
prepared lay out and other formalities for selling of the said property,
except plot No.1, 2, 3 situated in the said Ac.5.00 of the land. The
complainant employed the accused to secure the intending
purchasers for selling the property of the complainant. As per the
said document, if the accused get in contact with the purchasers
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and after the sale is materialized, they will receive advance of sale
consideration and hand over the same to the complainant and after
receiving the entire sale consideration only, the complainant has to
execute registered sale deed in favour of the purchasers. Though as
per the terms of the said document, the accused and another
person has to secure the intending purchasers but failed to do so
and the complainant himself secured most of the purchasers and
entered into the transaction with the purchasers.
3) It is further alleged that the accused in a tactful manner
pressurized the complainant to execute a G.P.A., relating to plot
Nos. 1, 3, 5 and 8. The accused himself got prepared the said
G.P.A., and sent the same to the place of residence of the
complainant i.e., America, where the complainant signed on the said
document and sent the same to the accused. As per the said
document the power of execution of the sale deeds was given to the
accused. The accused is bound to account for the amount which
was realized from the sale transactions. Believing the words of the
accused, the complainant under the impression that the accused will
act in a bona fide manner, the complainant executed the said
G.P.A., in Virginia, U.S.A., authorizing the accused to perform
certain acts regarding the Plot Nos. 1, 3, 5 and 8 in S.No.275/1A,
Adivivaram village, on 26.08.2006. Taking advantage of the power
of attorney, the accused executed 10 documents after receiving the
sale consideration from the purchasers who are mostly his kith and
kin and registered the sale deeds in their favour. Further, the
accused entered into nearly 14 transactions relating to various plot
numbers. The documents were prepared by the accused and were
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sent to U.S.A., for the signatures of the complainant. Though the
accused received the sale consideration from the purchasers, the
same was not transferred to the account of the complainant. The
accused used the said amount for his own acts, and committed the
breach of trust which was reposed on the accused. The accused got
prepared the agreement for plot Nos.9 and 18 and were sent to
U.S.A., for the complainant's signature for consideration of Rs.
14,56,320/- in favour of Puvvula Kamala. It was mentioned in the
said document that the some amount was paid through a cheque
bearing No.533270 drawn on Andhra Bank, K.G.H. branch,
Visakhapatnam and remaining amount of Rs.8,83,200/- was paid by
way of cash. But, till date, the said cheque was not deposited into
the account of the complainant and also the remaining sale
consideration of Rs.8,83,200/- was not at all remitted in the account
of the complainant. On knowing the fact that the accused
misappropriated the amount and committed criminal breach of trust
the complainant sent a report to the Commissioner of Police,
Visakhapatnam to take necessary action. On suspicion about the
conduct of the accused in the year 2010 itself, the complainant
made a representation to the Commissioner of Police,
Visakhapatnam to take necessary action against the accused
through the e-mail, but the police did not initiate action. The accused
surprisingly and shocking to complainant obtained the power of
attorney from the complainant on 26.8.2006 and basing on that
document the accused sold away the plots and received the sale
consideration and failed to remit the same into the account of the
complainant and misappropriated the said amount by using the
same for his own purpose. Thus the accused committed the acts of
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cheating which clearly attracts offence U/s 420 of IPC. When the
complainant insisted for the accounts, the accused in a tactful
manner by creating a false and untenable allegations filed a suit
bearing No.O.S.202 of 2010 on the file of XIII Addl. District Judge's
Court, Visakhapatnam for specific performance of contract of sale
for nearly an extent of 5000 sq. yards which is a part and parcel of
the Ac.5-00 of land though the accused is not at all entitled for the
said relief. The complainant further alleged that he sent several
amounts to the accused for expenses and as remuneration to him.
Though the complainant executed the G.P.A., way back in the year
2006 i.e., on 26.8.2006 and sent the same to the accused, the
accused failed to submit the said G.P.A. before the District
Registrar, Visakhapatnam within time and jurisdiction prescribed by
the Act particularly Sections 32 and 33 of Registration Act and by
gross violation of the said act, the accused in a tactful manner
submitted the said G.P.A., at Ranga Reddy District, which is totally
an illegal transaction. Though the accused is a resident of
Visakhapatnam by creating false documentary evidence as if he is a
resident of Ranga Reddy District, the accused submitted the said
G.P.A., before the Registrar Office, Ranga Reddy District contrary to
Sections 32 and 33 of Registration Act, 1908. The said act of the
accused clearly vitiate the validity of the G.P.A., as the same was
not at all represented within time and jurisdiction as per Sections 32
and 33 of the Registration Act. The learned Magistrate has referred
the same to the police under Section 156 (3) of Cr.P.C. Police
registered the same as a case in Crime No.71 of 2015 and after
completion of investigation, police filed charge sheet against the
accused for the offence punishable under Sections 420, 323, 406,
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477A of I.P.C. and the same was registered as C.C.No.588 of 2017
on the file of the I Additional Chief Metropolitan Magistrate,
Visakhapatnam. The present petition has been filed to quash the
said C.C.No.588 of 2017.
4) On 19.11.2021, when the present petition came up for
hearing, this Court passed the following interim order.
"Delete from the caption of appearance.
At request of learned counsel for the respondents, post on
08.12.2021
In view of pendency of civil dispute, there shall be interim
stay as prayed for, till then"
5) Thereafter, the said interim order has been extended from
time to time.
6) Learned counsel for the petitioner contended that the dispute
between the petitioner and the complainant is purely civil in nature
and even if the allegations are considered as true, the appropriate
remedy is to file a civil suit before the Civil Court seeking
cancellation of the sale deeds executed pursuant to the GPA dated
26.08.2006, but the criminal complaint is not maintainable. The
defacto complainant lodged the criminal complaint only after filing of
the civil suit by the petitioner. Further, the civil suit O.S.No.554 of
2015 filed by the complainant against the petitioner is pending for
adjudication, therefore, criminal complaint filed by the defacto
complainant is not maintainable. The petitioner has not deceived
any person, and he has not induced the person to deliver any
property, therefore, the allegations made in the complaint would not
constitute offence punishable under Sections 420, 323, 406, 477A
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of I.P.C. Further, as per the allegations made in the complaint, the
complainant executed GPA on 26.08.2006, and petitioner received
sale consideration and executed alleged sale deeds in the year
2007, however, the complainant lodged the present complaint in the
year 2015, and the charge sheet was filed in the year 2017. Hence,
there is delay of 8 years in lodging the F.I.R., as such the
proceedings in C.C.No.588 of 2017 have to be quashed.
7) Learned counsel for respondent No.2 contended that the
petitioner herein in a tactful manner pressurized the complainant to
execute GPA relating to plot Nos.1,3,5 and 8 in S.No.275/1A,
Adivivaram Village, prepared GPA and sent the same to him while
he was in America. Believing the words of the petitioner herein, the
complainant executed GPA on 26.08.2006, and as per the said
document, the power of execution of the sale deeds was given to
the accused. Taking advantage of the same, the accused sold some
part of the site of defacto complainant in favour of 11 persons under
different sale deeds on receiving sale consideration from them, but
did not transfer the same amount to the account of the defacto
complainant. The accused entered into nearly 14 transactions
relating to various plots, but did not transfer the same to the account
of the defacto complainant, and requested to dismiss the petition.
8) Having heard the submissions made by the learned counsel
representing both parties and on perusal of the material available on
record, the point that arises for consideration is as follows:
"Whether the proceedings against the petitioner in
C.C.No.588 of 2017 on the file of the I Additional Chief
Metropolitan Magistrate, Visakhapatnam, are liable to be
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quashed by exercising jurisdiction under Section 482 of
Cr.P.C.?"
P O I N T:
9) The petitioner filed the present petition under Section 482 of
Cr.P.C.
10) Section 482 of Cr.P.C saves the inherent powers of the High
Court to make such orders as may be necessary to give effect to
any order under the Code or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice. It is an obvious
proposition that when a Court has authority to make an order, it
must have also power to carry that order into effect. If an order can
lawfully be made, it must be carried out; otherwise it would be
useless to make it. The authority of the Court exists for the
advancement of justice, and if any attempt is made to abuse that
authority so as to produce injustice, the Court must have power to
prevent that abuse. In the absence of such power the administration
of law would fail to serve the purpose for which alone the Court
exists, namely to promote justice and to prevent injustice. Section
482 of Cr.P.C confers no new powers but merely safeguards
existing powers possessed by the High Court. Such power has to be
exercised sparingly in exceptional cases and this power is external
in nature to meet the ends of justice.
11) Time and again, the scope of powers of this Court under
Section 482 of Cr.P.C. was highlighted by the Apex Court in long
line of perspective pronouncements, which are as follows:
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12) Section 482 of the Code of Criminal Procedure empowers the
High Court to exercise its inherent power to prevent abuse of the
process of Court. In proceedings instituted on complaint exercise of
the inherent power to quash the proceedings is called for only in
cases where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the allegations set out in the
complaint do not constitute the offence of which cognizance is taken
by the Magistrate it is open to the High Court to quash the same in
exercise of the inherent powers under Section 482. It is not,
however, necessary that there should be a meticulous analysis of
the case, before the trial to find out whether the case would end in
conviction or not. The complaint has to be read as a whole. If it
appears on a consideration of the allegations, in the light of the
statement on oath of the complainant that ingredients of the
offence/offences are disclosed, and there is no material to show that
the complaint is mala fide, frivolous or vexatious. In that event there
would be no justification for interference by the High Court as held
by the Apex Court in "Mrs.Dhanalakshmi v. R.Prasanna Kumar1"
13) Keeping in view the above principles, I would like to examine
the case on hand.
14) Admittedly, in the present case, the complainant filed
O.S.No.554 of 2015 on the file of the Principal District and Sessions
Judge, Visakhapatnam seeking cancellation of sale deeds executed
by the GPA Holder/accused on 15.03.2007. The accused also filed
O.S.No.202 of 2010 against the complainant for specific
performance of the contract of agency dated 26.10.2003, however,
AIR 1990 SC 494
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the same was dismissed by the VII Additional District Judge (Fast
Track Court) Visakhapatnam on 22.07.2015. Against which, the
accused preferred A.S.No.654 of 2015 on the file of this Court, and
the same was pending for adjudication. The suit O.S.NO.554 of
2015 filed by the defacto complainant for cancellation of the sale
deeds executed by the accused is also pending for adjudication.
The complaint filed by the defacto complainant was registered as a
case in Crime No.71 of 2015 on 12.02.2015 alleging that the
petitioner misused the GPA and misappropriated the amount
received as sale consideration. After filing of the said complaint, the
complainant filed O.S.No.554 of 2015 on the file of Principal District
Judge, Visakhapatnam for cancellation of sale deeds executed by
the accused. Therefore, it is clear that the complainant is
prosecuting both civil and criminal proceedings simultaneously
against the petitioner herein. Two parallel proceedings against one
another, both in civil and criminal courts cannot be prosecuted for
the reason that, the finding if any given either in civil or criminal
court will have its own impact on the other matter pending before
the other Court.
15) In "Paramjeet Batra Vs. State of Uttarakhand and others 2"
the Apex Court held that , while exercising its jurisdiction under
Section 482 of the Code the High Court has to be cautious. This
power is to be used sparingly and only for the purpose of preventing
abuse of the process of any court or otherwise to secure ends of
justice. Whether a complaint discloses a criminal offence or not
depends upon the nature of facts alleged therein. Whether essential
(2013) 11 Supreme Court Cases 673
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ingredients of criminal offence are present or not has to be judged
by the High Court. A complaint disclosing civil transactions may also
have a criminal texture. But the High Court must see whether a
dispute which is essentially of a civil nature is given a cloak of
criminal offence. In such a situation, if a civil remedy is available and
is, in fact, adopted as has happened in this case, the High Court
should not hesitate to quash criminal proceedings to prevent abuse
of process of Court.
16) In "Mohd. Khalid Khan Vs. State of Uttar Pradesh 3" the
Apex Court held that when civil suit is pending where the ownership
of the property has to be decided in the pending suit as the same is
subject matter of the suit, in such circumstances, pending civil
litigation, criminal proceedings cannot be primarily prosecuted.
17) Further, the Magistrate has not applied his mind while
referring the case to the police under Section 156 (3) of Cr.P.C. for
investigation and he has not recorded any reasons for referring the
case to the police. While dealing with the same issue, the Apex
Court in "Ramdev Food Products Private Limited Vs. State of
Gujaraj4" held as follows:
"The direction under Section 156(3) is to be issued, only
after application of mind by the Magistrate. When the Magistrate
does not take cognizance and does not find it necessary to
postpone the issuance of process and finds a case made out to
proceed forthwith, direction under the said provision is issued. In
other words, where on account of credibility of information
available, or weighing the interest of justice it is considered
(2015) 15 Supreme Court Cases 679
(2015) 6 SCC 439
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appropriate to straightaway direct investigation, such a direction is
issued."
18) Learned counsel for the defacto complainant contended that
the petitioner committed breach of contract and sold the plots to
various persons.
19) In "Mitesh Kumar J.Sha Vs. State of Karnataka5" the Apex
Court while dealing with breach of contract relied on its earlier
judgment in "Hridaya Ranjan Prasad Verma and Ors. v. State of
Bihar and Another6", observed as follows:
"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."
20) Applying this dictum to the instant factual matrix where the
key ingredient of having a dishonest or fraudulent intent Under
Section 420 is not made out, the case at hand, in my considered
opinion is a suitable case necessitating intervention of this Court.
21) Learned counsel for the petitioner contended that the
complainant lodged F.I.R. after 8 years from the date of execution of
alleged sale deeds executed by the petitioner, as such, there is
inordinate delay in lodging F.I.R. against the petitioner.
(2022) 14 SCC 572
(2000) 4 SCC 168
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22) In "Hasmukhlal D. Vora and Ors. Vs. The State of Tamil
Nadu7" while dealing with the aspect of delay, the Apex Court held
as follows:
"While inordinate delay in itself may not be ground for
quashing of a criminal complaint, in such cases, unexplained
inordinate delay of such length must be taken into consideration
as a very crucial factor as grounds for quashing a criminal
complaint."
23) While dealing with the delay in lodging F.I.R., the Apex Court
in "Dilawar Singh Vs. State of Delhi8", held as follows:
"In criminal trial one of the cardinal principles for the Court
is to look for plausible explanation for the delay in lodging the
report. Delay sometimes affords opportunity to the complainant to
make deliberation upon the complaint and to make embellishment
or even make fabrications. Delay defeats the chance of the
unsoiled and untarnished version of the case to be presented
before the Court at the earliest instance. That is why if there is
delay in either coming before the police or before the Court, the
Courts always view the allegations with suspicion and look for
satisfactory explanation. If no such satisfaction is formed, the
delay is treated as fatal to the prosecution case."
24) In "Chandralekha Vs. State of Rajasthan9" there is delay of
six years in lodging the F.I.R. The Apex Court quashed the same on
the ground of extra ordinary delay and held as follows:
(2022) 15 SCC 164
(2007) 12 SCC 641
(2013) 14 SCC 374
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"We must, at the outset, state that the High Court's view
on jurisdiction meets with our approval and we confirm the view.
However, after a careful perusal of the FIR and after taking into
consideration the attendant circumstances, we are of the opinion
that the FIR lodged by Respondent 2 insofar as it relates to
Appellants 1, 2 and 3 deserves to be quashed. The allegations
are extremely general in nature. No specific role is attributed to
each of the Appellants. Respondent 2 has stated that after the
marriage, she resided with her husband at Ahmedabad. It is not
clear whether Appellants 1, 2 and 3 were residing with them at
Ahmedabad. The marriage took place on 9/7/2002 and
Respondent 2 left her matrimonial home on 15/2/2003 i.e. within a
period of seven months. Thereafter, Respondent 2 took no steps
to file any complaint against the Appellants. Six years after she
left the house, the present FIR is lodged making extremely vague
and general allegations against Appellants 1, 2 and 3. It is
important to remember that Appellant 2 is a married sister-in-law.
In our opinion, such extra ordinary delay in lodging the FIR raises
grave doubt about the truthfulness of allegations made by
Respondent 2 against Appellants 1, 2 and 3, which are, in any
case, general in nature. We have no doubt that by making such
reckless and vague allegations, Respondent 2 has tried to rope
them in this case along with her husband. We are of the
confirmed opinion that continuation of the criminal proceedings
against Appellants 1, 2 and 3 pursuant to this FIR is an abuse of
process of law. In the interest of justice, therefore, the FIR
deserves to be quashed insofar as it relates to Appellants 1, 2
and 3."
25) In the present case also, as per the allegations made in the
complaint, the complainant executed GPA on 26.08.2006, and
petitioner received sale consideration and executed alleged sale
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deeds in the year 2007, however, the complainant lodged the
present complaint in the year 2015, and the charge sheet was filed
in the year 2017. Hence, there is delay of 8 years in lodging the
complaint against the petitioner herein. The complainant did not
take any steps to initiate complaint against the petitioner for a long
period of eight years. For the reasons best known to the
complainant, he has initiated criminal proceedings after 8 years from
the date on which the alleged sale deeds were executed by the
petitioner herein.
26) If, the principles laid down in the said judgments are applied
to the present facts of the case, when civil suit No.554 of 2015 is
pending before the competent civil court for cancellation of sale
deeds executed by the petitioner herein as GPA, and the present
complaint is filed alleging the misuse of the said GPA, which in fact
is an issue before the Civil Court. In view of the same, to avoid
conflicting judgments, I am of the view that the proceedings in
criminal case have to be quashed while giving liberty to the
complainant to renew his request by filing a fresh complaint after
disposal of the civil suit, in the event of the Civil Court coming to the
conclusion that the sale deeds executed by the petitioner are null
and void on the ground that the petitioner has no power to execute
the same.
27) Further, in cases where there is a delay in lodging a FIR, the
Court has to look for a plausible explanation for such delay. In
absence of such an explanation, the delay may be fatal and the
Court may take a view that continuation of criminal proceedings
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would amount to an abuse of the process of law. Therefore, the
criminal petition deserves to be allowed.
28) Accordingly, the criminal petition is allowed. The charge sheet
in C.C.No.588 of 2017 on the file of the I Additional Chief
Metropolitan Magistrate, Visakhapatnam is hereby quashed, leaving
it open to the de facto complainant to initiate criminal action after
disposal of civil suit O.S.No.554 of 2015 on the file of the Principal
District and Sessions Judge's Court, Visakhapatnam, if so advised.
29) The miscellaneous petitions pending, if any, shall also stand
closed.
________________________
JUSTICE V.SUJATHA
26.10.2024
Ksp
