Madhiraju Radhakishan Rao, ... vs State Of Telangana, Rep. By P.P., ...
2021 Latest Caselaw 1264 Tel

              HONOURABLE JUSTICE G. SRI DEVI

              CRIMINAL PETITION No.15140 of 2014

ORDER:

The petitioners, who are accused Nos.1, 3 and 4 in Crime

No.580 of 2014 of Khanapuram Haveli Police Station, Khammam

District, filed this Criminal Petition under Section 482 Cr.P.C. to

quash the proceedings in the above crime, which was registered

against the petitioners and two others for the offences punishable

under Sections 420, 468, 471, 406, 384 and 120-B read with Section 34

of I.P.C.

The 2nd respondent/de facto complainant (hereinafter referred

to as the "2nd respondent") filed a private complaint against the

petitioners and two others before the II-Additional Judicial First

Class Magistrate, Khammam, for the aforesaid offences, which was

referred to the police under Section 156 (3) of Cr.P.C. Basing on the

said reference, the police, Khanapuram Haveli Police Station,

registered a case in Crime No.580 of 2014 and took up investigation.

It is stated in the private complaint that since A-1 to A-4 represented

that they are the absolute owners and possessors of the land

admeasuring Ac.0.34 gts. in Sy.No.96 situated at Velugumatla

Revenue Village, Khammam District, the 2nd respondent and others

entered into an agreement of sale with A-1 to A-4 to purchase the

said land for Rs.45,00,000/- by paying an advance amount of

Rs.10,00,000/- on 29.10.2013 with a condition to receive the balance

sale consideration after thorough survey within ten months from the

date of agreement. It is further stated that the accused failed to

conduct survey even after lapse of ten months. Thereafter, on

07.02.2014, A-1 to A-4 lodged a complaint before the S.H.O.,

Khanapuram Haveli Police Station and to the Tahsildar, Khammam

Urban Mandal, stating that the said property was sold away to the

2nd respondent and others and that A-5 is trying to encroach upon

the property. It is further stated that A-1 to A-4 with a mala fide

intention to obtain original agreement from the 2nd respondent and

others, obtained their signatures on blank papers in order to prepare

a fresh agreement, but they did not do so, instead they demanded

the 2nd respondent and others to pay another Rs.10.00 lakhs for

obtaining N.O.C. from Revenue Authorities. The 2nd respondent

came to know that A-1 to A-4 created another agreement of sale in

collusion with A-5 with an intention to knock away the property,

which was already sold to the 2nd respondent and others. When the

2nd respondent and others went to the house of accused and

demanded them to register the property by receiving the balance

sale consideration, the accused threatened them with dire

consequences by using filthy language.

Heard learned Counsel appearing for the petitioners/A-1, A-3

and A-5, learned Assistant Public Prosecutor appearing for the 1st

respondent/State, learned Counsel appearing for the 2nd respondent

and perused the record.

Learned Counsel for the petitioners would submit that the

petitioners are innocent of the offences and they have been falsely

implicated in the case. It is also submitted that even accepting the

entire allegations to be true, still the offences as alleged would not be

made out for the reason that the agreement entered into between

both the parties itself is not a valid agreement. It is further

submitted that much before entering into an agreement, both the

parties have entered into a Memorandum of Understanding that

they are entering into an agreement only for the purpose of

namesake. There is a dispute with regard to the schedule property

in respect of land in Sy.No.96. By an order dated 10.10.2014, the

Revenue Divisional Officer, Khammam, while allowing

R.O.R.Appeal No.A3/1381/2014 in favour of appellant No.5 therein,

directed to issue a fresh R.O.R. pattadar pass book in favour of

appellant No.5 in respect of land to an extent of Ac.0.34 gts. Against

the said order, the accused have preferred an appeal before the Joint

Collector, Khammam and the same is pending. As the disputes

were going on in between A-1 to A-4 and A-5, they have entered

into an agreement with the 2nd respondent and others only to see

that they get the property from A-5. It is further submitted that the

2nd respondent foisted a false case against the accused though they

have not paid any single pie to them and, therefore, prayed to quash

the proceedings against the petitioners. In support of his

contentions, he relied upon the un-reported judgment of this Court

in Crl.P.No.6500 of 2015 and the judgment of the Madras High Court

in Malini v. Mrs. Gunavathy1.

Learned Assistant Public Prosecutor appearing for the 1st

respondent/State would submit that the investigation could not be

proceeded further on account of stay granted by this court.

Learned Counsel appearing for the 2nd respondent would

submit that all the allegations constituting the offence of cheating

have been clearly set out in the complaint. The second respondent

has sufficient material to substantiate the evil design of the

petitioners to cheat the second respondent and others. The

inducement made by the petitioners to the 2nd respondent and

others to part with huge money and the criminal breach of trust

committed by the petitioners have been unambiguously stated in the

complaint.

In the light of the submissions of the learned Counsel for the

respective parties, the following case laws are necessary to be

referred:-

In Devendra and Others vs. State of Uttar Pradesh and

another2 the Apex Court has held as under:

"We may, however, notice that the said decision has been considered recently by this Court in Mahesh Choudhary v.

Crl.P.No.20223 of 2009

(2009) 7 SCC 495

State of Rajasthan & Anr. [2009 (4) SCC 66] wherein it was noticed:

"Recently in R. Kalyani v. Janak C. Mehta and Ors. (2008 (14) SCALE 85), this Court laid down the law in the following terms:

There is no dispute with regard to the aforementioned propositions of law. However, it is now well-settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the First Information Report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the First Information Report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."

In Zandu Pharmaceutical Works Limited and others vs.

Mohd. Sharaful Haque and another3 wherein the Apex Court has

held as under:

"Exercise of power under section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code. (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment

(2005) 1 SCC 122

dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and

whether any offence is made out even if the allegations are accepted in toto."

In Joseph Salvaraja vs. State of Gujarat and others4 the Apex

Court has held as under:

"Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant's FIR, charge sheet, documents etc. or not.

In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.

The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the Appellant by the Complainant-Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4 -

(2011) 7 SCC 59

the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any way instrumental to telecast "GOD TV" in the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellant's prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law."

In Mohammed Ibrahim and others vs. State of Bihar and

another5 the Apex Court has held as under:

"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 are not used for settling scores or to pressurise parties to settle civil disputes."

In V. Y. Jose and another vs. State of Gujarat and another6

wherein the Apex Court has held as under:

"The said principle has been reiterated in All Carogo Movers (I) Pvt. Lted. vs. Dhanesh Badarmal Jain and another [2007 (12) SCALE 391], stating :

"For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by

(2009) 8 SCC 751

(2009) 3 SCC 78

the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice."

A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The Superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functioning of the trial courts."

I have considered the respective submissions made by both

the learned Counsel appearing for the parties and I have also gone

through the relevant case laws and also the case laws cited by the

learned Counsel for the 2nd respondent/de facto complainant. In the

light of the above contentions raised by the learned Counsel

appearing for both the parties and in the light of the decisions in the

aforesaid case laws, the following are the main points for

consideration by this Court.

1. Whether in exercise of power under Section 482 Cr.P.C., this Court can enter into the controversy that any case is made out against the petitioners or not?

2. Whether a criminal colour has been given to a dispute of civil nature, which is not permitted under the provisions of law?

The scope and exercise of powers under Section 482 Cr.P.C.

has time and again come before the Apex Court. It is settled

position of law that the power under Section 482 Cr.P.C. has to be

exercised sparingly, carefully and with great caution. It is also

settled position of law that if any abuse of the process leading to

injustice is brought to the notice of the court, then the court would

be justified in preventing injustice by invoking inherent powers in

the absence of specific provisions in the Statute.

In R.P. Kapoor v. State of Punjab7 the Hon'ble Apex Court

has specifically held that if there is legal bar against the institution or

continuance of the proceedings or there is no legal evidence to prove

the charge, then the power under Section 482 Cr.P.C. can be

exercised.

In this regard, the land mark judgment is the State of Haryana

v. Bhajan Lal8 in which Hon'ble Apex Court has laid down the

following guidelines.

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of

AIR 1960 SC 866

(1992) SCC (Crl.) 426

the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even 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.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155 (2) of the Code.

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.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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."

In the instant case, a perusal of the material on record would

show that there is a dispute with regard to the schedule property

and the Revenue Divisional Officer, Khammam, while allowing the

R.O.R. appeal No.A3/1381/2014, directed to issue a fresh R.O.R.

pattadar pass book in favour of appellant No.5 therein in respect of

land to an extent of Ac.0.34 gts. Against the said order, the

petitioners have preferred an appeal before the Joint Collector,

Khammam, which is pending.

In Indian Oil Corporation v. NEPC India Limited and

others9 the Apex Court reviewed the precedents on the exercise of

jurisdiction under Section 482 of Cr.P.C. and formulated guiding

principles in the following terms:

"(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and

(2006) 6 SCC 736

accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of

contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

In Prof. R.K.Vijayasarathy and another v. Sudha Seetham

and another10 the Apex Court held that "where the averments in

the complaint read on its face, do not disclose the ingredients

necessary to constitute offences under the Penal Code, it amounts

to abuse of process of law".

On over all consideration of entire material placed on record,

the contentions urged before this Court by the learned counsel for

the petitioners and learned counsel for the 2nd respondent as well as

the law declared by the Apex Court in the judgments referred to

supra, it is suffice to conclude that the contentions raised by the

learned Counsel for the 2nd respondent are without any substance

and the material produced before this Court directly indicates the

mala fides in prosecution of criminal proceedings against the

petitioners, so also, by abuse of process of the Court, as an arm-

twisting method to bring the petitioners to the terms of the 2nd

respondent and to cloak a civil dispute with criminal nature, he has

resorted to criminal litigation.

In view of my foregoing discussion, I find that it is a fit case to

exercise inherent jurisdiction under Section 482 Cr.P.C. to quash the

proceedings against the petitioners in Crime No.580 of 2014 of

(2019) 3 Scale 563

Khanapuram Haveli Police Station, Khammam District, for the

offences punishable under Sections 420, 468, 471, 406, 384 and 120-B

read with Section 34 of I.P.C.

Accordingly, the Criminal Petition is allowed and the

proceedings initiated against the petitioners in Crime No.580 of 2014

of Khanapuram Haveli Police Station, Khammam District, are

hereby quashed.

Miscellaneous petitions, if any, pending shall stand closed.

_____________________ JUSTICE G. SRI DEVI

20.04.2021 Gsn/gkv

All the contentions raised by the learned Counsel for the petitioners

relate to disputed questions of fact. The Hon'ble Apex Court in

State of Haryana v. Bhajan Lal11 has recognized certain categories

in which Section 482 Cr.P.C. or Article 226 of the Constitution of

India may be successfully invoked.

It shall suffice to observe that a perusal of the F.I.R. and the

material collected by the investigating officer makes out a prima facie

case against the petitioners at this stage and there appears to be

sufficient ground for proceeding against them. I do not find any

justification to quash the proceedings initiated against the

petitioners as the case does not fall in any of the categories

recognized by the Apex Court which may justify their quashing.

Hence, the prayer for quashing the proceedings in Crime No.580 of

2014 of Khanapuram Haveli Police Station, Khammam District, is

refused.

Accordingly the Criminal Petition is dismissed.

As a sequel thereto, Miscellaneous Petitions, if any, pending in

this Criminal Petition, shall stand closed.

____________________ JUSTICE G. SRI DEVI

.04.2021 gkv/Gsn

(1992) SCC (Cr.) 426