Telangana High Court

Marisetty Shambaiah vs The State Of A.P., 3 Others on 8 November, 2021

Bench: G.Radha Rani

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

               CRIMINAL PETION No. 4734 of 2014
ORDER:

This petition is filed by the petitioner - A3 under Section 482

Cr.P.C. to quash the proceedings in FIR No.212 of 2013 on the file of

Mellacheruvu Police Station, Nalgonda District, dated 13.08.2013

registered for the offences under Sections 420 and 120-B IPC.

2. The de facto complainant - 2nd respondent filed a private

complaint before the Judicial Magistrate of First Class, Huzurnagar,

stating that A1 - Tahsildar, Beechkunda Mandal and A2 - VRO,

Mellacheruvu, mutated the name of the petitioner - A3 (uncle of de

facto complainant) in the land to an extent of Ac.1.00 gts., out of an

extent of Acs.2.00 gts., in Sy. No.739/UU situated at Mellacheruvu

Revenue Village and Mandal, Nalgonda District, vide proceedings

No.C5972/2008, dated 23.10.2010 and issued patta passbook in

favour of the petitioner - A3 without giving notice to him. The

grandfather of the complainant was the original owner and he

executed a will deed in his favour. He filed a requisition to cancel the

patta passbook issued in favour the petitioner and the same was not

complied with. The Tahsildar, Mellacheruvu in his letter dated

30.04.2013 confirmed that A1 and A2 colluded with the petitioner -

A3 and got mutated the name of the petitioner - A3 though the

complainant was the owner and possessor of land in Sy.No.739/UU,

hence prayed for enquiry. The said complaint was referred to the

police under Section 156 (3) Cr.P.C. Basing on the said complaint, Dr.GRR,J

the Mellacheruvu Police registered Crime No.212 of 2013 for the

offences under Sections 420 and 120-B IPC against the petitioner-A3,

A1 and A2.

3. Heard the learned counsel for the petitioner, learned counsel

for the de facto complainant and the learned Public Prosecutor.

4. Learned counsel for the petitioner submitted that the de facto

complainant, if aggrieved by the orders of A1 and A2, had to file an

appeal before the concerned RDO under Section 5 (5) of the ROR Act

or before the Joint Collector under Section 9 of the said Act. The

order was passed in accordance with law by following due process

and there was no violation of any provisions of ROR Act. The patta

pass books were issued in the name of the petitioner under the said

Act. The contents of the letter dated 30.04.2014 issued by the

Tahsildar, Mellacheruvu, to the Sub-Inspector of Police,

Mellacheruvu was read out of context. Aggrieved by the continuous

interference of the de facto complainant, the petitioner along with

others filed a suit for declaration of title, perpetual injunction and

recovery of possession vide O.S .No.329 of 2013 and the said suit was

pending before the Court of Senior Civil Judge, Miryalaguda,

Nalgonda District and prayed to quash the FIR.

5. Learned counsel for the de facto complainant submitted that

the petitioner-A3 obtained mutation proceedings in his name in

collusion with A1 and A2 and without having any title, the petitioner

filed the suit for declaration only to show that civil proceedings were Dr.GRR,J

pending. The civil suit was filed after initiating the private complaint

and prayed to dismiss the petition.

6. Learned Public Prosecutor opposed the petition.

7. Perused the record. On a reading of the entire complaint, the

dispute appears to be civil in nature and would not attract the offences

under Sections 420 and 120-B IPC. The de facto complainant, if

aggrieved by the orders of mutation passed by A1 and A2 in the name

of A3, has a remedy of filing an appeal under the ROR Act. Without

pursuing the same, filing a private complaint would show that he was

giving a criminal colour to the dispute which was basically civil in

nature.

8. Learned counsel for the petitioner relied upon the judgments

of the Hon'ble Supreme Court in Vesa Holdings Private Limited

and another v. State of Kerala and others1 and Paramjeet Bara v.

State of Uttarakhand and others2, and the judgment of the High

Court of Andhra Pradesh in Peddolla Narsimulu and others v. State

of Andhra Pradesh and another3.

9. In Vesa Holdings Private Limited case (1 supra), the

Hon'ble Supreme Court held that:

"12. ..... for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making

(2015) 8 SCC 293

(2013) 11 SCC 673

2013 (1) ALD (Crl.) 665 (AP) Dr.GRR,J

initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.

13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide 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. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.

In Paramjeet Bara case (2 supra), the Hon'ble Supreme Court

held that:

"12. 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 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.

In Peddolla Narsimulu case (3 supra) the High Court of

Andhra Pradesh held that:

"7. The questions viz., whether the second respondent can protect his possession or whether the first accused entered into the land on the ground that the second respondent did not acquire any valid right to the property are the matters which have to be decided by the civil Court. Certainly in my view, the dispute between the parties does not involve any criminal offence requiring any investigation by the police. Keeping quiet for over a period of 14 years and lodging a report with the police Dr.GRR,J

alleging commission of offence of cheating against the accused, in my view is abuse of process of law. In the facts and circumstances of the case, I am of the considered view that the petitioners/accused cannot be subjected to any criminal prosecution and the parties have to work out their remedies before a civil Court. This dispute undoubtedly is purely of civil in nature and resorting to criminal prosecution in a case of this nature is nothing but abuse of process of law and if it is allowed, it will result in miscarriage of justice."

10. Considering the above judgments of the Hon'ble Apex

Court and the Hon'ble High Court of Andhra Pradesh and as the

complainant appeared to have filed this complaint aggrieved by the

action of the Tahsildar, Beechkunda Mandal and the VRO,

Mellacheruvu in mutating the name of his uncle in the land to an

extent of Ac.1.00 gts., in Sy.No.739/UU and issuing patta pass book

in his favour, for which a civil remedy was available by filing an

appeal under ROR Act which was not availed by him and since the

petitioner-A3 himself filed a civil suit vide O.S No.329 of 2013 and

the parties can pursue their remedies before the Civil Court, the

continuation of the criminal proceedings against the petitioner is

considered as an abuse of process of law.