Smt.N. Surekha And Another vs The State Of Telangana And Another
2022 Latest Caselaw 3852 Tel

             THE HON'BLE SRI JUSTICE K.LAKSHMAN

              CRIMINAL PETITION No.1303 OF 2021
ORDER:

This Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') to

quash the proceedings in C.C.No.3159 of 2020 pending on the

file of XI Additional Chief Metropolitan Magistrate,

Secunderabad. The petitioners herein are A.2 and A.3 in the

said case. The offences alleged against them are under

Sections 406, 420, 425, 465, 471 and 506 read with 120(B) of

IPC.

2. Heard Sri D.Bhasker Reddy, learned counsel for the

petitioners and Sri K.R.Koteshwar Rao, learned counsel

appearing for 2nd respondent and learned Asst. Public

Prosecutor for the 1st respondent - State. Perused the record.

3. As per the charge sheet, the allegations leveled against

the petitioners herein are that the father of the 2nd respondent

i.e. L.W.1 GPA holder of the 2nd respondent had purchased two

plots i.e. 5 and 6 of admeasuring 500 sq.yards in Sy.No.10

situated at Bowenpally, Secunderabad cantonment under

registered sale deed vide Doc.No.1706 of 1997, dated

28.11.1997 from Sneha Co-operative Housing Society

represented by its President K.Manohar Reddy/A.1. Since

then, he was in possession of the said property. The 2nd

respondent was minor at that particular point of time and he

was prosecuting his studies. L.W.1 was also too busy in view

of his avocation. L.W.1 requested his friend A.1 to look after

his property so that it can be safe from encroachments. Taking

advantage of the same, A.1 has allowed K.Jayarami Reddy, to

set up business in the name of Pioneer Fabrications without

consent of L.W.1. When L.W.1 requested the said K. Jayarami

Reddy to vacate the premises, he started giving lame excuses.

Therefore, the 2nd respondent, after attaining majority, had

filed a suit vide O.S.No.68 of 2013 against said K. Jayarami

Reddy, A.1, the petitioners herein and other accused for

declaration of title and for possession of the property. The said

suit is pending.

4. In the said suit, the said K. Jayarami Reddy had filed

a written statement saying that he has obtained estate from

one A.Manohar Reddy in respect of Plot No.5 and Smt.

N.Surekha/A.2 in respect of Plot No.6 and commenced the

Fabrication business, he is paying rents to the said A.Manohar

Reddy. On going through the contents of the said written

statement, L.W.1 approached registration office and obtained

certified copies pertaining to the plot Nos.5 and 6 and came to

know that A.1 got executed deed of cancellation bearing

document No.1613/1999, dated 28.08.1999 cancelling the

sale deed of 2nd respondent bearing document No.1706 of

1997, dated 28.11.1997 unilaterally without issuing any

notice either to L.W.1 or L.W.2 before cancellation. Thereafter

on 13.09.1999, A.1 divided the said property admeasuring 500

sq. yards into three plots and had executed three sale deeds in

favour of 3 individuals i.e. sale deed No.1614 of 1999 dated

30.09.1999 in favour of the 1st petitioner herein/A.1 to an

extent of 230sq.yards showing as plot No.6/part, the sale deed

bearing document No.1615 of 1999, dated 30.09.1999 in

favour of A.Manohar Reddy, to an extent of 230sq.yards

showing as Plot No.5/Part and sale deed bearing document

No.1616 of 1999, dated 30.09.1999 in favour of M.Nagireddy,

the 2nd petitioner herein/A.3 and one N.Sudarshan Reddy to

an extent of 40sq.yards as part of Plot Nos.5 and 6. Thus, the

said K.Manohar Reddy/A.1, being President of the said Sneha

Co-operative Housing Society Limited having obtained

cancellation deed unilaterally, divided the said property into

three plots and sold it to the above said three persons

including the petitioners herein under the above said three

sale deeds and thus cheated the 2nd respondent. Thus, they

have committed the aforesaid offences.

5. On receipt of the complaint from the father of 2nd

respondent, the Police Bowenpally Police Station, have

registered a case in Cr.No.395 of 2015 and on completion of

investigation, laid charge sheet against the petitioners herein

for the aforesaid offences and the same was taken on file as

C.C.No.3159 of 2020. During the course of investigation, the

Investigating Officer has recorded the statements of 2nd

respondent as L.W.2, his father as L.W.1 and statement of one

C. Ramesh Chander. On consideration of the said statements

only, the Investigating Officer has laid the charge sheet against

the petitioners herein.

6. Sri D.Bhasker Reddy, learned counsel for the

petitioners would submit that the contents of the charge sheet

lacks the ingredients of the offences alleged against the

petitioners herein. There is no entrustment of any property to

the petitioners by the 2nd respondent and that they had no

domain over any of the properties of the 2nd respondent. There

is no allegation of inducement at the inception or thereafter by

the petitioners herein. There is no allegation of forgery and

cheating against the petitioners herein. All the allegations are

against A.1 only. The petitioners herein are bona fide

purchasers of the said property. A suit vide O.S.No.68 of 2013

filed by the 2nd respondent seeking declaration and recovery of

possession and also declaring the said sale deeds null and

void is pending. The 2nd respondent without waiting for the

outcome of the said suit, implicated the petitioners herein in

the present case. Thus, according to him, the contents of the

charge sheet lacks the ingredients of the offences against the

petitioners herein.

7. Whereas, learned counsel appearing for the 2nd

respondent would submit that the contents of the charge

sheet, statements recorded under Section 161 of Cr.P.C.

constitute the offences alleged against the petitioners herein.

The defences taken by the petitioners herein cannot be

considered in a petition filed under Section 482 of Cr.P.C. The

petitioners herein in active connivance with the A.1 cheated

the 2nd respondent. There are several triable issues and the

petitioners herein have to face trial and prove their innocence.

8. Learned Asst. Public Prosecutor also adopted the very

same arguments.

9. The above stated facts would reveal that the subject

property plot Nos.5 and 6 admeasuring 500 sq.yards in

Sy.No.10 situated at Bowenpally, Secunderabad cantonment

i.e. Sneha lay out , belongs to Sneha Housing Co-operative

Society Limited to which A.1 was President. L.W.1 has

purchased the subject property in the name of his son L.W.2/

2nd respondent from the said Society represented by its

President K.Manohar Reddy/A.1 under registered sale deed

Doc.No.1706 of 1997, dated 28.11.1997. Thereafter, the said

sale deed was cancelled by way of execution of cancellation

deed bearing Doc.No.1613 of 1999 dated 28.09.1999 on the

ground that the 2nd respondent violated the bye-laws of the

said Society in obtaining the said sale deed. Therefore, the

Society in its meeting dated 10.09.1999 has decided to cancel

the sale deed executed in favour of the 2nd respondent. It is a

unilateral cancellation. The 2nd respondent is not a party to

the said sale deed. In the said cancellation deed, it is

mentioned that despite informing, the 2nd respondent failed to

comply with the Rules and Regulations of the Society and the

said fact was informed to the 2nd respondent and including the

decision of the Society that it has decided to cancel the said

sale deed and the 2nd respondent voluntarily give up interest.

Thereafter, the said Society represented by its President/A.1

had executed the above said three sale deeds in favour of the

petitioners and one A.Manohar Reddy. Therefore, the

petitioners herein are purchasers from the said Society under

the above said two sale deeds.

10. The 2nd respondent had filed a suit vide O.S.No.68 of

2013 against the petitioners herein, A.1 and the said Society

seeking declaration of title and recovery of possession of the

subject property and to declare the cancellation deed bearing

document No.1613/1999 dated 28.09.1999 as null and void

and consequential sale deeds are also null and void, to deliver

vacant possession and also pay mesne profits. The said suit is

a comprehensive suit which is pending.

11. Perusal of the statements of the witnesses and the

contents of the charge sheet would reveal that there is no

allegation against the petitioners herein that they have

cheated the 2nd respondent and that they have forged the

signature of the 2nd respondent. The entire allegations are

against Mr. K.Manohar Reddy/A.1, President of the above said

Society. There is no allegation against the petitioners herein

with regard to criminal breach of trust.

12. It is relevant to note that Section 405 of IPC deals with

Criminal breach of trust which reads as follows:-

Whoever, being in any manner entrusted with property, or with any dominion over property, 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, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

As discussed supra, there is no allegation against the

petitioners herein that 2nd respondent had entrusted property

to the petitioners herein and that they have any domain over

the subject property. The contents of the complaint,

statements of the witnesses recorded under section 161 of

Cr.P.C. and charge sheet lack the ingredients of Section 405 of

IPC, against the petitioners.

13. Like wise, Section 415 of IPC deals with cheating

which reads as follows:-

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall

retain any property, or intentionally induces the person so deceived 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, is said to "cheat".

14. As discussed supra, there is no allegation against

the petitioners herein that they have induced the 2nd

respondent either at the inception or later. Thus, the contents

of the charge sheet lack the ingredients of the offence under

Section 415 of IPC, against the petitioners.

15. Section 463 of IPC deals with forgery which reads as

follows:-

Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

16. Section 465 deals with punishment for forgery which reads as follows:-

Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

17. It is relevant to state that in the complaint or in

statements of the witnesses recorded under Section 161 of

Cr.P.C, there is no allegation of cheating against the petitioners

herein. The allegation is against A.1 only. Therefore, according

to this Court, the contents of the charge sheet lacks the

ingredients of the offence under Section 465 of I.P.C, against

the petitioners.

18. Section 471 of IPC deals with using as genuine a

forged document or electronic record, which reads as follows:-

Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.

Even there is no allegation against the petitioners herein that

they have fraudulently or dishonestly used as genuine any

document or electronic record which he knows or has reason to

believe to be a forged document or electronic record.

19. Thus, the contents of the charge sheet lack the

ingredients of any of the offences alleged against the petitioners

herein. It is also relevant to note that even there is no

allegation of forgery against A.1. The allegation against him is

that he has obtained deed of cancellation bearing document

No.1618 of 1999 dated 28.09.1999 unilaterally without

consent of either L.W.1 or L.W.2. Thereafter, he has divided the

said property into three plots and sold it to three individuals

including the petitioners herein under the above said three sale

deeds. Thus, even against A.1, there is no allegation of forgery.

20. It is relevant to note that in Hira Lal Hari Lal

Bhagwati Vs. CBI1, the Apex Court in paragraph No.40 held

as follows:-

It is settled law, by catena of decisions, that for establishing the 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. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it and, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the

(2003) 5 SCC 257

appellants in their capacities as office bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise. We have read the charge sheet as a whole. There is no allegation in the First Information Report or the Charge sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what where the roles played by the appellants in the alleged offence. The appellants, in our view, could not be attributed any mens rea of evasion of cus toms duty or cheating the Government of India as the cancer society is a non profit organization and, therefore, the allegations against the appellants leveled by the prosecution are unsustainable. Kar Vivad Samadhan Scheme Certificate along with the Duncan's and Sushila Rani's judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process.

21. The said principle was also reiterated by the Apex Court

in Indian Oil Corporation Vs. NEPC India Limited2. In Vir

Prakash Sharma Vs. Anil Kumar Agarwal3, the Apex Court in

paragraph Nos. 13 to 16 held as follows:-

13. The ingredients of Section 420 of the Indian Penal Code are as follows :

i) Deception of any persons;

ii) Fraudulently or dishonestly inducing any person to deliver any property; or

iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.

14. What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complaints. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear to be wholly unnatural.

15. In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any

(2006 (6) SCC 736

(2007) 7 SCC 373

intention on the part of the appellant herein to commit an offence under Section 417 of the Indian Penal Code.

16. Furthermore, admittedly, their residences are in different districts. Whereas the appellant is a resident of the district of Ajamgarh, the respondent is a resident of the district of Rampur. Cheques were admittedly issued by the appellant at his place. There is nothing on record to show that any part of the cause of action arose within the jurisdiction of the court concerned. Even if such statements had been made, the same admittedly have been made only at the place where the appellant resides. The learned Magistrate, therefore, had no jurisdiction to issue the summons.

22. The said principle was also reiterated by the Apex

Court in All Cargo Movers (I) Pvt. Ltd. Vs. Dhanesh

Badarmal Jain4 wherein in paragraph No.16 held as follows:-

"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 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."

(2007) 14 SCC 776

23. Considering the principle laid down by it in the above

referred judgments, the Apex Court in V.Y.Josh Vs. State of

Gujarat5 in paragraph Nos.28, 29 and 30 held as follows:-

28. 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 functionings of the trial courts.

29. An offence of cheating may consist of two classes of cases :

(1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here;

(2) When by reason of such deception, the complainant has not done or omitted to do anything which he would not do or omit to do if he was not deceived or induced by the accused.

30. It is in that sense, a distinction between a mere breach of contract and the offence of cheating should be borne in mind. We, having regard to the facts and circumstances of the case, are of the opinion that no case has been made out and against the appellant so as to hold that he should face the criminal trial.

24. As discussed supra, there are no allegations of

criminal breach of trust, cheating and forgery against the

petitioners herein. The allegations are against only A.1.

Admittedly, a suit vide O.S.No.68 of 2013 filed by the 2nd

(2009) 3 SCC 78

respondent against the petitioners herein and others is

pending. Therefore, the 2nd respondent has to wait for the

outcome of the same. Instead of doing so, he has lodged the

present complaint against the petitioners herein. The

Investigating Officer has not recorded the statements of any

independent witnesses and without consideration of the

contents of the statements of the witnesses recorded under

Section 161 of Cr.P.C, he has laid the charge sheet against the

petitioners herein. Thus, the contents of the charge sheet lack

the ingredients of the offences alleged against the petitioners

herein. Continuation of proceedings in 3159 of 2020 is an

abuse of process of law and it squarely falls in the

parameters/guidelines laid by the Apex Court for exercise of

power of this Court under Section 482 Cr.P.C. in State of

Haryana vs. Bhajan Lal6 and the same are extracted herein:-

"(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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of

1992 Supp (1) SCC 335

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 FIR 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 Act concerned (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 Act concerned, 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."

25. Viewed from any angle, the proceedings in

C.C.No.3159 of 2020 cannot go on against the petitioners

herein.

26. Therefore, this Criminal Petition is allowed. The

proceedings in C.C.No.3159 of 2020 pending on the file of XI

Additional Chief Metropolitan Magistrate, Secunderabad, are

quashed against the petitioners herein.

Miscellaneous petitions, if any, pending in the criminal petition, shall stand closed.

___________________ K. LAKSHMAN, J Date:25.07.2022 vvr