Telangana High Court

Smt. Y.Sharvani, vs Smt. Kududuram Rekhs, on 7 November, 2022

Bench: G.Radha Rani

                                 1                                           Dr. GRR, J
                                                             CRL.R.C. No. 1391 of 2018


            THE HON'BLE DR. JUSTICE G. RADHA RANI

            CRIMINAL REVISION CASE NO. 1391 OF 2018


ORDER:

1. This Criminal Revision Case is filed by the Petitioners/ A1 to A3

aggrieved by the order dated 05.01.2018 passed in Crl. M.P. No. 115 of 2017

in S.C. No. 91 of 2016 on the file of Special Sessions Judge for trial of cases

under SC & STs (POA) Act cum VII Additional District and Sessions Judge,

Rangareddy District at LB Nagar in dismissing the discharge petition filed by

them for the offences under Section 420 of IPC and Section 3(1)(r) and

Section 3(2)(vii) of SC & STs (POA) Act.

2. The case of the prosecution in brief was that the 1st respondent /

complainant filed a report before Vanasthalipuram Police stating that she

belonged to Schedule Caste (Madiga) community. A1 was the owner of the

house bearing No.8/5, Bahar, Sahara Estate. The complainant entered into an

agreement with A1 for purchasing the said house for a total sale

consideration of Rs.45,85,000/- and made an agreement. As per the

agreement, the sale transaction had to be completed before 18.12.2015.

After the said date, the complainant met the husband of A1 i.e., A2 and asked

for some more time due to delay in process of bank loan and A2 extended the

time by increasing the consideration to Rs.46,00,000/- and again when they

sought for some more time, he demanded to pay Rs.60,000/- towards interest 2 Dr. GRR, J CRL.R.C. No. 1391 of 2018

by increasing the total consideration amount to Rs.46,60,000/-. On

27.01.2006, the complainant's husband informed A2 that they were ready to

pay the cheque amount of Rs.42,00,000/- in the name of A1 and asked him to

complete the registration process, but A2 informed that they sold the house to

some others. As such the complainant's husband and her caste people went to

Dornakal Police Station where A2 was working as Inspector of Police and

requested him. A2 stated that after completion of Medaram jatara he would

be looking into the registration process by his wife. On 17.02.2016 in the

morning hours A1, A3 and two others went to the house of the complainant

and abused the complainant by touching in the name of her caste and

questioning her as to why the caste people of the complainant went to her

husband's office. The complainant alleged that the same was at the

instigation of A2 and requested to take action.

3. Basing on the said report, police registered a case vide Cr. No. 146 of

2016 under Section 420 IPC and Section 3(1)(s) of SC and ST (POA)

Amendment Act, 2015. The Assistant Commissioner of Police who was

appointed as the investigating officer conducted investigation of the case and

filed charge-sheet against A1 to A3.

4. The case was committed to the SC and ST Court by the VII

Metropolitan Magistrate, Cyberabad at Hayathnagar. At the time of framing

of charges, the petitioners/A1 to A3 filed a petition under Section 227 Cr.P.C.

                                  3                                           Dr. GRR, J
                                                             CRL.R.C. No. 1391 of 2018

vide Crl.M.P.No.115 of 2017 seeking their discharge. The said petition was

dismissed by the learned Special Sessions Judge for trial of cases under SC &

ST (POA) Act, 1989 on 05.01.2018 observing that there were no valid

grounds to discharge A1 to A3 for the offences for which they were charge-

sheeted.

5. Aggrieved by the said dismissal of the petition, petitioners preferred

this revision contending that the dispute was purely of civil nature, the

petitioners / A1 to A3 had nothing to do with the allegations leveled against

them. The remedy for breach of contract was to approach a civil court but

not by filing false report, which would show the ill-motive on the part of the

de-facto complainant. The allegations leveled against the petitioners would

not constitute any offences much less Section 420 of IPC, Section 3(1)(r) of

SC and ST (POA) Act and Section 3 (2)(vii) of SC and ST (POA) Act. The

allegations in the report given by the de-facto complainant or the material

evidence collected during the course of investigation, even if they were

admitted to be true, would fail to disclose the existence of guilty mind or any

essential element to fasten the petitioners with criminal liability. Motioning

criminal law by the de-facto complainant was a clandestine strategy to knock

away the property of the petitioners in an illegal manner and to harass them.

The petitioners had nothing to do with the alleged transaction after the de-

facto complainant failed to fulfill her obligation. The de-facto complainant 4 Dr. GRR, J CRL.R.C. No. 1391 of 2018

failed to pay the balance amount of consideration as stipulated in the

agreement of sale, as such the contract had been repudiated. Nearly after a

period of three months, the present report was filed only to harass the

petitioners. The report or the charge-sheet would not disclose that the

petitioners/ accused intentionally insulted or intimidated the de-facto

complainant. There was no material to take cognizance for the offences

under Section 3(1) (r) of SC and ST (POA) Act. Consequently, the

provisions of Section (3) (2) (vii) of SC and ST (POA) Act were also not at

all attracted. The petitioner/A2 was never present at the time of entering the

agreement or subsequently. He was falsely implicated in the above case with

an ulterior motive of settling a civil dispute and for extracting money. On

11.01.2016, the petitioner/A1 sent a notice to LWs 1 and 2, but they left the

house mentioned in the agreement. Thereafter, having no other alternative,

A1 sold the property in favour of others. The main allegation against the

petitioners/accused was that they failed to register the property in the name of

de-facto complainant since she belonged to Schedule Caste. But there was

no chance for the petitioners/accused to know about the caste of the de-facto

complainant. It was a settled law that no culpability could be found in

respect of issues of civil nature between the parties. The second petitioner

was doing his job to the satisfaction of his superior officials, he was never

involved in misdeeds and prayed to set aside the order dated 05.01.2018

passed in Crl. M.P. No. 115 of 2017 in S.C. No. 91 of 2016.

                                  5                                            Dr. GRR, J
                                                              CRL.R.C. No. 1391 of 2018

6. Heard the learned counsel for the petitioners/A1 to A3 and the learned

counsel for respondent No.1/complainant.

7. The learned counsel for the petitioners argued on the matter as raised

in the grounds of revision and relied upon several judgments on each and

every aspect. He also contended that a departmental enquiry was initiated

against the petitioner No.2 on the complaint lodged by the respondent

No.1/complainant. The complainant and her husband were examined as

witnesses in the departmental enquiry and stated as against their statements

given to the police. The charges against A2 were held not proved. A2 was

admittedly not present at the time of the alleged incident on 17.02.2016, he

was at Medaram jatara bandhobust duty from 13.02.2016 to 20.02.2016, as

per the letter issued by the Superintendent of Police, Warangal Rural dated

25.02.2016. The said documentary evidence also could be considered at the

time of framing of charges as per the judgment of the Hon'ble Apex Court in

Rukmini Navrekar v. Vijaya Satardekar and Others.

8. The learned counsel for the respondent No.1 / complainant on the other

hand submitted that the petitioners filed a quash petition before this Court for

quashing the proceedings in Crime No. 144 of 2016 on the file of

Vanasthalipuram Police Station, Cyberabad vide Criminal Petition No. 2886

of 2016 and the same was disposed by the court on 04.04.2016 directing the

police to complete the investigation into the crime without arresting the 6 Dr. GRR, J CRL.R.C. No. 1391 of 2018

petitioners. The petitioners again filed a petition vide Criminal Petition No.

10928 of 2016 to quash the criminal proceedings against them and the same

was also disposed by the Court vide order dated 28.07.2016 holding that the

Court was not supposed to make roving enquiry into the allegations made in

the charge sheet and the truth or otherwise of the allegations could be decided

during the course of trial but however gave the petitioners liberty to approach

the trial court to avail the remedies under Cr.P.C. including filing a discharge

petition. Subsequently, the petitioners filed the discharge petition which was

also dismissed against which they preferred this revision. He further

contended that there was no clause in the agreement of sale for cancellation

of the agreement. Within one month of the agreed date to pay the balance

sale consideration on 18.12.2015, the respondent No.1/complainant could

secure the loan but the petitioners avoided registration of the sale deed only

basing on the caste of the respondent No.1/complainant. Their dishonest

intention could be gathered from their forfeiting Rs.5,00,000/- taken towards

advance while executing the agreement of sale. There was prima-facie

material against the petitioners for the offences alleged against them.

Considering the same, police filed charge-sheet against the petitioners and

the trial court also dismissed the discharge petition filed by the petitioners

and prayed to dismiss the Criminal Revision Case.

                                 7                                           Dr. GRR, J
                                                            CRL.R.C. No. 1391 of 2018

9. Perused the record. As seen from the contents of the report given by

the respondent No.1/ complainant to the police on 24.02.2016, it would

prima-facie disclose that an agreement of sale was entered by the respondent

No.1/de-facto complainant with A1 on 18.10.2015 for purchase of a house

and paid Rs.5,00,000/- as advance and agreed to pay the balance sale

consideration on or before 18.12.2015 but failed to pay the same within the

said date and they requested for extension of time and subsequently the

petitioner No.1/A1 had sold the said house to a third party. On coming to

know the said fact, the husband of the complainant along with some others

went to Dornakal Police Station where A2 was working to enquire with him

on the said issue and subsequently on 17.02.2016, A1 and A3 (mediator to

the said transaction between the Respondent No.1 and A1) along with two

others came to the house of Respondent No.1 and abused her in the name of

caste at the instigation of A2. The alleged incident took place on 17.02.2016

in the morning hours.

10. The learned counsel for the petitioners submitted that the registration

of the house to the third party by A1 had also taken place on 17.02.2016 as

per the civil suit filed by the Respondent No.1 and her husband for specific

performance of agreement of sale and declaration to declare the sale deed

document No. 854 of 2016 dated 17.02.2016 as null and void on the file of

Principle Distirct and Sessions Judge, Rangareddy District, the petitioners 8 Dr. GRR, J CRL.R.C. No. 1391 of 2018

had chosen the same date for making allegations against the petitioners /A1

to A3. The complaint was lodged with a delay of seven (07 days) on

24.02.2016 without explaining any reasons for the said delay. The matter

arose out of a dispute which was of civil in nature. The respondent No.1

admittedly filed a civil suit for the said relief, mere breach of promise would

not amount to cheating and relied upon the judgments of the Hon'ble Apex

Court in V.Y.Jose and another v. State of Gujarath and another 1 and

Inder Mohan Goswami and another v. State of Uttranchal and Others2 ,

Prof. R.K. Vijayasarathy and another v. Sudha Seetharam and another3

and Sardar Ali Khan v. State of Uttar Pradesh through Principal

Secretary Home Department and another4.

11. The Hon'ble Apex Court in V.Y. Jose and another v. State of

Gujarath and another (1 supra) held that:

"An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

                 i)    Deception of a person either by making a
                       false or misleading representation or by
                       other action or omission;

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

(2009) 3 SCC 78

AIR (2008) SC 251

(2019) 16 SCC 739

(2020) 12 SCC 51 9 Dr. GRR, J CRL.R.C. No. 1391 of 2018

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

12. The allegations in the complaint would not disclose that the

petitioner/A1 had an intention to cheat the Respondent No.1 at the time of

entering into the agreement of sale.

13. As per the learned counsel for the petitioners, the petitioner No.1 had

issued two legal notices to the Respondent No.1 and her husband on

11.01.2016 and on 03.02.2016 revoking the agreement of sale deed dated

18.10.2015 as they failed to pay the remaining sale consideration of

Rs.42,00,000/- within the stipulated period on 18.12.2015 as per the

agreement of sale and filed the office copies of the said legal notices. He also

stated that the Respondent No.1 had also issued a reply to the legal notices on

06.02.2016 stating that their application for loan was under process and the

petitioner No.1/A1 could not cancel the agreement of sale unilaterally.

14. Thus, the dispute appears to be prima-facie civil in nature and

admittedly a civil case was filed by the respondent No.1 and her husband

seeking appropriate remedies before the Civil Court.

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                                                                    CRL.R.C. No. 1391 of 2018

15. In Inder Mohan Goswami and another v. State of Uttaranchal and

others (2 supra), the Hon'ble Apex Court on considering the definition of

cheating under Section 415 IPC, held that:

"On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts 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 need not be fraudulent or dishonest. 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 a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.

"The Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused.

16. In Prof. Vijayasarathy and Another v. Sudha Seethram and

another (3 supra), the Hon'ble Apex Court held that:

"A Criminal Proceeding can be quashed where the allegations made in the complaint do not disclose the commissions of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating 11 Dr. GRR, J CRL.R.C. No. 1391 of 2018

the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code".

17. In Sardar Ali Khan v. State of Uttar Pradesh (4 supra), the Hon'ble

Apex Court held that:

"Having regard to serious factual disputes which are of civil nature, for which civil suits are pending, allowing the 2nd respondent to pursue his complaint in criminal proceedings is nothing but abuse of the process of law.

For the aforesaid reasons, we are of the considered view that the criminal proceedings are fit to be quashed by allowing the appeal".

18. The above judgments would disclose that fraudulent or dishonest

intention on the part of the person was the essential ingredient of the offence

of cheating and the intention of cheating must be from the inception itself and

mere failure to keep up a promise would not amount to cheating and also that

criminal prosecutions could not be used as an instrument of harassment or for

seeking private vendetta or with an ulterior motive to pressurize the accused

persons.

19. Section 227 Cr.P.C. deals with discharge of the accused. It reads as

follows:

"Discharge: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of 12 Dr. GRR, J CRL.R.C. No. 1391 of 2018

the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing".

20. The Hon'ble Apex Court in Dilawar Balu Kurane v. State of

Maharashtra 5 held that:

"In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (Union of India v. Prafulla Kumar Sama [(1979) 3 SCC 5]).

21. The learned counsel for the petitioners contended that there was a shift

in the trend of the Hon'ble Apex Court while considering the petitions for

(2002) 2 SCC 135 13 Dr. GRR, J CRL.R.C. No. 1391 of 2018

discharge, while earlier it opined that the material placed by the accused

could not be considered while dealing with the petitions for discharge, later it

was changed from 2009 onwards and opined that the same also could be

considered, but the trial court placed reliance on the earlier judgment

rendered in State of Orissa v. Debender Padhi6 case only.

22. The Hon'ble Apex Court in Rukmini Narvekar v. Vijaya Satardekar

and Others7 while referring to the judgment in State of Orissa v. Debender

Padhi (6 supra) held that:

"We should also keep in mind that it is well settled that judgment of the court has not to be treated as a Euclid formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view D.N. Padhi's case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance.

In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e., where the defence produces some material which

AIR (2005) SC 35

AIR (2009) SC 1013 14 Dr. GRR, J CRL.R.C. No. 1391 of 2018

convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

23. Thus, the trial court can also look into the material produced by the

defence in exceptional cases where it would convincingly demonstrate that

the prosecution version was totally absurd.

24. In the present case, the learned counsel for the petitioners relied upon

the letter issued by the Superintendent of Police, Warangal Rural dated

25.02.2016 to show that A2 was in bandhobust duty and was not available

not only on 17.02.2016 but from 13.02.2016 to 20.02.2016, and also upon the

evidence of the respondent Nos.1 and 2 recorded in the departmental

proceedings against A2 on the complaint given by them to contend that the

alleged offences of SC and ST Act complained by the complainant to have

committed by the petitioners/A1 and A3 at the instigation of A2 appear to be

prima-facie improbable. He contended that the respondent No.1 and her

husband were examined in the departmental enquiry and the respondent No.1

admitted in her cross-examination that she had not seen A2 prior to enquiry.

The husband of the respondent No.1 also admitted in his cross examination in

the departmental enquiry to the question whether the caste of the accused was

mentioned either in the agreement or in the notices and stated that, "that

situation would not arise". It strengthens the case of the petitioners that there

was no chance for the petitioners/accused to know about the caste of the de-

                                              15                                               Dr. GRR, J
                                                                              CRL.R.C. No. 1391 of 2018

facto complainant at the time of entering into the agreement of sale or while

issuing notices to them. Hence, the allegations made against the petitioners

incorporating the offences under SC and ST (PoA) Act, was an afterthought.

25. The learned counsel for the petitioners relied upon the judgment of the

High Court of Andhra Pradesh in Punugoti Naga Kiran Kumar v. State of

Andhra Pradesh and Others8 wherein it was held that:

"This Court is conscious of the fact that it should not assume the role of trial court and evaluate evidence. At the same time, while exercising the jurisdiction under Section 482 of Cr.P.C. this Court cannot adopt a casual or mechanical approach to the facts before it and is under a duty to scrutinize the facts in the light of the circumstances of the case. Merely because the First Information Report contains some allegations attracting the offence punishable under Section 3(1)(x) of the Act and the fact that a charge-sheet was lodged after investigation, it cannot refrain from examining the absurdity or falsity of allegations mentioned in the FIR/charge- sheet. If the allegations mentioned in the FIR/charge-sheet are inherently improbable or apparently absurd, this Court can proceed to quash the FIR/charge-sheet in exercise of powers under Section 482 of Cr.P.C. notwithstanding the fact that the allegations mentioned in the FIR/charge-sheet technically attract the offence punishable under the Act or any other offence under the Penal Code".





    2014 (2) ALD (Criminal 39) (AP)
                                         16                                                  Dr. GRR, J
                                                                            CRL.R.C. No. 1391 of 2018

26. The learned counsel for the petitioners relied upon the judgment of the

Hon'ble Apex Court in Hitesh Verma v. State of Uttarakhand and

another9 wherein it was held that:

"Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [(2008) 8 SCC 435]. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under:

"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence

(2020) 10 SCC 710 17 Dr. GRR, J CRL.R.C. No. 1391 of 2018

since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies".

27. As per the complaint, the incident took place on 17.02.2016 at the

house of the complainant but it was not specified in the complaint whether

the incident took place inside the house or outside the house and any other

persons had witnessed the incident and whether it took place within the

public view.

28. Thus, the prima-facie ingredients of the offence under Section 3(1)(r)

of SC and ST (POA) Amendment Act are not made out against the

petitioners. As admittedly, the petitioner No.2/A2 was not present on the

said date and time of the incident, the ingredients of Section 3(2) (vii) of SC

and ST (POA) Act are also not attracted. This Court does not find the

offence of cheating made out from the facts and circumstances of the case.

29. Hence, this court does not find any justification to continue the

proceedings against the petitioners.

30. In the result, the Criminal Revision Case is allowed setting aside the

order of the trial court in Cri. M.P. No. 115 of 2017 in S.C. No. 91 of 2016 18 Dr. GRR, J CRL.R.C. No. 1391 of 2018

on the file of Special Sessions Judge for trial of cases. The petitioners/ A1 to

A3 are discharged from the offences alleged against them.