Syed Altaf Hussain Syed Altaf Ali vs The State Of Telangana,
2022 Latest Caselaw 5777 Tel

          THE HON'BLE SRI JUSTICE K.SURENDER

          CRIMINAL PETITION No. 13385 OF 2016

O R D E R:

This Criminal Petition is filed under Section 482 of the

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

quash the proceedings against the petitioner in C.C.No.104 of

2015 on the file of the XVII Additional Chief Metropolitan

Magistrate, Hyderabad (arising out of Crime No.218/2013). The

petitioner herein is the accused No.1 in the Calendar Case and

the offences alleged against him are under Section 406, 420,

384, 506 of the Indian Penal Code r/w.34 of the IPC.

2. Heard learned counsel for the petitioner and learned

Additional Public Prosecutor, for respondent State and perused

the record.

3. Briefly, the facts of the case are that this petitioner who

was arrayed as Accused No.1, alleged to have contacted the

defacto complainant through one Mohd.Mehaboob Khan. As the

defacto complainant was in need of Rs.25 lakhs, he contacted

this petitioner and petitioner promised to provide finance, if the

properties are mortgaged. Accordingly, the defacto complainant

mortgaged properties to an extent of 144 Sq.Yards including

built-up area and an amount of Rs.25 lakhs was received. There

was simultaneously an agreement of sale-cum-GPA with

possession in favour of Accused Nos.3 and 4 who are friends of

this petitioner, at the instance of this petitioner. The said GPA

with possession is apart from the mortgage deed which was

already executed. In the GPA, the defacto complainant found

that the amount was mentioned as Rs.35 lakhs. Though, the

defacto complainant repaid the amount to this petitioner, the

GPA was not cancelled and accused were asking to register

another property to execute cancellation deed.

4. Basing on the said complaint, the Police Musheerabad

investigated and filed charge sheet against this petitioner and 4

others.

5. This Court vide order dt.19.02.2016 in Crl.P.No.2058 of

2016, quashed the proceedings against Accused No.2, having

found that Accused No.2 was only a person who introduced the

defacto complainant to this petitioner and the transactions were

in between this petitioner and defacto complainant.

6. Learned Counsel for the petitioner submits that the

transactions are purely civil in nature and there is no question

of cheating, for the reason of the facts not reflecting any

intention to cheat, from the inception. Unless such intention

can be deduced from the facts of the case, subsequent failure to

adhere to the agreement or contract, will not amount to an

offence of cheating or criminal mis-appropriation.

7. In support of his arguments, he relied upon the

Judgments of Honourable Supreme Court in;

a) International Advanced Research Centre for Power Metallurgy and New Materials (ARCI) and others v. Nimra Cerglass Technics Private Limited and another1

b) Mohd.Khalid Khan v. State of Uttar Pradesh and another2

c) Vesa Holdings Private Limited v. State of Kerala3

8. On the other hand, learned counsel appearing for the

defacto complainant would submit that the facts narrated by

the defacto complainant make out an offence of cheating and

criminal mis-appropriation, for which reason the proceedings

before the trial Court should continue.

9. Having gone through the charge sheet and the statements,

the defacto complainant is alleging that this petitioner was

(2016) 1 SCC 348

AIR 2015 Supreme Court 3656

(2015) 8 SCC 293

complicit in inducing the defacto complainant into executing

two deeds which are mortgage deed and also the Agreement of

Sale-cum-GPA with possession. Having received the said

amounts it is the case of the defacto complainant that the

petitioner and others failed to cancel the Agreement of sale-

cum-GPA, as agreed earlier.

10. From the facts of the case, there is prima facie evidence of

mis-representation and inducement. As argued by the counsel

for the petitioner, whether there was intent on the part of the

petitioner at the very inception cannot be decided in the present

application. Why two deeds were executed at the earliest point

of time and after alleged payment of the outstanding, why the

petitioner and others failed to cancel the Agreement of Sale-

cum-GPA but threatening, according the defacto complainant,

are all questions that can only be decided during the course of

trial. For the said reasons, the petition lacks merits and liable to

be dismissed.

11. Accordingly, the Criminal Petition is dismissed. Needless

to say that the observations made in this criminal petition are

only for the purpose of deciding whether inherent powers under

Section 482 of the Cr.P.C. can be invoked to quash the

proceedings at the threshold without a trial. The learned

Magistrate shall draw his own conclusions on the basis of

evidence adduced during the course of trial.

As a sequel thereto, miscellaneous applications pending, if

any, in this criminal petition, shall stand closed.

___________________ K.SURENDER, J Dt.: 11.11.2022 tk

THE HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL PETITION No.13385 OF 2016

Dt. 11.11.2022

tk