Telangana High Court
Sarwan Agarwal vs The State Of Telangana on 6 February, 2023
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.11242 OF 2022
Between:
Sarwan agarwal and others ... Petitioners
And
The State of Telangana,
Rep. by its Public Prosecutor,
High Court for the State of Telangana
and another. ... Respondents
DATE OF JUDGMENT PRONOUNCED: 06.02.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 11242 of 2022
% Dated 06.02.2023
# Sarwan agarwal and others ... Petitioners
And
$ The State of Telangana,
Rep. by its Public Prosecutor,
High Court for the State of Telangana
and another ... Respondents
! Counsel for the Petitioner: Sri C.Sharan Reddy
^ Counsel for the Respondents: Sri S.Sudershan
Additional Public Prosecutor for R1
Sri Bankatlal Mandani for R2
>HEAD NOTE:
? Cases referred
1
(2009) 7 Supreme Court Cases 444
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.11242 OF 2022
ORDER:
1. Petitioners are being prosecuted for the offences under
Sections 406 and 420 of IPC on the file of IX Additional
Metropolitan Magistrate at Medchal on the basis of private
complaint filed by the 2nd respondent and taken cognizance
by the learned Magistrate.
2. Briefly, the facts of the case are that the 2nd
respondent, his wife along with these petitioners purchased
undivided share in open land at Dullapally village,
Quthbullapur Mandal, Medchal Malkajgiri District to an
extent of Ac.1.30 gts in Sy.No.155, Ac.0.11.332 gts in
Sy.No.154 & Ac.0.13.444 gts in Sy.No.154 admeasuring
Acs. 2-14.776 gts. There were civil disputes in respect of the
land and the cases were pending before the civil court.
3. It is alleged that the 2nd respondent issued a notice to
these petitioners on 11.06.2018 asking these petitioners not
to alienate their share in the entire property without giving
first option of purchase to the 2nd respondent. However,
these petitioners issued reply notice on 26.07.2018 stating
that there was no such understanding and mentioned that
the 2nd respondent had already refused offer of purchase of
share of these petitioners. The 2nd respondent's wife filed
O.S.No.316 of 2018 on the file of XVI Additional District &
Sessions Judge, Cyberabad at Malkajgiri, against these
petitioners for partitioning the property. The Civil Court by
order dated 03.10.2018 in I.A.No.1152 of 2018 directed
these petitioners not to alienate the property and such
interim orders were extended up to 28.02.2019.
4. The allegations in the present complaint are that the
petitioners have sold the said property through four sale
deeds on 23.02.2019 and 28.02.2019 when the interim
orders were subsisting. For the reason of selling the
property without demarcating the share of the 2nd
respondent and his wife, which is 1/6th share in the
property, a criminal complaint was filed with the police Pet
Basheerabad and the same was registered for the offence
under Section 420 r/w 34 of IPC.
5. The police having investigated the case filed final
report stating that the dispute was purely civil in nature
and accordingly filed final report.
6. The 2nd respondent filed protest petition before the
XXII Metropolitan Magistrate, Cyberabad at Medchal. The
learned Magistrate, having examined P.Ws.1 and 2 found
that there was prima facie evidence of criminal
misappropriation and cheating against these petitioners.
Accordingly, learned Magistrate directed issuance of
summons to these petitioners to be tried for the said
offences. Learned Magistrate found that according to the
sale deeds, the 2nd respondent and his wife and these
petitioners have jointly purchased the property, however,
these petitioners have alienated the said property to third
parties. In the civil suits that were filed by the wife of the
2nd respondent, Petitioners/accused admitted that the 2nd
respondent and his wife have rights in the property and also
stated in the written statement that there is no property
available for partition and the 2nd respondent does not have
any right over the subject land. On the said basis, learned
Magistrate found that prima facie case of Section 420 IPC
and 406 of IPC are made out. Learned Magistrate also
relying on the judgment of Hon'ble Supreme Court found
that pendency of civil suit does not bar criminal
prosecution.
7. After taking cognizance, the petitioners filed petition
under Section 245 of Cr.P.C with a prayer to discharge them
from the case, mainly on the ground that by virtue of
Section 44 of the Transfer of Property Act, the petitioners
have right to alienate their share in the joint property.
However, the learned Magistrate found that though the
property was sold, the petitioners have failed to mention the
details of the undivided share and boundaries of the 2nd
respondent and his wife before selling the property. When
the boundaries did not indicate the property of the 2nd
respondent, it implies fraudulent intention of the
petitioners. Since several factual aspects are involved
including the permissibility under Section 44 of the Transfer
of Property Act, learned Magistrate refused to discharge the
petitioners. Aggrieved by the said dismissal of discharge,
petitioners herein approached the learned Sessions Court by
filing Criminal Revision Petition No.31 of 2022. The learned
Sessions Judge found that since the documents do not
disclose the details of 1/6th share of the property, dismissal
of discharge application by the learned Magistrate was
proper.
8. Learned counsel appearing for the petitioners would
submit that though the interim orders that were granted in
I.A.No.1152 of 2018 in O.S.No.316 of 2018, whereby the
civil court ordered the petitioners not to alienate the
property, the petitioners did not have knowledge and notices
in the said I.A were also not served on these petitioners. The
docket proceedings in the interlocutory application dated
15.04.2019 would show that notices to be served on these
petitioners was awaited. For the said reason, it cannot be
said that there is a violation of Civil Court's order.
9. Learned counsel further submits that it is not in
dispute that only 5/6th share of these petitioners was sold
and 1/6th share that belongs to the 2nd respondent and his
wife was not alienated. At best, the sale of land pending
Civil Court's order would result in disobedience, which is
punishable under Order 39 Rule 2(a) of CPC and not under
Section 420 or 406 of IPC. Accordingly, learned counsel
prayed to quash the criminal proceeding as the disputes are
purely civil in nature.
10. On the other hand, learned counsel appearing for the
2nd respondent would submit that Section 44 of Transfer of
Property Act, though enables a person to sell his part of the
share, the share of the 2nd respondent and his wife are
nowhere to be found in the sale deeds which were executed
in favour of third parties by the petitioners and does not
indicate the share of the 2nd respondent and his wife. In the
event of 1/6th of the property of 2nd respondent being set
aside, it would have been reflected in the sale deeds as one
of the boundaries to the plot sold by the petitioners. When
there is no land available, it is evident that these petitioners
have cheated the 2nd respondent, for which reason, criminal
prosecution has to go on against the petitioners for criminal
misappropriation and cheating.
11. Having gone through the documents filed by both the
parties, it is not in dispute that only 5/6th of the property
out of the total extent jointly held by the petitioners and 2nd
respondent and his wife was sold by these petitioners.
Admittedly none of the boundaries in any of the sale deeds
show the land of the 2nd respondent herein.
12. For the sake of convenience, Section 44 of the
Transfer of Property Act is extracted hereunder:
"44. Transfer by one co‐owner.--Where one of two or more co‐owners of
immoveable property legally competent in that behalf transfers his share of
such property or any interest therein, the transferee acquires as to such share
or interest, and so far as is necessary to give, effect to the transfer, the
transferor's right to joint possession or other common or part enjoyment of the
property, and to enforce a partition of the same, but subject to the conditions
and liabilities affecting at the date of the transfer, the share or interest so
transferred. Where the transferee of a share of a dwelling‐house belonging to
an undivided family is not a member of the family, nothing in this section shall
be deemed to entitle him to joint possession or other common or part
enjoyment of the house."
13. As seen from the provision, there is no restriction on
the part of joint owners to sell the part of undivided land
that falls to their share. No law prohibits selling of property
of a co-sharer to outsiders and there is no condition that a
co-sharer has to sell his part of the property to other co-
sharer, who is not willing to sell the property or offer him
the land for purchase. However, the possession of the land
in the undivided share cannot be handed over to the vendee
unless the property is partitioned by metes and bounds
either amicably or in the form of decree by a competent civil
court.
14. Apparently, the purchasers of the property cannot
have a better title than what the vendor of the property has.
In the present case, when the petitioners have sold the
property without being partitioned, the possession of such
5/6th part of the undivided land can only be given after
partition and the 1/6th share of the 2nd respondent and his
wife being demarcated.
15. Since the 2nd respondent's 1/6th share was not
entrusted to the petitioners herein, the question of any
misappropriation does not arise and further only 5/6th part
of the property was sold by these petitioners. The sale
transaction by these petitioners to their vendors is purely a
civil transaction as held by the Hon'ble Supreme Court in
the case of Ramdas v. Sitabai and others1. The sale of
undivided share of land is permissible even without the
consent of the co-sharer. However, the possession of the
property can only be handed over after demarcating. Since
the issues involved are purely civil in nature and parties
have already approached civil court by filing partition suit,
this court deems it appropriate to quash the proceedings
against these petitioners as none of the ingredients of either
Section 406 or Section 420 of IPC are made out.
(2009) 7 Supreme Court Cases 444
16. In the result, the impugned order in Crl.R.P.No.31 of
2022 on the file of II Additional District & Sessions Judge,
Medchal is set aside and the proceedings against the
petitioners in C.C.No.845 of 2020 on the file of IX Additional
Metropolitan Magistrate at Medchal, are hereby quashed.
17. Accordingly, the Criminal Petition is allowed.
Consequently, miscellaneous petitions, if any, shall stand
closed.
__________________
K.SURENDER, J
Date:06.02.2023
Note: LR copy to be marked.
B/o.kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITOIN No.11242 OF 2022
Date: 06.02.2023
kvs
