Anwar Akbani vs State Of Telangana
2023 Latest Caselaw 3580 Tel

       HIGH COURT FOR THE STATE OF TELANGANA
                     AT HYDERABAD
                            *****

Criminal Petition No.1689 OF 2018

Between:

Rafeeq Akbani and another. ..Petitioners/Accused

And The State of Telangana Rep. by its Public Prosecutor and another ...Respondents/ Complainants Criminal Petition No.1690 OF 2018 Between:

Anwar Akbani ...Petitioner/Accused And The State of Telangana Rep. by its Public Prosecutor and another ...Respondents/Complainant DATE OF JUDGMENT PRONOUNCEMENT: 06.11.2023

Submitted for approval.

THE HON'BLE SRI JUSTICE K.SURENDER

1 Whether Reporters of Local newspapers may be allowed to see the Yes/No Judgments?

2 Whether the copies of judgment may be marked to Law Reporters/Journals Yes/No

3 Whether Their Ladyship/Lordship Wish to see their fair copy of the Yes/No Judgment?

__________________ K.SURENDER, J

* THE HON'BLE SRI JUSTICE K. SURENDER

+ CRL.P. No. 1689 of 2018

% Dated 06.11.2023

# Rafeeq Akbani and another ... Petitioners/Accused

And

$ The State of Telangana Rep. by its Public Prosecutor and another ...Respondents/ Complainant

+ CRL.P. No. 1690 of 2018

# Anwar Akbani ...Petitioner/Accused

And

$ The State of Telangana Rep. by its Public Prosecutor and another ...Respondents/Complainant

! Counsel for the Petitioner: Sri P.Shashi Kiran

^ Counsel for the Respondents: Additional Public Prosecutor for R1 Sri Pramod Kumar Kedia for R2 >HEAD NOTE:

? Cases referred

(2005) 10 Supreme Court Cases 336

(2005) 10 Supreme Court Cases 228

2002 (1) ALD (Crl.) 889 (A.P)

2000 (1) ALD (Crl.) 895 (A.P)

(2023) 8 Supreme Court Cases 734

2009 (2) ALD (Crl.) 358(SC)

SLP (Crl.) NO.6364 of 2019

2014 (1) ALD (Crl.) 233 (AP)

THE HONOURABLE SRI JUSTICE K.SURENDER

CRIMINAL PETITION NOS.1689 AND 1690 OF 2018

COMMON ORDER:

1. Criminal Petition No.1690 of 2018 is filed by A1 and

Criminal Petition No.1689 of 2018 is filed by A2 and A3 for

quashing the proceedings against them in Crime No.109 of

2017 pending investigation before the CCS, Hyderabad.

2. The defacto complainant approached the Commissioner

of Police, CCS and filed written complaint on 21.07.2017

which was registered for the offence under Sections 420 and

406 r/w 34 of IPC. It is alleged in the complaint that the

petitioners approached the defacto complainant for purchase

of refined edible oils. Petitioners promised to pay cost of the

supplied material within 15 days from the date of supply and

also assured interest at the rate of 24% per annum if the

payment goes beyond the promised date. Believing the

representation and assurance given by the petitioners, from

20.12.2014 to 06.02.2015 against 9 invoices, oil was

supplied. Prior to the said transactions initially amounts were

paid within time from the date of purchase and thereafter

started making payments belatedly and callously. Thereafter,

the petitioners denied to payment of major amounts. On

verification of the accounts, the total outstanding was

Rs.1,00,24,069/-. For not paying the said amount, the

defacto complainant suffered mental stress.

3. Thereafter, the 2nd respondent persuaded the petitioners

for issuance of cheques. The chques which were issued by the

petitioners when presented for clearance were returned

unpaid by the bank with an endorsement 'insufficient funds'.

Intimation was given of the said dishonour and complaints

were also filed under Section 138 of the Negotiable

Instruments Act.

4. The conduct of the petitioners in delaying payment and

issuing cheques which were dishonoured amounts to an

offence of cheating and criminal breach of trust, as such,

complaint was filed. The said complaint was registered and

being investigated into by the police.

5. Learned counsel appearing for the petitioners would

submit that the petitioners have in fact made payments even

according to the defacto complainant, however, the cheques

which were issued towards payment were returned unpaid,

for which reason, the present complaint was filed. To attract

an offence of cheating, the intention to cheat should be from

the inception of the transactions and subsequent failure to

pay the amount during business transactions would not

amount to criminal offence of either cheating or criminal

misappropriation. He relied on the judgment of the Hon'ble

Supreme Court in the case of Uma Shankar Gopalika v.

State of Bihar and another 1, wherein the Hon'ble Supreme

Court held that there has to be an allegation in the compliant

that the intention to cheat was from the inception and also

the fact should be made out that the accused intended to

cheat, failing which, proceedings would be quashed. In Anil

Mahajan v. Bhor Industries Limited and another 2, similar

view was taken by the Hon'ble Supreme Court. Learned

counsel also relied on the judgments reported in the case of

Reginald Abraham and others v. State of A.P 3 and HICEL

Pharma Limited and others v. State of Andhra Pradesh

(2005) 10 Supreme Court Cases 336

(2005) 10 Supreme Court Cases 228

2002 (1) ALD (Crl.) 889 (A.P)

and others 4 on similar grounds, the proceedings were

quashed.

6. On the other hand, learned counsel appearing for the 2nd

respondent/defacto complainant would submit that quashing

of FIRs can only be in the rarest of rare cases. If the Court

finds that prima facie the allegations leveled in the complaint

make out the offence as alleged, High Court should restrain

from quashing the proceedings. In the present case, the police

should be given free hand to investigate into the case and the

petitioners would be at liberty to question the charge sheet

filed after investigation either by approaching the trial Court

by filing a discharge application or approaching this Court

under Section 482 of Cr.P.C. He relied on the judgment of

Hon'ble Supreme Court in the case of Iqbal alias Bala and

others v. State of Uttar Pradesh 5, Syed Askari Hadi Ali

Augustine Imam and another v. State (Delhi Admn.) and

another 6, Priti Saraf and another v. State of NCT of Delhi

2000 (1) ALD (Crl.) 895 (A.P)

(2023) 8 Supreme Court Cases 734

2009 (2) ALD (Crl.) 358(SC)

& another 7 and the judgment reported in the case of

D.Achyutha Reddy v. State of Andhra Pradesh and

another 8.

7. Learned counsel for the 2nd respondent further argued

that taking recourse to civil proceedings will not come in the

way of criminal compliant and consequent investigation. The

complaint has to be investigated and accordingly petition has

to be dismissed.

8. The transactions during business can give rise to both

civil and criminal proceedings on the basis of the peculiar

facts of each case. It cannot be said as a rule that every

criminal compliant that is lodged has to be investigated.

Criminal proceedings can be quashed in cases where the

business transactions make out a case predominantly civil in

nature. This Court cannot permit civil transactions be given

cloak of criminal offence and parties approaching the police,

filing criminal complaint to exert pressure to settle civil

disputes.

SLP (Crl.) NO.6364 of 2019

2014 (1) ALD (Crl.) 233 (AP)

9. As seen from the compliant, the transaction between the

petitioners and the 2nd respondent was a continuous process

over a period of time and payments were made by the

petitioners when the goods were supplied by the 2nd

respondent. Though an averment is made in the compliant

that subsequently the petitioners have entertained an

intention to cheat the complainant and accordingly did not

pay for the goods supplied, the same cannot be made basis to

infer that the petitioners have cheated the defacto

complainant. As held by the Hon'ble Supreme Court, the test

to determine the intention of cheating can also be from the

fact that such intention should have been entertained right

from the inception of the transaction. When the payments

were regularly being made initially and subsequently for some

of the invoices payment was deferred and cheques were

issued, the ingredients of Section 420 of IPC are not made

out. It cannot be said that there is an act of deception played

by the petitioners. Breach of promise or contract in the

present circumstances cannot be held to be an offence of

cheating or criminal misappropriation punishable under

Section 406 of IPC.

10. In the present transactions, cheques were issued and

cases were also instituted under Section 138 of the Negotiable

Instruments Act. It cannot be said that the petitioners are

liable for the offence of cheating for the reasons discussed

above. Accordingly, the petitioners succeed in the present

applications.

11. In the result, the proceedings against petitioners/A1 to

A3 in Crime No.109 of 2017 pending investigation before the

CCS, Hyderabad, are hereby quashed.

12. Both the Criminal Petitions are allowed. Consequently,

miscellaneous applications, if any, shall stand closed.

_________________ K.SURENDER, J Date: 06.11.2023 Note: LR copy to be marked.

B/o.kvs

THE HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL PETITION NOS.1689 AND 1690 OF 2018

Dt. 06.11.2023

kvs