Telangana High Court
Habib Abdul Razzaq Baghdadi , Hadi ... vs The State Of Telangana on 5 September, 2023
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition Nos. 12942, 12944, 12945, 12951,
12958, 8958 of 2018, 2098 of 2019, 1190 & 1298 of 2020
Criminal Petition No.12942 of 2019
Between:
Habib Abdul Razzaq Baghdadi @ Hadi Ali & 4 Ors
... Petitioners/A1 to A4 & A9
And
The State of Telangana & other ...
Respondent/Complainant
DATE OF JUDGMENT PRONOUNCED : 05.09.2023
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. 12942,12944,12945,12951,12958,8958,8878 of
2018,2098 of 2019, 1190 & 1298 of 2020
Crl.P.No.12942 of 2019
% Dated 05.09.2023
#Habib Abdul Razzaq Baghdadi @ Hadi Ali&4 Ors
...Petitoners/A1 to A4 & A9
And
$ The State of Telangana ... Respondent/Complainant
! Counsel for the Petitioners: Sri K.V.Raghuveer
^ Counsel for the Respondents: Public Prosecutor
>HEAD NOTE:
? Cases referred
1 (2008) 13 SCC 678
2 (2015) 11 SCC 776
3 2013(3) SCC 330
4 (2008) 5 SCC 668
5 2022 SCC Online Jhar 654
6 (2023) 2 SCC 195
7(2009) 8 SCC 751
8 AIR 1992 SC 604
9 (2015) 6 Supreme Court Cases 287
10 (2022) 5 Supreme Court Cases 639
11 (2019) 16 Supreme Court Cases 272
12 (2015) 13 Supreme Court Cases 689
13 (2020) 14 Supreme Court Cases 552
14 AIR 2019 Supreme Court 847
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos. 12942, 12944, 12945, 12951,
12958, 8958, 8878 OF 2018, 2098 OF 2019, 1190 & 1298
OF 2020
COMMON ORDER:
1. Criminal Petition No.12942 of 2018 is filed to quash the
proceedings in FIR No.249 of 2018, dated 20.08.2018 on the file
of Narayanaguda Police Station, Hyderabad.
2. The 2nd respondent filed a private complaint before the IX
Additional Chief Metropolitan Magistrate at Hyderabad against
these petitioners, who are arrayed as A1 to A4, A9 and seven
others. In the complaint, it is alleged that he purchased 500
sq.yds plot situated at Hi-Grove County County in Manneguda
Village, Pudur Mandal, Vikarabad District on 21.05.2018
through GPA holder A-12. The owner was A11. It is alleged that
A9/M/s.Hira Multi Construction Ventures Private Limited
represented by A1 to A4 converted land into non-agricultural
land for the purpose of residential plots for construction of
houses. A11 purchased a plot on 20.11.2010. In the year 2015,
A11 visited the site and found that Golf Course was coming up.
Then A11 approached A2 and enquired about his plot from A2,
who gave assurance that when the project would be complete,
the cost of plot would increase several times. However, A11
through A12 sold the plot to the defacto complainant by way of
registered sale deed dated 21.05.2018.
3. The 2nd respondent visited the site on 08.07.2018. However,
he was not permitted to enter into his plot in the venture. On
enquiry, he came to know that A10 was given agreement-cum-
GPA by A1 to A9. It was further informed that A1 to A9 have no
connection whatsoever with the said development of Gulf Course
and it is for A10 to develop the said land in accordance with the
DTCP layout. Both the complainant and A11 requested the
petitioners herein to handover their plot, however, there was no
use. For the reason of selling the plot without the consent of A11
and handing it over to A10 on 03.08.2016, complaint was filed.
Since the 2nd respondent incurred wrongful loss, private
complaint was filed.
4. Learned Magistrate referred the case for the purpose of
investigation to Narayanaguda Police, which was registered as
Crime No.249 of 2018 dated 20.08.2018 for the offences under
Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and
Section 83 of Stamps and Registration Act.
5. Criminal Petition No.12944 of 2018 is filed to quash the
proceedings in FIR No.246 of 2018, dated 17.08.2018 on the file
of Narayanaguda Police Station, Hyderabad.
6. The 2nd respondent filed a private complaint before the IX
Additional Chief Metropolitan Magistrate at Hyderabad against
these petitioners, who are arrayed as A1 to A4, A9 and seven
others. In the complaint, it is alleged that he purchased 785.02
sq.yds plot situated at Hi-Grove County in Manneguda Village,
Pudur Mandal, Vikarabad District on 05.03.2018 from A11. It is
alleged that A9/M/s.Hira Multi Construction Ventures Private
Limited represented by A1 to A4 converted the land into non-
agricultural land for the purpose of residential plots for
construction of houses. A11 purchased a plot on 20.11.2010. In
the year 2015, A11 visited the site and found that Golf Course
was coming up. Then A11 approached A2 and enquired about his
plot from A2, who gave assurance that when the project would be
complete, the cost of plot would increase several times. A11 sold
the plot to the defacto complainant by way of registered sale deed
dated 05.03.2018.
7. The 2nd respondent visited the site on 08.07.2018. However,
he was not permitted to enter his plot in the venture. On enquiry,
he came to know that A10 was given agreement-cum-GPA by A1
to A9. It was further informed that A1 to A9 have no connection
whatsoever with the said development of Gulf Course and it is for
A10 to develop the said land in accordance with the DTCP layout.
Both the complainant and A11 requested the petitioners herein
to handover their plot, however, no plot was given. For the reason
of selling the plot without the consent A11 and handing it over to
A10 on 03.08.2016, the 2nd respondent incurred wrongful loss,
as such private complaint was filed.
8. Learned Magistrate referred the case for the purpose of
investigation to Narayanaguda Police, which was registered as
Crime No.249 of 2018 dated 20.08.2018 for the offences under
Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and
Section 83 of Stamps and Registration Act.
9. Criminal Petition No.12945 of 2018 is filed to quash the
proceedings in FIR No.250 of 2018, dated 20.08.2018 on the file
of Narayanaguda Police Station, Hyderabad.
10. The 2nd respondent filed a private complaint before the IX
Additional Chief Metropolitan Magistrate at Hyderabad against
these petitioners, who are arrayed as A1 to A4, A9 and seven
others. In the complaint, it is alleged that he purchased 500
sq.yds plot situated at Hi-Grove County in Manneguda Village,
Pudur Mandal, Vikarabad District on 05.03.2018 from A11. It is
alleged that A9/M/s.Hira Multi Construction Ventures Private
Limited represented by A1 to A4 converted land into non-
agricultural land for the purpose of residential plots for
construction of houses. A11 purchased a plot on 20.11.2010. In
the year 2015, A11 visited the site and found that Golf Course
was coming up. Then A11 approached A2 and enquired about his
plot from A2, who gave assurance that when the project would be
complete, the cost of plot would increase several times. A11 sold
the plot to the defacto complainant by way of registered sale deed
dated 05.03.2018.
11. The 2nd respondent visited the site on 08.07.2018. However,
he was not permitted to enter his plot in the venture. On enquiry,
he came to know that A10 had given agreement-cum-GPA by A1
to A9. It was further informed that A1 to A9 have no connection
whatsoever with the said development of Gulf Course and it is for
A10 to develop the said land in accordance with the DTCP layout.
Both the complainant and A11 requested the petitioners herein
to handover their plot, however, no plot was given. For the reason
of selling the plot without the consent of A11 and handing it over
to A10 on 03.08.2016 and thereby causing wrongful loss, private
complaint was filed.
12. Learned Magistrate referred the case for the purpose of
investigation to Narayanaguda Police, which was registered as
Crime No.250 of 2018 dated 20.08.2018 for the offences under
Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and
Section 83 of Stamps and Registration Act.
13. Criminal Petition No.12958 of 2018 is filed to quash the
proceedings in FIR No.251 of 2018, dated 20.08.2018 on the file
of Narayanaguda Police Station, Hyderabad.
14. The 2nd respondent filed a private complaint before the IX
Additional Chief Metropolitan Magistrate at Hyderabad against
these petitioners, who are arrayed as A1 to A4, A9 and seven
others. In the complaint, it is alleged that he purchased 500
sq.yds plot situated at Hi-Grove County in Manneguda Village,
Pudur Mandal, Vikarabad District on 21.05.2018 through GPA
holder A12. The owner was A11. It is alleged that A9/M/s.Hira
Multi Construction Ventures Private Limited represented by A1 to
A4 converted land into non-agricultural land for the purpose of
residential plots for construction of houses. A11 purchased a plot
on 20.11.2010. In the year 2015, A11 visited the site and found
that Golf Course was coming up. Then A11 approached A2 and
enquired about his plot from A2, who gave assurance that when
the project would complete, the cost of plot would increase
several times. However, A11 through A12 sold the plot to the
defacto complainant through registered sale deed dated
21.05.2018.
15. The 2nd respondent visited the site on 08.07.2018. He was
not permitted to enter into his plot in the venture. On enquiry, he
came to know that A10 was given agreement-cum-GPA by A1 to
A9. It was further informed that A1 to A9 have no connection
whatsoever with the said development of Golf Course and it is for
A10 to develop the said land in accordance with the DTCP layout.
Both the complainant and A11 requested the petitioners herein
to handover their plot. However, there was no use. For the reason
of selling the plot without the consent of A11 and handing it over
to A10 on 03.08.2016, petitioner incurred wrongful loss.
16. Learned Magistrate referred the case for the purpose of
investigation to Narayanaguda Police, which was registered as
Crime No.251 of 2018 dated 20.08.2018 for the offences under
Sections 420, 406, 447, 120-A, 120B, 506 r/w 34 IPC and
Section 83 of Stamps and Registration Act.
17. Criminal Petition No.12951 of 2018 is filed to quash the
proceedings in FIR No.80 of 2018, dated 10.08.2018 on the file of
Chengomol Police Station, Vikarabad District for the offences
under Sections 406 & 420 IPC.
18. The 2nd respondent filed a complaint with Police Station
Chengamol, Vikarabad on 10.08.2018 stating that she, her
husband and other family members were owners of Acs.24.27
guntas of land in Manneguda Sarfekhas village. They executed
an agreement of sale-cum-GPA vide document No.2820 of 2007
registered at SRO, Vikarabad, in favour of Hira Management
Consultants Private Limited (not accused). The petitioners have
cheated the 2nd respondent to enter into the deed.
19. On 29.04.2016, the company namely M/s.Hira Multi
Construction Ventures Private Limited formerly known as
M/s.Hira Management Consultants Private Limited executed sale
deed in its favour and transferred Acs.16.22 guntas of land.
Further, the company sold the land making into small plots to
customers without paying any money to them. For the said
reason, all these petitioners, who are the Managing Director,
Directors of M/s.Hira Management Consultants Private Limited
and subsequently changed the name as 'M/s.Hira Multi
Construction Ventures Private Limited have cheated them.
20. On the basis of the said complaint, Chengumol police
station, registered FIR No.80 of 2018 for the offence under
Sections 406 and 420 of IPC.
21. Criminal Petition No.8958 of 2018 is filed to quash
proceedings in FIR/Crime No.65 of 2018 on the file of Chengumol
Police Station, Vikarabad for the offences under Sections 406
and 420 IPC.
22. The 2nd respondent filed a complaint with Police Station
Chengamol, Vikarabad on 07.07.2018 stating that he purchased
land to an extent of 9680 sq.yds at Manneguda Village through
registered sale deed dated 28.10.2017 from one Syed
Moizudddin, who purchased the said land from the petitioners
under registered sale deed dated 25.04.2016. The land of the
defacto complainant is adjacent to land belonging to the
petitioners and their family members and the same was being
developed by M/s.Kancharla Constructions Private Limited. On
the assurance given by the petitioners that the adjacent land is
being developed into Gulf Course, the defacto complainant
purchased the land from his vendor.
23. On 06.07.2018, when the complainant visited his land, the
security staff of M/s.Kancharla Constructions Private Limited
prevented him from entering into his land. On enquiry, the
defacto complainant came to know that the entire land is being
developed covered by Development Agreement executed by the
petitioners and their family members in favour of the company.
The defacto complainant though tried, could not contact the
petitioners. Even though the defacto complainant personally
enquired with 1st petitioner before purchasing the subject land
from his vendor, he deliberately suppressed the fact that the said
land was covered by the DGPA, thus cheated the defacto
complainant.
24. On the basis of the said complaint, Chengumal police
station, registered FIR No.65 of 2018 for the offence under
Sections 406 and 420 of IPC.
25. Criminal Petition No.2098 of 2019 is filed by the
petitioner to quash proceedings in Crime No.173 of 2018 on the
file of Chengomul Police Station, Vikarabad for the offences
under Sections 447, 427 & 504 of IPC.
26. The 2nd respondent/defacto complainant filed written
complaint on 17.12.2018 addressed to Chengomul police station
that she purchased 500 sq.yds of plot from petitioner on
18.09.2010. She fenced her plot and ten days prior to the
complaint, when she went to see the property, she saw some
people developing the property. The 2nd respondent contacted 1st
petitioner and questioned as to who was developing the plot and
the petitioner informed that he was sending his son Mohammed
Hadi Ali. Mohammed Hadi Ali went to the plot and threatened the
2nd respondent that there is no plot and they will not give any
plot. Aggrieved by the plot being taken for development without
her permission, criminal complaint was filed.
27. The Chengomul police station registered the case for the
offences under Sections 447, 427 & 504 of IPC against the
petitioner, which is pending investigation.
28. Criminal Petition No.8878 of 2018 is filed to quash the
proceedings against the petitioners/A1 to A4 in FIR No.6 of 2018
dated 30.01.2018 on the file of Chengomol Police Station,
Vikarabad for the offences under Sections 447, 427, 406, 420
and 506 of IPC.
29. The 2nd respondent/defacto complainant filed a complaint
with Station House Officer, Chengomul Police Station stating that
he purchased plot No.449 admeasuring 500 sq.yds situated at
Hi-Grove County, Manneguda village from the petitioners herein.
The defacto complainant has placed fencing around his plot.
However, when he went to the plot, he saw that the fencing was
damaged and some people were developing the property into Golf
Course. He called A1, who informed that he would send his
son/2nd petitioner. The 2nd petitioner went to the premises and
threatened the 2nd respondent that there is no plot and he can do
whatever he wants. For the said reason of being cheated and
giving his plot for development without his permission, criminal
complaint was filed and the same was registered as Crime No.6 of
2018 for the offences under Sections 447, 427, 406, 420 and 506
of IPC.
30. Criminal Petition Nos.1190 & 1298 of 2020:
On the basis of the complaint filed by the 2nd respondent
with Chengamolu police station, a crime No.173 of 2018 was
registered for the offences under Sections 420, 406, 447, 506 r/w
34 of IPC. The allegation of the 2nd respondent is that in the
month of July, 2007, Rs.12.00 lakhs was paid for purchasing two
plots of each 500 sq.yds bearing plot Nos.549 and 550 in Hi-
Grove Country, situated at Manneguda village. The said plots
were registered on 18.09.2010 by A1/1st petitioner.
31. In the year 2018, when the 2nd respondent and his family
members went to the plot, they came to know that the plots were
given for development to M/s.Kancharla Constructions Private
Limited and they entered into development agreement with A1
and their family members. The 2nd respondent met K.Pruthvi
Reddy, Managing Director of M/s.Kancharla Constructions, who
informed that they have entered into development agreement
with A1 and others, to develop the land into Golf Course-cum-
residential gated community. It was further informed that the
developer had nothing to do with any alleged cheating committed
by the petitioners, who have sold the plots to the 2nd respondent.
Further, K.Pruthvi Reddy, Managing Director of M/s.Kancharla
Constructions Private Limited promised to give two new plots to
the 2nd respondent herein.
32. The said case was transferred to Economic Offences Wing,
CID, Hyderabad. Additional Superintendent of Police had
conducted investigation and filed charge sheet against the
petitioners herein for cheating the 2nd respondent. Petitioners
sold the plots to 2nd respondent and subsequently without
permission and consent of 2nd respondent gave the said land for
the purpose of development to M/s.Kancharla Constructions
Private Limited.
33. All these Criminal Petitions are being disposed by way of
this Common Order since the crux of the grievance in all the
complaints is the Development Agreement-General Power of
Attorney between M/s.Hira Multi Constructions Ventures Private
Limited and M/s.Kancharla Constructions Private Limited,
leading to wrongful loss to the 2nd Respondents in all the cases.
34. Arguments of learned counsel for the petitioners:
Sri D.V.Sitarama Murthy, learned Senior Counsel appearing
for the petitioners would submit that the petitioners are owners
and possessors of land to an extent of Acs.193.00 guntas at
Manneguda Village. Plots were sold to 26 persons to an extent of
Acs.7.00. The company M/s.Hira Management Consultants
Private Limited decided to develop land into golf course and
residential community, entered into Development Agreement with
M/s.Kancharla Constructions Private Limited. Even before
entering into development agreement, petitioner/Habib Abdul
Razzaq Al Baghdadi (Hadi Ali) informed all the 26 plot owners
about the development of land and gave option for plot of equal
extent in the developed area or refund the money. Out of 26
plots, five sale deeds were cancelled and amounts were refunded
to the purchasers. 11 plots were purchased by developer and 10
persons got plots in new Layout.
35. Senior counsel further argued that the Petitioners entered
into three registered development agreements-cum-General
Power of Attorney in favour of M/s.Kancharla Constructions
Private Limited in the year 2016. In each of the development
agreements, a clause was included that the company would
retain an extent of Acs.7.00 out of Acs.50.00 in Sy.No.80 of
Manneguda village to compensate the parties to whom the land
owner has earlier sold plots. Out of the extent of Acs.193.00,
Acs.7.00 would be demarcated and separated in the
supplementary agreement. Accordingly, the details of 26 plot
owners were also given in the three documents. The development
agreement further stipulates that only after execution of
supplementary agreement, sanction of the layout of DTCP, there
would be allocation of plots to the land owners and development.
However, no supplementary agreement was entered into in
between M/s.Hira Multi Constructions Ventures Private Limited
and M/s.Kancharla Constructions Private Limited.
36. The question of cheating the defacto complainant of their
land does not arise since no title was transferred to
M/s.Kancharla Constructions Private Limited. The plots sold to
the customers/defacto complainant are safe and question of
deceiving the 2nd respondents does not arise.
37. Further, a notice was issued to M/s.Kancharla
Constructions Private Limited on 01.06.2018 for canceling the
development agreement since M/s.Kancharla Constructions
Private Limited had committed defaults and irregularities in the
violation of the development agreement-cum-GPA. On
04.07.2018, petition was filed under Section 9 of the Arbitration
and Conciliation Act, 1996 before the Chief Judge, City Civil
Court, Hyderabad and same is pending for appointment of an
Arbitrator.
38. Learned Senior Counsel further submits that in Criminal
Petition No.8958 of 2018, there is no contractual relation
between the petitioner and the defacto respondent/complainant.
The 2nd respondent is a stranger to the petitioners. He purchased
Acs.2.00 by registered sale deed dated 18.10.2017 from one Syed
Moizuddin, which is after execution of three Development
Agreement-GPAs in the year 2016. All the DAGPAs are registered
and in public domain. For the said reason, the 2nd respondent
ought to have taken due diligence before purchase. Further, prior
to the purchase of Acs.2.00 from the said Syed Moizuddin, the
defacto complainant had purchased 80,000 sq.yds from
M/s.Kancharla Constructions Private Limited in the year 2016
and 2017. The said sale deeds were un-authorizedly executed by
M/s.Kancharla Constructions Private Limited as GPA holders of
the petitioners. As seen from the documents, it is clear that the
2nd respondent was aware of the contents of the DAGPAs
executed by the petitioners, which excludes Acs.7.00 of land. In
the said circumstances, when there is no contractual
relationship between the 2nd respondent and the petitioners and
the defacto complainant being a stranger to the petitioners, none
of the ingredients of any of the provisions under Sections 420
and 406 of IPC are made out.
39. Learned Senior Counsel relied on the judgment of the
Hon'ble Supreme Court in the case of Suryalakshmi Cotton
Mills Limited v. Rajvir Industries Limited and others 3, the
Hon'ble Supreme Court held that the documents which are of
unimpeachable character, can be considered in a proceeding
under Section 482 of Cr.P.C. The law was reiterated by the
(2008) 13 SCC 678
Hon'ble Supreme Court in HMT Watches Limited v. M.A.Abida
and others 4 and also in Rajiv Thapar and others v. Madan Lal
Kapoor 5.
40. Relying on the judgment in the case of Maksud Saiyed v.
State of Gujarat 6, learned Senior Counsel argued that the
company M/s.Hira Management Consultants Private Limited was
not made as an accused. There are no allegations against the
petitioners either personal or in discharge of their statutory duty
in the capacity of Directors, accordingly, no vicarious liability can
be attached to these petitioners. In case of S.K.Goel and others
v. State of Jharkhand and another 7, the High Court of
Jharkhand quashed the FIR on the ground of the company not
being made as an accused.
41. In P.Nagender Yadav v. State of Telangana and another 8,
the Hon'ble Supreme Court held that while exercising jurisdiction
(2015) 11 SCC 776
2013(3) SCC 330
(2008) 5 SCC 668
2022 SCC OnLine Jhar 654,
(2023) 2 SCC 195
under Section 482 of Cr.P.C, the High Court has to look into the
facts of the case to see whether the dispute is civil in nature and
given cloak of a criminal offence. In such a situation, if civil
remedy is available and is in fact adopted, criminal proceedings
can be quashed to prevent abuse of process of Court.
42. In Mohd.Ibrahim v. State of Bihar 9, the Hon'ble Supreme
Court observed that to attract an offence of cheating, the
following are the essential ingredients:
(i) deception of a person either by making a false or
misleading representation or by dishonest concealment or
by any other act or omission;
ii) fraudulent or dishonest inducement of that person to
either deliver any property or to consent to the retention
thereof by any person or to intentionally induce that
person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived; and
iii) such act or omission causing or is likely to cause
damage or harm to that person in body, mind, reputation
or property.
43. Learned Senior Counsel further submitted that proceedings
fall within the parameters of 1,5, 7 in the case of State of
Haryana v. Bhajan Lal 10's case, which are as follows:
(2009) 8 SCC 751
"(1) Where the allegations made in the first information
report or the complaint, event 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.
(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.
(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."
44. Finally, learned Senior Counsel submitted in Criminal
Petition No.12942, 12944, 12945 and 12958 of 2018, the
complaints were referred by the Magistrate in violation of the
directions of the Hon'ble Supreme Court in Priyanka Srivastava
and another v. State of Uttar Pradesh and others 11. In none of
the cases affidavits are filed to inform the Court that the defacto
complainant had approached the Station House Officer and if
complaint was declined, he has approached superior officer as
required under Section 154 of Cr.P.C. The Hon'ble Supreme
Court in Babu Venkatesh and others v. State of Karnataka
AIR 1992 SC 604
(2015) 6 Supreme Court Cases 287
and another 12 had quashed the proceedings when the affidavits
were not filed in accordance with the directions in Priyanka
Srivastava's case (supra).
45. Learned counsel appearing on behalf of the
respondents/defacto complainants would submit that the
petitioners have indulged in dishonestly cheating the purchasers.
Though the plots were sold to the defacto complainants,
development agreement-cum-GPA was entered into with
M/s.Kancharla Constructions Private Limited leading to the
defacto complainants loosing their property purchased from
petitioners. Since cases are under investigation, this Court may
not thwart the investigation which is at the initial stage and the
investigation may go on. Only for the reason of there being a civil
remedy, it cannot be said that when criminal offences are
committed in the very same transactions, the parties cannot
resort to filing criminal complaints.
46. Learned counsel relied on the judgment of Hon'ble Supreme
Court in the case of Saraswatibai v. Lalitabai 13. The Hon'ble
(2022) 5 Supreme Court Cases 639
Supreme Court had set aside an order of quashing the FIR by
High Court when there was prima facie material against the
accused. The Hon'ble Supreme Court held that the High Court
was not justified in interfering with the criminal proceedings in
exercise of power under Section 482 of Cr.P.C, when Prima facie
ingredients of offences are made out.
47. In Kamlesh Kumari and others v. State of Uttar
Pradesh 14, the Hon'ble Supreme Court upheld the dismissal
order of the Allahabad High Court refusing to quash criminal
proceedings in property transactions. The Hon'ble Supreme
Court held that if the allegations disclose a civil dispute, the
same will not be a ground to hold that criminal proceedings
should not continue.
48. In K.Jagadish v. Udaya Kumar G.S and another 15, the
Hon'ble Supreme Court held that in transactions, disputes may
be both civil and criminal. Only for the reason of availing civil
(2019) 16 Supreme Court Cases 272
(2015) 13 Supreme Court Cases 689
(2020) 14 Supreme Court Cases 552
remedy would not mean that the criminal proceedings cannot
continue.
49. In Sau.Kamal Shivaji Pokarnekar v. State of
Maharashtra and others 16, the Hon'ble Supreme Court held that
criminal complaints cannot be quashed at the initial stage and
correctness or otherwise of the allegations in the complaint can
be decided during trial.
50. As seen from the record, M/s.Hira Multi Constructions
Ventures Private Limited represented by its directors (formerly
known as M/s.Hira Management Consultants Private Limited)
had entered into DGPA with M/s.Kancharla Constructions
Private Limited. In the said agreements, both the companies had
dealt with 26 plots of land which was sold earlier to the DGPAs
being executed. Both have knowledge that the plots of
purchasers form part and parcel of the development agreement.
However, Acs.7.00 was agreed to be kept aside.
AIR 2019 Supreme Court 847
51. The agreement between M/s.Hira Multi Constructions
Ventures Private Limited and M/s.Kancharla Constructions
Private Limited resulted in purchasers of the plots losing their
plots where they were specified and demarcated earlier. However,
there was an agreement to allot plots separately. But the fact
remains that the plot owners were deprived of their plot and were
not given possession of any plot alternatively. The said agreement
between M/s.Hira Multi Constructions Ventures Private Limited
and M/s.Kancharla Constructions Private Limited has resulted in
wrongful loss to the purchasers of the plots.
52. To attract an offence of cheating, the essential requirements
are i) practice of deception; ii) wrongful loss to the person
deceived. M/s.Kancharla Constructions Private Limited dealt
with the plots already sold and having knowledge entered into
DGPA. Such agreements resulted in wrongful loss to the plot
purchasers and attract the offence of cheating. Only for the
reason of there being a mention in DGPAs that an extent of
Acs.7.00 would be separated to be handed over to the plot
purchasers will not suffice. Having agreed, the plot purchasers
were not handed over any alternate site. The transactions in
question cannot be said to be purely civil in nature and subject
matter of civil dispute to be agitated before the civil Court. The
acts committed by M/s.Kancharla Constructions Private Limited
also attract an offence of cheating.
53. The Managing Director of the company can be held to be
liable in the present facts of the case. Only for the reason of
being Directors and signatories to the DGPAs, it cannot be said
that all the directors can be made vicariously liable. In all the
complaints, it is specifically mentioned that Habib Abdul Razzak
Baghdadi @ Hadi Ali and his son Mohammed Hadi Ali were
approached and transactions were done, both at the time of
purchasing the property and also subsequently when the plot
purchasers realized that they have been cheated. The petitioners
Mrs.Khatija Begum W/o.Mr.Habib Abdul and Mrs.Huda Hadi Ali
cannot be mulcted with criminal liability in the present facts of
the case only for the reason of they being signatories to the
DGPAs in the absence of any role whatsoever attributed to them
in the transactions apart from being signatories to the said
documents.
54. Criminal Petition Nos.12942, 12944, 12945 and 12958 of
Learned Senior Counsel submitted in all these petitions that
there is violation of directions of Hon'ble Supreme Court in
Priyanka Srivastava's case (supra). In none of these cases, the
defacto complainants have approached the police and there is no
affidavit filed along with the complaint to that effect.
55. As already stated, all these cases are outcome of the
grievance of the defacto complainants with respect to three
DGPA's entered into in between M/s.Hira Multi Constructions
Ventures Private Limited and M/s.Kancharla Constructions
Private Limited. Since the core issue is the same in all the cases,
there need not be multiple FIRs in respect of the very same
allegations. The investigating agency can as well file one charge
sheet in similar offences. Under Section 220 of Cr.P.C, which is
enabling provision, permits the Court to try a person for more
than one offence in one trial. Though, it cannot be said that
trying offences separately would be an illegality. However, to
avoid multiple charge sheets and the cases being tried before
different courts, law recognizes that common trial of series of
acts so connected together forming the same transaction. The
defacto complainants in all the four cases are aggrieved by their
plots being taken away on account of the agreement between two
companies. Having registered one offence, the subsequent
complaints can be treated as Section 161 Cr.P.C statements in
the very same case and there is no necessity to register multiple
FIRs.
56. Since the cases have already been transferred and now
being investigated by the EOW, CID, Telangana State,
Hyderabad, the present complaints can also be investigated by
the EOW, CID. However, the proceedings against petitioners 3 &
4, who are A3 and A4 in FIR Nos.249, 246, 250 & 251 of 2018,
are hereby quashed for the reason of the petitioners 3 and 4
being made vicariously liable only for the reason of being
directors in the company.
57. In Maqsood Saiyed's case (supra), the Hon'ble Supreme
Court held that unless it is shown that the Directors are
personally liable for any offences, they cannot be prosecuted
since IPC does not contain any provision for attracting vicarious
liability on the part of the Directors in a company.
58. Criminal Petition No.12951 of 2018
The 2nd respondent and others have admittedly executed a
general power of attorney in favour of M/s.Hira Management
Consultants Private Limited for developing their lands and to
receive sale proceeds from the intending purchasers. The said
registered deed was executed in the year 2007 in the office of the
Sub Registrar at Vikarabad. The allegation is that they did not
have an opportunity to go through the documents. Further, the
company had executed AGPAs in favour of M/s.Kancharla
Constructions Private Limited. The AGPA was executed in the
year 2007 by way of registered deed. Subsequently, the
petitioners have acted in accordance with the power of attorney
given in their favour.
59. The dispute if any, is purely civil in nature and the
petitioners cannot be mulcted with criminal liability. If the
defacto complainant and others are aggrieved by the acts of the
petitioners to be in violation of AGPA executed in the year 2007
or that they did not have knowledge of the contents of AGPA
executed in the year 2007 and the same can be agitated before a
civil Court and not by way of criminal complaint filed 11 years
after the AGPA being executed in favour of the petitioners.
60. Accordingly, all the proceedings against the petitioners in
FIR No.80 of 2018 on the file of Chengomol Police Station,
Vikarabad District are hereby quashed for the reason of the 2nd
respondent admitting that they have consented for giving AGPA
in the year 2007 in favour of the petitioners. There is no element
of deceit to infer an offence of cheating. There are no ingredients
to attract an offence of criminal misappropriation either.
61. Criminal Petition No.8958 of 2018
The grievance of the defacto complainant is that he had
purchased Acs.2.00 of land totally 9680 sq.yds from his vendor
Syed Moizuddin on 28.10.2017 through registered sale deed
bearing No.3586 of 2017. The said Syed Moizuddin is arrayed as
a witness in the charge sheet which is already filed. The said
Moizuddin had purchased the land from these petitioners rep. by
by GPA holder who is 1st petitioner on 25.04.2016 vide document
No.270 of 2016.
62. The said Moizuddin is not made as an accused either in the
FIR or in the subsequent charge sheet which is filed. The main
grievance of the defacto complainant is with respect to agreement
of three DGPAs executed in favour of M/s.Kancharla
Constructions Private Limited in the year 2016.
63. The DGPAs are registered documents and the defacto
complainant had purchased the property from Moizuddin.
Subsequent to entering into AGPAs, there is no grievance of the
2nd respondent against Syed Moizuddin or M/s.Kancharla
Constructions Private Limited purchasing the land in question. It
is an admitted fact that the 2nd respondent had purchased
80,000 sq.yds from M/s.Kancharla Constructions Private Limited
over a period from 01.10.2016 to 21.06.2017 under six different
sale deeds.
64. Learned Public Prosecutor stated that the charge sheet is
already filed in the case. A copy of the said charge sheet is filed
before the Court. In the said charge sheet, it is alleged that the
petitioners have deceived L.W.1/defacto complainant and
L.W.2/vendor of defacto complainant including the
developer/L.W.7, Managing Director of M/s.Kancharla
Constructions Private Limited.
65. Admittedly, there is no transaction in between the defacto
complainant and the petitioners. Even according to the
complaint, the vendor of L.W.1 namely Syed Moizuddin/L.W.2
had sold it to the defacto complainant. Admittedly, there is no
grievance as against L.W.2/vendor, who sold the land to the
defacto complainant nor M/s.Kancharla Constructions Private
Limited, who entered into development agreement having
knowledge about plot being sold to different purchasers. The
defacto complainant had purchased 80,000 sq.yds from
M/s.Kancharla Constructions Private Limited.
66. Nothing is entrusted to the petitioners herein by the defacto
complainant to attract an offence of criminal misappropriation
punishable under Section 406 of IPC. Further, the defacto
complainant, as seen from his transactions of purchasing 80,000
sq.yds from M/s.Kancharla Constructions Private Limited, and
Acs.2.00 from L.W.2, had knowledge of all the transactions of the
Golf course project development by M/S Kancharla
Constructions.
67. There is no transaction in between the petitioners and the
defacto complainant. The crux of the allegation is that the
purchasers have incurred losses on account of agreement in
between M/s.Kancharla Constructions Private Limited and M/s.
Hira Multi Constructions Ventures Private Limited. There is no
act of deception played by these petitioners as against 2nd
respondent is concerned and all the documents are registered
documents. In the present facts of the case, no offence is made
out against the petitioners herein. Accordingly, all the
proceedings against petitioners in FIR No.65 of 2018 on the file of
P.s.Chengomol, Vikarabad District and consequent Final report
are hereby quashed.
68. Criminal Petition Nos.1190 & 1298 of 2018 & 2098/2019:
All the three petitions are filed in one case. It is submitted by
the learned Public Prosecutor that charge sheet is filed in the said
case against A1 to A5 for the offences under Sections 420, 406, 447
and 506 r/w Section 34 of IPC.
69. The defacto complainant is the daughter of the purchaser. The
allegation is that A1 and others have sold the plot to the father of the
defacto complainant. Without taking permission or written consent,
the said plot was given to M/s.Kancharla Constructions Private
Limited for the purpose of development. Curiously, though
M/s.Kancharla Constructions Private Limited had knowledge about
the plots being earlier sold, they have entered into development
agreement with A1 company, but M/s.Kancharla Constructions
Private Limited is not made as an accused in the charge sheet. No
reasons are cited. As already stated, M/s.Hira Multi Constructions
Ventures Private Limited and M/s.Kancharla Constructions
Private Limited are both responsible for the wrongful loss which
occurred to the defacto complainant.
70. However, the allegations against A4 and A5 cannot be
sustained. They are only signatories to the documents which
were executed. In the charge sheet, M/s.Hira Multi
Constructions Ventures Private Limited is made as A1. Except
stating that A4 and A5, who are signatories to the documents, no
other allegations are made in the final report. The proceedings
against A4 and A5, who are added as accused making them
vicariously liable on behalf of M/s.Hira Multi Constructions
Ventures Private Limited cannot be sustained.
71. Accordingly, the proceedings against A4 and A5 mentioned
in the charge sheet as well as in Crime No.173 of 2018 on the file
of Chengoomul Police Station, Vikarabad District, are hereby
quashed.
72. Criminal Petition No.1190 of 2020 is filed to quash
proceedings in C.C.No.330 of 2020 on the file of II Metropolitan
Magistrate, Cyberabad against the petitioners and Criminal
Petition No.1298 of 2020 is filed to quash the issuance of NBWs
dated 30.01.2020 on the file of II Metropolitan Magistrate,
Cyberabad at L.B.Nagar. NBWs issued against A4 and A5 are
hereby quashed. However, petitioners 2 and 3/A2 and A3 shall
appear before the concerned Magistrate within six weeks from
today and upon such surrender, NBWs shall be recalled on such
terms and conditions as the Learned Magistrate deems fit.
73. Criminal Petition No.8878 of 2018
The grievance of the defacto complainant is that the plot
was over on account of agreement between M/s.Hira Multi
Constructions Ventures Private Limited and M/s.Kancharla
Constructions Private Limited. As already found, wrongful loss is
caused to the purchaser of plot. However, 3rd and 4th petitioners,
who are signatories to the documents, cannot be made vicarously
liable. Accordingly, the proceedings against petitioners 3 and
4/A3 and A4 in FIR No.6 of 2018 on the file of Chengomol Police
Station, Vikarabad and transferred to EOW, Hyderabad are
hereby quashed.
74. Though learned Public Prosecutor submitted that Syed
Moizuddin who is the defacto complainant herein had sold the
land in favour of K.Santosh Reddy on 16.11.2017 itself and do
not intend to investigate into the case since the subsequent
purchaser has not filed the case, however, on the basis of the
allegations made in the complaint, petition is decided
accordingly. It is for the police to file final report in accordance
with the investigation.
75. In the result, Criminal Petition Nos.12942, 12944, 12945
and 12958, 8878, 1190 and 2098 of 2019 are partly allowed,
Criminal Petition Ns.12951 & 8958 of 2018 & 1298 of 2020 are
allowed. Consequently, miscellaneous applications, if any, shall
stand closed.
_________________
K.SURENDER, J
Date: 05.09.2023
Note: LR copy to be marked
B/o.kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos. 12942, 12944, 12945, 12951,
12958, 8958, 8878 OF 2018, 2098 OF 2019, 1190 & 1298
OF 2020
Dt. 05.09.2023
Kvs
