Telangana High Court
D.Balamani vs The State Of Telangana on 9 January, 2024
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HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.5435 OF 2018
Between:
D.Balamani and another ... Petitioners
And
The State of Telangana
through Public Prosecutor and another. ..Respondents/Complainant
DATE OF JUDGMENT PRONOUNCED :09.01.2024
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
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* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No.5435 of 2018
% Dated 09.01.2024
# D.Balamani and another ... Petitioners
And
$ The State of Telangana
through Public Prosecutor and another. Respondents/Complainants
! Counsel for the Petitioners: Sri V.Umapathi Sarma
^ Counsel for the Respondents: Addl. Public Prosecutor for R1
Sri N.M.M.Murthy for R2
>HEAD NOTE:
? Cases referred
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THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.5435 of 2018
ORDER:
1. The 2nd respondent filed private complaint which was
referred to the police for the purpose of investigation. The said
complaint was received by the police on 02.01.2016 and it was
registered for the offences under Sections 406, 415, 418, 420
r/w 120-b of IPC.
2. The case of the 2nd respondent/Lw1 is that A2 is
professional caterer since 1997 and he got acquaintance with
the defacto complainant and through him he got introduced to
A1. Through A1, he came to know that A1's husband intended
to sell open plot situated at Yellareddyguda, bearing plot
Nos.30 and 31 admeasuring 542 sq.yds. According to L.W.1,
he obtained encumbrance certificate and entered into an
agreement of sale for the above said property for a
consideration of Rs.1,22,000/-. He paid an amount of
Rs.10,000/- in cash and Rs.25,000/- by cheque. Later, he
also paid balance sale consideration on different dates and
obtained receipts. A1 and A2 never came to register the sale
deed. He came to know that family of A2 left for their native
place. Later A1's husband personally requested him that he
will pay the sale amount already taken but they have not done
so in spite of lapse of six years. They have also not executed
registered sale deed in his favour. When he gave complaint to
Neredmet police, the husband of accused No.1 promised to get
the sale deed registered by A1, but it was registered on the
name of A4, in spite of knowing earlier transaction with
complainant. A suit was also pending between them and he
filed complaint against A1 to A4. Police examined L.W.1 and
filed final report as lack of evidence.
3. Having received notice from the police that the case is
closed as lack of evidence, 2nd respondent filed protest petition
which was taken up for consideration by the learned
Magistrate. During the course of enquiry, the 2nd respondent
marked Exs.P1 to P32 and also deposed on the facts of the
case. Learned Magistrate having recorded the statement, by
order dated 25.11.2017, directed that summons be issued to
these petitioners and two others.
4. Learned counsel appearing for the petitioners would
submit that the transactions are purely civil in nature and the
learned Magistrate without considering the facts has
mechanically taken cognizance of the offences and issued
summons. The complaint is filed with delay of nearly 16 years.
The suit filed by the 2nd respondent for specific performance
vide O.S.No.409 of 2006 was decreed in favour of the 2nd
respondent. However, in the appeal filed by the 1st petitioner
herein, the decree was set aside by the learned District Judge,
in favour of 1st petitioner.
5. On the other hand, it was argued on behalf of the
respondents that the petitioners having taken the amount
from the 2nd respondent failed to register the land in his
favour. Further to cheat the 2nd respondent, transferred the
said land in favour of A4. During the course of investigation
under the influence of the police officer, the complaint was
closed. However, adequate reasons were given by the learned
Magistrate to take cognizance and try the petitioners for the
criminal offences.
6. Admittedly, the transactions pertain to the year 1998. In
the year 2006, the 2nd respondent preferred suit for specific
performance. The learned Senior Civil Judge directed the 1st
petitioner to execute the sale deed in favour of the 2nd
respondent by judgment dated 11.09.2008. However, the
said judgment was set aside by the District Court on
11.04.2012 on the ground that the 2nd respondent was not in
a position to prove the execution of the sale agreement and
there is a delay of nearly six years in filing the suit. The 2nd
respondent failed to prove the transaction before the trial
Court and substantiate his claim of making payment towards
sale consideration to be correct.
7. The civil Court has considered the transaction in between
the 1st petitioner and the 2nd respondent regarding the sale
transaction and framed issues accordingly. Though the trial
Court found that the 1st petitioner had to execute the sale
deed in favour of the 2nd respondent, the said direction was set
aside by the learned District Judge on Appeal. The said
litigation is still pending before this Court. However, when the
District Court has found that the 2nd respondent was not
eligible for direction from the Court to register the plot of the
1st petitioner in his favour, the learned Magistrate has erred in
finding that prima facie the offence of cheating or criminal
misappropriation was made out.
8. In the order of the learned Magistrate dated 25.11.2017
except narrating the facts that transpired in between the
parties, it is not mentioned as to how the transactions make
out any prima facie case either for cheating or criminal
misappropriation. The fact that the transaction pertains to the
year 1997 and the 2nd respondent having lost before the civil
Court has approached the criminal, were not considered by
the Magistrate. Apparently to coerce settlement, criminal
complaint was filed.
9. Issuance of summons in a criminal case is a serious
issue. Every transaction pertaining to the sale if not registered
in favour of the purchaser, would not be a criminal offence.
Having considered the facts of the case in appeal filed by the
1st petitioner, the District Court found that the direction of the
trial Court to register the plot in the name of the 2nd
respondent was incorrect. When the Appellate Court has
found that the 1st petitioner need not register the plot in favour
of the 2nd respondent, the learned Magistrate has committed
error in asking the petitioners to face criminal trial for the
offence of cheating regarding the very came sale transaction.
10. The transaction is purely civil in nature. Being
unsuccessful before the civil Court, the criminal complaint is
filed nearly 18 years after the alleged sale transaction, which
cannot be permitted.
11. To attract an offence of cheating there should be an act of
deception played by the person. Deceived by the said act, the
person should have delivered the property. There are no such
allegations in the present complaint. It is not in dispute that
the 1st petitioner was the owner of the plot and decided to sell
the plot. However, the sale transaction could not be completed
for various reasons. It cannot be said that in the present
circumstances, the petitioners had an intention to cheat the
2nd respondent from the inception of the transaction. Further,
the question of criminal misappropriation does not arise in the
present circumstances. Accordingly, petitioners succeed and
proceedings against them are liable to be quashed.
12. In the result, the proceedings against the petitioners/A1
& A4 in C.C.No.742 of 2017 on the file of XX Metropolitan
Magistrate, Cyberabad at Malkajgiri, are hereby quashed.
13. Criminal Petition is allowed.
__________________
K.SURENDER, J
Date : 09.01.2024
Note: LR copy to be marked.
B/o
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.5435 of 2018
Dt.09.01.2024
kvs
