Telangana High Court
Namburu Subash And 6 Others vs Sajja Prabhakar And Another on 6 June, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.1 of 2022
O R D E R:
-
This Criminal Revision Case is filed by the petitioners-A1 to A7
aggrieved by the order dated 26.12.2019 passed in Crl.M.P.No.1306 of 2019
in C.C.No.1643 of 2018 on the file of the XIV Additional Chief
Metropolitan Magistrate, Nampally, Hyderabad.
2. The respondent No.1 was the complainant. He filed a private
complaint on 14.02.2018 against the petitioners herein alleging them for the
offences under Sections 120-B, 406, 418 and 420 read with Section 34 of
IPC. Vide order dated 19.11.2018, the learned XIV Additional Chief
Metropolitan Magistrate, Hyderabad took cognizance against the petitioners
for the offences under Sections 120-B, 406, 418 and 420 read with Section
34 of IPC The same was numbered as C.C.No.1643 of 2018. The
petitioners filed a discharge petition under Sections 245(2) and 258 of the
Cr.P.C., 1973 on 07.02.2019 vide Crl.M.P.No.1306 of 2019 in C.C.No.1643
of 2018. The said petition was dismissed by the XIV Additional Chief
Metropolitan Magistrate, Hyderabad vide impugned order dated 26.12.2019.
Aggrieved by the said dismissal of the discharge petition filed by them, the
petitioners preferred this Revision.
Dr.GRR, J
3. Heard Sri Yelamanchali Shiva Santosh Kumar, the learned counsel
representing Sri TRVSSSV Prasad, the learned counsel for the petitioners-
A1 to A7 on record, Sri P. Krishna Prakash, the learned counsel for the
respondent No.1-complainant and the learned Additional Public Prosecutor
representing respondent No.2.
4. Learned counsel for the revision petitioners submitted that the
allegations in the complaint taken on their face value would not establish
any factual foundation to the required ingredients of the offences alleged to
be committed under Sections 120-B, 406, 417, 420 read with Section 34 of
IPC. The trial court applied a general precept of law that everything could
be seen at trial which would make an easy and formulaic adjudication, but
was in complete abdication of the responsibility cast upon it to atleast
properly understand the facts. The facts alleged in the complaint would by
no stretch of imagination would attribute criminality. It was evident from
the uncontested facts that it was only a civil dispute with no element of
criminality of any nature. It was a textbook case for the exercise of revision
powers to discharge the petitioners, as a pure civil dispute was given a
criminal cloak. The criminal complaint was filed four years after a civil suit
vide O.S.No.825 of 2014 was filed by the complainant and suppression of
the said fact by itself was sufficient to allow the revision case as the
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complaint was a copy paste of the civil suit. As per the precedential
authority of the Hon'ble Apex Court in M/s. Indian Oil Corporation Vs.
NEPC India Limited 1, the criminal court should never be permitted to be
abused as a forum to pressurize and settle purely civil disputes. Allowing
this criminal trial would lead to complete miscarriage of justice by harassing
one with the machinery of criminal justice system.
4.1. The complainant alleged that he obtained some rights as an
agreement holder to the agreement dated 22.04.1998. As such, his remedy
was purely civil as contained in the agreement itself. The agreement by
itself would not lead to any direct right in the property as it was an
unregistered document. The very nature of the agreement was that if the
land was reverted back, land owners would execute registered deeds in
favour of parties of the second part, failing which suit for specific
performance could be preferred. The complainant to secure any right in the
property must receive a successful decree of the civil court inter alia proving
that he performed the obligations under the agreement dated 22.04.1998 and
that his alleged rights as an agreement holder would continue to subsist and
had not been parted away with. The complainant could not do that till date.
The civil suit filed by the complainant vide O.S.No.825 of 2014 was pending
for adjudication of application under Order VII Rule 11(a) and (d) for lack
(2006) 6 SCC 736
Dr.GRR, J
of cause of action, as it was filed as a partition suit. The complainant
admittedly received consideration (whether full or partial) atleast to an
extent of Rs.4 crores to part away his rights as an agreement holder. It was
crystal clear from the counter filed by him in the discharge petition before
the trial court, that by itself would show that his rights as an agreement
holder stood varied in some form and manner on receipt of valuable
consideration. It was an utter abuse of process that such an admitted fact
was suppressed and a private criminal complaint was filed four years later
based on alleged rights as an agreement holder under the agreement dated
22.04.1998. Suppressing the civil proceedings and filing a complaint basing
entirely on the averments in the plaint itself would show that the allegations
in the complaint were utterly shorn of any criminality whatsoever. The bare
facts taken from the complaint would fail to satisfy the ingredients of the
offences mentioned in the complaint as taken cognizance of. Permitting
prosecution in a highly belated criminal case wholly without any factual
foundation to continue, would amount to a complete miscarriage of justice.
Continuation of prosecution was only to harass the petitioners, as such,
prayed to allow the revision by setting aside the order of the trial court in
dismissing the discharge petition filed by the petitioners.
Dr.GRR, J
5. The learned counsel for respondent No.1-complainant on the other
hand contended that the judgment under revision was pronounced on
26.12.2019, but the present revision was filed on 31.12.2021 without
explaining the delay in presentation of the revision. The material filed along
with the revision petition would clearly establish that all the documents filed
have to be established during the course of trial. Hence, it was not a fit case
to be considered for discharge. Section 258 of Cr.P.C. had no application to
the facts of the present case. The trial court rightly dismissed the above
petition for discharge holding that a detailed enquiry was necessary into the
case and that the allegations and counter allegations could not be decided at
the present stage unless full-fledged trial was conducted.
5.1. Learned counsel for the respondent No.1-complainant further
contended that as per the contention of the petitioners-accused, the
respondent No.1 sold away his share to petitioner No.4-A4 for
Rs.7,00,00,000/- by executing the agreement of sale on 28.08.2006. In fact,
there were two sale agreements that took place between the respondent No.1
and A4. As per the sale agreement dated 28.08.2006, the respondent No.1
sold away part of his share for Rs.7,00,00,000/- and the petitioner No.4
failed to perform his part of contract and paid only Rs.4,00,00,000/- under
five receipts and he had not paid the remaining balance amount of
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Rs.3,00,00,000/- to the respondent No.1 and fabricated some receipts with
the help of petitioner No.1. The respondent No.1 sold only part of his share
and the same was evident from the legal notice dated 16.08.2013 issued on
behalf of petitioner No.4/A4 to the owners of the property with a copy to the
respondent No.1. The respondent No.1 executed sale agreement in favour of
petitioner No.4 as part of his share for Rs.7,00,00,000/- and executed the
agreement of sale in two original copies. One original copy was with the
respondent No.1 and another original copy was with the petitioner No.4-A4.
On the same day, a supplementary agreement of sale was also entered by the
respondent No.1 and petitioner No.4 and the same was also reduced into two
original copies.
5.2. He further submitted that one Pendurthi Chandramohan Chowdhary
attested his signature on all the four sale agreements and supplementary
agreements. The petitioner No.4, the respondent No.1 and Pendurthi
Chandramohan Chowdhary were present, except them nobody was present.
Later, the petitioner No.4 failed to fulfill his part of contract and the
agreement dated 28.08.2006. If really, the petitioner No.4 was claiming his
right in the share of the respondent, he might have filed a suit for specific
performance of an agreement of sale against the respondent. The respondent
was not aware of the transactions that took place in between petitioner No.4-
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A4 and petitioner No.1-A1 that A4 should not enter into any type of sale
agreements and sale transactions in pursuance of the agreement dated
28.08.2006 and also supplementary agreement dated 28.08.2006 with
petitioner No.1, petitioner No.4 and their nominees.
5.3. He further submitted that as there were disputes between the
respondent No.1 and petitioner No.1, petitioner No.4 agreed for the proposal
made by the respondent in the presence of Pendurthi Chandramohan
Chowdhary. The alleged receipts passed by the respondent No.1 were not
correct and those receipts were fabricated, because the attestors of the
receipts were not present and subsequently the accused might have obtained
the signatures of the attestors on the receipts dated 30.08.2006 and
27.01.2007. In fact, on 24.01.2007, petitioner No.4 paid an amount of
Rs.1,00,00,000/- to the respondent and also petitioner No.4 gave photostat
copy of the receipt to the respondent No.1 in which there was no signature of
attestors in the receipts dated 24.01.2007. With regard to receipts dated
02.02.2007, they were fabricated and forged documents. In fact, petitioner
No.4-A4 paid only Rs.4,00,00,000/- to the respondent and failed to pay the
remaining Rs.3,00,00,000/- to the respondent till today. As such, the
agreement dated 28.08.2006 had no value as A4 failed to fulfill his part of
the contract. If really, A4 paid Rs.3,00,00,000/- on 02.02.2007 in the
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presence of Pendhurti Chandramohan Chowdhary, he might have requested
him to attest his signatures as an attestor on the receipts dated 02.02.2007.
In fact, the alleged attestors on the alleged receipts would not have attended
at the time of passing of the same by the respondent in favour of A4. The
attestors were the close persons of petitioner No.1. Had the respondent No.1
sold away his share for Rs.7,00,00,000/- to A4, the A1 to A3 might have
obtained the affidavit of the respondent No.1 and also signatures as an
attestor on the conveyance deed. The petitioners 2 and 3, the original land
owners ought to have issued legal notice to the respondent No.1 to enquire
with regard to sale of his rights to A4, the alleged nominee of petitioner
No.1. The said aspect would show as to how the petitioners played fraud
against the respondent No.1 for their wrongful gain.
5.4. He further submitted that the land owners Smt. P. Rukmini and
Smt. M. Krishnaveni executed two registered special power of attorneys in
favour of the petitioner No.1-A1 and in favour of the respondent No.1 and P.
Satyanarayana Rao. In the conveyance deed dated 07.07.2008, vide
document No.5145 of 2008, it was clearly mentioned about the special
power of attorneys executed by Smt. P. Rukmini and Smt. M. Krishnaveni in
favour of the respondent No.1 and petitioner No.1-A1. The respondent No.1
was no way concerned with regard to entering of sale agreements by the
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petitioner No.1-A1 with the petitioner No.4-A4. The petitioner No.4 had no
right in the share of the respondent No.1. If really, the petitioner No.1
purchased the share of the respondent through the petitioner No.4, he might
have mentioned the same fact in the conveyance deed. That itself would
show how the petitioner No.1 and petitioner No.4 colluded together for their
wrongful gain.
5.5. He further submitted that one A. Veerabhadra Rao filed
O.S.No.1029 of 2013 before the III Additional District Judge, Ranga Reddy
District in which the petitioner No.1-A1 filed I.A.Nos.812 of 2013 and 813
of 2013 and also filed counter affidavit in I.A.No.724 of 2013 in which A1
had not mentioned about purchasing of the share of the respondent from A4.
In fact, the petitioner No.1 clearly mentioned in his affidavit in O.S.No.1029
of 2013 that A4, A. Verabhadra Rao and B. Kanthamma were no way
concerned with the agreement of contract dated 22.04.1998. If the same was
true, then there was no explanation as to why A1 paid Rs.25,00,000/- to B.
Kanthamma and Rs.48,00,000/- to A. Veerabhadra Rao.He further submitted
that a full-fledged trial would need to be conducted for establishing the
alleged offences for which cognizance was taken of by the trial court and
prayed to dismiss the revision with exemplary costs.
Dr.GRR, J
6. The learned Additional Public Prosecutor supported the orders of
the trial court in dismissing the discharge petitions filed by the revision
petitioners and contended that the guilt or innocence of the revision
petitioners could be established only after a full-fledged trial and prayed to
dismiss the revision. He further contended that the order of taking
cognizance was not challenged by the revision petitioners.
7. On hearing the arguments of both the learned counsel, the points
for consideration before this Court are as follows:
1. Whether there is any delay in filing the revision?
2. Whether the trial court committed any illegality or
irregularity in dismissing the discharge petition filed by the
petitioners-accused Nos.1 to 7?
3. Whether a civil wrong was converted into a criminal case?
4. Whether there was any material consistent with the
accusation made by the complainant to frame charges for
the alleged offences under Sections 120-B, 406, 418 and
420 read with Section 34 of IPC against the petitioners-
accused Nos.1 to 7?
8. Before answering the above points, it is considered necessary to go
through the facts stated by the complainant in his private complaint. The
respondent No.1-complainant stated in his complaint that the accused No.1
was his partner and both carried on Real Estate business for a considerable
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time and subsequently, some misunderstanding arose between them and
thereafter both were doing their businesses independently. The accused
No.2 was the brother of A1. A1 and A2 were partners of A3 firm. A4 was
one of the co-sharers under the Agreement of Contract dated 22.04.1998 and
A5 was the wife of A4 and A6 & A7 were the children of A4. All the
accused conspired and colluded together and caused loss to the complainant
and cheated the complainant with a fraudulent intention.
8.1. The complainant further submitted that the family members of one
Thota China Sitaramayya approached the complainant and A1 and informed
them that their father Thota China Sitaramayya purchased the land to an
extent of Acs.95-24 guntas in Sy.Nos.208 to 213 in Kondapur Village,
Hyderabad vide registered sale deeds bearing document Nos.664/1961 and
1269/B1/1961 registered in the office of Sub-Registrar, Hyderabad. The
family members of Thota China Sitaramayya informed the complainant and
A1 that their lands were acquired by the Government as surplus land and the
same was allotted to the Social Welfare Department and thereafter, the
above mentioned land was given to 8th Battalion. The family members of
Thota China Sitaramayya informed the complainant and A1 that they were
not in a position to get back their lands from the Government and they had
no financial capacity and also they had no legal knowledge to get back their
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land from the Government. As per the negotiations, which took place in the
month of February, 1998 in between the family members of Thota China
Sitaramayya, the complainant and A1 pertaining to the landed property, the
complainant and A1 obtained legal opinion and came to know that there was
a little chance to get back the lands of some of the family members. Smt. P.
Rukmini and Smt. M. Krishnaveni, who were the daughters of Thota China
Sitaramayya and the said fact was informed to the family members of Thota
China Sitaramayya. On that, Smt. P. Rukmini executed two registered
Special Power of Attorneys in favour of the complainant and also in favour
of A1 on 18.04.1998 vide registered document No.32 of 1998, registered in
the office of Sub-Registrar, Nellore. Smt. M. Krishnaveni also executed a
Special Power of Attorney in favour of the complainant and in favour of A1
on 13.04.1998 vide registered document No.63 of 1998, registered in the
office of the Sub-Registrar, Ranga Reddy District.
8.2. The complainant further submitted that again on 20.04.1998,
negotiations took place in between the complainant, A1, Smt. B.
Kanthamma, A. Veerabhadra Rao, G. Satyanarayana (petitioner No.4-A4)
and the family members of Thota China Sitaramayya and subsequently, on
22.04.1998, an agreement of contract was entered by A1 and others as
second part and the family members of Thota China Sitaramayya as first
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party. As per the recitals of the agreement of contract dated 22.04.1998, the
first party agreed to take 40% of share and agreed to give 60% of share to
the second party. First party to the Agreement of Contract expressed their
intention that they were not in a position to invest single pie to get back their
land from the Government and that the second party had to invest the
amount with regard to filing of cases before different courts by engaging
efficient advocates and also to spend more time with regard to attending
courts and offices of the Revenue Department. For that,the second party
agreed and entered into an Agreement of Contract on 22.04.1998 with the
family members of Thota China Sitaramayya.
8.3. The complainant further submitted that he along with A1 paid an
amount of Rs.50,000/- to the family members of Thota China Sitaramayya
and obtained receipt from them. Again an amount of Rs.50,000/- was paid
on 13.07.1998 to the son of Thota China Sitaramayya. As per the
agreement, the complainant got 20% share, A1 got 20% share, Smt. B.
Kanthamma got 7.5% share, A. Veerabhadra Rao got 5% share and G.
Satyanarayana got 7.5% share in the property mentioned in the Agreement
of Contract dated 22.04.1998. Smt. P Rukmini, Smt. M. Krishnaveni and
their family members got 40% share in the property. Subsequently, an oral
understanding took place between A1, Smt. P. Rukmini and Smt. M.
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Krishnaveni and the shares of complainant and A1 were enhanced from 20%
to 25% and the shares of Smt. P. Rukmini, Smt. M. Krishnaveni and their
family members got reduced to 30%.
8.4. The complainant further submitted that he and his partners filed
Writ Petitions before the High Court of Andhra Pradesh vide W.P.No.28157
of 1998 and other Writ Petitions questioning the orders passed by the
Special Officer and competent authority under Urban Land Ceiling Act and
the same was allowed in favour of the first party. Aggrieved by the said
order, the Special Officer and Competent Authority, ULC, Hyderabad,
preferred an appeal before the Hon'ble Apex Court in Civil Appeal
Nos.5314 to 5319 of 2000. The Hon'ble Supreme Court of India in its
judgment dated 11.08.2016, allowed the appeal filed by the State against
some of the family members of Thota China Sitaramayya, but dismissed the
appeals filed by the State against Smt. P. Rukmini and M. Krishnaveni. As
per the judgment of the Hon'ble Apex Court, Smt. P. Rukmini and Smt. M.
Krishnaveni got an extent Acs.8-58 cents of land each and both were entitled
to an extent of Acs.17-16 cents in Sy.Nos.208 and 209 of Kondapur Village,
Serilingampally Mandal of Ranga Reddy District. The Urban Ceiling
Authority had given physical possession of the land to Smt. P. Rukmini and
M. Krishnaveni on 06.02.2008. But the said fact was suppressed by A1,
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Smt. P. Rukmini and Smt. M. Krishnaveni. On 01.08.2013, the Government
of Andhra Pradesh released the balance land of an extent of Acs.18-34 gts.
to Smt. P. Rukmini and Smt. M. Krishnaveni in Sy.Nos. 208 and 209 of
Kondapur Village, Serilingampally Mandal of Ranga Reddy District and
handed over the said land to Smt. P. Rukmini and Smt. M. Krishnaveni in
the month of August 2013. Thus, the total extent of Acs.36-01 gts. of land
was released by the Government of Andhra Pradesh in Sy.Nos.208 and 209
of Kondapur Village to Smt. P. Rukmini and Smt. M. Krishnaveni.
8.5. The complainant further submitted that he got 25% share in Acs.36-
01 gts. of land as per the Agreement of Contract dated 22.04.1998. A1, Smt.
P. Rukmini and Smt. M. Krishnaveni conspired together and hatched a plan
to cause loss to the complainant and others and with an intention to cheat
him, executed a Conveyance Deed dated 07.07.2008 in favour of A3 M/s.
Sumeru Infrastructure Park represented by its Managing Partner, A1.
8.6. The complainant further submitted that he invested huge amounts
and also spent his valuable time to get back the land mentioned in the
Agreement of Contract dated 22.04.1998 whereas, A1, P. Rukmini and M.
Krishnaveni along with other accused conspired and cheated the
complainant for wrongful gain and executed a Conveyance Deed in favour
of A3 by playing fraud against the complainant.
Dr.GRR, J
8.7. The complainant further submitted that he approached P. Rukmini
and M. Krishnaveni and demanded them to execute registered sale deed in
his favour pertaining to his share. They promised that they would settle the
issue and would execute the registered sale deed in his favour, but contrary
to their promise, they executed another deed of conveyance dated
04.09.2013 vide document No.2905/2013 in favour of A3 firm represented
by A1.
8.8. The complainant further submitted that A4 colluded with A1 and
A2 and got issued legal notice through his Advocate on 16.08.2013 and
demanded the first party to execute the sale deed in his favour pertaining to
his share in respect of Agreement of Contract dated 22.04.1998 and A4
suppressed that he obtained registered sale deeds from A3 firm represented
by A2 in the name of his wife A5 and in favour of his son A6. A3 firm
represented by A2 executed a registered sale deed in favour of A5 and A6 in
the month of March, 2013 vide registered document Nos.5265 of 2013 and
5266 of 2013 dated 26.03.2013. Again on 26.11.2015, A3 firm represented
by A2 executed a registered sale deed in favour of A7. A1 to A3 had no
absolute title over the property. A3 firm had no right to execute the sale
deeds in favour of A5, A6 and A7 and those documents were fabricated and
fictitious.
Dr.GRR, J
9. The complainant examined himself and also some other witnesses
in support of his claim.
10. Considering the statements of the complainant and other witnesses
and the documents produced by the complainant, the trial court took
cognizance of the offences under Section 120-B, 406, 418 and 420 read with
Section 34 of IPC against A1 to A7. The case was numbered as
C.C.No.1643 of 2018. Subsequently, the petitioners filed a discharge
petition under Sections 245(2) and 258 of Cr.P.C.. Section 258 of Cr.P.C.
had no application to the facts of the case as it was pertaining to the trial of
summons cases. Section 245 of Cr.P.C. was pertaining to trial of warrant
cases by the Magistrates and the correct provision applicable for filing a
discharge petition by the petitioners-A1 to A7 was under Section 245(2) of
Cr.P.C.. The trial court, on considering the contents of the discharge petition
filed by the petitioners-A1 to A7 as well as the counter filed by the
respondent No.1-complainant and on hearing both the learned counsel on
record representing the parties and the documents filed along with the
complaint by the complainant observed that:
"12. Whatever it may be from the above discussion, it is
apparent that there is a clear dispute about the share of the
property and which prima facie strengthens the contention
of the respondent/complainant for the offence under
sections 406, 420 of IPC. So, on plain perusal of the entire
record, this Court observed that there is a prima facie case
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levelled against A1 to A7 which needs a detailed enquiry.
At this stage, without conducting an inquiry, this Court
cannot decide the contentions raised by the petitioners in
discharge petition, and it will be decided only after the
full-fledged trial. Hence, this Court felt the present petition
is pre-matured and this petition is dismissed."
P O I N T No.1:-
Whether there is any delay in filing the revision?
11. The contention of the learned counsel for the respondent No.1 was
that there was delay in filing the revision and no explanation was given by
the revision petitioners with regard to the said delay. The order under
revision was pronounced on 26.12.2019, but the revision was filed on
31.12.2021. As seen from the record, the petition for discharge filed by the
revision petitioner was dismissed on 26.12.2019. A copy application for the
same was filed on 27.12.2019 and the copy was made ready on 06.01.2020.
The period of limitation for filing the criminal revision was 90 days under
Entry 131 of the Schedule to the Limitation Act, 1963. Ordinarily, the
limitation period would have ended on 06.04.2020. Due to pandemic, the
Hon'ble Apex Court suspended the period of limitation of all the
proceedings between the period 15.03.2020 to 02.10.2021 vide orders in
Miscellaneous Application No.665 of 2021 in SMW (C) No.3 of 2020 dated
23.09.2021. The Hon'ble Apex Court further directed that in all the cases,
where the limitation would ordinarily be expiring between the period
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15.03.2020 to 02.10.2021, there would be an additional limitation period of
90 days with effect from 03.10.2021, notwithstanding the actually available
balance period of limitation. In the present case, the limitation would have
expired on 06.04.2020, which would fall between the stated period between
15.03.2020 to 02.10.2021. As such, 90 days period with effect from
03.10.2021 would end on 01.01.2022. The present petition was filed on
31.12.2021, as such, the petition was filed within the period of limitation and
this Court does not find any merit in the contention of the learned counsel
for the respondent No.1-complainant with regard to the delay in filing the
petition.
P O I N T Nos. 2 and 3:
2. Whether the trial court committed any illegality or
irregularity in dismissing the discharge petition filed by the
petitioners-accused Nos.1 to 7?
3. Whether a civil wrong was converted into a criminal case?
12. As seen from the contents of the complaint, the complaint was made
on the basis of an inchoate and uncrystallized contractual right from an
agreement dated 22.04.1998. The complaint was made 4 years after filing the
suit numbered as O.S. No. 825 of 2014 which involved identical facts. The
same would prima facie disclose that adjudication was purely civil in nature
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and the lis at best is a mere breach of contract going by the complaint
averments. The land owners were not shown as accused in the complaint. In
the counter filed by the complainant in Crl.M.P.No.1306 of 2019, the
complainant accepted that the petitioner No.4-A4 acted as a conduit for the 1st
Petitioner and purchased his rights (whether fully or partially) by way of an
agreement dated 28.08.2006. He agreed upon receipt of part of the
consideration out of Rs.7,00,00,000/- in the agreement dated 28.08.2006. He
admitted receipt of Rs.4,00,00,000/-, though not the entire sum as claimed in
the discharge petition. Thus, as seen from the uncontroverted facts, the
complainant entered into an agreement dated 28.08.2006 to sell his rights
arising out of the agreement dated 22.04.1998, and received atleast an amount
of Rs 4,00,00,000 / - as valuable consideration towards the same. Once there
was an agreement dated 28.08.2006 to sell the complainant's right as an
agreement holder under the agreement dated 22.04.1998 to the 4th petitioner
and admitted the receipt of valuable sale consideration of Rs.4,00,00,000/-, the
allegations miserably fail to disclose the commission of any criminal offence.
The complainant failed to disclose about the agreement dated 28.08.2006 and
receipt of valuable consideration of Rs.4,00,00,000/- in pursuant to the
agreement dated 28.08.2006 in his complaint dated 14.02.2018 but accepted
the same only in his counter dated 18.10.2019 in Crl.M.P. No.1306 of 2019 in
C.C.No.1643 of 2018.
Dr.GRR, J
13. The contention of the learned counsel for the petitioners was that 4th
petitioner in turn entered into an agreement dated 28.08.2006 to sell all the
rights purchased from the complainant to the 1stpetitioner herein, and the
said document was filed along with the discharge petition. The documentary
evidence filed along with the discharge petition would disclose that the
1stpetitioner purchased out the shares of other parties of the second part to
the agreement dated 22.04.1998, and the landowners accordingly executed
the registered deeds dated 07.07.2008 and 04.09.2013 in favour of the
3rd petitioner partnership firm, of which the 1st petitioner was the Managing
Partner. Regardless of dispute with regard to receipt of consideration in full,
the transaction would disclose that it was purely civil in nature. All the
parties of the second part to the agreement dated 22.04.1998 would be
considered as mere agreement holders, until the land-owners validly
conveyed the property to them by way of a registered instrument. It was
only a mere possibility at the time of the agreement dated 22.04.1998 to
convey the land that would be reverted back to the original landowners from
the State Government. If such conveyance was at variance to the rights of
any agreement holder in terms of the agreement dated 22.04.1998, it would
amount to breach of the agreement dated 22.04.1998 and the agreement
holder could only seek specific performance from the landowners. It would
show that the transaction was quintessentially civil in nature, shorn of any
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criminality. An agreement to transfer immovable property at a future date
for services rendered would not effect any transfer, until a registered
conveyance deed was executed.
14. The complainant filed O.S.No.825 of 2014 on 31.10.2014, four
years prior to filing the present complaint on 14.02.2018. However, he
failed to state about the civil case filed by him. The contents of the plaint in
O.S.No.825 of 2014 were exactly similar to the contents of the complaint
filed by the respondent No.1-complainant on 14.02.2018. It would clearly
show that the same averments of an entirely civil in nature were
encapsulated in the present complaint to give it a criminal colour. The
contents of the complaint dated 14.02.2018 were literally mirror of the plaint
averments in O.S.No.825 of 2014.
15. The Hon'ble Apex Court in Mohd. Ibrahim & Ors. Vs. State of
Bihar& Anr. 2 held that:
7. This Court has time and again drawn attention to the
growing tendency of complainants attempting to give the
cloak of a criminal offence to matters which are
essentially and purely civil in nature, obviously either to
apply pressure on the accused, or out of enmity towards
the accused, or to subject the accused to harassment.
Criminal courts should ensure that proceedings before it
(2009) 8 SCC 751
Dr.GRR, J
are not used for settling scores or to pressurise parties to
settle civil disputes. But at the same time, it should be
noted that several disputes of a civil nature may also
contain the ingredients of criminal offences and if so, will
have to be tried as criminal offences, even if they also
amount to civil disputes. [See: G. Sagar Suri v. State of
U.P. [2000 (2) SCC 636] and Indian Oil Corporation vs.
NEPC India Ltd. [2006 (6) SCC 736].
16. The Hon'ble Apex Court in M/s. Indian Oil Corporation Vs.
NEPC India Limited (1 supra) also deprecated the growing tendency in
business circles to convert purely civil disputes into criminal cases and held
that:
"...This is obviously on account of a prevalent impression
that civil law remedies are time consuming and do not
adequately protect the interests of lenders/creditors. Such a
tendency is seen in several family disputes also, leading to
irretrievable break down of marriages/families. There is also
an impression that if a person could somehow be entangled
in a criminal prosecution, there is a likelihood of imminent
settlement. Any effort to settle civil disputes and claims,
which do not involve any criminal offence, by applying
pressure though criminal prosecution should be deprecated
and discouraged."
17. It was also held that if all the allegations in the complaint were
taken at their face value, there would be no case of 'criminal breach of
trust'. The mere fact that the complaint would relate to a commercial
transaction or breach of contract, for which a civil remedy was available or
had been availed, was not by itself a ground to quash the criminal
Dr.GRR, J
proceedings. The commercial transaction or dispute may also involve
criminal offence. Hence, it is considered necessary to answer point No.4.
P O I N T No.4:-
Whether there was any material consistent with the accusation made
by the complainant to frame charges for the alleged offences under
Sections 120-B, 406, 418 and 420 read with Section 34 of IPC against
the petitioners-accused Nos.1 to 7?
SECTION 406 of IPC:-
18. Section 406 of IPC deals with punishment for criminal breach of
trust. Criminal breach of trust is defined in Section 405 of IPC. Section 405
of IPC makes it manifest that when a person is entrusted with the property,
or with any dominion over property, and if he dishonestly misappropriates
or converts to his own use that property, or dishonestly uses or disposes of
that property in violation of any direction of law prescribing the mode in
which such trust is to be discharged, then the person is said to have
committed the offence of criminal breach of trust. The explanations 1 and 2
appended to S. 405 make the position very clear that only when there is an
entrustment of some property to the accused and when they consequently
dishonestly misappropriate the said property or convert it to their own use
or dispose of such property, it is only then that S. 405 is attracted. The
illustrations (a) to (f) given under S. 405 amplify the above position. An
Dr.GRR, J
allegation of entrustment of property to the petitioners and consequent
breach of such trust is a sina qua non ingredient to constitute the offence
punishable under Section 406 of IPC.
19. As seen from the present facts and circumstances, there is
absolutely no allegation whatsoever that any property belonging to the
complainant was entrusted to the petitioners in any manner. Without any
entrustment of property at all, the consequent breach of trust does not arise.
The complainant is a mere agreement holder pursuant to the terms of the
agreement dated 22.04.1998, and there is no entrustment of property by any
stretch of interpretation by the complainant to the petitioners. Therefore, on
the face of the allegations as contained in the complaint, there was
absolutely no offence whatsoever to be constituted against the petitioners
for the offence of criminal breach of trust punishable under Section 406 of
the IPC.
SECTION 417 of IPC:-
20. Section 417 deals with punishment for cheating. 'Cheating' is
defined in Section 415 of IPC. The Hon'ble Apex Court in Hridaya
Rangan Prasad Verma and Ors. Vs. State of Bihar and Anr.3 held that:
2000 (4) SCC 168
Dr.GRR, J
"Section 415 of IPC which defines cheating requires -
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any
property; or
(b) intentionally inducing that person to do or omit to
do anything which he would not do or omit if he were
not so deceived, and which act or omission causes or
is likely to cause damage or harm to that perSon in
body mind, reputation or property.
In the definition there are set forth two separate classes of
acts which the person deceived may be induced to do. in
the first place he may be induced fraudulently or
dishonestly to deliver any property to any person. The
second class of acts set forth in the section is the doing or
omitting to do anything which the person deceived would
not do or omit to do if he were not so deceived. In the first
class of cases the inducing must be fraudulent or
dishonest. In the second class of acts, the inducing must be
intentional but not fraudulent or dishonest.
In determining the question it has to be kept in mind that
the distinction between mere breach of contract and the
offence of cheating is a fine one. It depends upon the
intention of the accused at the time of inducement which
may be judged by his subsequent conduct but for this
subsequent conduct is not the sole test. Mere breach of
contract cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is shown
right at the beginning of the transaction, that is the time
when the offence is said to have been committed.
Therefore it is the intention which is the gist of the
offence. To hold a person guilty of cheating it is necessary
to show that he had fraudulent or dishonest intention at the
time of making the promise. From his mere failure to keep
up promise subsequently such a culpable intention right at
the beginning, that is, when he made the promise cannot
be presumed.
Dr.GRR, J
21. From the ingredients of Section 415 of IPC, deception is the
quintessence of the offence of cheating. For a person to be guilty of
cheating another person, there must be an allegation that a false
representation was made by the accused to the person deceived knowing
fully well that the said representation was false to his knowledge at the time
of making it and thereby he must induce the person deceived to deliver any
property to him and consequently the person deceived must sustain damage
or harm either in body, mind, reputation or to any property.
22. As per the facts of the prosecution case taken as it is, there is not
even a whisper that the petitioners made any false representation to the
complainant. The basic postulate for comprising an offence under Section
415 of IPC is missing in the gravamen of allegations against the petitioners.
From a reading of the averments in the complaint in entirety and accepting
the said allegations to be true, the ingredient of intentional inducement on
the part of the petitioners right from the beginning of the agreement dated
22.04.1998, is wholly absent, as such, no offence punishable under Section
417 of IPC is constituted against the petitioners.
SECTION 420 OF IPC:-
23. Section 420 of the IPC deals with punishment for Cheating and
dishonestly inducing delivery of property. The ingredients of Section 415
Dr.GRR, J
of IPC is essential while dealing with the ingredients of Section 420 of IPC
as well. Since the ingredients of Section 415 of IPC are not found, there
cannot be an offence under Section 420 of IPC also. As per Section 420 of
IPC, there should not only be cheating under Section 415, but as a
consequence of such cheating, the accused should have dishonestly induced
the person deceived;
(i) to deliver any property to any person, OR
(ii) to make, alter or destroy wholly or in part a valuable security
(or anything signed or sealed and which is capable of being
converted into a valuable security).
24. It is not the case of the complainant that any of the petitioners
herein tried to deceive him either by making a false or misleading
representation or by any other action or omission, nor is it the case of the
complainant that they offered him any fraudulent or dishonest inducement
to deliver to them any of his property or to consent to the retention thereof
by any person or to intentionally induce him to do or omit to do anything
which he would not do or omit if he were not so deceived. As such, no
offence punishable under Section 420 of the IPC is made out against the
petitioners herein.
Dr.GRR, J
SECTION 120-B:-
25. Section 120-B deals with punishment for criminal conspiracy.
Section 120-A defines what is criminal conspiracy. To constitute criminal
conspiracy. There must be an agreement between two or more persons to
do or cause to be done (1) an illegal act, or (2) an act which is not illegal by
illegal means. The essence of a criminal conspiracy, punishable under
S.120-B, is an agreement to do an illegal act. The term "illegal" is defined
under S. 43 of the IPC. The definition makes it manifest that it is applicable
only to a fact or situation which is an offence or which is prohibited by law.
Unless the facts and circumstances would disclose commission an offence
under Sections 406, 417 or 420, there exists no question of an agreement
with any other person to do an illegal act or an offence or even to do an act
which is not illegal by illegal means.
26. Further, it is essential under Section 120-A of IPC that there should
be meeting of minds between the conspirators for the intended object of
committing an illegal act or committing an act which is not illegal, by
illegal means. Except for using the word "conspire", there is absolutely
nothing in the averments of the complaint connecting the petitioners herein
with the commission of the crime of criminal conspiracy. The complaint
Dr.GRR, J
averments do not reveal any story of conspiracy. No offence punishable
under S. 120-B is made out and constituted from the facts of the case.
SECTION 34 of IPC:-
27. The essence of Section 34 lies in common intention, which denotes
action in concern and necessarily postulates a pre-arranged plan, and a
prior meeting of minds. Conjoint intention is key. The common intention
must be there prior to the commission of any offence, and each and every
one must be aware of the act to be committed. In the averments of the
complaint, except for alleged disjointed acts by the petitioners, there is no
factual foundation whatsoever to evidence of any sort of pre-arranged plan
between the petitioners. In fact, the petitioners could not have possibly
entered into any plan, for they are not the original landowners. The
common intention must be in relation to a criminal act. As there is no such
criminal act punishable under Sections 406, 417, and 420 of IPC, no
offence is constituted under Section 34 of IPC, on the present facts
emanating from the record.
28. As such, the trial court erred in not considering that there is no
sufficient material on record to substantiate the allegations against the
petitioners. The Trial Court proceeded in an entirely mechanical manner
without making any attempt to appreciate the facts of the case, which were
Dr.GRR, J
civil in nature and the transaction between the parties was without any
elements of criminal offence. The trial court failed to see that the
complaint was insufficient to disclose the commission of any offence under
Sections 120B, 406, 417, 420 read with Section 34 of IPC.
29. In the result, the Criminal Revision Case is allowed setting aside
the order dated 26.12.2019 passed in Crl.M.P.No.1306 of 2019 in
C.C.No.1643 of 2018 on the file of the XIV Additional Chief Metropolitan
Magistrate, Nampally, Hyderabad and the petitioners-A1 to A7 are
discharged from the alleged offences under Sections 120-B, 406, 417, 420
read with Section 34 of IPC.
As a sequel miscellaneous applications pending in this appeal, if
any shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 06 -06-2024.
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