HON'BLE SRI JUSTICE K.G. SHANKAR
Crl. Petition No.10714 of 2009
30.10.2012
Sri Angishetty Chandra Shekar
The State of Andhra Pradesh, rep.by its Public Prosecutor,High Court of Andhra
Pradesh, Hyderabad, and another
Counsel for the Appellant: A.H. Chakravarthy
Counsel for the Respondents:S. Ashok Anand Kumar for R-2 Asst.Public Prosecutor
for R-1
<Gist:
>Head Note:
? Cases referred:
1. 2010 (2) ALD (Crl.) 363 (AP)
2. 2010 (2) ALD (Crl.) 373 (AP)
3. 2010 (2) ALD (Crl.) 584 (SC)
4. 2010 (2) ALD (Crl.) 262
5. AIR 1992 SC 604
6. 2006 (2) APLJ 26 (SN)
ORDER:
This Criminal Petition is laid under Section 482 of the Criminal Procedure Code
(Cr.P.C.). The two petitioners seek for the quashing of C.C.No.176 of 2009 on
the file of the XI Metropolitan Magistrate, Cyberabad. The charge sheet was
laid by the police alleging that the two petitioners are the accused and that
they committed the offence u/s.420 of the Indian Penal Code (IPC).
2. The case of the second respondent-de facto complainant is:
a) The petitioners herein approached the second respondent and others through
an intermediary by name Manchukonda Raghu and offer to sell Ac.2.15 guntas of
agricultural land situate at Mohobatnagar, Maheshwaram Mandal, Ranga Reddy
District at
Rs.1 crore per acre. On 28.04.2006 the petitioners went to the house of the
second respondent and received an advance of Rs.60 lakhs from the second
respondent and executed an agreement of sale.
b) The second respondent later came to know that there was a dispute
regarding the title of the land. The second respondent consequently requested
the petitioners to resolve the dispute. The petitioners, however, failed to
settle the title dispute about the property. Consequently, on 22.09.2008, the
second respondent issued a legal notice to the petitioners demanding the return
of the advance paid by the second respondent and others and also to pay damages.
On 14.10.2008 the petitioners replied denying their liability to return the
advance and damages.
c) The second respondent later came to know that the petitioners were aware
about the land dispute, that they suppressed the same and made the second
respondent believe that the petitioners had clear title of the property and that
the petitioners thus committed the offence u/s.420 IPC. This complaint was
presented by the second respondent to Saroornagar Police Station on 18.11.2008.
After due investigation, police laid charge sheet. The learned XI Metropolitan
Magistrate, Cyberabad took the case on file u/s.420 IPC as C.C.No.176 of 2009.
3. The agreement between the petitioners on the one side and the second
respondent and others on the other side was dated 28.04.2006. It would appear
that some third parties filed O.S.No.1546 of 2006 on the file of the VII
Additional Senior Civil Judge, Ranga Reddy District, Hyderabad on 28.06.2006 in
respect of several properties including the property which was offered by the
petitioners to the second respondent for sale. In that suit, the first
petitioner was arrayed as defendant No.9. Be it noted that the second
petitioner was not a party to O.S.No.1546 of 2006. The second respondent in his
turn filed a suit in O.S.No.27 of 2009 on the file of the Principal District
Judge, Ranga Reddy District against the petitioners for recovery of the monies
received by the petitioners together with damages. O.S.No.1546 of 2006 as well
as O.S.No.27 of 2009 would appear to be pending disposal.
4. Sri A.H. Chakravarthy, learned counsel for the petitioners contended that
there was no element of criminal intention on the part of the petitioners, more
so, at the time of the agreement of sale and that events subsequent to the date
of agreement of sale cannot constitute criminal intention and cheating on the
part of the petitioners. He also contended that the very fact that the second
respondent lodged the complaint about 21/2 years after the agreement shows that
there was no element of cheating on the part of the petitioners and that
consequently, the criminal prosecution against the petitioners is not
sustainable.
5. Sri S. Ashok Anand Kumar, learned counsel for the second respondent on the
other hand contended that the charge sheet clearly makes out a case u/s.420 IPC
and that the charge sheet cannot be quashed at this stage. He placed reliance
upon Sunkari Sathaiah v. State of Andhra Pradesh1. In that case, in a petition
u/s.482 Cr.P.C., the accused filed documents. A learned single Judge of this
Court held that documents filed by the accused could not be looked into at the
stage of the petition u/s.482 Cr.P.C. and that the Court was not expected to
appreciate the evidence in a petition u/s.482 Cr.P.C. It is the contention of
the learned counsel for the second respondent that at present, prima facie case
is made out against the petitioners and that it is not proper to appreciate the
finer aspects of evidence at this stage.
I shall examine the prima facie evidence that is available on record a little
later.
6. In Manda Krupakar Rao v. State of Andhra Pradesh2 relied upon by the
learned counsel for the second respondent, the question was whether the
statements of the complainant and other witnesses should be accepted at their
face value in an enquiry u/s.202 (1) Cr.P.C. I am afraid that this decision
relied upon by the learned counsel for the second respondent has no relevance.
It was observed in that case that the Magistrate was expected to apply his mind
while taking cognizance of the offences against the accused and issuing summons
to the accused and that the statements of the complainant and his witnesses
cannot be taken for granted at their face value, but the intrinsic quality of
the statements is the criterion but not the face value of the statements. I,
therefore, place no reliance upon this decision referred to by the learned
counsel for the second respondent.
7. In State of Andhra Pradesh v. Gourishetty Mahesh3, the Supreme Court
exhaustively considered the parameters to be applied in a petition u/s.482
Cr.P.C. The Supreme Court held that Section 482 Cr.P.C. is not made to short-
circuit prosecution and bring about its closure without full-fledged enquiry and
that the inherent powers cannot be exercised to stifle a legitimate prosecution.
The Court observed that unless the allegations in the complaint did not
constitute an offence of which cognizance has been taken by Magistrate, it is
not open to the High Court to quash the same. It is contended by the learned
counsel for the second respondent that the allegations in the charge sheet made
out a prima facie case so much so taking cognizance of the same by the trial
Court was perfectly justified. I shall examine the facts of the case keeping
the ratio of the Supreme Court in mind. In E. Sudheer Reddy v. Manda Kondanna4,
the ratio in State of Haryana v. Bhajan Lal5 was quoted and was acted upon.
8. The learned counsel for the petitioners on the other hand placed reliance
upon G. Anugrahan v. D. Bhaskar Rao (Crl. Appeal No.217 of 1975, dated
12.11.1996). In that case, the complainant submitted an application in response
to an advertisement.
The complainant was appointed by the firm. Salary was paid for a couple of
months. The firm, however, failed to pay the salary thereafter on account of
its financial constraints. The complainant sought for arrears of salary and
refund of security deposit. As the firm did not comply with the demand, he
lodged a complaint u/s.420 IPC. This Court held that where the party aggrieved
has an alternative remedy of a civil suit, the party should not be allowed to
fight criminal litigation. In M/s. Sri Revensa Siddeshwara Traders v. the State
of A.P.6, a criminal complaint under Sections 420 and 409 IPC was laid in
respect of a commercial transaction. The case was referred as civil in nature by
the police when the complaint was forwarded to police u/s.156 (3) Cr.P.C. On
protest petition by the complainant, the Judicial Magistrate of First Class took
the case on file under Sections 409 and 420 IPC. He dismissed the discharge
petition filed by the accused. This Court considered that the invocation of
criminal law instead of filing a suit for loss sustained by the complainant was
tantamount to abuse of process of law and that such abuse deserves to be
prevented by exercising the powers u/s.482 Cr.P.C. On the basis of this
decision, it is contended by the learned counsel for the petitioners that prima
facie case is not made out.
9. The charge sheet laid after due investigation may be examined to determine
whether prima facie case was made out against the two petitioners herein.
The charge sheet disclosed that the prosecution examined several witnesses. The
facts as narrated have been prima facie found to be true. The police, however,
stated in the charge sheet as follows:
".... subsequently, the complainant came to know A.1 and A.2 got knowledge about
the land dispute and suppressed it and made the complainant purchase the said
disputed land and pay them huge amount of Rs.60 lakhs...."
Barring for the allegation that the petitioners were aware about the civil
litigation and deliberately suppressed the same when they entered into an
agreement of sale with the second respondent, the dispute per se would not be of
criminal legal consequences. In respect of immovable property, if one claims it
to be belonging to one, if the property subsequently is found to be belonging to
some another person, it would not constitute cheating within Section 420 IPC.
If one was aware that the title of the property was in dispute and deliberately
represents to another that there was clear title to the property and induces
such others to purchase the same, it would certainly be an offence u/s.420 IPC.
10. While so, there is no prima facie evidence that the petitioners were aware
that there was litigation and dispute regarding the title of the property before
they entered into an agreement with the second respondent.
The agreement of sale between the petitioners and the second respondent was on
28.04.2006 whereas O.S.No.1546 of 2006 was laid on 28.06.2006. Thus, by the
date of agreement of sale, the suit was not instituted. It is not permissible
to assume that there were disputes regarding the title of the property by
28.04.2006 itself and that the petitioners were aware of the same but
deliberately entered into an agreement of sale with the second respondent. The
allegation in the charge sheet that the second respondent later came to know
that the petitioners had knowledge about the land dispute and that he
deliberately suppressed the same is without any source of such information. How
did the second respondent come to know that the petitioners did not have title
to the property? Where is prima facie evidence to show that the petitioners
deliberately suppressed information from the second respondent? I am afraid
that in the absence of these material particulars the charge sheet allegations
do not prima facie constitute an offence u/s.482 Cr.P.C.
11. In Bhajanlal's case, the first parameter was whether the allegations in
the FIR would constitute an offence if the allegations are taken at the face
value.
The Supreme Court also held in that case that where the allegations made in the
FIR so absurd and inherently improbable on the basis of which no prudent person
could reach a just conclusion that there was sufficient ground to proceed
against the accused, it should be considered to be a fit case to stop
prosecution.
12. I am afraid that a sweeping general statement that the de facto
complainant later came to know that the petitioners were aware about the land
dispute is not sufficient to constitute the offence u/s.420 IPC. This is all
the more so where it is not even stated as to the source of information of the
second respondent that the petitioners were aware about the land dispute. Where
admittedly there is land dispute and admittedly when the land dispute arose
after the agreement of sale, it cannot be inferred that the dispute existed even
by the date of agreement of sale, much less considering that the petitioners
were aware of the same and deliberately suppressed the same before the second
respondent. Barring for the land dispute, the claim of the second respondent
becomes unsustainable. Where source of information of the second respondent is
not spelt out, the criminal complaint against the petitioners deserves to be
quashed, as the case squarely falls under guidelines
1 and 5 of Bhajanlal's case.
13. I consider that no prima facie case is made out against the petitioners.
Consequently, C.C.No.176 of 2009 deserves to be quashed as against the
petitioners and is accordingly quashed. The Criminal Petition No.10714 of 2009
is, accordingly, allowed.
__________________
K.G. SHANKAR, J
Date: 30.10.2012
