Writ petition challenging non-registration of FIR by police in a dispute over cheating regarding land and money. Court held dispute was civil breach of contract, not cheating, and FIR registration did not violate public duty.
Petitioner directed to redress grievance before appropriate Court. Writ of Mandamus denied.
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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.8457 OF 2019
ORDER :
This writ petition is filed under Article 226 of the Constitution
of India seeking the following relief:
“to issue a Writ, Order or Direction, more particularly one in the nature of Mandamus, declaring the action of the Respondents 2 and 3 in not registering the FIR on complaint dated 20.02.2019 made by the Petitioner against the 4th Respondent as illegal, arbitrary, contrary to Articles 14, 19 and 21 of Constitution of India and also the guidelines issued by the Supreme Court in “Lalitha Kumari vs. State of Uttar Pradesh (2014 (2) SCC Page 1), consequently direct the Respondents 2 and 3 to register the FIR on the complaint made by the Petitioner, dated 20.02.2019 against the 4th Respondent and take appropriate action against the 4th Respondent”
The petitioner is a resident of Macharla. He lodged a complaint with the police alleging that Y. Suvarna Raju, Paster Lutheren Chruch, Macharla, respondent No.4 approached and informed him that his great grandfather Sri Jashuva rendered service as Paster in Lutheren Church. After sometime, he retired and died without getting any remuneration and in lieu of remuneration, he offered to convey Ac.0.06 cents by way of sale deed in his favour and demanded him to pay Rs.20,00,000/- and also asked him to approach K. Manikyala Rao and G.Irmiya, on believing his words the petitioner borrowed an amount of Rs. 14,60,000/- from near and dear in the month of August, 2015 and paid the same in the presence of M.Venkateswara Reddy and Ch.Rayapa Reddy. When he requested to execute the sale deed for an extent of Ac.0.06 cents, respondent No.4 brought him along with Rayapa Reddy and Venkateswara Reddy, shown some vacant site at old Guntur town and promised to execute the sale deed for the vacant site within 10
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days. Thereafter, several requests were made to execute the sale deed by handing over the vacant site but no response from respondent No.4 and caused much inconvenience to the petitioner. Sri M.Venkateswara Reddy and Rayapa Reddy, who were present at the time of payment, also requested respondent No.4 to repay the said amount if it is not possible to allot the said land. While so in the month of March, 2017 respondent No.4 approached police with an intention to lodge complaint against the petitioner, then the SubInspector of Police Sri Jaykumar called the elders and enquired in their presence. Then respondent No.4 accepted to repay the amount within two months. While so one Sri Kenadi, Advocate came forward and promised to settle the issue between the two, amicably by executing the sale deed in favour of the petitioner. After two days, the petitioner paid an amount of Rs.5,00,000/- to Kenadi (Three lakh by way of cash and One Lakh by way of two chaques). Thereafter no progress in the issue. Then, the petitioner asked Sri Kenadi, then he repaid one lakh rupees and the cheques which are lying with him are not returned to him. Sri Suwarna Raju the paster threatening to kill the petitioner in case he demands the said amount. Despite lodging complaint, respondent Nos.2 and 3 did not register any crime on the ground that the dispute is purely civil in nature and the inaction on the part of the respondents being public officers amount to failure to discharge their public duty and sought for Writ of Mandamus.
During hearing, Sri K.Ananda Rao, learned counsel for the petitioner, drawn the attention of this Court to the contents of the complaint and contended that the contents of the complaint would attract the offence punishable under Section 420 of I.P.C.
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Learned Assistant Government Pleader for Home contended that the dispute is purely civil in nature and the police obtained endorsement from the petitioner herein on the complaint.
As seen from the allegations made in the complaint that respondent No.4 and others promised to provide Ac.0.06 cents of land at Guntur on payment of Rs.20,00,000/- as the father of the petitioner rendered service as Paster and retired from service, but did not receive any remuneration. The petitioner paid the said amount to respondent No.4, but he did not convey the house site by executing any document despite demand made by the petitioner.
It is contended that the offence allegedly committed by respondent No.4 is punishable under Section 420 of I.P.C.
Section 420 of I.P.C. deals with punishment for the offence of cheating and dishonestly inducing delivery of property, which is as follows:
“420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
The essential ingredients to constitute the offence of cheating
are:
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do anything which he would not do or omit if he were not so deceived; and
(iii) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
In V.Y.Jose v. State of Gujarat1 the Apex Court laid down
following ingredients to constitute cheating.
“An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
(i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.
An offence of cheating may consist of two classes of cases: (1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here;
1 (2009) 3 SCC 78
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(2) When by reason of such deception, the complainant has not done or omitted to do anything which he would not do or omit to do if he was not deceived or induced by the accused.”
If the said ingredients are applied to the present facts of the case, at best, the acts of respondent No.4 would amount to breach of contract or promise, but not an offence punishable under Section 420 of I.P.C. prima facie . Since the dispute is purely civil in nature, denying to register crime is not violation of public duty by respondent Nos.2 and 3 being public officers. Therefore, question of issue of Writ of Mandamus directing to register the crime against the respondent No.4 does not arise.
Learned counsel for the petitioner relied on the judgment of the Apex Court in “Lalitha Kumari vs. State of Uttar Pradesh” (referred supra). But the principle laid down in the said judgment has no application to the present facts for the reason that when a dispute is civil in nature, the Station House Officer is not under obligation to register the crime and that the principle laid down in the judgment relates to cognizable offence, purely criminal in nature.
In view of my foregoing discussion, I find no ground to issue Writ of Mandamus as claimed by the petitioner. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. However, it is for the petitioner to redress his grievance before appropriate Court. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY
18.11.2019 Ksp
3 issues framed by the court
Whether a dispute regarding unfulfilled promise of land and money amounts to cheating under Section 420 of the IPC.
Whether police refusal to register a complaint filed regarding a civil dispute violates Article 14, 19, 21 of the Constitution.
Whether the court should issue a Writ of Mandamus directing police to register a criminal complaint in a civil dispute.
Colour shows how this judgement treated each authority
Lalitha Kumari vs. State of Uttar PradeshReferred¶10
Lalitha Kumari vs. State of Uttar Pradesh (2014 (2) SCC Page 1) · Who else cites this
Vijay Jose v. State of GujaratExplained¶26
V.Y.Jose v. State of Gujarat
2 provisions across 2 enactments
Petitioner
Respondent No. 2
Respondent No. 3
Y. Suvarna Raju
M. Satyanarayana Murthy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
