Allowed

Arimilli Rama Krishna v. the State of Andhra Pradesh

Andhra Pradesh HC2 Dec 2024CRLP/6988/2019

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition under Section 482 Cr.P.C. to quash criminal proceedings for cheating. The Court held that since a civil suit for specific performance concerning the same property was pending, continuing criminal proceedings would constitute an abuse of process and was unnecessary.

What did the court decide?

The criminal proceedings in C.C. No. 3287 of 2019 before the IV Additional Chief Metropolitan Magistrate, Visakhapatnam, are hereby quashed.

Arimilli Rama Krishna Vs the State… — Contract and Commercial Disputes | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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TUESDAY, THE THIRD DAY OF DECEMBER

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TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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CRIMINAL PETITION NO: 6988 OF 2019

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Between:

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Arimilli Rama Krishna, S/o Chakradhar Rao, aged 58 yrs, R/o. Velpuru Village, Tanuku Mandal, West Godavari District.

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...Petitioner/Accused

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AND

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The State Of Andhra Pradesh, Represented by its Public Prosecutor, High Court of Judicature at Amaravathi.

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...Respondent

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Sri Kakarlapudi Venkateswara Raju, S/o Late Appala^{VenkataSeetha} Rambhadra Raju, aged 65 yrs, R/o Plot No 306, Sector 5, M V P Colony, Visakhapatnam

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...Respondent/Defacto-Complainants

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Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to call for the records in connection with CC No 3287/2019 on the file of the court of IV Additional Chief Metropolitan Magistrate, Visakhapatnam, Visakhapatnam^District.

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LA. NO: 1 OF 2019

Petition under Section 482 of Cr.P.C., praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay of all further proceedings including the appearance of the petitioner in CC No.3287/2019^on the file of the Court of IV Additional Chief Metropolitan Magistrate, Visakhapatnam, Visakhapatnam District. This Petition coming on for hearing, upon perusing^{theMemorandum} of Grounds of Criminal Petition and upon hearing the arguments of Sri T Nagarjuna Reddy, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No. and of Sri^{VenkateswaraRao} Gudapati Advocate for the Respondent No. 02

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The Court made the following ORDER:-

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APHC010385492019

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3333]

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(Special Original Jurisdiction)

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TUESDAY,THE THIRD DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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CRIMINAL PETITION NO: 6988/2019

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Between:

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Arimilli Rama Krishna ...PETITIONER/ACCUSED

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AND

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The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT(S) and Others

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Counsel for the Petitioner/accused:

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1.T NAGARJUNA REDDY

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Counsel for the Respondent/complainant(S):

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PUBLIC PROSECUTOR (AP)

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2.VENKATESWARA RAO GUDAPATI

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The Court made the following:

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ORDER:

This criminal petition is filed under Section 482 of^Criminal Procedure Code (for short “Cr.P.C.”) to quash the charge^sheet in C.C.No.3287 of 2019 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam, registered^{fortheoffence} punishable under Section 420 of Indian Penal Code (for^short “I.P.C.”).

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Petitioner herein is the accused. Respondent No.2 is the complainant. Respondent No.2 herein filed private complaint^under Section 200 Cr.P.C. before the IV Additional Chief Metropolitan Magistrate’s Court, Visakhapatnam alleging that the complainant and his family members are having lands at Singavaram,^Denkada Revenue, Denkada Mandal, Vizianagaram District. The accused who is having real estate business approached the complainant^and offered to purchase the lands of the complainant and his family members. Then complainant stated that the property is joint family property and he is having no absolute rights over the property. In spite of the same, the accused insisted the complainant^toexecute an agreement of sale by stating that if the family^{membersdidnot} agree to sell the property, the same can be persuaded^later. In the said circumstances, the complainant entered into an agreement of sale with the accused on 08.01.2015 by fixing the rate at Rs.15,50,000/per acre, and the accused paid an amount of Rs.30,00,000/- towards part of the sale consideration^andthelast date for registration was fixed as 15.02.2015. The^{saidtransaction} took place in the presence of Dr.D.R.K.Raju, Ex.Principal, M.R. College, Vizianagaram. Later, when the complainant^contacted his family members, they did not agree to sell the property,^andthe

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complainant informed the same to the accused, thereupon, the accused asked the complainant to return the advance amount of Rs.30,00,000/-, and on such he would return the original agreement. On 03.03.2015 the accused made a phone call to the complainant and informed that he will be coming on 04.03.2015 along with original document. On 04.03.2015 the complainant paid^anamount of Rs.30,00,000/- to the accused in the presence of K.V.S.Prasad, Mandapati Konda Babu, Mandapati Venkata Narayana Raju^and Dr.D.R.K.Raju, Ex Principal, and asked the accused to endorse the same on the back side of the agreement, but the accused torn the same by stating that it need not be endorsed on the back side of the agreement. But surprisingly on 19.03.2015, the complainant received a notice from the advocate of the accused demanding to return the advance amount. On 27.03.2015 the complainant gave a reply to the accused. As the accused played fraud against the complainant, the complainant gave a report to III Town Police Station, Visakhapatnam and on 06.06.2015 the police registered a case in Crime No.447 of 2015 under Section 420 of I.P.C. The accused filed suit O.S.No.83 of 2015 on the file of the District Judge, Vizianagaram against the complainant for specific performance^of agreement of sale. On 24.02.2017, the police referred the complaint lodged by the complainant as “civil in nature”. Even though the witnesses stated that the amount was handed over to the accused and the accused torn the Xerox copy of the agreement by misrepresenting that it was original agreement executed by the complainant in favour of the accused, still the police referred the case as the dispute is “civil in nature”. The complaint filed by the complainant was registered as C.C.No.3287 of 2019 on the file of

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the IV Additional Chief Metropolitan Magistrate’s Court, Visakhapatnam. The complainant also filed protest petition on 08.01.2018 and the learned Magistrate in Crl.M.P.No.3869^of2018 vide order dated 19.08.2019 had taken cognizance of^thesame under Section 420 of I.P.C. and issued summons to the accused, who is the petitioner herein. The present petition^{hasbeenfiledto} quash the said C.C.No.3287 of 2019.

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On 20.11.2019, when the present petition, came up for hearing, this Court passed the following interim order. “ In that view of the matter, this Court is of the opinion that further appearance of the petitioner in^C.C.No.3287 of 2019, on the file of IV Additional Chief Metropolitan Magistrate, Visakhapatnam is dispensed with, till further orders.”

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Thereafter, the said interim order has been extended from time to time. 5) Learned counsel for the petitioner contended that the dispute between the petitioner and the complainant is purely civil in nature, and without assigning any reasons, the learned Magistrate has passed the order taking cognizance against the petitioner.^Whenthe complaint lodged by the complainant, basing on the statements recorded by the police, they rightly came to the conclusion^thatthe dispute is civil in nature. The petitioner herein issued^noticetothe complainant and the same was received by him on 19.03.2015,^for which respondent No.2 - complainant issued reply notice dated 27.03.2015 and thereafter initiated criminal proceedings against the petitioner on 06.06.2015, which fact would indicate^{thatthecriminal} prosecution is launched only to avoid execution of^{saledeedandto} settle the civil dispute. Further, the petitioner herein^{filedO.S.No.83}

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of 2015 on the file of the IV Additional District Judge, Vizianagaram for specific performance and the same is pending for adjudication. The petitioner has not deceived any person, and he^{hasnotinduced} the person to deliver any property, therefore, the allegations made in the complaint would not constitute offence punishable under Sections 420 of I.P.C. Therefore, criminal complaint filed by the defacto complainant is not maintainable, as such the proceedings in C.C.No.3287 of 2019 have to be quashed.

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Learned counsel for respondent No.2 contended that the complainant entered into an agreement of sale with^theaccusedon 08.01.2015 on receiving Rs.30,00,000/towards advance, later when the family members of the complainant did not agree to sell the property, the complainant returned the said amount to the petitioner-accused, but the petitioner-accused did not return the original agreement of sale to the complainant and on^theotherhand filed suit for specific performance of agreement of^{saleandcheated} the complainant. As the petitioner-accused cheated the complainant, he filed the present complaint. He further^contended that the truth or otherwise will be decided after full-fledged trial, and requested to dismiss the petition.

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Learned Public Prosecutor contended that the allegations made in the private complaint filed by the complainant would constitute offence punishable under Section 420 of I.P.C., therefore, the present petition is liable to be dismissed. 8) Having heard the submissions made by the learned counsel representing both parties and on perusal of the material^availableon record, the point that arises for consideration is as follows:

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“Whether the proceedings against the petitioner in C.C.No.3287 of 2019 on the fiie of the IV Additional^Chief Metropolitan Magistrate, Visakhapatnam, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?”

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POINT.

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The petitioner filed the present petition under Section^482of

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Cr.P.C.

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Section 482 of Cr.P.C saves the inherent powers^oftheHigh Court to make such orders as may be necessary to give^effectto any order under the Code or to prevent abuse of the^processofany Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make^an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made^toabusethat authority so as to produce injustice, the Court must^havepowerto prevent that abuse. In the absence of such power the^{administration} of law would fail to serve the purpose for which alone^theCourt exists, namely to promote justice and to prevent injustice.^Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power^hastobe exercised sparingly in exceptional cases and this power^isexternal in nature to meet the ends of justice.

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Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. was highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: 12) Section 482 of the Code of Criminal Procedure empowers^the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance^istaken by the Magistrate it is open to the High Court to quash^the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in “Mrs.Dhanalakshmi v. R.Prasanna Kumar^ ” 13) Keeping in view the above principles, I would like to examine the case on hand.

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Admittedly, in the present case, an agreement of sale was entered into between the petitioner and respondent No.2 on 08.01.2015 and accused paid an amount of Rs.30,00,000/- towards AIR 1990 SC 494

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t'*

part of sale consideration, fixing the date for registration of sale deed on 15.02.2015. As the family members of the complainant did not agree to sell the property, the complainant returned the advance amount of Rs.30,00,000/to the petitioner. As the petitioner did not return the original agreement of sale to the complainant and filed the civil suit, he filed the present complaint alleging that the petitioner cheated the complainant.

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The complainant alleged that he returned the advance amount of Rs.30,00,000/- to the petitioner herein on 04.03.2015, but the petitioner did not return the original agreement of sale. On 19.03.2015 the complainant received legal notice from the petitioner demanding to return the advance amount. On 06.06.2015, the complainant filed report before SHO, III Town Police Station, Visakhapatnam and the same was numbered as Crime No.447^of 2015. After investigation, police referred the said^caseas “civil in nature”, the specific endorsement in the Final report filed in Cr.No.447 of 2015 is as follows:

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‘‘Under the above circumstances, the content of the complaint lodged by the complainant is purely “CIVIL IN NATURE”

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After filing the complaint by the complainant, the petitioneraccused filed a suit O.S.No.83 of 2015 on the file of IV Additional District and Sessions Judge, Vizianagaram for specific performance of agreement of sale dated 08.01.2015, however, the same was dismissed vide judgment dated 27.12.2022. Thereafter, the petitioner herein filed Appeal Suit No.516 of 2023 against the decree and judgment in O.S.No.83 of 2015, which is pending for

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adjudication. Even though the complaint (Crime No.447 of 2015) filed by the complainant on earlier occasion was referred^as“civilin nature”, the complainant filed the present complaint^withthesame allegations.

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The appeal suit No.516 of 2023 filed by the petitioner^herein against the decree and judgment dated 27.12.2022 passed in O.S.No.83 of 2015, filed for specific performance of the agreement of sale dated 08.01.2015, by the IV Additional District^andSessions Judge, Vizianagaram is pending for adjudication before the appellate Court. Two parallel proceedings against one another, both in civil and criminal courts cannot be prosecuted for the reason that, the finding if any given either in civil or criminal^court will have its own impact on the other matter pending before the Court.

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In “Paramjeet Batra Vs. State of Uttarakhand and^others 2n the Apex Court held that, while exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious.^This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure^endsof justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether^essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court

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^ (2013) 11 Supreme Court Cases 673

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should not hesitate to quash criminal proceedings to^preventabuse of process of Court.

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In ‘Mohd. Khalid Khan Vs. State of Uttar Pradesh 3ji the Apex Court held that when civil suit is pending where^theownership of the property has to be decided in the pending suit^asthesameis subject matter of the suit, in such circumstances, pending civil litigation, criminal proceedings cannot be primarily^prosecuted. 20) If, these principles are applied to the present facts of the case, as the appeal suit No.516 of 2023 is pending before the competent civil court against the decree and judgment^passed in O.S.No.83 of 2015, which was filed for specific performance of agreement of sale dated 08.01.2015, and the present^complaintis filed alleging that the petitioner played mischief^{onthecomplainant} by not returning the original agreement of sale dated^08.01.2015, I am of the view that the proceedings in criminal case^havetobe quashed as two parallel proceedings cannot be prosecuted.

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It is to be noted that earlier the complaint (crime^No.447of 2015 on the file of the Muvvalavanipalem Police Station, Visakhapatnam) filed by the complainant was referred as “purely CIVIL in NATURE”, later the complainant filed the present^complaint on the same allegations, which cannot be continued as^thedispute was referred as “civil in nature” on the earlier occasion.^Therefore, on this ground also, the criminal petition deserves to^beallowed. 22) Further, the offence alleged to have been committed^bythe petitioner is punishable under Section 420 of I.P.C.

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^ (2015) 15 Supreme Court Cases 679

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Section 420 of I.P.C, deals with punishment for the offence of ‘cheating’.

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Cheating is defined under Section 415 of I.P.C and it is as follows: “415. Cheating:- Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything \A^hich 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, is said to "cheat".

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As per the above definition, the essential ingredients to constitute the offence of cheating are:

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(i) There should be fraudulent or dishonest inducement of a person by deceiving him;

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(ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person so deceived should be intentionally^inducedto do or omit to do anything which he would not do or omit if he were not so deceived; and

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(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.

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In “V.Y.Jose Vs. State of Gujaraf ” the Apex Court^laiddown following ingredients to constitute cheating.

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“An offence of cheating cannot be said to have been^made out unless the following ingredients are satisfied:

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(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

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(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do^oromittodo anything which he would not do or omit.

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For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had^fraudulentor dishonest intention at the time of making promise or representation.

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An offence of cheating may consist of two classes of^cases;

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(1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here;

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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.”

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On perusal of the complaint filed by respondent No.2 - complainant, this Court did not find any dishonest^{intentiononthe} part of the petitioner herein right from the beginning excepting that he tore away the Xerox copy of the agreement of sale after receiving the amount from respondent No.2. Therefore,^thecore postulate of dishonest intention in order to deceive the complainantrespondent No. 2 was not made out even accepting all the

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averments in the complaint on their face value and, in such a situation continuation of the criminal proceedings against the accused would be an abuse of process of the Court. 30) In view of the aforesaid discussion, this Court is of the view that the continuation of the criminal proceedings against the petitioner would amount to an abuse of process of the Court. Therefore, the proceedings in the present case have to be quashed. 31) Accordingly, the criminal petition is allowed. The proceedings in C.C.No.3287 of 2019 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam are hereby quashed. 32) The miscellaneous petitions pending, if any, shall also stand

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closed.

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SD/-B PRASADA RAO ASSISTANT REGISTRAR

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