Allowed

Sanjay kumar , I.a.S., v. State of Ap., Thr Sho., Ps Ghatkesar Cyberabad

Telangana HC1 Aug 2014CRLP/1242/2012

Case brief

AI extract

What is this about?

The court quashed an FIR registered against AP Housing Board officials for alleged criminal breach of trust and cheating. Finding that the complaint alleged only civil breaches of contract absent dishonest intent, the court held no cognizable offence was disclosed ex facie.

What did the court decide?

F.I.R. No.2 of 2012 and the complaint are quashed; pending miscellaneous petitions are dismissed.

Sanjay kumar , I.a.S., Vs State of Ap., Thr Sho., Ps… — Quashing and FIR | Telangana HC (2014)

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[HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.1242 OF 2012 Dated 1-8-2014

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Between: Sanjay Kumar and others.

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..Petitioners.

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And:

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State of A n d h ra Pradesh, through SHO, PS Ghatkesar Cyberabad, R.R. District and others.

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…Respondents.

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HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.1242 OF 2012

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ORDER:

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This petition is filed to quash F.I.R. in Crime No.2 of 2012 dated 3-1-2012 of Ghatkesar Police Station, Cyberabad, Ranga Reddy District for the alleged offences under Sections 409, 417, 418, 420 and 477-A IPC.

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Petitioners herein are accused in the above referred crime. Third respondent herein is de facto complainant.

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Third respondent herein presented a complaint in the court of XIII Metropolitan Magistrate, Cyberabad at L.B.Nagar and the same is forwarded to Police under Section 156 (3) Cr.P.C. for investigation, on the basis of which, police registered the above referred crime No.2 of 2012 on 3-1-2012.

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The contention of the petitioners is that third respondent has no locus-standi to lodge the complaint as he is not even owner of the property in respect of which allegations are leveled.

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The next contention of the petitioners is that the matter in question is purely of civil in nature and all the grievances of the petitioners are civil in nature and therefore, F.I.R. registered on the basis of such complaint is liable to be quashed.

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The other contention of the petitioners is that first petitioner was not the Vice Chairman of A.P.Housing Board at the relevant point of time and he is no way concerned with the allegations referred in the complaint. It is also contended by the petitioners that they have no connection with the sale transactions of the year 2006 and 2008. It is further contended that the complainant approached A.P.State Consumer Disputes Redressal Commission, Hyderabad on the self same allegations and as he did not get any relief from the State Commission, he preferred appeal to the National Consumer Disputes Redressal Commission, New Delhi and the matter is pending there.

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It is further contended that all these aspects are raised before Civil Court in O.S.No.51 of 2011 and also in the writ filed before the High Court and not satisfied with those proceedings, the present complaint is filed to harass the petitioners. It is further contended that even if the entire complaint allegations are taken as true and correct, no offences are made out ex facie and therefore, proceedings are liable to be quashed.

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It is further contended that A.P.Housing Board is a statutory Board and there is a protection under Section 78 of the Andhra Pradesh Housing Board Act,1956, according to which, no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or purported to be done under this Act.

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According to third respondent, the action of A.P.Housing Board resorting to collection of maintenance charges from the flat owners without handing over the said area is arbitrary and illegal. Third respondent further contended that A.P.Housing Board has not provided the standard construction as promised in their broacher and all the constructions are defective and residents are continuously suffering due to those defects. Third

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respondent also contended that the accused have violated directions of this court in respect of multistoried building. He also contended that there is no approval of final lay out. It is further contended by third respondent that A.P.Housing Board failed to provide shops and modern commercial complex and the willful conduct of A.1 to A.7 in not divulging correct information with regard to the above referred subjects do satisfy the essential ingredients of offences punishable under Sections 417, 418 and 420 I.P.C.

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Learned Advocate for petitioners submitted that the present complaint is a clear abuse of process of court and all the allegations leveled in the complaint attract only breach of alleged contract and it would only a civil dispute for which the complainant already initiated civil proceedings and only to coerce the officials of Housing Board to yield to the demands of the complainant, the present complaint is filed. He further submitted that before forwarding any complaint to police, the Magistrate must prima facie satisfy that the allegations would attract any offence and then only order for investigation. But here, as seen from the complaint allegations, it appears that the Magistrate without application of mind mechanically forwarded complaint for investigation. He further submitted that all the accused are officials of A.P.Housing Board which is a Board constituted under a Statute and all their actions are in discharge of their duties and there is no whisper in the complaint against any of the officials attributing any malice and therefore, the proceedings are to be quashed. It is further submitted that as per Bhajan Lal’s case, i.e., STATE OF HARYANA AND

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OTHERS vs. BHAJAN LAL AND OTHERS (^[1] ) when the F.I.R. allegations or the complaint allegations do not disclose any offences, such F.I.R. or complaint is liable to quashed.

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Now, the point that would arise for my consideration

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in this petition is that whether the F.I.R. allegations in Crime No.2 of 2012 can be quashed or not. POINT:

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I have perused the material papers filed along with the quash petition.

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The first objection raised by the petitioners is that complainant has no locus-standi to file a complaint against them as he is not a resident of Sanskruti Township, Pocharam. This objection is not tenable because criminal law can be set into motion by any individual and he need not be victim directly.

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According to Section 39 Cr.P.C., every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any shall give information to the nearest Magistrate or police officer of such commission or intention.

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So when Cr.P.C. provides a right to give information to any person, the question of locus standi does not arise. In this case, the complaint given by third respondent to the XIII Metropolitan Magistrate, Cyberabad at L.B.Nagar has to be treated as information because investigation is ordered on the said complaint. So the objection on behalf of petitioners with regard to locus standi is not tenable.

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The other objection of the petitioners is that the entire allegations in the complaint attract civil remedy and they no way attract offences alleged in the complaint. In the complaint, many sections are referred and F.I.R. is also registered for those sections.

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The first Section is 409 I.P.C. which reads as follows:

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“Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with

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(imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

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This Section 409 I.P.C. is a punishment section for the criminal breach of trust committed by public servant. Section 405 defined criminal breach of trust which reads as follows:

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“Whoever, being in any manner entrusted with property, or with any dominion over property, 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, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “Criminal breach of trust”.

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To attract criminal breach of trust, there must be two main ingredients; firstly, there must be entrustment and secondly, there must be dishonest misappropriation. In the entire complaint, there is no whisper as to what was the entrustment, and how the petitioners misappropriated such property.

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The next offences alleged against the petitioners are under Sections 417, 418 and 420 I.P.C. All these three can be grouped because they relate to cheating.

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Cheating is explained under Section 415 IPC which reads as follows:

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“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 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, is said to “cheat”.

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According to this section, there must be dishonest inducement and in pursuance of such dishonest

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inducement, there must be delivery of property. It also attracts dishonest concealment of facts.

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As seen from the complaint allegations, the grievance of the complainant is that there is concealment of some facts. He has not given the details of those facts and there is no whisper in the entire complaint, that alleged concealment was with dishonest intention to have wrongful gain.

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Section 417 is punishment for cheating. It reads as follows:

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“Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” Section 418 reads as follows:

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“Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

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So far as Section 418 I.P.C. is concerned, it is a cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. In the entire complaint, there is no whisper as to how the complainant was cheated knowing that he would sustain wrongful loss.

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All the petitioners are officials of the Housing Board and there is a protection for their acts done in good faith both from prosecution and from taking any civil action.

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When there is a statutory protection, there must be specific allegations showing that the acts of the petitioners towards complainant or the flat owners was with malafide intention or not done in good faith.

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There is no whisper in the entire complaint that the acts of petitioners was with a view to cause wrongful loss and those acts were with dishonest intention. As rightly pointed out by advocate for petitioners, entire allegations

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in the complaint would only attract breach of some contract between the parties and when there is no allegation that the said breach was with dishonest intention or that too, caused wrongful loss to the owners of the property, ingredients for offences of breach of trust or cheating do not attract.

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The other offences alleged against the petitioners is Section 477-A IPC and it is in respect of falsification of accounts. There is no whisper in the entire complaint as to how this offence is attracted. According to this section, an employee is to be held liable for falsification of accounts of his employer. Admittedly, there is no such relationship of employer and employee, between the petitioners and third respondent. Without indicating anything in the complaint, simply the section is quoted and F.I.R. is registered for that offence also.

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In Bhajan Lal’s case (cited supra), Honourable Supreme Court formulated certain guidelines to be taken into consideration while entertaining quash petition and they read as follows:

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“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a

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non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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According to guideline Nos.1 and 2, proceedings have to be quashed when the entire F.I.R. or complaint allegations do not disclose any offence and even if they are accepted in toto ex facie, present complaint on hand squarely falls within those two guidelines.

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Here the complainant is not satisfied with the facilities provided to Sanskruti Township and not satisfied with the quality of construction filed Consumer Case before the State Consumer Disputes Redresal Commission, Hyderabad and on full-fledged enquiry, State Commission dismissed the complaint not accepting the allegations leveled against the A.P.Housing Board and its officials.

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Now reiterating the self same allegations, the complainant knocked the doors of criminal court and the learned Magistrate without examining whether there is any prima facie material attracting any of the offences alleged in the complaint mechanically forwarded the same to the police for investigation on the basis of which police

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registered F.I.R.

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On a reading of the complaint, acts alleged against the petitioners prima facie do not amount to criminal breach of trust or cheating. When complaint is made in respect of acts of the public servant not attracting any of the offences, at least prima facie, it amounts to frivolous complaint.

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From the facts and a reading of entire complaint, I have no hesitation in holding that there is no prima facie material to show breach of trust nor there was any intention at the inception to cheat the complainant or other flat owners.

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On a thorough scrutiny of the material papers, I am of the view that continuation of F.I.R. in Cr.No.2 of 2012 would amount to abuse of process of court and to secure ends of justice, it is a fit case to quash the said F.I.R.

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For these reasons, this Criminal Petition is allowed and F.I.R.No.2 of 2012 is hereby quashed.

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As a sequel to the disposal of this Criminal petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.

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_______________________ JUSTICE S.RAVI KUMAR

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Dated 1-8-2014. Dvs.

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HONOURABLE SRI JUSTICE S.RAVI KUMAR

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CRIMINAL PETITION No.1242 OF 2012