Partly allowed

Dr. Kandala Ramanuja Chary v. The State of Telangana

Telangana HC12 Oct 2022CRLP/11562/2017

Case brief

AI extract

What is this about?

This court partially allowed a Criminal Petition to quash proceedings for cheating and assault. It quashed the cheating charge due to lack of fraudulent intent but directed the trial court to proceed with offenses for assault and intimidation based on prima facie evidence.

What did the court decide?

Proceedings for Section 420 IPC were quashed; trial to continue for Sections 323 and 506 IPC.

Dr. Kandala Ramanuja Chary Vs The State of Telangana — Cheque Dishonour | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE TWELFTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION NO: 1't562 OF 2017

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Between:

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Dr. Kandala Ramanuja Chary, S/o. Late Srinivasa Chary, Occ: Doctor, R/o. H.No. 3-5-1082/4, Narayanguda, Hyderabad.

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Dr. K. Kavitha, W/o. Dr. K. Ramanuja Chary, Occ : Doctor, Fi"/o. H.No. 3-51 OBZI A, Narayanguda, Hyderabad.

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(Both are H.No. 3-5-1082/A, Narayanguda, Hyderabad)

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...PETITIONERS/ACCUSED

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AND

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The State of Telangana, Rep. by its Public Prosecutor, Hon'ble High Court, Hyderabad.

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The Station House Officer, Narayanguda PS, Hyderabad.

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Smt. Rubeena Jabeen, W/o- Nazeer Ahmed, Occ : Housewife. Rl/o. H.No.^'17- 9-217 I 1, Chanchalguda, Hyderabad.

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...RESPONDENTS/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 Quash the proceedings in CC No. 552/16 pending on the file of lX Addl. Chief lt4etropolitan [\4agistrate at Nampally, Hyderabad.

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l.A. NO: 1 OF 2017(CRLPMP. NO: 12817 OF 2017)

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the lVlemorandum of Grounds of Criminal Petition, the High Court may be pleased to Stay all further proceedings in CC No. 552/16^pending on the file of lX Addl. Chief Metropolitan lvlagistrate at Nampally, Hyderabad, including the appearance of the petitioners.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri K Anup Kumar, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent Nos. 1 and 2 and ol M/s Mohd- Vali-Ur- Rahman, Advocate for the Respondent No. 3.

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The Court made the following: ORDER

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THE HON'BLE DR. JUSTICE^{D.NAGARJI.']</sup>}

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CF IMINAL PETITION No. 11562 of 2Ol'"

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ORDER:

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This Criminal Petition is filed under Se'ction^a82 ol the Code of Crim nal Procedure by the petitioners-acc u sed Nos. 1 and 2 to quar;h C.C.No.552 of 2016 on the llle of L:arned IX Additional Chief Metropolitan Magistrate at Hydr:rztbad, the cognizance of which was takcn on file for tlie oflcnce under Sections 42O, \23 and 506 of the Indian Penal Code.

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The factl in brief as can bc scen from the charr;e shcct are as under:

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a) The peti:ioners-accused Nos. I and 2 arc thc Coctors by profession an( lvere running M / s. Sri Sai Srinivar; Speciality Hospital Privat e Limited, near Dcepak Thcatrc, Naral,anaguda, Hyderabad as Chairman and Managing Directors. BoLh the petitioners heve approachcd the rcspondent N''t..2-de-facto complainant tr ) advance loan of Rs. I 5 iakhs for rcviving thc hospital from tht: debts with a promisc to pa_'th( sirir:l arnount within a short time. Accordingly, thc dc'lacto cornp irinant has advanced an . mount of Rs. 13 lakhs tl-rrough cheqrrr bcaring Nos.643995, (lated 01.04 2009 ior Rs.5.90,0O01 , 582148,

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dated O1.04.2009 for Rs.3,1O.O0O/- and 090055, dated 03.04.2009 for Rs.4,00,000/- dra',vn on Vijaya Bank, Narayanaguda Branch, Hyderabad. The petitioners have encashed all the three cheques. However, the petitioners failed to repay the said amount.^'l'he de-facto complainant and LW2 visited the petitioners anci requested them to pay the amount. However, both the petitioncrs rn-hilc refusing to pay have threatened thc cic'facto compiainant and LW2 with dire consequences and manhandlcd thern apart liom abusing them in filthy language in thc pre sence of their well wishers.

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b) On account of vvhich the de-facto complainant and another have lost thcir dignity in the presence of witnesses i.e., LWs 3 and 4. On a complaint givcn by the Police, a case has been registered in Crimc 1"1o.440 of 20 15 by Police, Narayanaguda for thc oflcncc undcr Sections 42O,323 and 506 of the Indian Penal Code. During the course of investigation, Police have not only examincd thc tle-facto complainant but also eyewitnesses. Thc Police have also collected the details of the bank accounl to shon'that thc monev u,as advanced by the de.1fizclo^{complainantto thepc titioners-accused. On completion of} investigation, the investigating agency has ftled charge sheet, the cognizance of^{u'hich u'as} takcn as C.C.No. 552 of 2016 on

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the file of learr ed IX Additional Chief Metropolitan Magistrate at Hyderabad for the offence under Sections 42O. 3'23 and 506 of the Indian Per.al Code. Aggrieved by the same, the pe titioners have filed crireinal petition to quash the proceediegs against them in C.C.N:. 552 of 2O16 on the file of learned t)( Additional Chief Metropr litan Magistrate at Hyderabad on the fotlowing grounds:

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i) Even if the contents of charge sheer arc ac(cl)rc(l to bc correct, no cr iminal offence is made out. A rec()vc ry of money and civil dispttte has been converted into a crirninal <iisc.

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ii) There a'e no ingredients for the offenccs alles,::. ag.rist thc pelltioners.

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Heard Sri K. Anup Kumar, learncd coLlr)s,-,1 lor the Petitioners-ac cused, M/s. Mohd. Vali - Ur Rahrnirn, lcarned counsel lor .he respondent No.3 and Sri S.Ganesh, lcarned Assistant Pu rlic Prosecutor lor respondent Nos. r ancl 2 and perused the r ecord.

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il Now the point for determination is: '' Whether the proceedings ergainst the petitior rers-accused Nos. 1 and 2 in C C. No 5ii2 of 2O i6 rn the f-rle of learncd IX Adr.lrtiona, Chicf

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Metropolitan Magistrate at Hyderabad, can be quashed under Section 482 of the Codc of Criminal Procedure?

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The simple case of the de-facto complainant is that he has advanced a sum of Rs.13 lakhs through chequc bearing Nos.643995, datcd 01.04.2009 for Rs.5.9O,O0O/-, 5a2l49, dated Ol.O4.2OO9 for Rs.3,1O,000/- and 090055, dated 03.O4.2009 for Rs.4,O0,000/ - drau,n on Vijaya Bank, Narayanaguda Branch, Hl,dcrabad to the petitioners as hand loan, which though thel' agreecl to p.r,!', [ailcd to return and when the de-facto complainant has demanded the petitioners, they have not only threalcnccl but also abused in filthy language apart from manhandling thcm in the prcscnce of u,itnesses. As rightly submitted by the lea rncd coun se I lbr the petitioners, in case, if money has been transferrecl b1' thc de-facto complainant in favour of the petitioners, in case if the petitioners failed to pay the said amount, it is a case of rccovery of money and basing on the material available beforc him, the de-facto complainant can approach the appropriatc civil court for recovery of money. Mcrel-r' beczruse the pctitioners have not returned the money advanced b5 the de facto complainant, it does not amount to offcnce utrder Section 42O of the lndian

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)

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Penal Code. In order to prove the offence Section 420 ol' the Indian Penai Cor [e, the de-facto complainant is expectecl to place the material br:fore the Court that the petitioner:; had an intention right from the inception to deceive th(i de-f.rcto complainant ar d such acts and omissions of the )e titioners constitute the i:rgredients of the offence under Secrion^,12C, IPC. In Vijay Kumar Ghai and otbers vs. The State of Wr:st Bengal and othersl th: Honble Supreme Court held at parz,grapns 3l to 36 as under:

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'3l. Set tion 415 IPC defines "cheating" tuhich r<: ctd:; as under

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"4 15. Cheat'tttg.-Whoeue4 bg deceiuing any perso;l, fraudulentlg or dishonestlg tnduat.; the perso r so deceiued to deliuer anA propertA b enq perso 7, or to consent that any person shcLLl ,"':,tcLt,t anA I ropertA, or intentionallg induces tl,.e x'rsort .so de:eiued to do or omit to do anAthing tL'ltt h l'Le ,,uoulr' rtot do or omit if he uere not so dr: :: uetl. ctttd ; uhich act or omission causes or is li,te 't1 t a caust damage or ltarm to that person h i.'od.1. mind reputation or propertg, is said to "clrcc.t'^''

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,rhe ess zrrticzl ingredients of the offence oJ- c,t(.ltutg ,lr(

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Deception of any person

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2 (a) Fraudulentlg or dishonestly tnductrLu thai pers)n-

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(i) ro deliuer anA propertA to an!) pers<)t1 ot

{l0ll)7s(c ll.l

t I I II i

(ii) to consent that any persotl shall retairt ana properta; or

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(b) intentionally inducing tllat persotl to do or omit to do angthittg tthich he uould not do or omit if Le u)ere no so deceiued, and uhich act or omission causes or is likeLg to cause damoge or harm to that persott in bodg. mind, reputation or propertA.

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A fraudulent or dishonest ittducemerzt is an essential ingredient of the offence. A person who dishonestly induces another person to deliuer any propertA is liabte for the offence of cheating.

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! a I I I I

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Section 420 IPC defines "cheating artd dislrcnestlg inducing deliuery of propefty" tultich reads as under:

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"42O. Cheating and dishonestlg inducing delioery of propertg.-Wtoeter cheats atrd tlereby dishonestly induces the person deceiued to deliuer anA propertll to any person. or to ltake, alter or destroy the uhole or at1lJ pafi of a ualuable sea)itA, or angthing ruhich i.s signed or seoled. and uhich is capable oJ' beury cottuefteei hito a ualuable secuity, shall be punished witLt imprisonment of either descipttort for a tenn uthich maq ertend to seuen gears, attd shalt also be liable to fine."

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Section 420 IPC is a senous fonn of checttitq that includes inducement^(to lead or tnoue someone lo happen) in terms of deliuenl of^propertu as tuell as ualuable securities. Ihis secliort is also applicable to matters where the destructiort of the^propertu is caused bu the utau of cheathq or inducemeriPunishment for cheatinq is^proukled under tl'tis secliort which mau extend to 7 years and also makes^lhe person liable to fine.

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(

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To establish the offence of cLeating in inducing the del 'ery of property, tlrc follouing ingre dtents need to Le proued:

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(t) The representation made by tlrc oerson Luas l alse.

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(ii, The accused had prior knouledg<z th,tt the r( presentation he made was false.

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(ii ) TLLe accused made false represeriation with dishonest intention in order to deceiile tlrc pers( n to whom it utas made.

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(it,) The act uhere the accused indu:e,7 t\e perst)ti to deliuer the propertg or to perfornl or to abst tirt from any act uhich the persott utoulri haue not c one or had othenuise committed.

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As obserued and held by this Courl bt R K. ViauaszrathA u. Sudha Seetharon't IR K. Vijayastrathy u. Sudha Seetharam, (2019) 16 SCC 739 : 202O) 2 SCC Gd 4541 , the ingredients to corr.slarr te an offence under Section 420 a.e as iollotus

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( ) a person must commit the offence of ,:heatutg und zr Section 415; and

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( i) tle person cLeated must be dish.c,nestly tndt'.ced to:

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(a) deliuer propertA to anA person; or

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(b) make, alter or destrog ualuable secuity 'tr^{anything signed} or^sealed and^catrtttbleof teirrq conuerted into ualuable seatitu. Tltus, :lu:ating is an essenfial ingredieri for cr: act to :onstitute an offence under Section 42C IPC.'

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()n p( rusal of the above, it is clear that the de'facto coml)lainant has not made any allegation that thf pr:titioners

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from the inception i.e., prior to borrowing thc amount itsclf, they hatched a plan to avoid the same and subsequently as perrr of their execution of plan refused to pay the same. As long as there is no such allegation of having intention to deceive the defacto^{complainant from the inception, the offenceunder Sec[ion} 42O of the Indian Penal Code is not attracted. Thereforc, continuation of the proceedings against the pctitioncrs in C.C.No.552 of 2016 on the file of learned IX Additional Chief Metropoiitan Magistrate at Hydcrabad for thc offence under Section 42O of the Indian Penal code is not tenable.

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However, it is alleged by the de-facto complainant that rvhen the de-facto complainant and LW2 and other \r,itncsscs u,e nt to the house of the petitioners and derna ndcd monc-r'. botl'r the petitioners have threatened them rvith dirc conscqucrrccs and it is also alleged that both the petitioners havc manhandle<l de-facto complainant and LW2 and abused in iilthy Ianguage in the presence of LWs 3 and 4. This contention ol the de'facto complainant is also been corroborated in the statements of de facto^{complainant recordedunder Section161 of the Code of} Criminal Procedure. Similarly, LWs 2 ro 4 havc also stated to the Police in their statements recorded undcr Scction 161 ol the Code of Criminal procedure about thc allcgc<1 thrcatcning b1' thc

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petitioners and about abuses made by the petitiont:rs irr the presence of LW; 3 and 4 and also the fact that both of them have manhandl:d them. So, these are the allegations leveled against the p lt itioners-accused. Learned counsel for the petitioners has submitted that in order to corner the petitioners to see that the money is paid to them, a false casr: has been foisted against the petitioners. The petitioners may be correct that the de-fa':to complainant could have filed false case in ordcr to arm^I \,rst the petitioners. However, so lar as this petition is con:erne d, unless there is no material ;rgainst the petitioners lor thc offence under Sections 323 and.506 of the lndian Penal :ode, this Court cannot hold that there is no prima-iacie ca;c against the petitioners. As already observed, consrdcring t l( contents of the complaint an<l also thc staie mcnts o[ u itnesses, as concluded by the Potice, there is prima-far:ic rr.rterial to show that the petiti()ners have comrnrttc d ofl :rrcc undcr Sections 323 and 506 o,' the lndian I)e na l Cocle.

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In vicn, oi the above facts and circumstanc,:s, the case agairrst thc p,'trtioners lor the offence under. Section 42O of the Indian Pcnirl locl: in C.C. No.552 of 2016 on thc [i[e of learned IX Adciitiona, Chief Metropolitan Magistrate at Hy<lerabad

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carlnot be continued. Hotever, rhe trial Court is required to continue trial, so far as, ol"her offenccs are concerned.

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Accordingly, the Criminal Petition is allowed in parl and tlre proceedings against the petitioners-accused Nos. 1 and 2 in C.C.No.552 of 2016 on the file of learned IX Aclditional Chief Metropolitan Magistrate at Hyderabad, so lar as the offent--e under Section 42O. of the Indian Penal Code, are ht:reby' quashccl. However, the trial Court is directed to procccd u itl'r the trial against the petitioners-accused for the offenc:cs urrtk'r Sections 323 and 506 of the Indian Penal Code as^pcr [a''r' on rnerits and uninfluenced by the observations and comments nrade by this Court in this order.

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As a sequel, the miscellaneous Petitions, pending il :rrrr'. shall stand closed. Sdr-

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Sdr-^{K. AMMAJI} ASSISTANT .i^REGISTRAR

,TTRUE^COPY"

SECTION^OFFICER

To,