Dismissed

K.Chandra Mohan v. the State of Telangana and Another

Telangana HC12 Oct 2022CRLP/123/2016

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a criminal petition filed under Section 482 CrPC seeking quashing of proceedings for offences under Sections 384, 420, 406, and 506 IPC. The court held that notwithstanding the remedy available under the Negotiable Instruments Act, a distinct offence under IPC Section 420 could lie, and a prima facie case existed.

What did the court decide?

The criminal petition is dismissed. The Police concerned is directed to expedite the investigation in Cr.No.846 of 2015.

K.Chandra Mohan Vs the State of Telangana and Another — Quashing and FIR | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABA

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WEDNESDAY THE TWELFTH DAY OF OCTOBER

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TWO THOUSAND AND TWENTYTWO

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PRESENT

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THE HONOURABLE Dr. JUSTICE D.NAGARJUN

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Criminal Petition No. 123 of 2016

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Between:

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K.Chandra Mohan, S/o. K. Rajalingam, Age 40 years, Occ: Business. Ryo. 1517l2Ol2, Mtzalaguda, Malkaiigiri, Hyderabad, Ransa Redddy ?liltition"rta""r""U.

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ANDl. The State of Telangana, through Public Prosecutor, High Court of Hyderabad, Hyderabad '

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...Respondents/Respondent.

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S. Ramesh, S/o. S.Lakshmani, Age:38 years, Occ: Business, Rl/o. H.No. 16'1-609, SRR Thota, Kareemabad, Warangal. Temporarily residing at Plot No. 486, Vasanthapuri Colony, Malkajigiri Mandal, Ranga Reddy Dishict.

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...RespondenUDefacto Complainant.

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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 Crime No.846 of 2015 of Police Station Malkajgiri, dt.l4.11.2O15 on the file of the X Metropolitan Magistrate, Malkalgiri, Ranga Reddy District.

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l.A. NO: 1 OF 2016(CRLPMP. NO: 166 OF 2016)

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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 stay all further proceedings against the petitioner/accused in Crime No.846 of 2015 P.S. Malkajgiri, Ranga Reddy District on the file of the X Metropolitan Magistrate, Malka.igiri, Ranga Reddy District including not to arrest the petitioner here in till pending disposal of the main Case.

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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 Dantu Venkata Ramana Sarma, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No.1 and of the Respondent No.2 not appearingⁱⁿ person or through his counsel.

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The Court made the following: ORDER

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THE ItoN'BLE DR. JUSTICE D.NAGARJUI

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CR rMIl{AL PETITION No. 123 of 2rD16

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ORDER:

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This Crir rinal Petition is filed under Section^a[t2 cf the Code of Crimin rl Procedure by the petitioner-acclrsecl to quash Cr.No.B46 of 2r)l5 of Malkajgiri Police Station r-egist,)rod ibr the oflence under iectrons 384, 42O,406, 506 of the Indian Penal Code based o 1 the complaint lodged by responc e:rt \o.2 de facto compl rinant.

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The fac -s in brief as can be seen lrom ttre private complaint hlerI by the de-facto complainalt under Sr:ction 200 of the Code o1 Criminal Procedure against the petilioner are as under:

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a) The pe titioner-accused and de-facto complainant are known to eace other and on account of such acqu tintance, the petitioner-acc used used to visit the house and officc of the defocto^{complasnant. Regularly in the month ol Sep,-e66,'.,} ,Ot t the petitione. has approached t!r.e de-facto complainant with a proposal of s :arting a joint venture and MOU was also r:xecuted on 06.O9.20. 1 in the presence of two witnesses i.e ., T. Ravi and K. Ramulu an<1 in pursuance of the same the de-facto

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complainant along with T. Ravi and K. Ramulu and has paid an amount of Rs.66,01,000/- (i.e., Rs.32,00,000/- by the de-facto complainant, Rs.2O,78,O00/- by T.Ravi and Rs.32,OO,00O/- by Ramulu) to the petitioner. Prior to advancing of said money, the petitioner by issuing fake and sham railway tender documents and order copies to de-facto complainant and made the de-facto complainant and T.Ravi and Ramulu to believe and borrow the money undertaking to pay the money within a period of two months.

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b) After lapse of two months, the de-facto complainant has demanded the petitioner to pay the money, the petitioner has prolonged the same on one ground or the other. The petitioner -^{accusedhas also entered in an agreementdated17.03.2012} agreeing to return the money received by him. The de-facto complainant has issued a legal notice dated 03.12.2013 to the petitioner demanding the said amount and the petitioner has received the same. The petitioner has issued a cheque bearing No. 832389 dated, 24.08.2013 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.lO lakhs. The de-facto complainant has presented the cheque with his banker but the cheque was returned with an endorsement "insufficient funds".

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c) The petttioner has issued a declaration cum undertaking dated 25.O5.1012 to pay Rs. 13,23,OOO/- within six months as per the terrns of MOU. The cheque has bcen issued intentionally :elonging to other accused only with an intention to cheat the r.e-facto complainant to deprive the 1e55aiL debt. The de-facto com plainant went to the Police Station and Iiled a complaint but since they have not taken the complaint. the defacto compla nant has filed a complaint under Sr:ctiorr 200 of the Code c f Criminal Procedure before the lt:arned XX Metropolitan Magistrate, Cyberabad at Malkajgiri.^'l'he said private comp.aint was forwarded by the Magistratr' to the Police under Sectio: r 156 (3) of the Code of Criminal Proc,:dure . Based on the said complaint, the Police, Maikajgiri has; registered a case in Crin.e No.846 of 2015 for the offence under Sections 384,42O,4C6, 506 of the Indian Penal Code. AgJrieved by the same, the p:titioner has filed criminal petition tc) quash the proceedings against him in Crime No.846 of 2015, of Malkajgiri Police Statio: r on the following grounds:

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i) The Lr gal notice got issued by the de-facto complainant dated 24.12 20i1, 03. 12.2014 and 18.04.2014 rs against the $rovisions^{oJ Negotiable} Instruments Act. \

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ii) On receipt of notice dated 24.72.2O11 got issued by the de-facto complainant, the counsel for the petitioner has issued reply notice. However, the de-facto complainant has not taken any steps against the petitioner under Section 138 of the Negotiable Instruments Act.

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ii| the de-facto complainant has issued another notice dated 03.12.2013 through his counsel in respect of cheque bearing No. 832389 dated 24.08.2O13 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.10 lakhs and the petitioner has issued reply notice and the de-facto complainant has filed complaint before the I Additional Judicial First Class Magistrate at Warangal and the same was taken on file as C.C.No.4O4 of 2014.

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iv) the de-facto complainant after hling of the present complaint, another notice was issued in respect of the cheque bearing No. 832389 dated 24.08.2O13 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.10 lakhs demanding the petitioner to pay the amount covered under the said cheque and the petitioner has replied by way of legal notice dated 18.O4.2014.

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v) The petitroner got issued legal notice dated 22.09.2011 to the de-facto r omplainant and his friends i.e., T. Ra',ri and K.Ramulu for :eturn of cheques and the said notice^r,"'as reeived by them but tlrey kept quiet. The petitioner lodged zr cornplaint before the I\ Additional Chief Metropolitan M.rgistrate at Hyderabad an I the same was registered as Crime N,r. t0 of 2O12 of Osmania Ur riversit5r Police Station.

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vi) The de- facto complainant has filed a priva .e complaint before the Chief Metropolitan Magistrate, Ranga R,:ddy District under SC/ST (POA) Act and after investigation, th,: Police have closed the file.

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vii) The de -facto complainant has liled this r:omplaint as cheque is tirre barred and not maintainable under Negotiable Instruments \ct.

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There s no representation on behalf of resJrondent No.2de-facto cor nplainant. Though notice was st:nt to the responclent No.2-de-facto complainant severaI tirnes to the address mer tioned in the petition other than his acldres;s, notice was returner I under the caption "no such person" "tro such plot number". Fience, in view of Section 27 of Generel Clauses Act, it is treate<. aS dpesp* service. Heard Sri Dantu Venkata

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Ramala Sharma, learned counsel for the Petitioner-accused - and Sri S.Ganesh, learned Assistant Public Prosecutor and perused the record.

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Now the point for determination is:

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"Whether the proceedings against the petitioneraccused in Cr.No.846 of 2O15 of Malkajgiri Police Station, can be quashed under Section 482 of the Code of Criminal Procedure?

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According to the de-facto complainant, an amount of Rs.66,01,000/- was advanced by the de-facto complainant and his friends i.e., T.Ravi ard K.Ramulu jointly, wherein the. petitioner having executed a Memorandum of Understanding, dated 06.09.201 1 agreed to return the said amount within two months but subsequently the petitioner failed to pay the money. However, the petitioner has issued cheque bearing No. 832389 dated 24.08.2013 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.1O lakhs to the de-facto complainant, T.Ravi and K.Ramulu. On dishonor of those cheques, notices and reply notices were stated to have been exchanged between the parties. At para No.S of the complaint, it is also stated by the de-facto complainant that the petitioner has issued cheque belonging to some other person with an

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intention to cl reat the de-facto complainant wil.h :Ln^{u lterior} motrve

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On the o:her hand, the contention of the petitiorrer is that the de-facto complainant ought to have filed complaint under Section 138 ol the Negotiable Instruments Act aga.nst him on the ground tlrat the cheques allegedly given b5- him were dishonoured and since there was no limitation for recovery of money, the d :-facto complainant got liled a fals: cornplaint before the Poli :e arrd got the FIR registered.

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7 . The pe .itioner-accused has not denied borrowing of money from t re de-facto complainant and his frierrds and also in respect of issuing of cheque bearing No. 8ii2.389 dated 24.08.2073 drawing on Axis Bank Limited, Tarnrka Branch, Secunderaba< for Rs. 10 lakhs. As rightly subrr itted by the learned counr el for the petitioner in normal course. the de-facto complainant ihould have filed complaint under St:r:t,ion 138 of the Negotiabl l Instruments Act before the competent Court in case if the ch:que given by the petitioner was dishcnoured. It is also submittr:d by the learned counsel for the p,:titioner that since there ras no limitation to hle complaint zrgainst the

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petitioner under Section 138 of the Negotiable Instruments Act with the help of Police, has filed a false complaint.

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B. It is true that normally, if a cheque given by a person is dishonoured, a complaint under Section 138 of the Negotiable Instruments Act will have to be filed in normal course after following the procedure contemplated under Negotiable Instruments Act in respect of dishonor of the cheques. However, merely because there is a remedy under Negotiable Instruments Act, it cannot be said that the complaint under Section 42O of the Indian Penal Code will not lie. The ingredients of the offence under Section 138 of the Negotiable Instruments Act and ingredients of the offence under Section 420 ofthe Indian Penal Code are totally distinct and separate.

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In order to prove the offence Section 42O of the Indian Penal Code, the de-facto complainant is expected to place the material before the Court that the petitioner had an intention right from the inception to deceive the de-facto complainant and such acts and omissions of the petitioner constitute the ingredients of the offence under Section 42O lPC. In Vijay Kumar Ghai and others vs. The State of^{West Bengal and}

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othersl the Hr,n'ble Supreme Court held at paragraPlrs 31 to 36 as under:

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"31 . Sr ction 415 IPC defines "cheating" lDhicl rea,Cs as unde':

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"a 75. Cheating.-Whoeuer, by deceiuin g ang pers( n, Jhaudulently or dishonestlg indu:es the pers(,n so deceiued to deliuer anA propertA lo anA pers(,n, or to consent that any person sha'l "etain anq )ropertA, or intentionallg induces the ()erson so dtrceiued to do or omit to do anything uluch he tuoui 7 not do or omit if le uere not so d,zceiu<:d, and u,hiah act or omission causes or is likelg to cczus z damoge or ttarm to that person ii-t boclg, minc, reputation or property, is said to "chectt'."

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The es: ential ingredients of the offence of ch,zating cLre:

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1 Dec.eption of ang person

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2 (a) Fraudulentlg or dishonestlg inducing titat pers )n-

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(i) to deliuer anA propertA to anlJ perso'; or

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(ii) to consent that anA person shal! retain onA propertA; or

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( t) intentionallg inducing that person lo do or amit to do angthing tuhich le would n(i dc or amit if he u)ere no so deceiued, and uhi:h act or c mlssion causes or is likelg to cause dcntaqet or I arm to that person in bodg, mind, reputcttiort or p. roperty.

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I fraudulent or dishonest inducemeni essenti ingredient of the offence. A per::ott^is t'.tho^an

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\ '{zozz;^z scc^rz, \

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dishonestlu induces another person to deliuer any propertA is liable for tle offence of cheating.

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Section 420 IPC defines "cteating and dbhonestly inducing deliuery of propertg" which reo.d.s as under:

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"42O. Cheating and d.ishonestlg lnducing deliaery of propertg.-Whoeuer cheats and tlereby dishonestly induces the person deceiued to deliuer anA propertA to anA person, or to makq alter or destrog the u.thole or anA part of a ualuable secuitg, or angthing uhich is signed or sealed, and u-thich is capable of being conuerted into a ualuable seanitA, sholl be punished uith impisonment of either desciption for a term which mag extend to seuen Aears, and shall also be Iiable to fine."

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Section 420 IPC is a senous .form of cheating that includes inducement (to lead or moue someone to happen) in terms of deliueru of propertu as uell as ualuable secuities. This section is also applicable to matters uhere the destruction of the propertu is caused by the utay of cleating or inducement. htnishment for cheatirLg is prouided under this section tuhich may extend to 7 years and also makes the person liable to fine.

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To establish the offence of cheating in inducing the deliuery of property, the follouing ingredients need to be proued:

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0 The representation made by the person uos false.

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(iil The acansed had pior knouledge that the representation he made utas false.

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(iiil T?e accused made false representation uLith dishonest intention in order to deceiue the person to tuhom it was made.

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agalnst the petitioner by the de-facto complainart, this court is of the opini,rn that this court cannot give a findir:g that there is no prima-fa,:ie case against the petitioner_accuse l. Hence, the petition is lir ble to be dismissed.

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Accord ingly, the Criminal petition is disrn.issed. The Police conce.ned is directed to expedite the invcstigation in Cr.No.846 ot 2015 of Malkajgiri police Station as rrarly as possible.

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As a se luel, the miscellaneous petitions, pending if any, shall stand cl< sed.

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I I

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To,

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Sc/- l. NAGA LAKSHMI T,EPUIY REGISTRAR (,it) //TRUE COPY'

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IiECTION OFFICER

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1 . The X Metr, rpolitan Magistrate Court Malkajgiri, Cyberabad, Ranga Reddy District.