Dismissed

B.Vijay Kumar Reddy, Hyd., v. State of Telangana, Rep Pp and 4 Otrs.

Telangana HC4 Feb 2022CRLP/3821/2015

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a criminal petition filed under Section 482 Cr.P.C. to quash a Complaint dismissed under Section 203 Cr.P.C. The Court held that the dispute was purely civil in nature involving refund of advance. The accused lacked the essential intention to cheat from the beginning, and the pendency of a civil suit barred criminal proceedings under sections 420 and 406 IPC.

What did the court decide?

Criminal Petition No.3821 of 2015 dismissed; prayers for quashing impugned orders dismissed.

B.Vijay Kumar Reddy, Hyd., Vs State of Telangana, Rep… — Cheating and Forgery | Telangana HC (2022)

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HIGH COURT^{FORTHE STATEOF TELANGANA AT HYDERABAD}

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FRIDAY ,THE , ...rWO THOUSIND^{FOURTH AND DAY TWENTY OF FEBRUARYTWO}

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PRESENT

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THE HONOURABLE^{OR. JUSTICE G'RADHA RANI}

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CRI MIN^{ALP ETITroNNO:3821OF20 15}

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Between: ased^{about 30} vears^{Rio 3-} ""':',!'li: tia is,i3l; i:,ix5,?r","'"'fi[iE?"'Jr'indu'

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...PETITIONER/COMPLAINANT

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AND

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H vd^{e ra badFor}

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...RESPONDENT/ACCUSED

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Petition^{under Sectron482 of Cr'P C prayrngthatin the circumstances stated} rn the Memorandum^{ot G} 'ou^{nol'oibiti"'ri'"t1tio-n"t'"ttighcourlmav be pleased} to ouash the^{order passed oy til'nl"foi" rta"t'opolitan-sessions} consequentlv^{Judge' Hyderabadto direct} i., cri Revisron^{petitionNo zi i'z"o"is'o'i"i'i'+?91:} 'irhp Hon,ble tx^{Addt.chief *",;;;i;;Mrg!ira1e,^Hvoeraoadto take cognizance rn} 33 !H Jt:;;r?";^{zdi+-againsttne Respondents2 to 5}

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This Petition^{coming on for hearing'upon perusingthe Memorandumof} -'pon- nearing the arguments of Sri S Grounds^{of Criminatp"'n'onlnO} sYAMSUNDER^neo 'novolate"';;t^{;;;Petitionerand the AssistantPublic} ;;o.;";i",^{on behalf of the Respondent No'1}

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The Court^{made the following:ORDER}

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TIIE HON'BLE Dr. JUSTICE G.^{RADTIA RANI} CRIMINAL PE-l'ITION^No.3{t2 ot2 0 l5

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BDE.B:

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This criminal petition is filed by the^{petitioner-accuseclunder} Section 482 Cr.P.C. to^quash the order^passed by^{the Metropolitan} Sessions Judge, Hyderabad in Crl.R.P.No.25 of²⁰¹ 5^dated 02.04.2015 and consequently to direct^the lX^{AdditionalChief} Metropolitan Magistrate, Hyderabad to take cognizance^{in CC SR} No.486l of20l4 against the respondents^No.2 to^5.

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The case of the petitioner in brief^{rvasthat he} filed^{a private} complaint before the IX Additional Chiel Metropolitan^Magistrate, Hyderabad against the respondents 2 to 5 for the offences^under Section 1208,406 and 420 lPC. On^01.12.2014 the^{IX Additional} Chief Metropolitan Magistrate dismissed^{the complaintunderSection} 203 Cr.P.C. The petitioner^preferred a^{revision belbre the} Metropolitan Sessions Judge, Hyderabad under Section^397Cr.P.C' The said criminal revision case No.25 of²⁰¹ 5^{was dismissed on} 02.04.2015. He filed the^{presentpetitionto quash the said order.}

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The petitioner further submitted that^he along^{with one} Mr. L. Purushotham Reddy entered into an agt'eement of sale^with Respondents No.2 to 5 on 09.01 .2006 for^purchase of Acs.23.00 of land covered by Sy.Nos.l94, 195, 198 and 199 in Kalwakurthy village and Mandal, Mahaboobnagar District @ Rs.6,52,000/-^per acre. All the accused offered to sell the above land for a total sale consideration of Rs.l ,52,26,000/-. On the promise made by all the accused, the

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complainant agreed^{to purchasethe above land for a totalsale} consideration of^Rs.I ,52,26,000/-.^{Out of the total saleconsideration'} the cornplainant's^{father by nameB. Yadagiri Reddy (late) paid an} amount of Rs.1,00,000/-^{on 07.01.2006 at the residence of the} complainant^{andall the accused executeda receipt olr Ten rupees non-} judiciat stamp papers in the^{presence of witnesses' On 09'01'2006'the} complainant along^{with his partner PurushothamReddypaidan} amount of Rs.30,40,000/-^{to all the accused and they intumexecuteda} receipt on a^{revenue stamp in the presenceof the witnesses' As per} the agreement^{dated 09.01.2006,the complainanthad to paythe} balance^{sale considerationto the accusedwithin a periodof 90 days} from 09.01.2006.^{Thecomplainantgot issueda legal noticedated} 06.04.2006 through^{theirAdvocateat Hyderabad requestingall the} accused to l'ulfil the^{terms and conditionsof the agreerrent of sale} dated 09.01.2006^{and thcywere ready to pay the balancesale} consideration.^{Havingreceived the legal noticedated06'04'2006'the} accused did^{not comply the conditionsas mentionedin the agreement} of sale hence, the^{complainantwas constrainedto approach the civil} court for recovery^{of money with interestThe same was pending} adjudication^{vide OS. No.265of 2009 on the file of XII Additional} Chief Judge, City^{Civil Court, Hyderabad'}

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While the^{matter stood thus, on 23'04'201I all the accused} Nos.2 to 4^{andthe wifeand son of AccusedNo'2 sold out the said} property to four^{personsthrough registeredsale deed before the Sub-} Registrar, Kalwakurthy,^{MahabubanagarDistrict videregistered}

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document No.3386 of 2011 dated 23.04.201l. Intum the venclees in sale deed No.3386 of 201 I sold out the same properly to fbur others vide registered document No.4252 of20l2 dated 24.04.2012. Intunr the said persons executed a registered deed of right ol rederrption vide regisrered deed No.8677 ol 2012 dateil 01.09.2012. All rhe accused with an intention to cheat the complainant fiom the very inception of the transaction determined not to pay back the amount received at the time of entering into the agreement of sale dated 09.01.2006 and committed the offence of cheating and criminal breach of trust. The complainant approached the Narayanaguda police to lodge a report, but police advised them to file a private complaint. The leamed IX Additional Chief Metropolitan Magistrare, Hyderabad recorded the sworn statement of the petitioner on 13.11.2014. The complainant besides examining himself as pW. I , also examined his panner. L.Purushotham Reddy as another witness. Though their statements revealed that the respondents-accused committed the offence of cheating and criminal breach of trust, the IX Additional Chief Metropolitan Magistrate passed order dated 01.12.2014 dismissing the complaint. It was a non-speaking orcler. No reasons were given except stating that the matter was civil in nature. The Metropolitan Sessions Judge, Hyderabad also dismissed the Criminal Revision Petition No.25 of 201 5 dated 02.04.201 5 supporting the . order of the IX Additional Chief Merropolitan Magistrate opining that the case was purely of civil nature. .fhe accused were neither retuming the amount they had secured as

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advance nor inclined to^{transf'erthe land against the balance sale} consideration by executing^{registeredsale deed in favour of the} complainant. The^{mere t'act that civil liabilitywouldariseout of the} dispute and the pafiy^{had taken recourseto the civilremedywouldnot} be a ground to rcfuse crirrinal^{prosecutionand prayed to allowthe} petition by setting the^{asidethe orders of the leamed Metropolitan} Scssions Judge^{in Crl.R.P. No.25ol20l5dated02.04'2015'}

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Heard the^{learnedcounselfor the petitioner and the learned} Assistant Public Prosecutor.^{Notices served on respondentsNo'2 to 5} through their^{Advocateon record were returned as unclaimed'}

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Perused the record.^{The complainant alleged that he entered} into an agreement of^{sale withthe respondentsNo.2 to 5} -^{A1 to A4} for purchase of Acs.23.00^{ofland at Kalwakurthy village,} Mahabubnagar District @^{Rs.6,52,000/-per acre for atotal} consideration of Rs.l ,52,26,000/-^{and that he paid an amount of} Rs. 1,00,0001 on 07.01^{.2006and also an amountof Rs 30,40,000/-on} 09.01.2006 and^{issueda legal noticeto the respondentsNo'2 to5} requesting thelr to execute^{the sale deed by tixinga date and that they} were ready to^pay the^{balance saleconsiderationbut having received} the notices, the accused^{keptquiet withoutexecuting the sale deedas} such filed O.S. No.265^{of 2009 on the file of XI Additional Chief} Judge, City Civil Court,^{Hyderabadfbr refundof the advanceamount} with interest and^{the said suit was pending. It is his further contention} that during thc^{pendencyof the said suit, Al to A4 sold awaythe}

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property to third parties and 3 to 4 transactions took place thereatier and finally the said land was in possession of a third purchaser.

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The lX Additional Chief Metropolitan Magistrate, Hyderabad by observing that the complainant did not seek for th.; relief of specific performance but only claimed refund of advance and the entire transaction was of civil nature and there were no allegations that the accused had an intention to cheat the complainant since the beginning of the contract and induced the complainant in parting with the said amount, dismissed the complaint under Section 203 Cr.p.C.

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The Metropolitan Sessions Judge in Cri.R.P.No.25 of 20I5 dated 02.04.2015 observed that from the sworn statenrent of the complainant it could be understood that he was seeking remedy tbr refund of advance which was paid by him. The notice issued by the complainant dated 06.04.2006 would show that he was bent upon pursuing his civil remedy, he had not mentioned therein that any criminal action would be initiated against the accused and not mentioned therein that the accused had cheated the complainant. The swom statement would also show that the suit was filed by the complainant for refund of the amount. Hence, the Metropolitan Sessions Judge also opined that the case was purely of civil nature and confirmed the orders of the IX Additional Chief Metropolitan Magistrate, Hyderabad by dismissing the revision.

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Learned counsel for the petitioner relied upon thejudgment

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of the Hon'ble Apex Court in K. Jagadish v. Udaya Kumar G.S.

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and anotherl, wherein the Hon'ble Apex Court held that:

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"9. It is thus well setlled that in certain cases^{thc very sameset} of lacts rnay givc rise to rcmedies in civil as well as in criminal procecdings and cvcn if a civil rcmedy is availed by a party, he is not prccluded tiom setting in motion the^proceedings in crimirral law.

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tn Pratibha Rani v, Suraj Kumar and another [⁽ 1985) 2 SCC 370] this Couft sumrncd up thc distinction bclween^{thc two} rcmedies as undel:

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''21. ............^'fhere arc a large nuutber of cascs rvhcre c minal law and civil larv can rutr side by side. l-he tuo rcrneclies ore not rnutually cxclusive but clearly cocxtensive and cssentially ditf'er in their contcul and c(JDscqucnce. 1he objcct ol'the crintinal Ia\' is l(r punish an otl-cnilcr u'lto conlmits an otlcncc against a pers(nr. property or thc Statc fi)r *,hich thc accusccl. on proof of thc ofl'enqe, is dcprivcd o1'lris liberty and in some cascs cvcn^his lilt. This does not, however, aft'ect the civil remedics at all for suing the^wrongdoerin cascs^likc arson, accidents etc. It is an anathema to^suppose that v,hcn a civil remedy is available, a criminal prosccution is completcly barred. The two types of actiorls are quite differelt in conterlt, scope^and irnport. lt is not at all intelligible to us to take the stand that if the husband dishonestly nisappropriates the stridhan^property of his^wife, though kept irl his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that bccause the stridhan of a married^woman is kept in the custody of her husband, no action against him can be taken as no off'ence is committed is to ovenide and distoi the real intent ofthe law."

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I I. In l{ajes}r Bajaj v. State NCT of Delhi and others [(1999)³ SCC 2-581 this Coutt observed:

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"10. It nray bc that thc facts nanated in the^prescnt complrint u'ould as rvell rcvcal a^comtnercial transaction or l]oney transaction. But that^{is hardly} a reason ibr holding that the otfcnce of^chcating uould eludc li'orr suoh a transaoti()n. I[^{l'act, lnanya} cheatings werc conttnittcd^{inthe courseof} cornrncrcial and also money^{transactiotls. Onc ol the} illustrations set out undcr Section 415 of thc^lndian Pcnal Codc Ullustration I^{is worthyof notice now;}

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Crl.Appeal to,56^{of2020 dar€d10.01.20r0}

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"(/) A intertionally deceiws 7, into o bclic./ lhat A has meqns to repa:r' an)) monev that Z may lend to hin emd therebv dishonestly induces Z to lend him mone.y, A not intending lo repq! it. A cheats. "

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I l. The crux ol the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction uhich rvould become decisive in discerning whether tlrere was commissioll of off'ence or not. The corlplainant has stated in thc body ol the contplaint that lre was induced to believe that thc respondcnt rvould honour paynert on rsccipt of invoiccs, and that the complainant realised later that the intentions of the respondeut rvere not clear. Hc also mentioncd that thc respondent afler receiving the goods had sold them to others and still he did not pay thc rnoney. Such averments wor.rld prima facic make out a case ibr inycstigation by thc aLrthorities.

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The High Court seems to have adoptcd a strictly hyoertechnical approach and sicveri lhc complaint tluough a colander ol fincst guuzes t'()r tcsting the ingredients under Section 4l5 IPC. Such an endcavour may bejustified during trial. but cenainl), not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal ol-fence is involved."

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The aforesaid view was reiterated in Kamladcvi Agarwal v State of West Bengal and others [(2002) 1 SCC 555] as under:

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"9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending."

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The crux of the offence under Section 420 IPC is that the

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accused persons had an intention to cheat the victim from the inception. The written statement filed by Defendants No.l and j in O.S. No.265 of 2009 filed by the learned counsel lor the peritioner would disclose that they admitted receipt of amount ol Rs.1,00,000/and Rs.30,40,000i- tiom the petitioner as advance on 07.01.2006 and on 09.01.2006, but later the plaintiiT failed to pay the balance sale

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arnount^{and requestedthem to extend the time for paymentand failed} tofulfilthetermsoftheagreemetltandstartedthreateningthemto rerum the money^{They stated that they offeredto sellthe property to} meet their^{personal financialcommitmentsbutinstead of completing} the transaction,^{the plaintiffstarted threatening themthat they would} file one case^{after the other iftheydid not return their money'}

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Thus,^{the respondentsfailedto retum the money taken by} themasadvanceandsoldthepropertysubsequent[ytoothers.But, thesaidl.actwouldnotdisclosethattheyhadanintentiontocheatthe victim at the^{tinre of entering into the agreementof sale itsellwhich} was necessary^{to constitutethe ofltnceunder Section420 IPC' tn a} similar^{way, to altract the off'enceunder Section 405 IPC alsothe} cornplainant^{oughl to provs that the accusedpersons dishonestly} nrisappropriated^{or cotlvced to their own usethe property entrusted} to them^{and disposedthe propertyin violationof any directionsof} law,^{prescribing the mode in whichsuchtrust oughtto be discharged} or of any^{legal contracttouchingthe dischargeof such trust between} them.^{Entrustmentis an essentialingredieniof the offence and the} accusedshoulddishonestlymisappropriatetheproperryentrustedto them^{contrary to the terms and obligationsof the conEact'}

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As^{the respondentsNo'2 to 5 had not retumed the advance} amount^{paidto them,tl.re complainant had rightly pursuedthe civil} remedy^{for ret'undof the amount vide O'SNo'265of 2009 Since the} essential^{ingredientsfor the offencesunder Section 420 and 406 IPC} were not attracted,^{the learnedIX Additional Chiel Metropolitan}

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Magistrate as well as the leamed Metropolitan Sessions Jtdge had rightly dismissed the complaint and confirmed the said order. Hence. I do not find any illegality in the said order to be considered as an abuse of process of law to be quashed by exercising the extraordinary jurisdiction of this Coun under Section 4g2 Cr.p.C.

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