Telangana High Court
Vangipuram Ravindra Kumar vs The State Of Telangana on 27 December, 2019
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI
CRIMINAL REVISION CASE No.635 of 2019
ORDER:
The present Criminal Revision Case is filed by the revision petitioners/A1 and A2 under Sections 397 and 401 Cr.P.C., questioning the order, dated 03.06.2019, passed in Crl.M.P.No. 5378 of 2018 in C.C.No.178 of 2014 on the file of the VI Additional Chief Metropolitan Magistrate, Hyderabad, wherein and whereunder the application for discharge filed by the revision petitioners/A1 and A2 was dismissed.
The brief facts of the case are that the 2nd respondent herein filed a private complaint against the revision petitioners/ A1 and A2 and others for the offences punishable under Sections 420, 423, 120-B, 447, 323 and 506 of I.P.C. alleging therein that the revision petitioners/A1 and A2, entered into an oral agreement of sale on 16.05.2005 with the 2nd respondent/de facto complainant to sell their land admeasuring Ac.21.00 situated in Sy.Nos. 49, 61, 62 and 63 of Nandigama Village, Kothuru Mandal, Mahabubnagar District, @ Rs.3.50 lakhs per acre, in total Rs.73,50,000/-; received a sum of Rs.50,000/- and executed a receipt, dated 16.05.2005. As per the agreement, the entire sale transaction should be completed within one year and the 2nd respondent/de facto complainant has to pay Rs.10.00 lakhs in the 2 month of July, 2005. Though the 2nd respondent/de facto complainant offered to pay the said amount, the revision petitioners/A1 and A2 have not received the said amount. On that the 2nd respondent/de facto complainant issued a legal notice on 31.10.2005 and on receiving the said notice, the revision petitioners/A1 and A2 approached him and promised to execute registered sale deed in his favour. As the revision petitioners/A1 and A2 demanded huge and high rate than the agreed amount, the 2nd respondent/de facto complainant issued one more notice on 14.10.2009. Since the revision petitioners/A1 and A2 failed to perform their contractual obligation, the 2nd respondent/de facto complainant filed O.S.No.13 of 2010 for specific performance. The revision petitioners/A1 and A2 filed their written statement denying all facts and stated that they along with their mother have alienated the said property to A-3 and A-4 through registered agreement of sale-cum-G.P.A. No.6036 of 2005, dated 04.07.2005. It is stated that the said transaction is collusive transaction and with a criminal intention to deceive the legitimate rights of the 2nd respondent/de facto complainant, the revision petitioners/A1 and A2 along with A.3 and A.4 have played constructive fraud and betray on the 2nd respondent/de facto complainant in collusion with each other and thereby cheated him. While the suit for specific 3 performance was in progress, the accused started negotiating and calling the 2nd respondent/de facto complainant to compromise the matter and later they started threatening him with dire consequences. On 13.08.2011 at about 11.00 P.M., the revision petitioners/A1 and A2 along with others visited the house of the 2nd respondent/de facto complainant and threatened him with dire consequences and demanded him to withdraw the case. The said private complaint was referred to the police under Section 156 (3) of Cr.P.C., who in turn registered a case in Crime No.264 of 2011 for the aforesaid offences. After completion of investigation, the police filed charge sheet against the revision petitioners/A1 and A2 and others, which was taken on file as C.C.No.178 of 2014. During pendency of the C.C., the revision petitioners/A1 and A2 filed discharge application under Section 239 of Cr.P.C. By an order, dated 03.06.2019, the learned Magistrate, dismissed the said application. Challenging the same, the present Criminal Revision Case is filed.
The 2nd respondent/de facto complainant filed counter- affidavit stating that the learned Magistrate rightly dismissed the petition filed by the revision petitioners/A1 and A2, under Section 239 of Cr.P.C., on the ground that there is no limitation period for the offence under Section 420 of I.P.C. and whether the 2nd respondent/ de facto complainant has paid the alleged 4 amount to the revision petitioners/A1 and A2 as part of sale consideration and whether the revision petitioners/A1 and A2 intentionally avoided the execution of sale deed as pleaded by the 2nd respondent/de facto complainant can be decided only after full length of trial but not otherwise. The learned Magistrate further observed that admittedly in this case A-3 and A-4 have purchased the subject property from the revision petitioners/A1 and A2 and in view of their admission with regard to the said transaction, both A-3 and A-4 were discharged vide order, dated 05.07.2018 passed in Crl.M.P.No.2063 of 2018 as prima facie case was not made out against them, but the same criteria cannot be taken into consideration for the revision petitioners/A1 and A2. It is also observed that on considering the documentary evidence placed before the Court and even the involvement of the revision petitioners/A1 and A2 for the alleged offences including the offence committed on 13.08.2011 can be decided at a later stage. Hence, the revision petitioners/A1 and A2 are not entitled for discharge at this stage. As the revision petitioners/A1 and A2 failed to fulfil the terms and conditions of the agreement, the 2nd respondent/ de facto complainant filed O.S.No.13 of 2010 for specific performance. In the written statement, the revision petitioners/A1 and A2 pleaded that they along with their 5 mother sold the property to A.3 and A.4, through registered sale agreement-cum-G.P.A., dated 04.07.2005. It is also stated that said suit was dismissed for default and the 2nd respondent/ de facto complainant has been taking steps to set aside the dismissal order. It is also stated that there is no bar to file a criminal case against the revision petitioners/A1 and A2, who cheated him by entering into a sale agreement-cum-G.P.A. with A.3 and A.4 on 04.07.2005 to avoid the agreement of sale entered with the 2nd respondent/ de facto complainant in respect of the same property. It is also stated that on 13.08.2011 at about 11.00 a.m., the revision petitioners/A1 and A2 along with their henchmen came to the house of the 2nd respondent/ de facto complainant and threatened him with dire consequences. Hence, he constrained to file the complaint. It is further stated that the revision petitioners/A1 and A2 admitted in their pleadings that there is an agreement between them and the 2nd respondent/de facto complainant with regard to sale of land and the suit for specific performance was filed against them. It is also stated that the revision petitioners/A1 and A2 sold the said property to A-3 and A-4 to avoid the agreement of sale dated 16.05.2005 in a fraudulent and collusive manner with criminal intention to deceive the legitimate right of the 2nd respondent/ 6 de facto complainant and, therefore, the question of discharging them does not arise and there is no ground to allow the revision.
Heard learned Counsel for the revision petitioners/A1 and A2; learned Additional Public Prosecutor appearing for the 1st respondent-State and the learned Counsel for the 2nd respondent/de facto complainant.
Learned counsel for the revision petitioners/A1 and A2 submits that the learned Magistrate erred in dismissing the petition for discharge filed under Section 239 of Cr.P.C.; the learned Magistrate should have seen that the ingredients to constitute the offences under Sections 420, 423, 120-B, 447, 323 and 506 read with Section 34 of I.P.C. are not made out by the prosecution; that admittedly there was an agreement between the revision petitioners/A1 and A2 and the 2nd respondent/de facto complainant with regard to sale of land; that the suit i.e., O.S.No.13 of 2010 filed by the 2nd respondent/de facto complainant before the Family Court Judge-cum-Additional District Judge, Mahaboobnagar, for specific performance, was dismissed on 21.11.2012 and the said order has become final; that the transaction between the revision petitioners/A1 and A2 and the 2nd respondent/de facto complainant was civil in nature and there is absolutely no material available to attract the 7 provisions of Section 420 of I.P.C. or any other offences; that the 2nd respondent/de facto complainant has converted the case from a civil transaction to criminal liability; that the alleged oral agreement of sale was in the month of May, 2005 and the private complaint was filed six years thereafter; that time and again the Apex Court held that to hold the person guilty of cheating it is necessary to show that he had fraudulent and dishonest intention at the time of making promise and that accused Nos.3 and 4 were already discharged and the suit filed for specific performance was also dismissed and, therefore the prosecution have no legs to stand. In support of his contention, he relied on the following judgments of the Apex Court:
1. Murari Lal Gupta v. Gopi Singh1
2. Ram Biraji Devi and another v. Umesh Kumar Singh and another2
3. Dalip Kaur and others v. Jagnar Singh and another3 Reiterating the contents mentioned in the counter-
affidavit, the learned Counsel for the 2nd respondent/de facto complainant would submit that there is a dishonest intention on the part of the revision petitioners/A1 and 2 as they sold the property to A-3 and A-4 only to deceive the legitimate right of the 2nd respondent/de facto complainant and the entire material 1 (2005) 13 SCC 699 2 (2006) 2 ALD (Crl.) 150 (SC) 3 (2009) 2 ALD (Crl.) 430 (SC) 8 available on record would prima facie show that the revision petitioners/A1 and A2 have committed the alleged offences.
A perusal of the charge sheet, which is placed on record, would show that the revision petitioners/A1 and A2 admitted that they entered into an agreement with the 2nd respondent/ de facto complainant agreeing to sell the subject land, received Rs.50,000/- on 16.05.2005 and also executed a receipt to that effect and they also admitted that they sold the said property in favour of A.3 and A4 in the same year, even without waiting for the stipulated period of one year, as agreed upon in terms of the agreement of sale, dated 16.05.2005. The effect of delay in filing the private complaint could not have been made a ground for discharge, especially when in the First Information Report and Charge Sheet, there are specific allegations of cheating etc. The trial Court, after considering the documents filed along with the private complaint i.e., Xerox copy of receipt, legal notice and reply notice and also the Xerox copy of agreement of sale-cum- G.P.A. executed in favour of A.3 and A4, held that the involvement of the revision petitioners/A1 and A2 for the alleged offences including the offence, dated 13.08.2011 can be decided at the time of trial. Hence, I see no illegality or irregularity in the order passed by the trial Court. 9
Accordingly, the Criminal Revision Case is dismissed at the admission stage. Miscellaneous petitions, if any, pending, shall stand closed.
_____________________ JUSTICE G. SRI DEVI 27.12.2019 Gsn 10