Andhra HC (Pre-Telangana)
Smt. P. Swarnalatha vs State Of Andhra Pradesh Represented By ... on 31 October, 2006
ORDER A. Gopal Reddy, J.
1. This is a petition filed under Section 482 Cr.P.C. to quash the proceedings initiated against the petitioner for the offence under Sections 406 and 420 IPC in C.C. No. 252 of 2005 on the file of VI Metropolitan Magistrate, City Criminal Court, Hyderabad.
2. The complaint allegations go to show that the complainant is the allottee of Flat No. 3, Block No. 22 of A.P. Housing Board Colony, Vidyanagar, Hyderabad. In each block there are four flats, two in ground floor and two in first floor with appurtenant land and the same is enjoyable by all the allottees as per the stipulation laid down in the lease-cum-sale agreement entered at the time of allotment. Flat No. 4 in Block No. 22 was originally allotted to one Sri Syed Raza Ali. As the time passes, house was changed with several purchasers. The Housing Board executed sale deed in favour of Raza Ali vide document No. 2237/75 to an extent of 765 square feet in his favour. While the matter stood thus, the petitioner herein (accused) claims the appurtenant/undivided common land of 341 yards, which includes the complainant flat No. 3. Therefore, the complainant made a representation to the A.P. Housing Board stating that the accused/petitioner proceeding with the construction of three floors in the open land touching almost the complainant's bedroom preventing air, ventilation and privacy. In view of the same, the Housing Board issued demolition order of the illegal construction. The matter has taken so many turns. In W.P. No. 9931 of 2000 the High Court observed that when the Raza Ali himself had no title over the property, he cannot derive any title to sell the same to the 5th and 6th respondents therein. When the first allottee himself had no title, subsequent transfers are illegal or otherwise constructions made thereon with the permission of the Municipal Corporation does not confer any title by granting permission. Therefore, the petitioner filed the suit-O.S. No. 5096 of 1998 for declaration which was dismissed, but the appeal filed by her was allowed and decreed the suit declaring that the letter issued by the Municipal Corporation canceling the permit No 93/14 dated 03-02-1998 in favour of her for constructing Ground + two floors and one room in the 2nd floor is illegal and nonest.
3. While so the 2nd respondent herein filed the above compliant before the VI Metropolitan Magistrate who took cognizance of the offence under Sections 406 and 420 IPC and issued process. Questioning the same the present petition is filed.
4. Heard the learned Counsel for the petitioner, learned Counsel for the 2nd respondent/complainant and the learned Additional Public Prosecutor.
5. Learned Counsel for the petitioner would contend that entire allegations in the compliant do not disclose that the complainant entrusted the property to the petitioner nor the petitioner induced with dishonest intention which resulted the complainant to deliver any property or consented to the petitioner to retain any property or intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived for delivery of any property or prevent him to take any action to attract Section 420 IPC. In view of the same, civil proceedings have been converted into criminal proceedings, which is nothing but abuse of process and the same is liable to be quashed.
6. Per contra, learned Counsel for the 2nd respondent/complainant would contend that the petitioner not only cheated the Housing Board but also the Municipal Corporation in obtaining the permission stating that he is the owner of the property and obtained permission from the Municipal Corporation, for which the Magistrate rightly taken cognizance of the offence and the same cannot be quashed at the threshold unless the complainant is given opportunity to prove the guilt of the accused by producing the evidence.
7. Prima facie, the allegations made in the complaint, referred to above, do not disclose the offence of Criminal breach of trust as defined under Section 405 to be punishable under Section 406 IPC, which reads thus:
Section 405 Criminal breach of trust:- Whoever, being in any manner entrusted with property to the petitioner by the complainant or having any domain over the property, dishonestly misappropriated or converted for her own use or dishonestly used or disposed of the 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".
8. Similarly, the compliant allegations do not disclose any offence of Cheating as defined under Section 415 IPC, which reads as under: Section 415.Cheating:- 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".
9. Since the allegations in the compliant do not disclose that the petitioner fraudulently or dishonestly induced the complainant to deliver any property to any person or intentionally induced the complainant to do or omit to do anything which he would not do or omit if he were not so deceived, which act or omission causes or is likely to cause damage to the reputation of property to be punishable under Section 420 IPC.
10. Even the allegations of the compliant goes to show that the Housing Board is the owner of the property and only on registering in favour of the allottee, the property will be transferred in their name. As per the lease-cum- sale agreement only on A.P. Housing Board registers in favour of complainant he will get 1/4th share in the property. When the petitioner purchased the other 3 flats she is entitled to 3/4th share in the property even as per the complaint allegations. She obtained municipal permission for demolition of the existing structures and for construction of new building, which was subsequently cancelled. Questioning the same she filed a suit but was unsuccessful. She carried the matter in appeal, which was allowed decreeing the suit. Once the suit is decreed it deems that the civil court has validated the permission obtained by her from the Municipal Corporation and it is continued. The complainant is a party to the suit as well as to the appeal. Having unsuccessful to resist the claim of the petitioner resorted to set the criminal law in motion with the above allegations, which is nothing but abuse of process. Even if the entire compliant allegations are taken on its face value for which Magistrate took cognizance of the offence, it do not disclose any offence and issuing process by the Magistrate is nothing but abuse of process and the same is liable to be quashed and they are accordingly quashed.