Telangana High Court
Rasheed Ali Khan, Hyd vs Jitender Kumar Guptha Another Rep. By ... on 2 March, 2020
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI
CRIMINAL PETITION No.2456 of 2017
ORDER:
The present Criminal Petition is filed by the petitioner/A4, under Section 482 of Cr.P.C., seeking to quash the proceedings in C.C.No.448 of 2014 on the file of the VIII-Metropolitan Magistrate, Cyberabad at Rajendranagar, Ranga Reddy District. A charge sheet came to be filed against accused Nos.1 to 7 for the offences punishable under Sections 447, 427, 506, 341 and 379 read with Section 34 of I.P.C.
The allegations in the charge sheet are that the 1st respondent/de facto complainant along with his brother, are absolute owners and possessors of house bearing No.3-6/2, Plot No.24, Sy.Nos. 316, 317, 321 and 322 admeasuring 500 square yards situated at Marwa Township, Narsingi Village. They purchased the said property on 13.03.2006 through a registered sale deed bearing document No.3606/2006 from its original owner Mr.Md.Iqbal Khan, who in turn purchased the same from Syed Akbar Hussain on 01.11.2005 vide document No.12505/2005. The said Syed Akbar Hussain, purchased the said property through a registered sale deed bearing document No.2803/1996, dated 24.08.1996. It is also stated that from the date of purchase of the property, they are in peaceful possession 2 and enjoyment of the property and that they have obtained permission from the Gram Panchayat, house number was allotted and a compound wall was also constructed; that the Civil Court has also passed status quo order in O.S.No.445 of 2009 and the said order still subsists. On 22.03.2013 accused No.1 along with accused Nos.2 and 3 have criminally trespassed into the said plot and threatened the watchman by wrongfully restraining him and committed theft of two electrical meters vide S.C.Nos.311002919 and 311002920 and later the same was thrown into Neknampur Lake in order to screen the evidence. On 23.03.2013 accused No.1 along with accused Nos.2 to 7 have again criminally trespassed into the said plot and put a sign board like "this land belongs to Rasheed Ali Khan" on compound wall at road side. Thus, accused Nos.1 to 3 have committed the offences punishable under Sections 447, 427, 506, 379 and 341 read with Section 34 of I.P.C. and accused Nos.4 to 7 have committed the offences punishable under sections 447 and 427 read with 34 of I.P.C.
Heard learned Counsel for the petitioner/A-4, learned Counsel for the 1st respondent/de facto complainant, learned Additional Public Prosecutor for the 2nd respondent-State; and perused the record.
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Learned Counsel for the petitioner/A-4 would submit that there are no ingredients to satisfy the offences alleged against the petitioner/A-4. It is evident from the contents of the charge sheet that basing on the confessional statement of other accused, the name of the petitioner/A-4 was included in the above crime. It is also submitted that the contents of the complaint itself proves that the matter is civil in nature and the 1st respondent/de facto complainant has availed his remedy by virtue of filing civil suit i.e. O.S.No.449 of 2009 for the same cause of action and the complaint lodged by the 1st respondent/ de facto complainant is false, fabricated and concocted one with a view to harass the petitioner/A-4 in order to black mail him, apart from that to knock away the subject property from him by hook or crook. It is further submitted that originally the subject property belongs to Viqarunnisa and others, who sold the same in favour of Syed Akbar Hussain, vide document No.2803 of 1996, dated 24.08.1996. As the said Syed Akbar Hussain failed to pay the sale consideration of Rs.25,000/-, the possession of the property was not delivered to him. On 19.01.1999, the said Syed Akbar Hussain, got issued a legal notice to the said Viqarunnisa and others stating that due to financial crisis he is unable to pay the sale consideration and authorized the said Viqarunnisa and others to cancel the said registered sale deed, for which he has no 4 objection and returned the original sale deed No.2803 of 1996. After receiving the said legal notice, Viqarunnisa and others have taken steps for cancellation of the sale deed No.2803 of 1996, and the same was cancelled through registered cancellation deed vide document No.5922 of 2002, dated 31.10.2002 and since then they again became absolute owners of the said property. Though the said Syed Akbar Hussain, has no legal and marketable title to convey the subject property, in order to create a right in favour of a third party, had executed registered sale deed in favour of the vendor of the 1st respondent/de facto complainant, who in turn sold away the same to the 1st respondent/de facto complainant. Taking undue advantage of the same, the 1st respondent/de facto complainant lodged the false and frivolous complaint against the accused. Since the rights of Syed Akbar Hussain were already forfeited by virtue of cancellation deed, the claim of the 1st respondent/de facto complainant is nothing but false and fanciful. It is further submitted that after clearing the litigation by virtue of cancellation deed, the original owners namely Viqarunnisa and others have transferred the subject property in favour of Mujeeb- Ur-Rahman and others vide document No.1980 of 2010, who in turn sold away the same to the petitioner/A-4 and others, vide document No.1115 of 2013 and since then, the petitioner/A-4 and others are in actual and physical possession over the said 5 property. It is also submitted that the 1st respondent/de facto complainant and his vendors are playing fraud basing on the fabricated documents before the Courts and foisted false case against the petitioner/A-4 and his vendors with a view to harass them and to knock away the subject property. It is also submitted that when the 1st respondent/de facto complainant and his henchmen making hectic attempts to disturb the physical possession of the petitioner/A-4, he along with other owners filed O.S.No.43 of 2013 and obtained injunction order, dated 19.03.2013 vide I.A.No.156 of 2013 against the 1st respondent/de facto complainant and others and the 1st respondent/de facto complainant lodged the present complaint within four days after the injunction order, as a counterblast to the suit. It is further submitted that the 1st respondent/de facto complainant, who is the influential person having money and muscle power, in collusion with the so called Akbar Hussain created the purported sale deeds though the said Akbar Hussain is not at all having any rights over the subject property by virtue of cancellation deed.
Learned Counsel for the 1st respondent/de facto complainant reiterating the contents made in the charge sheet, would submit that the 1st respondent/de facto complainant has made out a strong prima facie case against the petitioner/A-4 and that there are various debatable issues involved which have to be 6 dealt with in a detailed manner and a detailed trial has to be conducted to resolve the issues involved, as such the present Criminal Petition is liable to be dismissed. He further submits that it is well settled law that mere pendency of the civil Court proceedings is not a ground to quash the criminal proceedings. In support of his contention, he relied on the judgment of the Apex Court in Kamal Shivaji Pokarmekar v. State of Maharashtra1.
In The Commissioner of Police and others v. Devender Anand and others2 the Apex Court held as under:
"4.1 Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence under Section 420/34 IPC. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law."
In G.Sagar Suri v. State of U.P.3 the Apex Court held as under:
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter, superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to 1 (2019) SCC Online SC 182 2 AIR 2019 SC 3807 3 (2000) 2 SCC 7 exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
It is well settled that while exercising its jurisdiction under Section 482 of the Code, the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of Court. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
In the instant case, the 1st respondent/de facto complainant contended that on 23.03.2013 accused No.1 along with accused 8 Nos.2 to 7 criminally trespassed into the subject property and put a sign board like "this land belongs to Rasheed Ali Khan (petitioner herein) on compound wall at road side. A perusal of the material on record would show that the petitioner/A-4 along with others have filed O.S.No.43 of 2013 against the 1st respondent/de facto complainant and another and also obtained ad-interim injunction against them vide I.A.No.156 of 2013 on 19.03.2013, which prima facie shows the possession of the petitioner/A-4 over the disputed land. Therefore, the record clearly shows that after granting injunction order, the petitioner/A-4 and others have put the aforesaid sign board in the subject premises. A perusal of the complaint would clearly indicates that only after obtaining the injunction order in the suit by the petitioner/A-4, the complaint has been lodged as a counter-blast to the said suit.
Applying the principles of the aforesaid case laws into the facts of the present case, this Court is of the considered opinion that an attempt has been made by the 1st respondent/de facto complainant to cloak a civil dispute with a colour of criminal nature. This appears to be an exceptional circumstance to the general rule that the power of this Court shall be exercised only in exceptional circumstances.
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For the foregoing discussion, this Court is of the considered view that it is a fit case to quash the proceedings against the petitioner/A-4 in C.C.No.448 of 2014 on the file of the VIII- Metropolitan Magistrate, Cyberabad at Rajendranagar, Rangareddy District.
Accordingly, the Criminal Petition is allowed and the proceedings initiated against the petitioner/A-4 in C.C.No.448 of 2014 on the file of the VIII-Metropolitan Magistrate, Cyberabad at Rajendranagar, Rangareddy District, are hereby quashed.
Miscellaneous applications, if any, pending shall stand dismissed.
_____________________ JUSTICE G. SRI DEVI 02.03.2020 gkv/Gsn