Telangana High Court
V. Satya Vimala Devi vs The State Of Telangana on 3 January, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
1
Dr. GRR, J
CRLRC_3024_2018
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.3024 of 2018
ORDER:
This Criminal Revision Case is filed by the petitioner aggrieved by the order dated 28.09.2018 passed in S.R.No.3594 of 2018 by the learned III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad in dismissing the private complaint filed by her.
2. The case of the petitioner was that she was the absolute owner of the property bearing Municipal No.8-3-678/4 and 5 in Survey Nos.79 and 80, situated at Yellareddyguda, Hyderabad admeasuring 542 Sq.Yards / 455.28 Sq.M. having purchased the same under the registered sale deed No.2891 of 1981 dated 16.05.1981.
2.1. In September 2012, the respondent No.3 / Accused No.2 approached her and represented that he was a builder and undertook to construct a residential complex in and over the said property on behalf of his company (A1). A registered Development Agreement cum Irrevocable General Power of Attorney (for short "DACIGPA") was executed between her and the Accused No.1 to share the built up area at the ratio of 55:45. She also wanted to construct a pent house on the top floor of the proposed building and the accused agreed to 2 Dr. GRR, J CRLRC_3024_2018 construct the pent house and requested her to pay Rs.15,00,000/- for construction of the same. She paid the said amount of Rs.15,00,000/- through cheques. A Memorandum of Understanding cum Indemnity Bond (for short "UCIB") dated 25.10.2012 was executed. As per Clause-5 of the UCIB, the accused No.2 promised to return Rs.15,00,000/-, if he failed to construct and handover possession of the proposed pent house. As per Clause-18 of the DACIGPA, the accused agreed to complete the construction of the complex within a period of twelve (12) months from the date of obtaining the building permission or from the date of taking over possession of the scheduled property which was earlier. However, the accused completed the construction of the flats fallen to his share but only partially constructed the flats fallen to the share of the complainant.
2.2. In April 2014, the complainant discussed with A2 about the construction of the pent house but the accused No.2 postponed the same on one pretext or other. She got issued a notice dated 11.06.2014 to the accused No.2 calling him to pay an amount of Rs.15,00,000/- received by him towards construction of pent house. The accused issued a reply dated 19.06.2014 denying the various allegations but did not deny receipt of payment of Rs.15,00,000/-. 2.3. The complainant brought the matter before the elders. On 07.04.2016, in the house of M.Goverdhan Reddy (TRS leader, In-charge, Khairtabad), the 3 Dr. GRR, J CRLRC_3024_2018 accused orally assured that he would construct the pent house within six (06) months. In the first week of June 2017, the complainant requested the accused No.2 to either construct the pent house or to repay the amount as per the undertaking dated 25.10.2012, but the accused dragged the matter on one pretext or other. As such, the complainant got issued a legal notice dated 13.12.2017. The accused No.2 issued a reply notice dated 18.12.2017 stating that he never promised for construction of pent house and that he could not construct the pent house without obtaining permission from the concerned authorities. The terrace rights were equal to all the flat owners and without their "No Objection", he could not construct the pent house. 2.4. The complainant lodged the private complaint alleging that the accused had cheated her and breached her trust for an amount of Rs.15,00,000/-. She gave a complaint to Banjara Hills Police on 09.02.2018, but the Police had not taken any action, as such, requested to refer the complaint to the SHO, Banjara Hills PS or to take cognizance of the case for the offences under Sections 420, 427, 406 and 506 of IPC.
3. The learned III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad recorded the statement of the complainant and on considering the averments made in the complaint and the statement of the complainant observed that the agreement between the complainant and the respondent for construction 4 Dr. GRR, J CRLRC_3024_2018 of pent house over the terrace was illegal and the complainant could not challenge the respondent on the contract which was void ab initio; it was purely a money transaction for which the complainant had to invoke civil jurisdiction; there was no material on record to believe that the respondent - accused had committed the alleged offences and dismissed the complaint under Section 203 of Cr.P.C.
4. Aggrieved by the said dismissal, the complainant preferred this revision contending that the learned Magistrate erroneously dismissed the complaint without even examining the documents filed in support of the complaint. He failed to appreciate that a Memorandum of Understanding cum Indemnity Bond was executed in respect of construction of pent house by taking Rs.15,00,000/- from the complainant by the respondent - accused No.2. The respondent - accused No.2 had not denied receipt of Rs.15,00,000/- from the complainant as per his reply notice issued earlier. Having received Rs.15,00,000/- by executing UCIB and subsequently denying the execution of such undertaking itself would attract the ingredients of Section 420 of IPC, as such the learned Magistrate ought to have taken cognizance of the said offence and prayed to set aside the order dated 28.09.2018 passed in SR.No.3594 of 2018 by the learned III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad and to remand the matter to the trial court to adjudicate it in accordance with law. 5
Dr. GRR, J CRLRC_3024_2018
5. Heard the learned counsel for the revision petitioner - complainant and the learned counsel for the respondent Nos.2 and 3 / Accused Nos.1 and 2.
6. The learned counsel for the revision petitioner argued on the same lines as raised in the grounds of revision.
7. The learned counsel for the respondent Nos. 2 and 3 submitted that the petitioner - complainant entered into the development agreement with the respondent No.2 in the year 2012. After completion of construction, the petitioner started litigation to get illegal gain. She filed a criminal complaint against the respondents in the year 2013. After thorough enquiry, Police refused to register the case, the petitioner filed Writ Petition No.23678 of 2014. As per the directions of this Court, the Central Crime Branch registered a case vide FIR No.245 of 2014 and after investigation, filed a final report and referred the matter as civil in nature.
7.1. The petitioner filed a Civil Suit vide O.S.No.977 of 2013 on the file of the X Additional Chief Judge, City Civil Court, Hyderabad. The petitioner was continuously harassing the respondent and again filed O.S.No.1004 of 2017 and the same was pending on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad on 24.11.2017.
7.2. The petitioner suppressing the filing of the Civil Suits and Writ Petition, filed the present complaint only with an intention to damage the reputation of 6 Dr. GRR, J CRLRC_3024_2018 the respondent in the society. She was approaching political leaders and unsocial elements for getting money from the respondents. The respondents tolerated all the attempts made by the petitioner as the petitioner was an old lady. The petitioner's husband also filed a criminal complaint against the respondent for the offence of kidnap and attempt to murder. But in the investigation, it was revealed that the said allegations were false and the investigating officer warned the petitioner and her husband to withdraw the said complaint. He prayed to dismiss the revision by imposing heavy costs upon the petitioner.
8. Perused the record and the copies of the final report filed by the Police in FIR No.245 of 2014 and the copies of the plaints in O.S.No.977 of 2013 on the file of the X Additional Chief Judge, City Civil Court, Hyderabad and in O.S.No.1004 of 2017 on the file of XI Additional Chief Judge, City Civil Court, Hyderabad.
9. The FIR No.245 of 2014 was registered basing on the complaint given by the petitioner herein that she paid a sum of Rs.50,00,000/- on interest to the accused and a Memorandum of Understanding cum Indemnity Bond was reduced into writing on 25.10.2012 and the accused paid only a sum of Rs.30,00,000/- out of the total amount of Rs.50,00,000/- and still an amount of 7 Dr. GRR, J CRLRC_3024_2018 Rs.33,50,000/- was due from the accused and he was deliberately evading the payment.
10. O.S.No.977 of 2013 was filed by the petitioner for recovery of the said amount of Rs.33,50,000/-
11. O.S.No.1004 of 2017 was filed by the petitioner for recovery of an amount of Rs.36,00,000/- spent by her for completing the left over construction of the flats fallen to her share.
12. The contention of the learned counsel for the revision petitioner - complainant was that the said Civil Suits or the Criminal Case had no bearing on the present complaint, as the present complaint was filed as the accused failed to construct the pent house or to return Rs.15,00,000/- taken from the petitioner - complainant for construction of the said pent house as per the Memorandum of Understanding cum Indemnity Bond executed on 25.10.2012.
13. He filed the copy of the Memorandum of Understanding cum Indemnity Bond and stated that as per Clause 5 of the same, the accused promised to indemnify the complainant that he would return the said amount of Rs.15,00,000/-, if he failed to construct and handover possession of the pent house but failed to construct the pent house or return the said amount, as such, committed the offence of cheating and other alleged offences. The trial court without considering the same, dismissed the private complaint. 8
Dr. GRR, J CRLRC_3024_2018
14. The contention of the learned counsel for the respondent Nos.2 and 3 was that the agreement for construction of pent house was not valid and the trial court dismissed the private complaint on the ground that the contract was void ab initio. There was no illegality in the order of the trial court in dismissing the complaint and prayed to dismiss the revision.
15. To attract the offence under Section 420 of IPC, there must be a contract between the parties, a lawfully binding contract and there must be an intention to deceive at the inception and such deception must have made the person so deceived to part with some property or omit to act which he otherwise would not have and such receipt must cause or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
16. An agreement is not considered as lawful, if it is opposed to public policy. The terms of the contract cannot be enforced even if it has been agreed by both the parties, if the same is in violation of a public policy.
17. The Hon'ble Apex Court in the case of Gherulal Parakh v. Mahadeo das Maiya1, observed that:
"Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean 'political expedience', or that which 1 AIR 1959 SC 781 9 Dr. GRR, J CRLRC_3024_2018 is best for the common good of the community; and in that sense there may be every variety of opinion, according to education, habits, talents, and dispositions of each person, who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision, would lead to the greatest uncertainty and confusion. It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes; the unwritten or common law from the decisions of our predecessors and of our existing Courts, from text writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is the best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good ; for instance, the illegality of covenants in restraint of marriage or trade. They have become a part of the recognised law, and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise. "
18. In the case of Ouseph Poulo v. Catholic Union Bank Limited2, two parties entered into an agreement to discontinue the criminal proceedings on a certain consideration, it was held that these kinds of transactions were opposed to public policy. Interference with court of justice is not allowed. If an agreement is found to do so, it can be declared as void. 2 AIR 1965 SC 166 10 Dr. GRR, J CRLRC_3024_2018
19. In the case of Ratanchand Hirachand v. Askar Nawaz Jung 3 , two parties entered into an agreement in which one party had to use its influence to the Minister, it was held to be void as it was not right to corrupt the decision making machinery. When the nature of the agreement was against public policy based on consideration or acts to be performed, the same cannot be directed to be enforced.
20. As the revision petitioner and the respondent Nos.2 and 3 / Accused Nos.1 and 2 entered into an agreement for construction of a pent house over the terrace which was illegal, and as it was a contract which was void ab initio, as all the flat owners would have a right over the common area of the apartments like corridor, cellar and terrace and the owner of the property and the builder cannot enter into an agreement for such construction, one of the parties cannot ask the other party to enforce the said contract and in the absence of complying the said contract, cannot initiate a criminal case for cheating, as entering into the said contract itself was illegal.
21. The petitioner can pursue the civil remedies available to her for getting her money back, if she was able to prove the payment of the same, but cannot file a criminal case against the respondents.
3 AIR 1976 AP 112 11 Dr. GRR, J CRLRC_3024_2018
22. As such, this Court does not find any illegality or impropriety in the order of the learned III Additional Chief Metropolitan Magistrate, Hyderabad in dismissing the private complaint filed by the petitioner herein under Section 203 of Cr.P.C. refusing to take cognizance.
23. In the result, the Criminal Revision Case is dismissed confirming the order of the learned III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad in SR.No.3594 of 2018 dated 28.09.2018 in dismissing the private complaint filed by the petitioner herein.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G.RADHA RANI, J 3rd January, 2023 nsk.