Telangana High Court
Ch. Suresh Babu vs The State Of Telangana on 7 July, 2022
Author: D. Nagarjun
Bench: D. Nagarjun
THE HONOURABLE DR. JUSTICE D. NAGARJUN
CRIMINAL PETITION No.3273 OF 2019
ORDER:
This petition is filed by the petitioner/A1 in C.C.No.784 of 2016 of Banjara Hills Police Station, which is registered for the offence under Section 420, 468, 471 IPC.
2. The facts, as can be gathered from the record would go to show that the de-facto complainant/respondent No.2 has filed a complaint before be learned Magistrate under Section 200 Cr.P.C., alleging that the petitioner and another have committed the offence under Sections 403, 418, 420, 464 and 506 read with 34 IPC. The de-facto complainant is the absolute owner and possessor of Flat Nos.G1 and G2 admeasuring 2500 square feet along with undivided share to an extent of 108.6 square yards situated in ground floor of Lacasa Apartments bearing premises No.8-2-467/4/A/1, Road No.5, Banjara Hills, Hyderabad. The de-facto complainant has let out the said property to her tenant by name Mirza Anwar Baig and he 2 has been residing in the said premises as a tenant and paying the rents regularly since 2007 onwards. Recently, the officials of Bank of Bikaner and Jaipur along with others visited the said house unlawfully and made an attempt to dispossess the tenant. On enquiry, the de-facto complainant came to know that a fraud was committed against her and her property in the year 2010 as the family of the de-facto complainant was in need of Rs.8 lakhs, she has borrowed the same from the petitioner, who claims himself to be a representative of UMA associates. At the time of advancing the loan, the petitioner has obtained original documents of the property and under the guise of mortgage deed, he got executed an agreement of sale-cum- GPA (for short, "AGPA") with possession falsely by misleading the complainant stating that the same is required for security purpose. The de-facto complainant has discovered the said fraud recently when the bank officials approached her flat. Basing on the said false agreement of sale-cum-GPA, dated 23.03.2010, the accused have colluded each other and brought into existence a false sale deed dated 28.09.2010 in respect of 3 the said property without possession. They have also borrowed loan from State Bank of Bikaner and Jaipur by mortgaging the said property. When the accused have committed default in repayment of loan, the bank has initiated action for recovery of the loan. The bank officials have advanced the loan without verifying the details and without enquiring into as to whom the property belongs to. The property even in the GHMC, Electricity and Water departments stands in the name of the de-facto complainant and the tenant has been paying rent directly to the de-facto complainant.
3. The de-facto complainant has approached the police, Banjara Hills on 06.10.2015. Since they have not registered the complaint, a petition under Section 200 Cr.P.C. has been filed before the Court. On considering the complaint, the learned Magistrate has taken cognizance against A1 and A2 for the offences under Sections 420, 468, 471 IPC and numbered the same as C.C.No.784 of 2016 and summons were issued. Aggrieved by the same, 4 the petitioner/A1 has filed this quash petition on the following grounds:
4. The de-facto complainant has not initiated any proceedings in the civil Court for cancellation of AGPA. Therefore, the stand taken by her is incorrect. The de-facto complainant has admittedly executed AGPA and therefore, it is complete in all respects thereby the property can be transferred to third parties. There are no ingredients to show in the complaint that the petitioner/A1 has committed offence punishable under Sections 468 and 471 IPC. There are also no ingredients of offence under Section 420 IPC, as there is no dishonest intention from the inception. The contents of the complaint are so absurd and inherently improbable and this petition is filed with mala fide intention and therefore, the law laid down in State of Haryana vs. Bhajanlal is squarely applicable to this case.
5. The de-facto complainant has filed counter denying the allegations levelled against her by the petitioner/A1 stating that the petitioner has committed the offence under 5 Section 420 IPC, as he has dishonestly with a fraudulent intention got executed AGPA dated 23.03.2010 under the guise of mortgage deed while taking advantage of her gullible nature etc. She has also filed document to show that in the records of GHMC, municipal, electricity and water departments her name is still being shown as owner of the property.
6. Heard both sides and perused the record.
7. Now, the point for determination is whether the proceedings against the petitioner/A1 in C.C.No.784 of 2016 can be quashed?
8. The case of the de-facto complainant is that as she was in need of money to a tune of Rs.8 lakhs, she has borrowed the same from the petitioner/A1 and at the time of advancing the said loan, the petitioner has taken the original registered sale deed and also got executed AGPA from her under the guise of mortgage deed.
9. On the other hand, learned counsel for the petitioner has submitted that the de-facto complainant herself has 6 admitted that she has executed AGPA through which rights in respect of the property will flow from the de-facto complainant to the petitioner, however in order to harass the petitioner, a false case has been foisted.
10. In the backdrop of these facts, now the offences alleged against the petitioner have to be considered. The petitioner/A1 is charged with the offences under Section 420, 468 and 471 IPC.
11. Section 468 IPC reads as under:
"468. Forgery for purpose of cheating, - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
12. In order to charge a person for the offence under Section 468 IPC, it is required that the accused person shall commit forgery for a document. In the case on hand, it is not the case of the de-facto complainant that the accused has committed forgery of her signature. In fact, her case is that the petitioner has obtained her signature on AGPA under the guise of mortgage deed. Therefore, 7 even according to the de-facto complainant, the signature on AGPA belongs to her. When the de-facto complainant is not disputing her signature on the AGPA, then she cannot allege that the petitioner has committed the offence of forgery.
13. Similarly, Section 471 reads as under:
"471. Using as genuine a forged document or electronic record, - Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he has forged such document or electronic record.'
14. In order to charge a person for the offence under Section 471 IPC, as rightly submitted by the learned counsel for the petitioner, the person must have committed offence of forgery and the document, which was created by way of forgery, must have been used the said document as genuine document. In the case on hand, the de-facto complainant has to prove that the petitioner has created a document by way of forgery and used the said document as genuine. As already observed, it is not the case of the de- facto complainant that the accused has forged the 8 document. The only grievance of the de-facto complainant against the petitioner is that he got executed AGPA under the guise of mortgage deed. The question of committing an offence under Section 471 IPC does not arise. It is also not the case of the de-facto complainant that the petitioner has used the forged document as a genuine in any other proceedings. Therefore, as rightly submitted by the learned counsel for the petitioner, there are no ingredients to conclude that the petitioner and others have committed the offence under Sections 468 and 471 IPC.
15. A reading of the entire complaint filed by the de-facto complainant and even if all the allegations mentioned in the complaint are accepted to be true, even though the offences alleged against the petitioner under Sections 468 and 471 IPC are not applicable. Therefore, the case against the petitioner for the offence under Sections 468 and 471 IPC cannot be proceeded with and are liable to be quashed.
16. The other allegation made by the de-facto complainant against the petitioner is that the accused have 9 committed the offence of cheating under Section 420 IPC. Section 420 IPC reads as under:
"420. Cheating and dishonestly inducing delivery of property, - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
17. In order to prove the offence of forgery, the de-facto complainant is expected to prove that the petitioner was having dishonest intention from the inception. It is the case of the de-facto complainant that when the petitioner has advanced Rs.8 lakhs to her, he has taken the original documents. He has told the de-facto complainant that she requires to execute mortgage deed for which she has agreed. However, under the guise of execution of mortgage deed, the petitioner and other accused stated to have executed the AGPA with possession, which means, the petitioner has intentionally while saying that he wanted the registered mortgage deed to be executed, got executed AGPA and he did not inform her that she has executed AGPA with possession. Therefore, the petitioner has 10 mislead the de-facto complainant and got executed AGPA instead of mortgage deed which clearly establishes the intention of the petitioner that he wanted to have the wrongful gain with the property in dispute.
18. It is also alleged by the de-facto complainant that the petitioner has also gave a receipt that he has taken the documents and also gave a letter stating that he would return the same. According to the de-facto complainant, the tenant of the de-facto complainant is still continuing in the said premises. If at all, the de-facto complainant has really executed the agreement of sale with possession with an intention to convey the property to the petitioner, then the tenant, who is in possession of the property, also must be paying the rent to the petitioner. However, it is alleged that since 2007, the tenant has been paying rent to the de- facto complainant. It creates a doubt as to really if the petitioner is the owner of the property, he should have issued a notice to the tenant to pay the rent directly to him and not the de-facto complainant. Further, as seen from the documents filed by the de-facto complainant in GHMC 11 records in respect of payment of property tax and also in respect of electricity department and so also the department of Hyderabad Metro Water and Sewerage Board, the name of the de-facto complainant still continues to be the owner of the property. If at all the petitioner has taken the property from the de-facto complainant, he should have made an attempt to get his name mutated in the municipal and other Government records, but no such attempt was made. Therefore, all these instances, as narrated above, creates relevance of doubt in respect of the conduct of the petitioner.
19. The contentions raised by both sides are the questions of fact. Basing on the rival submissions and evidence placed before this Court, it cannot be decided that there is no case against the petitioner. Therefore, on considering the above discussion, basing on the document filed by both sides, it cannot be said that there is no prima facie case to proceed against the petitioner. Which means the material placed before the Court show that there is prima facie material against the petitioner to hold that he 12 has committed the offence which will have to be tried by way of regular trial in the trial Court.
20. Considering the circumstances and the discussion made above, though there is no material against the petitioner to hold that he has committed the offence under Sections 468 and 471 IPC, there is material against him to continue the proceedings for the offence under Section 420 IPC.
21. With the above observation, the criminal petition is allowed in part allowing the petition in so far as the offence alleged against the petitioner under Sections 468 and 471 IPC are concerned and dismissed so far as the offence under Section 420 IPC is concerned.
Miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. D. NAGARJUN, J Date: 07.07.2022 ES