Andhra Pradesh High Court - Amravati
K.Sainatha Reddy, Chittoor 3 Othrs., vs State Of Ap., Rep. Pp And Anr., on 27 June, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
Criminal Petition No. 14622 of 2013
ORDER:
1) The present application is filed by the Petitioners/Accused No.A3 [died], A2, A4 and A5 under Section 482 of Code of Criminal Procedure, 1973, ["Cr.P.C."] seeking quashing of investigation in Crime No. 84 of 2013 of Tiruchanoor Police Station, Tirupathi Town, registered for the offences punishable under Sections 420, 464, 403, 406 and 120B of Indian Penal Code, 1860, ["I.P.C."] and Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, ["SC & ST (POA) Act"].
2) Originally, a private complaint was filed, which was referred to Police under Section 156(3) Cr.P.C. The averments, in the complaint filed, are as under:
i. A1 is the Managing Partner, whereas A2 to A5 are partners of M/s. M.S.R. Associates. A4 and A5 are land owners of the Towers, which are situated in Survey Nos. 250/7 and 250/8 of Tiruchanoor Village, admeasuring a total extent of 2614.66 square yards. It is said that, all the accused lured the Complainant stating that they are going to construct apartments in the said land under the name and style of Swarnamukhi Towers as per T.U.D.A. norms. The accused offered Flat No. 510 to the Complainant, which is admeasuring 1438 square feet @ Rs.1,500/- per square feet, apart from providing free car parking etc. The accused also promised that 2 they are going to provide all amenities, doors, windows and cupboards, electrification etc., and also two lifts to the said Towers. Believing the same, the Complainant accepted the proposal and purchased the said Flat through registered Sale Deed, dated 28.03.2008, by paying a sum of Rs.5,64,000/-, which was in unfinished stage. The remaining amount was to be paid in instalment depending upon the completion of the work. The total consideration for the said Flat was around Rs.21,57,000/-. The Complainant also obtained loan from L.I.C. and after receiving the loan amount, paid the same to A1. Apart from that, a sum of Rs.1,00,000/- was paid by way of cash towards sale consideration and another sum of Rs.20,000/- towards electricity charges, etc. ii. It is said that, the accused intentionally laid flooring by using low cost marble and in collusion with each other are postponing delivery of possession of the said Flat to the Complainant. It is said that, A1 is dominating the other partners and creating hurdles to the Complainant. It is said that, though the Complainant requested the accused to perform their part of the contract and provide agreed amenities, but for reasons best known, the accused failed to fulfil their part of contract. It is said that, accused have gone to an extent of harassing the Complainant and scolded him in public by referring his caste. It is said that, the accused are openly proclaiming that the Complainant hails from scheduled 3 caste and, as such, they are not going to complete the Flat and deliver possession to the Complainant.
iii. The averments in the complaint also show that, A1 being the Managing Partner and General Power of Attorney agent of A3 to A5 has executed Sale Deed in favour of the Complainant, but, though, three years have elapsed, the accused are postponing completion of the Flat. Basing on these allegations, a private complaint came to be filed, which was forwarded to Police for investigation under Section 156(3) of Cr.P.C.
3) Sri. S. Nageswar Reddy, learned Counsel for the Petitioners, mainly submits that, even accepting the allegations in the report came to be true, no offence as alleged is made out. In other words, according to him, the grievance of the informant can be addressed elsewhere but definitely not in this criminal proceedings.
4) The same is strongly opposed by Sri. Tuhin Kumar, learned Counsel appearing for Respondent No. 2. According to him, a reading of the report makes out a prima facie case and since the case is still at the stage of investigation, quashing of proceedings would be premature. In other words, his argument appears to be that, truth would come out only when the Police are allowed to investigate the matter.
5) The point that arises for consideration is, whether the allegations in the report make out a prima facie case against the accused?4
6) It is well settled law that, in a petition under Section 482 Cr.P.C., the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure ends of justice.
7) In G. Sagar Suri V. State of U.P.1 the Hon'ble Supreme Court while dealing with jurisdiction of High Court under Section 482 Cr.P.C., held as under:
"Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of 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 exercise a great deal of caution. For the accused it is a serious matter. The Supreme Court has laid certain principles on the basis of which 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. Merely because the accused persons had already filed an application in the Court of Additional Judicial Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction under Section 482 of the Code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any state of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial".1
(2000) 2 SCC 636 5
8) Keeping in view the law laid down in the judgment referred to above and also the ratio laid down by the Hon'ble Supreme Court in State of Harayana V. Bhajan Lal2, I shall now proceed to deal with the matter.
9) Before going into the merits of the case, it is to be noted that, originally a private complaint is filed, which was referred to Police for investigation under Section 156(3) Cr.P.C. The docket order, dated 06.04.2013, referring the private complaint to Police is bereft of any reasons. No explanation or reasons are given as to whether any prima facie case is made out for referring the case to Police for investigation. The docket order does not indicate application of mind. It would be appropriate to extract the same, which is as under:
"6-4-2013 : Hg.
"Counsel is present. Heard, perused the record. Hence, complaint is forwarded to SHO, Tiruchanoor P.S. U/s.156(3) Cr.P.C. for investigation and report on or by 22-5-2013."
10) In Maksud Saiyed V. State of Gujarat and Others3, the Hon'ble Supreme Court while dealing with the issue relating to reference under Section 156(3) Cr.P.C., by the Magistrate to the Police observed that, where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Court held that, summoning of an accused in a criminal case is 2 1992 Supp (1) SCC 335 3 (2008) 5 Supreme Court Cases 668 6 a serious matter. Criminal law cannot be set into motion as a matter of course. The Magistrate has to carefully scrutinise the material brought on record and may even put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations made and then examine if any offence is prima facie committed by all or any of the accused. So, therefore, referring the case to the police in a routine manner without indicating existence of a prima facie case was found fault with. Even in the instant case, the docket proceedings do not anywhere show any application of mind while referring the case to the police.
11) Having regard to the above, this ground alone is sufficient to quash the case on hand. However, having regard to the arguments advanced, it would be just and proper to refer to the facts as well.
12) Insofar as the offence punishable under Section 3 (1) (x) of the SC & ST (POA) Act is concerned, the said Section stands substituted by Act No. 1 of 2016 and the substituted corresponding provision is Section 3(1)(r), which reads as under:
"3 (1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"
13) The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified into "1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view". 7
14) Dealing with the same, the Hon'ble Supreme Court in Hitesh Verma V. State of Uttarakhand and Another4, observed as under:
"13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio- economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste.
14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors.5. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn 4 (2020) 10 Supreme Court Cases 710 8 would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under:
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."
15) The allegations with regard to the offence punishable under Section 3 (1) (x) of the SC & ST (POA) Act, is spelt out in paragraph 7 of the complaint. The averments in the said paragraph are vague. It does not say the 'words' alleged to have been uttered by the accused 9 touching the caste of the informant. Secondly, the averments do not indicate as to whether the informant was abused in open place or inside the house. If really the alleged scolding was in "public place"
by referring to his caste, definitely it should disclose at-least presence of one person at that time. There is no reference to the presence of any person at the scene. Further, the averments do not indicate that the informant was abused on the ground that he belongs to scheduled caste or scheduled tribe. On the other hand, the averments in the report are to the effect that the accused did not complete the work in the Flat on the ground that he hails from scheduled caste, which in my view do not attract the ingredients of Section 3 (1) (x) of the SC & ST (POA) Act.
16) Coming to the offence punishable under Section 420 I.P.C., is concerned, it is well settled law that in order to constitute an offence punishable under Section 420 I.P.C., there should be dishonest intention right from inception. The averments in the report do not anywhere indicate that there was any intention to cheat from inception. If really the intention of the accused was to cheat, they would not have processed the work in the Flat purchased by the informant. The contents to the report itself disclose that even marble flooring was laid in the Flat apart from getting other works done.
Hence, it cannot be said that, there was any intention to cheat from inception, thereby constituting an offence punishable under Section 420 I.P.C.
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17) Coming to the offence of 'breach of trust', it would be appropriate to refer to Sections 405 and 406 I.P.C., which read as under:
"Section 405. Criminal breach of trust -- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that 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 wilfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation [1].--A person, being an
employer [of an establishment whether
exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the 11 Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] Section 406. Punishment for criminal breach of trust --Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
18) As seen from the record, a reading of Sections 405 and 406 I.P.C., would make it clear that the essence of Sections 405 and 406 I.PC., lies in the use of the property entrusted to a person by that person in violation of any direction of law or any legal contract which he has made during the discharge of such trust. [Anand Kumar Mohatta V. State (NCT of Delhi), Department of Home and Another5]. In the absence of any element of entrustment of property to accused, moreso when the accused himself are the owners of property, which was transferred to the informant by way of registered Sale Deed on receipt of sale consideration, it cannot be said there was any breach of trust. Hence, it is very difficult to say that an offence punishable under Sections 403 and 406 I.P.C. are made out.
5 (2019) 11 Supreme Court Cases 706 12
19) Apart from the above, it is to be noted that the transaction involved has the contours of a dispute of civil nature. Non- completion of the project, as alleged in the report, within the time prescribed may give rise to a cause of action before a different forum but shall not constitute a criminal offence.
20) In-fact, the case on hand squarely falls within the categories of 1st, 3rd and 5th set-out in Bhajan Lal [cited 3rd supra], which read as under:-
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused."
21) As seen from the contents of the report, it is only breach of contract for which the remedy lies elsewhere. In State of Karnataka V. L. Muniswamy and Ors.6, the Hon'ble Supreme Court held that, "in the exercise of wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process 6 (1977) 2 SCC 699 13 of the Court or that the ends of justice require that the proceeding ought to be quashed".
22) Further, in Chandrapal Singh and Others V. Maharaj Singh and Another7, the Hon'ble Supreme Court observed as under:-
"A frustrated landlord after having met his Waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so, telling that the further discussion may appear to be superfluous.
This Court said:-
"We see some force in the submission but it is equally true that chargrined and frustrated litigants should not be permitted to give' vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost in both courts in the rest control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482 Cr.P.C."
23) Taking into consideration the ratio laid down in the judgments referred to above and having regard to the fact that the dispute has given a cloak of criminal offence, this Court is of the view that continuous of proceedings would be an abuse of process of law. Accordingly, the Criminal Petition is allowed. 7 AIR (1982) SC 1238 14
24) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date: 27.06.2022.
SM...
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR Criminal Petition No. 14622 of 2013 Date: 27.06.2022 SM.