Telangana High Court
C. Venkata Govinda Rao vs State Of Telangana on 26 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.3857 of 2019
ORDER :
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, by the petitioner - accused No.4 to quash the proceedings in C.C.No.830 of 2018 pending on the file of the learned XXI Metropolitan Magistrate, Cyberabad at Medchal, Medchal-Malkajgiri District, against them and the cognizance of which was taken for the offences under Sections 403, 406, 420, 506 read with 34 of the Indian Penal Code.
2. The facts in brief as can be gathered from the record available before this Court are as under:
a) As per the contents of the charge-sheet, respondent No.2-de facto complainant obtained permission from Greater Hyderabad Municipal Corporation (G.H.M.C.) for construction of Ground + 4 floors in the year, 2011-2012 and constructed building with Ground + 4. Thereafter, pent house and stilt floor for parking are raised and wanted to regularize the same by paying penalty to G.H.M.C. and sought assistance of A-1 to A-3 in regularizing the construction. A-1 to A-3 stated to have collected huge amounts from respondent No.2-de facto Dr.DNR, J Crl.P.No.3857 of 2019 2 complainant. In November, 2013 A-1 and A-2 collected Rs.1,00,000/- and after one month they have collected Rs.1,00,000/- and Rs.50,000/- and in the month of June, 2014, A-1 to A-3 collected Demand Draft bearing No.249181 dated 07.06.2014 for Rs.2,56,320/- in the name of Commissioner, G.H.M.C. and also took additional cash of Rs.3,00,000/- for other expenses. Thereafter, respondent No.2-de facto complainant has issued three Demand Drafts bearing Nos.251104 dated 10.11.2014 for Rs.2,56,320/- 251501 dated 20.12.2014 for Rs.3,26,000/- and 251526 dated 23.12.2014 for Rs.2,00,080/-. In spite of paying huge amounts to A-1 to A-3, the constructions of respondent No.2-de facto complainant have not been regularized.
(b) A-1 to A-3 have came to respondent No.2-de facto complainant at once and made her to speak with the petitioner- accused No.4 i.e. Govind Rao over phone stating that he is Section Officer in G.H.M.C. and he would inform about progress of work. Accordingly, the said Gopvind Rao has informed that the work is in progress and as per his guidance the Demand Drafts were taken. When respondent No.2-de facto complainant insisted for regularization orders, all the accused told that they Dr.DNR, J Crl.P.No.3857 of 2019 3 want additional amount of Rs.3,00,000/- for getting Occupancy Certificate and orders and that the work was at the final stage. Thereafter, respondent No.2-de facto complainant went to G.H.M.C. and found that the Demand Drafts issued by her, were encashed by G.H.M.C. and later she came to know that the Demand Drafts were received by G.H.M.C. for granting building permissions in respect of properties of S.V.Annapurna, represented by K.Sriram Reddy, Survey No.128/8A, Padma Nagar Colony, Quthbullahpur, Ranga Reddy District and Mrs.B.Madhavi and others, Suvery No.8/1 and 9/1, Old Survey No.8, Plot Nos.24 and 25, Madhavi Nagar, Kharmanghat, L.B.Nagar, Ranga Reddy District. Thus, all the accused with an ill motive formed a group and conspired with common criminal intention and criminal conspiracy hatched the pland and according to their plan, they mislead and cheated respondent No.2-de facto complainant for wrongful gain and threatened her with dire consequences.
3. Seeking the Court to quash proceedings against the petitioner-accused No.4 in the said C.C., the petitioner-accused No.4 has filed the present criminal petition on the following grounds:
Dr.DNR, J Crl.P.No.3857 of 2019 4
(a) The petitioner has been falsely implicated in the case though he is no way connected with the allegations made against the other accused. As per the contents of the charge-
sheet, all the allegations have been made against Accused Nos.1 to 3 and the only reference that has been made against the petitioner is that A-1 and A-2 have made to talk on their phone with the petitioner by stating that he is the Section Officer of the G.H.M.C.. The petitioner never claimed that he is the Section Officer of G.H.M.C. and he is not at all connected with the said allegation made against A-1 to A-3 and that there is n o material collected by the Investigation Officer to show that the petitioner had common intention to commit the crime.
(b) There is no allegation that money was entrusted to the petitioner-accused No.4. The contents of charge-sheet and the statement of respondent No.2-de facto complainant do not disclose any material allegations against the petitioner, so as to attract Sections 403, 406, 420, 506 read with 34 of Indian Penal Code. Hence, prayed to quash the proceedings against him in the above said C.C. Dr.DNR, J Crl.P.No.3857 of 2019 5
4. Heard learned counsel for the petitioner as well as learned Assistant Public Prosecutor, who represents respondent No.1- State. Perused the record.
5. Now the point for determination is:
"Whether the proceedings against petitioner- accused in C.C.No.830 of 2018 pending on the file of the the learned XXI Metropolitan Magistrate, Cyberabad, at Medchal, Mechal-Malkajgiri District, can be quashed under Section 482 of the Code of Criminal Procedure?"
6. According to the petitioner, he is is no way concerned with the issue of respondent No.2-de facto complainant and accused Nos.1 to 3. He has never met respondent No.2-de facto complainant and he has never spoke with her over phone and she has not given her mobile to the other accused, through whom, she has spoken to said Govind Rao and that there is no meeting between the petitioner and respondent No.2-de facto complainant.
7. It is submitted by learned counsel for the petitioner that accused Nos.1 to 3 in order to make respondent No.2-de facto complainant to believe that they are trying to get the issue Dr.DNR, J Crl.P.No.3857 of 2019 6 resolved, made her to speak to a vague person stating that she has been speaking to Govind Rao working as Section Officer of G.H.M.C. Even if all the contents are accepted to be correct, no criminal liability can be foisted against the petitioner-accused No.4.
8. As submitted by the prosecution, that the petitioner has committed offence punishable under Section 420 of Indian Penal Code.
Section 420 of the Indian Penal Code, 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.
9. In Vijay Kumar Ghai and others vs. The State of West Bengal and others1 the Hon'ble Supreme Court held at paragraphs 31 to 36 as under:
"31. Section 415 IPC defines "cheating" which reads as under:1
(2022) 7 SCC 124 Dr.DNR, J Crl.P.No.3857 of 2019 7 "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"."
The essential ingredients of the offence of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person--
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no 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.
32. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
33. Section 420 IPC defines "cheating and dishonestly inducing delivery of property" which 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."
34. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
Dr.DNR, J Crl.P.No.3857 of 2019 8
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the representation he made was false.
(iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.
36. As observed and held by this Court in R.K. Vijayasarathy v. Sudha Seetharam [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitute an offence under Section 420 are as follows:
(i) a person must commit the offence of cheating under Section 415; and
(ii) the person cheated must be dishonestly induced to:
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC."
10. In the case on hand, in order to fasten the liability under Section 420 of Indian Penal Code, the prosecution has to prove that the petitioner with an intention from the beginning has induced respondent No.2-de facto complainant to part with the money.
11. There is no record that petitioner-accused No.4 has met respondent No.2-de facto complainant and gave money. There is Dr.DNR, J Crl.P.No.3857 of 2019 9 no record to show that the person to whom respondent No.2-de facto complainant spoke was petitioner-accused No.4. When there is no meeting of respondent No.2-de facto complainant and petitioner-accused No.4, the allegation that he has cheated respondent No.2-de facto complainant, thereby punishable under Section 420 of Indian Penal Code cannot be appreciated.
12. In order to fasten the liability under Section 406 of Indian Penal Code, the prosecution is expected to prove that respondent No.2-de facto complainant has entrusted some property or valuable security to petitioner-accused No.4 for usage of a specific purpose and the petitioner-accused No.4 has misused the same or used the purpose other than for which it is intended for.
Section 406 of Indian Penal Code, reads as under:
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.
The ingredients of Section 406 of Indian Penal Code, are as follows :
i. entrusting a person with property or with any dominion over property, ii. that person entrusted Dr.DNR, J Crl.P.No.3857 of 2019 10
(a) dishonestly misappropriating or converting that property to his own use, or
(b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation - (State Vs. Neeraj Dutta & Anr.)
iii) of any direction of law prescribing the mode in which such trust is to be discharged,
iv) of any legal contract made, touching the discharge of such trust.
13. In the case on hand there are no allegations in the charge- sheet that respondent No.2-de facto complainant entrusted the property in favour of the petitioner. Therefore, the criminal liability under Section 406 of Indian Penal Code also cannot be proved.
14. The petitioner has also alleged to have committed offence under Section 506 of Indian Penal Code. In order to fasten the criminal liability under Section 506 of Indian Penal Code, the prosecution is expected to allege and show the material that the accused have threatened respondent No.2-de facto complainant with dire consequences and on account of such threatens the petitioner has done an act which otherwise he was not subjected to do. There are no allegations in respect of any of the Dr.DNR, J Crl.P.No.3857 of 2019 11 ingredients in respect of Section 506 of Indian Penal Code, alleged against the petitioner.
15. Therefore, considering from any angle, even if the contents of charge-sheet are expected to be true, there are no allegations against the petitioner for any of the offences alleged against him. The trial Court should not have take cognizance against the petitioner-accused No.4 for the offences punishable under Sections 403, 406, 420, 506 of Indian Penal Code. In view of the discussion made above, the petitioner-accused No.4 has made out a case that continuation of proceedings against him amounts to miscarriage of justice.
16. Accordingly, the Criminal Petition is allowed and the proceedings in C.C.No.830 of 2018 pending on the file of the learned XXI Metropolitan Magistrate, Cyberabad, at Medchal, Mechal-Malkajgiri District, against the petitioner-accused No.4 alone are hereby quashed. The trial Court is directed to proceed with the case against A-1 to A-3 for the offences alleged against them not influenced by the observations made in this Criminal Petition in respect of merits of the case.
Dr.DNR, J Crl.P.No.3857 of 2019 12 Pending Miscellaneous Applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 26.09.2022 svl