Telangana High Court
Ganta Anuradha And Another vs The State Of Telangana.,Rep.,Pp And ... on 13 October, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.12061 of 2016
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners-accused Nos.1 and 2 to quash C.C.No.869 of 2018 on the file of learned IX Metropolitan Magistrate, Cyberabad at Kukatpally, the cognizance of which was taken for the offence under Sections 406, 417, 420, 120-B read with Section 34 of the Indian Penal Code. Originally the petitioners have filed this criminal petition seeking quashment of FIR No.278 of 2016 of Kukatpally Police Station. However, during the pendency of the criminal petition, the Police have completed investigation and filed charge sheet alleging that the petitioners have committed the offence under Sections 406, 417, 420, 120-B read with Section 34 of the Indian Penal Code. Subsequently, the criminal petition was amended seeking quashment of charge sheet instead of FIR. The petitioners have not filed orders of the trial court taking cognizance of the offence. Thereby this Court is handicapped as to under what penal provisions, cognizance was taken against the petitioners. Hence, assuming that cognizance was taken 2 against the petitioners and other accused, the orders are being passed.
2. The facts in brief as can be seen from record available before the Court are as under:
a) On 01.06.2016 at 12.00 PM the de-facto complainant lodged a complaint before Kukatpally Police Station alleging that her has completed MBBS and was intending to get her admitted in Post Graduate Course at SRMC College, Porur, Chennai. The de-facto complainant was having acquaintance with G.Anuradha (petitioner No.1-accused No.1), who is Professor in Acharya N.G.Ranga AG University, Rajendranagar and her husband Paturi Satish Kumar (petitioner No.2-accused No.2), who is an ex-employee in HBL Company. Both the petitioners have informed the de-facto complainant that Yelamanchili Srihari (accused No.3, who is the cousin of accused No.1) earlier arranged a medical PG seat at Porur, Chennai by taking commission and that the petitioners can arrange for the seat to the daughter of the de-facto complainant. Both the petitioners and accused No.3 have convinced the de-facto complainant that they will arrange the seat for Rs.1.6 crores. 3
b) The petitioner Nos.1 and 2 went to the house of de-facto complainant and on demand, the de-facto complainant has arranged Rs.75 lakhs on 25.09.2012 and obtained receipt. The petitioners have further informed the de-facto complainant that in the last week of December, 2012 balance money has to be paid within three months and in the last week of December, 2012 the seat will be finalized at Chennai. The de-facto complainant has also arranged balance money. The first petitioner has informed the de-facto complainant that she cannot travel to Chennai as she was having work as she is a Professor and thereby her husband i.e., petitioner No.2 and accused No.3 have collected Rs.10 lakhs from the de-facto complainant and gave receipt and all of them went to SRM College campus, Chennai, wherein the de-facto complainant was asked to wait at the parking place and they were made to sit in the parking place throughout the day. Later in the evening, the de-facto complainant was asked to take a room at the hotel.
c) The petitioners have introduced one K.V.Subba Rao (accused No.4) and subsequently accused No.4 informed de-
facto complainant that they are due Rs.50 lakhs more. On enquiry, petitioner No.1 informed the de-facto complainant that 4 out Rs.75 lakhs paid initially, she has utilized Rs.50 lakhs for her personal use and convinced that they will arrange Rs.50 lakhs later. On which the de-facto complainant has arranged Rs.50 lakhs. The de-facto complainant has also paid Rs.10 lakhs to one Vijay Kumar as commission. Overall, the de-facto complainant has transferred an amount of Rs.2.20 crores for securing the seat of her daughter. Subsequently the seat was not given and on enquiry, the college management of SRM College, Chennai has informed that the de-facto complainant was cheated and whatever names being told by the de-facto complainant, as representatives of college are fake names.
d) The petitioners have given their papers pertaining to Plot No.742 situated at Matrusri Nagar as security and when the de- facto complainant demanded to get the plot registered in the name of de-facto complainant, the petitioners have stated that the plot has to be regularized, for which the de-facto complainant spent Rs.12 lakhs and after regularization1 of the plot, the de-facto complainant spent Rs.3 lakhs for construction of compound wall around the plot and later the petitioners have refused to transfer the said plot in favour of the de-facto complainant. Subsequently, an attempt was made to resolve the issue but ultimately the petitioners and other accused have 5 refused to pay the money. Aggrieved by the same, a complaint has been filed on 30.05.2016 before the Police, Kukatpally. Based on the said complaint, a case in Crime No.278 of 2016 was registered. After completion of investigation, the Police have filed charge sheet, the cognizance of which was taken for the offence under Sections 406, 417, 420, 120-B read with Section 34 of the Indian Penal Code. Aggrieved by the same, the present criminal petition to quash C.C.No.869 of 2018 on the file of learned IX Metropolitan Magistrate, Cyberabad at Kukatpally against them on the following grounds:
i) No offence is made out, even if the contents of complaint, charge sheet are accepted as the dispute between the parties is purely civil in nature. Criminal case is filed to recover the said amount allegedly given by the de-facto complainant.
ii) there are no essential ingredients for the offence under Sections 406, 417 and 420 of the Indian Penal Code are there as reported in Hridaya Ranjan Prasad v. State of Bihar reported in (2004) 4 SCC Page 168 and in G.Sagar Suri v. State of U.P. reported in 2000 (1) SCR Page 417.
3. Heard Sri Unnam Muralidhar Rao, learned counsel for the petitioners, Sri R.K.Chitta, learned counsel for the respondent 6 No.2 and Sri S.Ganesh, learned counsel for the respondent Nos.1 and 2 and perused the record.
4. Now the point for determination is:
"Whether the proceedings against the petitioners-accused Nos.1 and 2 in C.C.No.869 of 2018 on the file of learned IX Metropolitan Magistrate, Cyberabad at Kukatpally, can be quashed under Section 482 of the Code of Criminal Procedure?
5. The contents of complaint and statements of witnesses i.e., LWs 1 to 3 would go to show that the petitioners along with other accused have taken Rs.2.2 crores in all from the de-facto complainant under the guise that they would get PG Medical seat to the daughter of the de-facto complainant in SRM College, Porur, Chennai. However, the petitioners and other accused have failed to secure the seat to the daughter of the de- facto complainant and failed to repay the money and thereby the Police have filed charge sheet against the petitioners along with other accused for the offence under Sections 406, 417, 120-B read with Section 34 of the Indian Penal Code.
6. The petitioners on the other hand have submitted that even if the contentions of the de-facto complainant are correct, 7 the de-facto complainant is entitled for money, for which she has to institute a civil suit but not criminal case.
7. According to the prosecution, the accused have committed offence of cheating punishable under Sections 417 and 420 of the Indian Penal code. 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:
"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 1 (2022) 7 SCC 124 8 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:
(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. 9 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."
8. On considering the above provision, in order to prove the offence of cheating, as defined under Section 415 of the Indian Penal Code, prosecution has to place material before the Court that the petitioners with fraudulent intention induced the de-facto complainant to deliver the money, otherwise the de-facto complainant would not have paid the money to the accused. In order to prove the offence under Section 420 of the Indian Penal Code, the prosecution is expected to place material that the petitioners by way of cheating dishonestly induced the de-facto complainant to pay money and on account of such inducement, the de-facto complainant has paid money and thereby lost entire Rs.2.2 crores.
9. In the case on hand, as seen from the sequence of events right from day one onwards, the petitioners approached the de- 10 facto complainant and taking advantage of requirement of getting PG medical seat in SRM College, Chennai to the daughter of the de-facto complainant, induced her initially to pay Rs.1.5 crores and later Rs.50 lakhs and other monies totaling to Rs.2.2 crores and ultimately collected Rs.2.2 crores under various installments and keep on promising that they would secure a seat to the daughter of the de-facto complainant. If really, the petitioners have got any connection with SRM College, Chennai, it is expected that they should pay atleast part of Rs.2.2 crores to the college or somebody connected with the college. Enquiries of de-facto complainant ultimately revealed that the petitioners and other accused have not paid any amount to the college for reserving the seat to the daughter of the de-facto complainant.
10. The events that are unfolded also reveal that petitioners have taken de-facto complainant and her husband to SRM College, Chennai and made them to sit in the parking place and late in the night they have advised them to take a room in hotel and thereafter introduced to one K.V.Subba Rao, who again told them that the de-facto complainant they are due Rs.50 lakhs. When the de-facto complainant enquired with petitioner No.1 about the due of Rs.50 lakhs, the petitioner No.1 stated to have 11 informed that out of Rs.75 lakhs advance, she has utilized Rs.50 lakhs for her personal use. So, this act of petitioner- accused No.1 also goes to show that money, which they borrowed from de-facto complainant for securing a seat to the daughter of the de-facto complainant utilized for their personal necessities.
11. It is not the case of the petitioners that though they paid money, they were deceived by the college or seat cannot be secured for other reasons. The conduct of the petitioners at every stage clearly goes to show that from the day one onwards, they approached the de-facto complainant and they were having a malicious intention to deceive the de-facto complainant and extorted money whatever they can and later introduced many people as if seat is being arranged and ultimately whatever promises made by the petitioners and other accused proved to be false. The petitioners have not even registered at SRM College for reserving seat to the daughter of the de-facto complainant.
12. All these things would go to show that there is clear prima-facie case against the petitioners and all the ingredients of Sections 417 and 420 of IPC are available and they can be 12 applied to the facts of the case. Therefore, the submissions of learned counsel for the petitioners that they were no ingredients to hold that the petitioners have not committed any offence, cannot be accepted.
13. Section 120-A of the Indian Penal Code defines criminal conspiracy and whereas Section 120-B of the Indian Penal Code is a penal provision for criminal conspiracy. It is the case of the de-facto complainant that all the accused have conspired criminally to cheat the de-facto complainant and extorted Rs.2.2 crores. On perusal of the statements of witnesses including the statement of de-facto complainant and contents of complaint, it is clear that at every stage, the petitioners and other accused colluded with each other and gave false statements and in pursuance of their conspiracy they went on collecting money while continuing to give hope and promise that they would secure a seat to the daughter of the de-facto complainant and in fact without there being any efforts made by SRM College, Chennai, entire money of Rs.2.2 crores has been swallowed by the petitioners and other accused and subsequently failed to respond and failed to pay not even a single pie. It is also alleged that though the petitioners have collected Rs.12 lakhs fro regularizing the plot, the papers of which are kept with the de- 13 facto complainant as security and ultimately refused to transfer the said property in the name of the de-facto complainant for making good of the loss sustained by the de-facto complainant on account of the acts committed by the petitioners. Therefore, this aspect would certainly attract not only to the petitioners but also to other accused to conspire together and in pursuance of their conspiracy extorted money to a tune of Rs.2.2 crores.
14. Considering the above discussions, it is clear that the offence under Section 406 of IPC also arising out of the alleged commission of offence of the petitioners and other accused under Sections 417, 420 and 120-B of the Indian Penal Code. Therefore, the offence under Section 406 of the Indian Penal Code cannot be seen in isolation.
15. In order to quash the proceeding against the petitioners, they have to establish that even if the contents of charge sheet are taken into consideration, no case is made out against them. As seen from the charge sheet, the investigating agency has examined 5 witnesses including two official witnesses before filing charge sheet and the statements of witnesses reveal that there is prima-facie material against the petitioners-accused. There are many factual issues involved in this case, which 14 cannot be dealt without a full-fledged trial, more particularly in a petition filed under Section 482 of the Code of Criminal Procedure.
16. The Hon'ble Supreme Court in a celebrated judgment decided between State of Haryana and others vs. Ch. Bhajan Lal and others2, has formulated certain guidelines under which Court can consider quashment of criminal case. The guidelines are:
"(a) 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) 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;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; 2
1992 AIR 604 15
(e) 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;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
17. On perusal of the contents of the complaint and statements of the witnesses and rest of the investigation done by the Police, there is prima-facie material that, in all, the petitioners and other accused have taken Rs.2.2 crores from de- facto complainant. In respect of paying money paid by the de- facto complainant, there are receipts and bank transactions and copies of whatsapp chats. On going through all the documents, it is crystal clear that the de-facto complainant has paid Rs.2.2 crores with a fond hope that the accused will help the daughter of the de-facto complainant to get a seat in SRM College, 16 Chennai. Therefore, on considering the facts, there is a clear prima-facie case against the petitioners.
18. Thus, in view of the principle laid down in the above said authority, viewing from any angle, the petitioners failed to establish any of the grounds to quash proceedings against them in C.C.No.869 of 2018 on the file of learned IX Metropolitan Magistrate, Cyberabad at Kukatpally and thereby the criminal petition is liable to be dismissed.
19. Accordingly, the Criminal Petition is dismissed. The trial Court is directed to proceed with the case against the petitioners in C.C.No.869 of 2018 on the file of learned IX Metropolitan Magistrate, Cyberabad at Kukatpally on merits, uninfluenced by the observations and comments made by this court in this order.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 13.10.2022 AS