Andhra Pradesh High Court - Amravati
Immidisetti Lakshminarayana Guptha ... vs State Of Ap., Another on 17 October, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Petition No.2527 of 2013
ORDER:
1. This petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C') is filed to quash the proceedings in C.C No.291 of 2011 on the file of Additional Judicial Magistrate of First Class, Palakol, West Godavari District, for the offences punishable under Sections 120-B and 420 of Indian Penal Code (for short 'I.P.C'). The 2nd respondent is the complainant and the petitioners are accused Nos.1 and 2 in the said calendar case.
2. 2nd respondent filed a private complaint before the Additional Judicial Magistrate of First Class, Palakol for the offences punishable under Sections 120-B and 420 of I.P.C, alleging that the petitioners herein entered into an agreement of sale with the complainant on 09.02.2010, for sale of an extent of Ac.0.64 cents, situated in R.S No.251/2 in Palakol Rural Mandal, West Godavari District, by paying an advance amount of Rs.5,12,000/-, out of the total sale consideration of Rs.21,12,000/-. It is further contended that the 2nd respondent has requested the petitioners to get the land measured, before the stipulated period of four months under the agreement of sale, but the petitioners have not get the land measured. The 2nd respondent got issued a notice to the petitioners on 23.08.2011, for which the petitioners issued a reply dated 30.08.2011. Thereafter, the 2nd respondent has filed a private complaint, alleging that the petitioners have conspired together with dishonest intention, approached the complainant, representing that they are the absolute owners of the land under the agreement of sale and induced the complainant to deliver money to get the land for lesser price.
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3. But the Magistrate, instead of taking cognizance, following procedure, referred the case to the police by exercising power under Section 156 (3) of Cr.P.C for enquiring into. On the basis of the reference, the police registered a case in Crime No.241 of 2011 of Palakol Town P.S for the offences punishable under Sections 120-B and 420 of I.P.C and issued F.I.R. Based on the F.I.R, investigation was taken up, the Sub- Inspector of Police, examined L.W.1 to L.W.6, recorded their statements under Section 161 (3) of Cr.P.C. After completion of investigation, the Investigating Officer found that there is material prima facie to proceed against the petitioners, filed charge sheet before the Additional Judicial Magistrate of First Class, Palakol, for the above offences, on the ground that the investigation disclosed that the petitioners in this case, residents of Palakol town, fraudulently and in deceitful manner with dishonest intention conspired together jointly, approached the complainant, made a false representation that they are the absolute owners of the said property in R.S No.251/2 of Palakol Rural panchayat, induced to deliver money, get the land for lesser price. Believing the words of the petitioners, the complainant paid advance amount of Rs.5,12,000/-, out of total sale consideration of Rs.21,12,000/- to the petitioners on 09.02.2010 and thereafter, did not execute registered sale deed. As such they committed the offences punishable under Sections 120-B and 420 of I.P.C.
4. The present petition is filed on the ground that the petitioners did commit no offences punishable under Sections 120-B and 420 of I.P.C. However, a suit for specific performance was filed by 2nd respondent, before the competent court and the suit was decreed in part, granting alternative relief of refund of amount vide decree and judgment in O.S 3 MSM, J Crl.P No_2527_2013 No.59 of 2012 on the file of X Additional District Judge, Narsapur. When the civil suit was decreed in part, the question of these petitioners, committing of any offences punishable under Sections 120-B and 420 of I.P.C does not arise and requested to quash the proceedings against these petitioners.
5. During hearing, the learned Counsel for the petitioners, while reiterating the contentions, that the dispute is purely civil in nature and subject matter of O.S No.59 of 2012 on the file of X Additional District Judge, Narsapur and filed a report with the police and filing of charge sheet by the police, after completion of investigation is nothing, but abuse of process of court, converting the civil litigation into criminal and placed reliance on the judgments in Hari Prasad Chamaria v. Bishun Kumar Surekha and others1, G. Sagar Suri and another v. State of U.P and others2, Ajay Mitra v. State of M.P and others3, Indian Oil Corporation v. NEPC India Ltd., and others4 and another judgment of Apex Court in Dalip Kaur and others v. Jagnar Singh and another5 and requested to quash the proceedings. He also placed on record the copy of the judgment in O.S No.59 of 2012 dated 30.10.2017 for perusal of the Court.
6. Whereas the learned Counsel for 2nd respondent, would contend that though the civil litigation is ended, still sale of the property, without title to the property by these petitioners, in collusion with one another would constitute the offences punishable under Sections 120-B and 420 of I.P.C, as the petitioners dishonestly induced the 2nd respondent to part 1 (1973) 2 Supreme Court Cases 823 2 (2000) 2 Supreme Court Cases 636 3 (2003) 3 Supreme Court Cases 11 4 (2006) 6 Supreme Court Cases 736 5 Crl. Appeal No.1135 of 2009 4 MSM, J Crl.P No_2527_2013 with huge amount and such act would constitute the offences punishable under Section 420 of I.P.C and requested to dismiss the petition.
7. It is an undisputed fact that these petitioners executed an agreement of sale and on the basis of the agreement of sale dated 09.02.2010, suit in O.S No.59 of 2012 was filed before the X Additional District Judge, Narsapur for grant of relief of specific performance, in the alternative for refund of advance amount of Rs.5,12,000/-, paid at the time of execution of agreement together with interest @ 18% per annum. The civil court, after full fledged trial, decreed the suit, granting alternative relief of refund of advance amount of Rs.5,12,000/-, together with interest @ 18% per annum, while negating the relief of specific performance. A copy of the judgment was placed on record, would disclose the said fact. Therefore, execution of an agreement of sale by these petitioners who are accused Nos.1 and 2 and defendant Nos.1 and 2 in the suit are not in dispute. The findings of the learned X Additional District Judge, Narsapur are clear that these petitioners have no title to the property and granted alternative relief of refund of advance amount, on the other ground that the 2nd respondent also failed to prove, readiness and willingness as required under Section 16 (c) of The Specific Relief Act.
8. Based on the findings of the civil court in the suit, it is difficult to accept the contention that there was a conspiracy to attract the offence punishable under Section 120-B of I.P.C. Section 120-A of I.P.C, defined the criminal conspiracy as; when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Provided 5 MSM, J Crl.P No_2527_2013 that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Therefore, to constitute an offence, there must be an agreement between two or more persons. But, in the present case, there is absolutely no allegation that there is an agreement, preceeding to the act of execution of agreement of sale between the petitioners 1 and 2 herein with others. In the absence of any such allegations that there is an agreement between the petitioners and other defendants to the suit, it is difficult to conclude at this stage, that they committed any offence punishable under Section 120-B of I.P.C.
9. The other offence allegedly committed by the petitioners is punishable under Section 420 of I.P.C. Section 420 of I.P.C, deals with punishment for cheating and dishonest intention of a person to part with any property or valuable security. To constitute such an offence punishable under Section 420 of I.P.C, there must be a dishonest intention, at the time of making such representation. In the absence of such dishonest intention, prima facie at the time of commission of offence, it would not fall within the ambit of Section 420 of I.P.C. Thus, there must be a cheating coupled with dishonest inducement of delivering property, to punish a person under Section 420 of I.P.C. Even if the allegations made in the complaint, if accepted, to be true and correct, the petitioners cannot be said to have committed any offence of cheating, since the petitioners never directly induced this complainant to part with any property and in fact it is purely a civil dispute with regard to sale and purchase of the property between the petitioners herein and 2nd respondent, which is a subject matter of O.S No.59 of 2012. Even in 6 MSM, J Crl.P No_2527_2013 the judgment of Apex Court in Hari Prasad Chamaria (1st cited supra), the Court held that there is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs.35,000/-. There is nothing to indicate that the respondents induced the appellant to pay Rs.35,000/- by deceiving him. It is further, not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating. In another judgment in G. Sagar Suri and another (2nd cited supra), the Court held that 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. This court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of Cr.P.C. 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.
10. In view of the law declared by the Apex Court, in the judgments referred supra, the allegations made in the complaint do not constitute the offences punishable under Sections 120-B and 420 of I.P.C. Therefore, I find that it is a fit case to quash the proceedings.
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11. In the result, the petition is allowed, quashing the proceedings in C.C No.291 of 2011 on the file of Additional Judicial Magistrate of First Class, Palakol, West Godavari District, for the offences punishable under Sections 120-B and 420 of I.P.C.
12. Consequently, miscellaneous petitions, pending if any, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 17.10.2019 Rvk