Telangana High Court
J. Surender Reddy, Hyd 3 Others vs State Of A.P., Rep. By P.P., Hyd Anr on 30 August, 2022
HON'BLE SRI JUSTICE A.SANTHOSH REDDY
CRL.P.No.15920 OF 2013
ORDER:
This criminal petition is filed under Section 482 Cr.P.C to quash the proceedings against the petitioners-A-1 to A-4 in C.C.No.271 of 2013, on the file of the IV-Additional Chief Metropolitan Magistrate, Hyderabad.
2. Heard learned counsel for the petitioners-A-1 to A-4 and learned Assistant Public Prosecutor for the first respondent-State. None represented the 2nd respondent-complainant. Perused the material on record.
3. The 2nd respondent filed a private complaint before the IV-Additional Chief Metropolitan Magistrate, Hyderabad, against A-1 to A-11 for the offences punishable under Sections 420, 467, 468, 471 read with Section 34 IPC and the same was forwarded by the learned Magistrate to the police under Section 156(3) Cr.P.C., for investigation and report. Thereafter, Police, Osmania University registered a case in Cr.No.368 of 2012 against A-1 to A-11 for the offences stated above and took up 2 investigation. After completion of the investigation, the police filed final report and the same was taken cognizance by the learned Magistrate in C.C.No.271 of 2013 for the offences stated above.
4. It is alleged in the charge sheet that the 2nd respondent- complainant is the absolute owner of an extent of Acs.9-19 Gts., in Sy.No.175/1, situated in Lalaguda Village, Maredpally Mandal, Secunderabad, having purchased the same from Mr.Ghouseuddin Khan in the year 1963 under a registered sale deed and also purchased some other lands in Sy.Nos.124, 160, 167, 175/2, 174, 182 and 183 from the same vendor. Since then, the 2nd respondent is in continuous absolute possession of and had been paying taxes to the authorities concerned. It is further alleged in the charge sheet that the accused conspired together and in furtherance of their common intention hatched a plan to grab the property of the complainant to an extent of 1718 sq. yards in Sy.No.175/1 situated at Lalaguda Village. The accused also fabricated sale deed by producing some fictitious persons as vendors and got registered sale deed before the Sub-Registrar, Maredpally, Secunderabad in order to grab the property of the complainant. Thereafter, under 3 the guise of the said fabricated and forged documents, the accused are proceeding with construction of apartments in the said land for business purpose. The accused does not have right, title whatsoever in the said land and they are trying to grab the property under the guise of forged and fabricated documents and they have also created fake sale deeds in order to cause wrongful loss and damage to the complainant. Thus, the accused are liable for prosecution for the offences stated above. Aggrieved thereby, the present criminal petition is by petitoners-A-1 to A-4 to quash the proceedings against them in C.C.No.271 of 2013.
5. Learned counsel for the petitioners submits that the allegations in the complaint and protest application do not constitute ingredients of the offence of cheating. The petitioners, who are strangers to the 2nd respondent, are the bona fide purchasers of the property from the true owners by paying valid sale consideration and later the accused having obtained necessary permissions had developed the same by constructing apartments and all the said flats were also sold under valid conveyances to the respective purchasers, who are in legal possession of the same. 4 Learned counsel further submits that the facts and circumstances referred in the complaint clearly make out that the entire dispute is civil in nature and the present complaint is filed only to harass the petitioners and as such he prayed to allow the petition and quash the proceedings against the petitioners-A-1 to A-4. In support of his submissions and contentions, learned counsel for the petitioners relied on the following decisions:
1. ALPIC FINANCE LTD v. SADASIVAN1
2. Y.V.JOSE v. STATE OF GUJARAT2
3. BINOD KUMAR v. STATE OF BIHAR3
4. STATE OF HARYANA v. BHAJAN LAL4
6. Per contra, learned Assistant Public Prosecutor submits that there are prima facie ingredients constituting the offences alleged. She, therefore, prayed to dismiss the petition.
7. Thus, on hearing the submissions of both sides and on perusing the material available on record, the question that arises for consideration is -whether there are justifiable grounds to invoke 1 (2001) 3 SCC 513 2 (2009) 3 SCC 78 3 (2014) 10 SCC 663 4 1992 SCC (Cri) 426 5 the inherent powers of this court under Section 482 Cr.P.C., and quash the proceedings pending before the learned Magistrate.
8. The Hon'ble Apex Court in ALPIC FINANCE LTD's case (supra) held at para 5 held as under:
"Contours of the power under Section 482 Cr. P.C. have been explained in series of decisions by this Court. In Smt.Nagawwa vs. Veeranna Shivalingappa Konjalgi (1976(3) SCC 736), it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of Magistrate issuing process against the accused could be quashed under the following circumstances: -
"(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been 6 based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of complaint by legally competent authority and the like".
9. In BHAJAN LAL'S case, the Hon'ble Apex Court laid the following guidelines while exercising the powers under Section 482 Cr.P.C., and gave the following categories of cases by way of illustrations wherein such power could be exercised either to prevent abuse of process of the court or otherwise to secure the ends of justice, as under:
(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 7 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;
(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 ulteriormotive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".
10. In the said judgment, the Hon'ble Apex Court further held at paragraph 103 as under:
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"We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice".
11. In the light of the decisions cited supra, the facts of the present case have to be appreciated. It is the case of the complainant that he is the owner of an extent of Acs.9-19 Gts., in Sy.No.175/1, situated in Lalaguda Village, Maredpally Mandal, Secunderabad, having purchased the same from Mr.Ghouseuddin Khan in the year 1963 under a registered sale deed and also purchased some other lands in Sy.Nos.124, 160, 167, 175/2, 174, 182 and 183 from the same vendor. It is alleged that the accused conspired together and hatched a plan to grab the property of the complainant to an extent of 1718 sq. yards in Sy.No.175/1 and fabricated sale deed by producing some fictitious persons (A-5 to A-10) as vendors and got registered sale deeds before the Sub-Registrar, Maredpally, Secunderabad in order to grab the 9 property of the complainant. Whereas it is contention of the petitioners that they are the bona fide purchasers of the property, having purchased the same from true owners by paying valid sale consideration and they have obtained necessary permissions from authorities concerned and developed the same by constructing apartments, comprising several flats. The petitioners have sold the flats to the purchasers, who are in legal possession of the same. The petitioners have also filed copies of sale deeds and the orders of civil court and the land grabbing court in respect of the disputed land in Sy.No.175/1. However, the 2nd respondent is a stranger to them and the petitioners never met him and they are not familiar with each other. Undisputedly, the documents filed by the petitioners, prima facie, show that they have developed the land in Sy.No.175/1 by constructing apartments, comprising of several flats. The petitioners have also got valid title to the property basing on which they have obtained necessary permissions from authorities concerned for making such huge construction.
12. A perusal of the final report filed by the police discloses that the 2nd respondent is claiming title of Ghouseuddin Khan on 10 the basis of agreement of sale dated 25.01.1963 and the petitioners are claiming title through Mohd. Baquire Hussain, who converted the land into layout and sold to various persons and part of the land i.e., 1859 sq. yards was purchased by the petitioners through the legal heirs of Mohd.Baquire Hussain by way of registered sale deed in the year 2009. The said premises was allotted municipal numbers i.e., 12-14-484, 12-13-484/4 and 5 bearing plot Nos.19, 20, 23, 24 in Sy.No.175/1 of Lalaguda Village, Street No.1, Tarnaka, Secunderabad. The petitioners obtained permission from GHMC on 29.04.2011 and constructed a multi storied apartment complex and sold the flats to third parties.
13. The petitioners have filed documents to substantiate their contention that they have purchased the land under registered sale deed from the legal heirs of Mohd. Baquire Hussain by way of sale deed dated 12.08.2009. Apart from this, they have also filed documents relating to the vendors' vendor acquiring title to the property and the documents of LGC cases pending between them. On a consideration of the documents, they prima facie show title and possession of the petitioners in respect of the land in 11 Sy.No.175/1 at Lalaguda Village In fact, in the final report, the investigating officer had categorically mentioned that the documents filed by the 2nd respondent do not have any claim in respect of the land in Sy.No.175/1 and whatever claim the 2nd respondent is having is only in respect of the land which he is alleged to have purchased or entered into agreement of sale with Mohd.Ghouseuddin Khan and the same has nothing to do with the lands of the petitioners. It appears that in the final report, it was specifically mentioned that after due investigation, it revealed that when the 2nd respondent is disputing title of the petitioners, it is for him to establish the title by approaching the civil court and he cannot convert the civil case into criminal case which is totally civil in nature.
14. The Hon'ble Apex Court in a catena of decisions held that when a question arises as to whether a criminal prosecution could be permitted when the dispute between the parties is of predominantly civil nature, the appropriate remedy would be by filing a civil suit.
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15. The order of the learned Magistrate in Crl.M.P.No.542 of 2013 in Cr.No.368 of 2012 dated 15.04.2013 basing on the protest application and the statement of the protest petitioner discloses that much of the allegations would prima facie make out the ingredients of the offences alleged. A perusal of the order of the learned Magistrate taking cognizance of the offence read as follows:
"Protest petitioner absent. Perused the contents of the protest petition, final report, the sworn statement of the protest petitioner and the copies of documents. It is found that there is prima facie case to be tried. Hence, case is taken on file against A-1 to A-11 U/s 420 IPC and registered as C.C.No.271 of 2013. Issue summons to A-1 to A-11 on payment of process. Call on 20.05.2013".
16. From the above, it is clear that the learned Magistrate has not properly verified the allegations and the material on record when the allegations do not prima facie constitute any of the alleged offence under Section 420 IPC. One of the essential ingredients of dishonest inducement is missing from the allegations in the complaint. It appears from the record that the petitioners and the 2nd respondent have never met and there is no transaction between them and they are not familiar with each other. There is 13 also no allegation whether the petitioners have made any representation with the 2nd respondent with an intention to cheat him. In the absence of said allegations and looking at the allegations in the complaint on the face of it, I am of the view that no allegations have been made out against the petitioners attracting the ingredients of the offence under Section 420 IPC. The 2nd respondent is not left out with any remedy in respect of claim over the disputed land and he can take recourse of civil remedy by approaching the appropriate forum. Though the allegations in the complaint do make out a dispute, but the same cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown from the beginning of the transaction. A perusal of the allegations in the complaint clearly shows that the essential ingredients of the offence punishable under Section 420 IPC i.e., dishonest intention to deceive any person is missing and the entire dispute, as per the allegations, is found to be civil in nature.
17. To constitute an offence under Section 420 IPC, there should not only be cheating, but as a consequences of such cheating, the 14 accused should have dishonestly induced the person deceived -
(i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
18. For the foregoing reasons I am of the view that the allegations made in the complaint and the statements of witnesses recorded in support of the same even if they are taken at their face value make out absolutely no case against the petitioners and do not disclose the essential ingredients of the offence under Section 420 IPC. The discretion exercised by the learned Magistrate in issuing process is capricious and based on no evidence and inadmissible material. It also appears that the entire allegations in the complaint manifestly contended with an ulterior motive and instead of invoking civil remedy for the grievance of the complainant, adopting the criminal proceedings itself shows the criminal proceedings are callously instituted and thereby further continuation of the proceedings would be harassment to the petitioners to undergo the rigmarole of trial and would be abuse of 15 process of law. Therefore, it is a fit case to invoke the inherent powers of this court under Section 482 Cr.P.C., and quash the proceedings.
19. The criminal petition is, accordingly, allowed. The proceedings against the petitioners-A-1 to A-4 in C.C.No.271 of 2013, on the file of the IV-Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed.
20. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 30.08.2022 Lrkm