Telangana High Court
K.Chandra Mohan vs The State Of Telangana Another on 12 October, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.123 of 2016
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioner-accused to quash Cr.No.846 of 2015 of Malkajgiri Police Station registered for the offence under Sections 384, 420, 406, 506 of the Indian Penal Code based on the complaint lodged by respondent No.2 - de-facto complainant.
2. The facts in brief as can be seen from the private complaint filed by the de-facto complainant under Section 200 of the Code of Criminal Procedure against the petitioner are as under:
a) The petitioner-accused and de-facto complainant are known to each other and on account of such acquaintance, the petitioner-accused used to visit the house and office of the de-
facto complainant. Regularly in the month of September, 2011 the petitioner has approached the de-facto complainant with a proposal of starting a joint venture and MOU was also executed on 06.09.2011 in the presence of two witnesses i.e., T. Ravi and K. Ramulu and in pursuance of the same the de-facto 2 complainant along with T. Ravi and K. Ramulu and has paid an amount of Rs.66,01,000/- (i.e., Rs.32,00,000/- by the de-facto complainant, Rs.20,78,000/- by T.Ravi and Rs.32,00,000/- by Ramulu) to the petitioner. Prior to advancing of said money, the petitioner by issuing fake and sham railway tender documents and order copies to de-facto complainant and made the de-facto complainant and T.Ravi and Ramulu to believe and borrow the money undertaking to pay the money within a period of two months.
b) After lapse of two months, the de-facto complainant has demanded the petitioner to pay the money, the petitioner has prolonged the same on one ground or the other. The petitioner
- accused has also entered in an agreement dated 17.03.2012 agreeing to return the money received by him. The de-facto complainant has issued a legal notice dated 03.12.2013 to the petitioner demanding the said amount and the petitioner has received the same. The petitioner has issued a cheque bearing No. 832389 dated 24.08.2013 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.10 lakhs. The de-facto complainant has presented the cheque with his banker but the cheque was returned with an endorsement "insufficient funds". 3
c) The petitioner has issued a declaration cum undertaking dated 25.05.2012 to pay Rs.13,23,000/- within six months as per the terms of MOU. The cheque has been issued intentionally belonging to other accused only with an intention to cheat the de-facto complainant to deprive the legal debt. The de-facto complainant went to the Police Station and filed a complaint but since they have not taken the complaint, the de- facto complainant has filed a complaint under Section 200 of the Code of Criminal Procedure before the learned XX Metropolitan Magistrate, Cyberabad at Malkajgiri. The said private complaint was forwarded by the Magistrate to the Police under Section 156 (3) of the Code of Criminal Procedure. Based on the said complaint, the Police, Malkajgiri has registered a case in Crime No.846 of 2015 for the offence under Sections 384, 420, 406, 506 of the Indian Penal Code. Aggrieved by the same, the petitioner has filed criminal petition to quash the proceedings against him in Crime No.846 of 2015 of Malkajgiri Police Station on the following grounds:
i) The Legal notice got issued by the de-facto complainant dated 24.12.2011, 03.12.2014 and 18.04.2014 is against the provisions of Negotiable Instruments Act.4
ii) On receipt of notice dated 24.12.2011 got issued by the de-facto complainant, the counsel for the petitioner has issued reply notice. However, the de-facto complainant has not taken any steps against the petitioner under Section 138 of the Negotiable Instruments Act.
iii) the de-facto complainant has issued another notice dated
03.12.2013 through his counsel in respect of cheque bearing No. 832389 dated 24.08.2013 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.10 lakhs and the petitioner has issued reply notice and the de-facto complainant has filed complaint before the I Additional Judicial First Class Magistrate at Warangal and the same was taken on file as C.C.No.404 of 2014.
iv) the de-facto complainant after filing of the present complaint, another notice was issued in respect of the cheque bearing No. 832389 dated 24.08.2013 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.10 lakhs demanding the petitioner to pay the amount covered under the said cheque and the petitioner has replied by way of legal notice dated 18.04.2014.
5
v) The petitioner got issued legal notice dated 22.09.2011 to the de-facto complainant and his friends i.e., T. Ravi and K.Ramulu for return of cheques and the said notice was reeived by them but they kept quiet. The petitioner lodged a complaint before the IV Additional Chief Metropolitan Magistrate at Hyderabad and the same was registered as Crime No.10 of 2012 of Osmania University Police Station.
vi) The de-facto complainant has filed a private complaint before the Chief Metropolitan Magistrate, Ranga Reddy District under SC/ST (POA) Act and after investigation, the Police have closed the file.
vii) The de-facto complainant has filed this complaint as cheque is time barred and not maintainable under Negotiable Instruments Act.
3. There is no representation on behalf of respondent No.2- de-facto complainant. Though notice was sent to the respondent No.2-de-facto complainant several times to the address mentioned in the petition other than his address, notice was returned under the caption "no such person" "no such plot number". Hence, in view of Section 27 of General Clauses Act, it is treated as deemed service. Heard Sri Dantu Venkata 6 Ramana Sharma, learned counsel for the Petitioner-accused - and Sri S.Ganesh, learned Assistant Public Prosecutor and perused the record.
4. Now the point for determination is:
"Whether the proceedings against the petitioner- accused in Cr.No.846 of 2015 of Malkajgiri Police Station, can be quashed under Section 482 of the Code of Criminal Procedure?
5. According to the de-facto complainant, an amount of Rs.66,01,000/- was advanced by the de-facto complainant and his friends i.e., T.Ravi and K.Ramulu jointly, wherein the petitioner having executed a Memorandum of Understanding, dated 06.09.2011 agreed to return the said amount within two months but subsequently the petitioner failed to pay the money. However, the petitioner has issued cheque bearing No. 832389 dated 24.08.2013 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.10 lakhs to the de-facto complainant, T.Ravi and K.Ramulu. On dishonor of those cheques, notices and reply notices were stated to have been exchanged between the parties. At para No.5 of the complaint, it is also stated by the de-facto complainant that the petitioner has issued cheque belonging to some other person with an 7 intention to cheat the de-facto complainant with an ulterior motive.
6. On the other hand, the contention of the petitioner is that the de-facto complainant ought to have filed complaint under Section 138 of the Negotiable Instruments Act against him on the ground that the cheques allegedly given by him were dishonoured and since there was no limitation for recovery of money, the de-facto complainant got filed a false complaint before the Police and got the FIR registered.
7. The petitioner-accused has not denied borrowing of money from the de-facto complainant and his friends and also in respect of issuing of cheque bearing No. 832389 dated 24.08.2013 drawing on Axis Bank Limited, Tarnaka Branch, Secunderabad for Rs.10 lakhs. As rightly submitted by the learned counsel for the petitioner in normal course, the de-facto complainant should have filed complaint under Section 138 of the Negotiable Instruments Act before the competent Court in case if the cheque given by the petitioner was dishonoured. It is also submitted by the learned counsel for the petitioner that since there was no limitation to file complaint against the 8 petitioner under Section 138 of the Negotiable Instruments Act with the help of Police, has filed a false complaint.
8. It is true that normally, if a cheque given by a person is dishonoured, a complaint under Section 138 of the Negotiable Instruments Act will have to be filed in normal course after following the procedure contemplated under Negotiable Instruments Act in respect of dishonor of the cheques. However, merely because there is a remedy under Negotiable Instruments Act, it cannot be said that the complaint under Section 420 of the Indian Penal Code will not lie. The ingredients of the offence under Section 138 of the Negotiable Instruments Act and ingredients of the offence under Section 420 of the Indian Penal Code are totally distinct and separate.
9. In order to prove the offence Section 420 of the Indian Penal Code, the de-facto complainant is expected to place the material before the Court that the petitioner had an intention right from the inception to deceive the de-facto complainant and such acts and omissions of the petitioner constitute the ingredients of the offence under Section 420 IPC. In Vijay Kumar Ghai and others vs. The State of West Bengal and 9 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 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 1 (2022) 7 SCC 124 10 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.11
(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. Similarly, in the case on hand as observed above at Para No.5 of the complaint, it is mentioned by the de-facto complainant that the petitioner has issued cheque belonging to the others and got the same dishonoured. It is to be noted that if the cheque belonging to the account maintained by the accused is dishonoured, only then the offence under Section 138 of the Negotiable Instruments Act attracts. In the case on hand, if the cheque is dishonoured, does not belong to the account not being maintained by the accused, then Section 138 12 of the Negotiable Instruments Act does not apply. So, according to the de-facto complainant, in order to see that the cheque given by the petitioner is not honoured, intentionally the cheque was given belonging to other.
11. Therefore, whether there was any intention from the inception of borrowing the money by the petitioner to avoid the same and while executing his intention of cheating in not returning money borrowed by him and whether the petitioner has issued cheque to the de-facto complainant and others and all other connected similar questions would fall for consideration during the course of investigation by the Police. In cases like this, where number of allegations are made by the petitioner-accused in the complaint, even before the Police completes the investigation, this Court only basing on the contents of complaint cannot hold that there is no case against the petitioner. The petitioner ought to have waited until the Police completes the investigation. In case if the Police files charge sheet after completion of investigation and if the petitioner is aggrieved by the line of investigation, then the petitioner should have approached this Court. Though the petitioner has got right to file this application seeking quashment of the FIR, considering the allegations leveled 13 against the petitioner by the de-facto complainant, this court is of the opinion that this court cannot give a finding that there is no prima-facie case against the petitioner-accused. Hence, the petition is liable to be dismissed.
12. Accordingly, the Criminal Petition is dismissed. The Police concerned is directed to expedite the investigation in Cr.No.846 of 2015 of Malkajgiri Police Station as early as possible.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 12.10.2022 AS