Andhra HC (Pre-Telangana)
M.A.Rawoof vs State Of Andhra Pradesh, Rep. By Its ... on 12 September, 2014
Author: K.G.Shankar
Bench: K.G.Shankar
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition Nos.9611 of 2013 and batch
12-9-2014
M.A.Rawoof Petitioner/Accused
State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of A.P.,
Hyderabad; and another Respondents
Counsel for the Petitioner: Sri M.V.Pratap Kumar
Counsel for Respondent No.1: Public Prosecutor
Counsel for Respondent No.2: Sri Meka Rajasekhar
Reddy
<Gist:
> Head Note:
? Cases referred:
1. AIR 2012 SC 31
2. 2013 (2) ALT (Cri) 1
3. (2009) 14 SCC 696
4. (2005) 10 SCC 336
5. (2014) 3 SCC 389
6. (2009) 3 SCC 78
7. 2010 CRI. L. J. 461
8. (2009) 11 SCC 529
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition Nos.9611 and 15132 of 2013
Date: 12-9-2014
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition Nos.9611 and 15132 of 2013
Common Order:
Both these petitions are disposed of through this common order. The petitioner and the 2nd respondent in both the cases are common. The petitioner is the accused in C.C.No.508 of 2013 on the file of the Judicial Magistrate of First Class, Mahabubnagar. The 2nd respondent is the de facto complainant. The 2nd respondent also laid First Information Report (FIR) in Crime No.380 of 2013 on the file of Mahabubnagar Rural Police Station, Mahabubnagar against the petitioner. The petitioner seeks for the quashment of C.C.No.508 of 2013 through Criminal Petition No.9611 of 2013 and seeks for the quashment of FIR in Crime No.380 of 2013 through Crl.P.No.15132 of 2013. As the events are similar and the accused and the de facto complainant are identical in both the cases, both the cases are disposed of through this common order.
2. A complaint was lodged by the 2nd respondent before Mahabubnagar Police Station on 08-4-2013, which was registered as FIR in Crime No.111 of 2013. The complainant alleged that the petitioner was guilty of cheating and criminal intimidation punishable under Sections 420 and 506 IPC. The complainant claimed as follows:
The petitioner/accused is well known to the complainant/de facto complainant/2nd respondent since about 20 years. The petitioner, his uncle and others purchased Ac.1-00 cents of land in Survey No.386, Balajinagar, Bandamidipally Shivar. The petitioner and his partners agreed to execute a General Power of Attorney (GPA) in favour of the uncle of the petitioner and the petitioner later entered into a partnership deed with the 2nd respondent agreeing to sell his share in the property in favour of the 2nd respondent for a sum of Rs.2,50,000/-, his share being 50% of Ac.1-00 cents of land. The partnership deed as well as the agreement between the petitioner, his uncle and others were entered into on 05-9-2012. Contending that the petitioner has not paid any profits to the 2nd respondent and that the petitioner, his uncle and others sold away the entire Ac.1-00 cents of land to third parties, it was alleged that the petitioner committed the offences under Sections 420 and 506 IPC.
3. Police registered a case under Sections 420 and 506 IPC and after due investigation, laid charge-sheet. This is the charge-sheet which is sought to be quashed by the petitioner through Crl.P.No.9611 of 2013.
4. As already pointed out, Crl.P.No.15132 of 2013 is for the quashment of FIR in Crime No.380 of 2013. The 2nd respondent contended in the complaint that he paid Rs.2,50,000/- to the petitioner on 06-3-2012 for investment, that the petitioner executed an agreement in favour of the 2nd respondent and that the 2nd respondent came to know that the petitioner did not develop the area and did not agree to enter into partnership deed with him. The 2nd respondent further alleged that the petitioner has not paid the 20% share of profits, so much so, the petitioner is liable for punishment under Sections 420 and 506 IPC.
5. The learned counsel for the petitioner primarily contended that the dispute is civil in nature and that the criminal proceedings would not lie. He placed reliance upon the certified copy of the encumbrance certificate to show that the petitioner never possessed any part of land in Survey No.386. He submitted that the question of the petitioner entering into an agreement and GPA with his uncle and the petitioner entering into partnership deed or agreement with the 2nd respondent in respect of Ac.1-00 cents of land or part thereof in Survey No.386 would not arise if the petitioner is not the owner of the property.
6. To support his contention that the certified copy of the encumbrance certificate is a public document and can be relied upon, the learned counsel for the petitioner placed reliance upon Anita Malhotra v. Apparel Export Promotion Council . In that case, arising under Section 138 of the Negotiable Instruments Act, 1881, the question arose regarding the admissibility of the certified copy of the annual return of the Company. The Supreme Court placed reliance upon Section 74 of the Indian Evidence Act, 1872 and held that a public document includes any public record kept by a State. Reading Section 74 of the Indian Evidence Act with Sections 159, 163 and 610(3) of the Companies Act, 1956, it was observed that the certified copy of the annual return was a public document. The ratio of Anita Malhotra (1 supra) applies to the present case also. Encumbrance Certificates are maintained by the Revenue Department. Consequently, any entry in the encumbrance certificate is admissible as a public document.
7. The learned counsel for the petitioner also placed reliance upon Bommidala Bhanumurthy v. Pabolu Rama Subrahmanyam to show the ingredients of Section 420 IPC. In para 9 of the judgment, it was noticed:
With regard to the offence punishable under Section 420 IPC, necessary ingredients to constitute the offence of cheating which is defined under Section 415 IPC are thus:
(1) There should be fraudulent or dishonest inducement of a person by deceiving him. (2)(a) the person to deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (3) in cases covered by (2)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
The offence of cheating under Section 420 IPC as defined in Section 415 IPC has two essential ingredients viz., deceit i.e., dishonest or fraudulent misrepresentation to a person and the inducing of that person thereby to deliver property, and cause wrongful loss to the complainant or gaining wrongfully by the accused.
8. In DALIP KAUR v. JAGNAR SINGH , the well known principle that fraudulent and dishonest intention must exist from the inception when the promise or representation was made to make out a case for the offence under Section 420 IPC was reiterated. The Supreme Court further clarified that the failure to refund amount of advance would merely be a breach of contract but does not constitute cheating or criminal breach of trust.
9. In UMA SHANKAR GOPALIKA v. STATE OF BIHAR , it was stated by the Supreme Court that a breach of contract would amount to cheating if and only when there was intention to cheat at the very inception. It therefore is contended by the learned counsel for the petitioner that viewed in any angle, no offence is made out.
10. Taking cue from the contention of the petitioner that the dispute, if any is a civil dispute, the 2nd respondent contended that there is no bar to institute a criminal case even if it is a case of a civil wrong.
(a) In VIJAYANDER KUMAR v. STATE OF RAJASTHAN , the Supreme Court observed that if a set of facts made out a civil wrong as well as a criminal offence, aggrieved can seek a civil remedy as well as proceed under the Criminal Law. The Supreme Court held that the test to determine is whether the allegations in the complaint disclose a criminal offence or not.
(b) In V.Y. JOSE v. STATE OF GUJARAT , the Supreme Court distinguished between a contractual dispute and an offence of cheating thus:
21. There exists a distinction between pure contractual dispute of a civil nature and a offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.
(c) In State of Maharashtra v. Sayed Mohammed Masood , although the allegations did not constitute offences under Sections 420, 406 and 120-B, IPC, the allegations constituted some facts which deserve to be allowed to be taken to their logical end. In such an event, the Supreme Court considered it inappropriate to order quashment of the FIR.
(d) In RAVINDRA KUMAR MADHANLAL GOENKA v. RUGMINI RAM RAGHAV SPINNERS (P) LTD. , it was observed that in a petition under Section 482 Cr.P.C., material furnished by the defence cannot be looked into and that when there is prima facie material available against the accused, a petition for quashing the criminal proceedings should not be permitted.
(e) It is contended by the learned counsel for the 2nd respondent on the basis of these decisions that it is not open for the petitioner at this stage to seek for the quashment.
11. It may be pointed out that the basic allegation is two-fold. In C.C.No.508 of 2013, the 2nd respondent claimed that there was a GPA between the petitioner, his uncle and others and that the petitioner entered into a partnership deed with the 2nd respondent. As rightly submitted by the learned counsel for the petitioner, the partnership deed has not seen the light of the day. In the petition for the quashment of FIR in Crime No.380 of 2013, the basis is the agreement in favour of the 2nd respondent herein. Again, the agreement has not seen the light of the day. Further, while in C.C.No.508 of 2013, it was stated that the agreement and the partnership deed were dated 05-3-2012, in FIR in Crime No.380 of 2013, the date of the agreement was said to be 06-3-2012. The allegations are common in the FIR and the complaint barring for the date. It is not known how two cases are maintainable against the petitioner on the basis of the same set of facts. Indeed, the petitioner was not aware about C.C.No.508 of 2013 when the FIR in Crime No.380 of 2013 was lodged. At any rate, the FIR and the complaint relate to the same offence. As already pointed out, the dates of the offence in both the cases are 05-3-2012 and 06-3-2012 respectively which does not appear to be correct.
12. The basis of the complaint is the agreement/ partnership deed between the petitioner and the 2nd respondent. Such a partnership deed/agreement has never been produced by the 2nd respondent before the Court. The 2nd respondent, apart from saying that such an agreement was executed between the petitioner and the 2nd respondent did not state about the discrepancy in the encumbrance certificate and his claim.
13. The encumbrance certificates show that the petitioner never owned any land in Survey No.386. The learned counsel for the 2nd respondent submitted that the Court cannot take into consideration the documents produced by the petitioner in a petition under Section 482 Cr.P.C. Even otherwise, it is for the 2nd respondent to show that the petitioner entered into an agreement or partnership deed with the 2nd respondent. The same have not been produced by the 2nd respondent.
14. It is the case of the petitioner that the question of the petitioner not partaking the share of profits with the 2nd respondent and not entering into an agreement with the petitioner do not establish the case in any manner.
15. The 2nd respondent issued a legal notice to the petitioner on 11-02-2013 demanding refund of the money. On 21-02-2013, the petitioner replied the same denying the allegations and demanding the production of the partnership deed. The 2nd respondent never produced such a deed to show that the petitioner received Rs.2,50,000/- from the 2nd respondent.
16. The learned counsel for the petitioner submitted that the petitioner obtained anticipatory bail wherein it was recorded that the dispute was a civil dispute. As rightly submitted by the learned counsel for the 2nd respondent, an observation by the Court in a bail petition that the dispute is a civil dispute cannot bind the 2nd respondent in a petition of this nature. However, there is no prima facie proof that the allegation would capture deception on the part of the petitioner right from the inception nor is there any criminal intimidation. The FIR as well as the Calendar Case do not show any substance and prima facie material against the petitioner. The petitioner is not even the owner of the property in respect of which the whole sequence of violations allegedly arose. Even if there is any violation on the part of the petitioner, it is purely a civil dispute of breach of contract. In that view of the matter, the 2nd respondent failed to show that there was criminal intimidation on the part of the petitioner nor was there any intention to cheat right at the inception. I therefore consider that both the cases deserve to be allowed quashing the Calendar Case and the FIR, as the case may be.
17. Accordingly, these criminal petitions are allowed. C.C.No.508 of 2013 on the file of the Judicial Magistrate of First Class, Mahabubnagar and the FIR in Crime No.380 of 2013 on the file of Mahabubnagar Rural Police Station, Mahabubnagar are hereby quashed. The miscellaneous petitions, if any, pending in these petitions shall stand closed.
_____________________ Dr. K.G.SHANKAR, J.
12th September, 2014.