Telangana High Court
Ghulam Murtaza Siddiqui vs The State Of Telangana on 2 May, 2025
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.4697 OF 2018
ORDER:
This petition is filed under Section 482 of CrPC by the petitioner, who is accused no. 1, praying to the court to quash C.C. No. 29 of 2018, pending on the file of the XVI Chief Metropolitan Magistrate, Hyderabad, which is registered against him, along with accused nos. 2 and 3, for the offences under Sections 420, 379, 406, and 506 read with 34 of IPC.
2. The XVI Addl. Chief Metropolitan Magistrate took cognizance of the offences against the petitioner/accused no. 1 under Sections 420, 379, 406, and 506 read with 34 of IPC, based on the private complaint filed by respondent no.2/complainant against accused nos. 1 to 3 on 8.11.2017. Prior to the filing of the private complaint, respondent no. 2 had also filed a complaint with the SHO, Shahalibanda P.S., and the police issued an acknowledgement of receipt of the complaint on 25.11.2015.
3. In the private complaint, according to respondent no. 2, the petitioner is the Muttawalli of Dargah Hazarath Miskin Shah Sahib, Masjid-e-Almas, situated at Adilabad, Hyderabad. The father of respondent no. 2 was a Hakim (Unani Physician) by profession and used to run the clinic by providing Ayurvedic medicine in Mulgi No. 1, 2 bearing No. 20-6-620, situated at Dargah Miskin Shah Sahib, Masjid- e-Almas, as a tenant since 1969, and had been paying the rent regularly. It is further mentioned in the complaint that in the year 1999, due to the old age of respondent no. 2's father, the tenancy of the aforesaid Mulgi was transferred in respondent no. 2's name by the uncle of the petitioner, who was then the Muttawalli of the said Dargah. Since then, respondent no. 2 has been paying the rent, and the Muttawalli was issuing receipts for the payments. The father of respondent no. 2 died on 18.12.2012, and after his demise, respondentno. 2, being a Unani Doctor (BUMS) himself, used to store Unani medicines in the said Mulgi.
4. It is also mentioned by respondent no. 2 that in the month of October 2015, the petitioner called respondent no. 2 and asked him to pay Rs.10,000/- for the renovation of the outside of the Mulgi, and he further contended that the petitioner was collecting this amount from all tenants. Therefore, respondent no. 2 paid the sum by way of cheque bearing no. 233157 dated 7.10.2015, in the name of the petitioner's son, Mohammed Mujtaba Siddiqui, as per the demand of the petitioner, and the same has been encashed.
5. Respondent no. 2 has further alleged in the complaint that the petitioner, along with accused nos. 2 and 3, on 23.10.2015, without any intimation, broke open the lock and replaced the same. 3 Respondent no. 2 approached the petitioner immediately and questioned him, but the petitioner spoke to respondent no. 2 rudely and threatened him with dire consequences and to see his end. Due to the illegal act of breaking open the lock of the Mulgi and removing the medicines amounting to Rs.80,000/-, and also taking away the fridge and cooler belonging to respondent no. 2, a loss to the tune of Rs.1,20,000/- was caused to respondent no. 2.
6. The counsel for the petitioner admitted that Mulgi No. 20-6-620 was given on rent to respondent no. 2's father for carrying on a Unani clinic, and after his death, respondent no. 2 was in possession of the Mulgi by paying rent of Rs. 500/-. However, the counsel contended that respondent no. 2 was not paying rent regularly and had kept the Mulgi occupied for several years, due to which the Mulgi got damaged and became a dump yard. According to the petitioner, respondent no. 2 ultimately surrendered possession of the Mulgi to the petitioner in September 2015. The petitioner got the Mulgi reconstructed by spending Rs. 80,000/- and later let it out to Ali Pasha (accused no. 3) for a period of 11 months for carrying on the business of travel agents, under an unregistered rental deed dated 2.11.2015. Thereafter, another lease deed dated 21.10.2016 was executed, renewing the lease for one more year.
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7. The counsel further contends that, as per respondent no. 2, the incident of accused nos. 1 to 3 entering into the premises and breaking open the lock occurred on 23.10.2015. However, the police complaint was filed only on 25.11.2015, and it is respondent no. 2's claim that since no action was taken by the police, he filed a private complaint on 8.11.2017. Thus, there is a delay of one month in filing the police complaint and a delay of nearly two years in filing the private complaint, and no reasons have been explained for the delay.
8. It was also contended that from a reading of the complaint and the deposition of the witnesses, it is very clear that the contents of the same are false and liable to be rejected because the complaint does not refer to any eyewitnesses to the alleged breaking open of the lock of the Mulgi and taking away of the valuable movables from the Mulgi. The petitioner contended that neither in the police complaint nor in the private complaint has respondent no. 2 mentioned that there were eyewitnesses to the acts committed by the accused on 23.10.2015. However, respondent no. 2 has produced three witnesses before the Magistrate. The court below recorded the statements of four persons on 30.11.2017 and 14.12.2017 and passed an order dated 5.1.2018 whereby it took cognizance of the case.
9. Moreover, though the complaint does not state anything about a fire being set up by the accused persons before breaking open the 5 door, strangely, the witnesses have deposed in the court below that a fire was set up at the backside of the shop on 23.11.2015 and thereafter the lock was broken. They further stated that all of them witnessed the Muttawalli removing the articles from the shop and also threatening respondent no. 2 to vacate the shop. Moreover, one of the witnesses has stated that the police visited the shop and made enquiries with the local persons and the petitioner. Yet such a thing has not been stated by respondent no. 2in his complaint. Thus, there is a total variance between the contents of the complaint and the statements of the witnesses.
10. On the other hand, the counsel appearing for respondent no. 2 would submit that respondent no. 2 was left with no other option but to file a private complaint, having waited for over a year for the police to take action. Once the delay is explained and the complaint discloses the necessary ingredients of the penal provisions, this Court cannot thwart the prosecution at the threshold, and the petitioner must undergo trial.
11. Admittedly, there is a delay in the filing of the complaint. Respondent no. 2, in his private complaint, mentioned that the incident occurred on 23.10.2015. However, the police issued an acknowledgement of receipt of the complaint only on 25.11.2015. 6 Thereafter, the private complaint was filed on 8.11.2017. There is again a delay of nearly two years.
12. Respondent no. 2 has given an explanation for the delay in the private complaint. According to him, after the incident, he had immediately approached the Shahalibanda PS and gave a complaint in writing. Since the police refused to take the complaint, respondent no. 2approached the DCP, South Zone, Hyderabad, and after the DCP's endorsement to "examine and take necessary action as per facts and law," the police issued an acknowledgement of receipt of the complaint on 25.11.2015. However, till date, no action has been taken. Being constrained, respondent no. 2 gave a reminder dated 18.5.2016, but even after reminding, according to the respondent no. 2, no action was taken. Respondent no. 2 also gave a complaint to the Waqf Board on 4.12.2015. Thereafter, he filed a private complaint on 8.11.2017.
13. Respondent no. 2's claim that the police refused to take action and that he had to approach the DCP, and only after the DCP's endorsement did the police issue the acknowledgement, is believable, as on the complaint filed by respondent no. 2 with the SHO, Shahalibanda PS, there is an endorsement of the DCP stating "please examine and take necessary action as per facts and law," and the DCP has also signed with the date 22.11.2015.
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14. Along with the private complaint, respondent no. 2 has filed the office copy of the reminder to SHO PS Shahalibanda dated 18.5.2016 in the list of documents. Thus, respondent no. 2 has explained the reasons for the delay in filing the complaint.
15. The Magistrate has taken cognizance against the petitioner and two other accused mainly on the basis of the private complaint, statements of respondent no. 2 and three witnesses recorded by the Magistrate, and the report of M.A. Gaffar, OSD, Telangana Waqf Board, dated 7.4.2016, wherein it was mentioned that the petitioner was directed to hand over the possession of the Mulgi to respondent no. 2, who was found to be the tenant.
16. Though the initial complaint was lodged by respondent no. 2 with the police immediately after the incident, there is no mention of the date of the incident or of any eyewitnesses to the incident of the petitioner and other accused breaking open the door of the Mulgi, removing medicines, and taking away the fridge and cooler belonging to respondent no. 2. Further, even in the private complaint filed before the Magistrate, respondent no. 2 has only mentioned the date of the incident as 23.10.2015 but did not mention any witnesses to the incident. However, along with the private complaint, respondent no. 2 filed a list of witnesses containing four names. 8
17. The Magistrate recorded the statements of three of the witnesses--two on 30.11.2017 and one on 14.12.2017. In their statements, the witnesses alleged that they had witnessed the incident. However, all three witnesses stated that the incident occurred on 23.11.2015, instead of 23.10.2015 as alleged by respondent no. 2. Further, as rightly contended by the petitioner, although the complaint does not mention the petitioner setting fire in the lane behind the shop, two witnesses, Nawab Mir Warisullah Khan and Mohd. Javed, stated that they witnessed the petitioner setting fire in the lane.
18. In light of the witnesses' names not being mentioned in the complaint, the discrepancy in the date of the incident between the complaint and the witness statements, and the improvements made in the statements of the witnesses, it is apparent that the names of the witnesses were added 1½ years later as an afterthought and that they were brought in at a later stage to speak against the petitioner and have been tutored.
19. Hence, even though the delay in the complaint has been explained by respondent no. 2, in view of the above discussion, the proceedings against the petitioner cannot continue. 9
20. Lastly, the Magistrate has also relied upon the report of M.A. Gaffar, OSD, Telangana Waqf Board, dated 7.4.2016. According to respondent no. 2, he submitted a complaint to the Waqf Board on 4.12.2015, and the Waqf Board appointed two inspectors, both of whom conducted inquiries into the matter in different ways.
21. In the report dated 7.4.2016 by M.A. Gaffar, it is stated that the petitioner was questioned regarding the dispute concerning the Mulgi, and he admitted that respondent no. 2 was his tenant but was not regular in paying rent. It was further noted that during November 2015, the petitioner constructed the back wall of the said Mulgi (without obtaining permission from the Waqf Board) and had allotted the Mulgi to another person (name not known), who was running a business in the name and style of Pasha Travels. The report also mentioned that the petitioner was directed to hand over possession of the Mulgi to respondent no. 2.
22. However, the report was only intended to assist the Waqf Board in determining the allegations in the complaint filed by respondent no.2 on 4.12.2015. Following the report, a show-cause notice was issued to the petitioner, and based on the same, the Chief Executive Officer (CEO), Telangana State Waqf Board, passed an order on 5.1.2017. As per the order, it was found that the petitioner had committed grave irregularities by leasing out the Mulgies to different 10 tenants without the prior approval of the Waqf Board and by failing to submit accounts duly audited by a Chartered Accountant. Accordingly, the petitioner was held liable for violations under Sections 56 and 47 of the Waqf Act, and since he was found liable for action under Sections 64(1)(g), (h), (i), (j), and (k) of the Act, he was removed from the office of Muthawalli.
23. The petitioner challenged the CEO's order by filing W.P. No. 1492 of 2017, and this Court, by order passed in W.P.M.P. No. 1700 of 2017, temporarily suspended the CEO's order. However, the suspension was granted on the limited ground that the Waqf Board had also considered certain issues which were not specified in the show-cause notice dated 15.10.2016. The above discussion shows that proceedings are already underway before the Waqf Board based on the complaint filed by respondent no. 2 against the petitioner.
24. The report dated 07.04.2016 by M.A. Gaffar cannot be relied upon to determine whether a prima facie case exists against the petitioner, as it merely records that respondent no. 2 was in possession. It does not mention, nor does it provide any evidence, of the petitioner breaking open the door of the Mulgi, removing medicines, or taking away the fridge and cooler belonging to respondent no. 2.
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25. Cognizance was taken for the offences under Sections 379, 406, and 420 of the IPC. If the allegation against the petitioner is that he had ransacked the Mulgi and committed theft of medicines, it would fall under Section 379 of the IPC. Once it is a case under Section 379, the question of the offence falling under Section 420, which pertains to cheating, or under Section 406, which deals with criminal breach of trust, does not arise.
26. The Hon'ble Supreme Court in N. Raghavender v. State of A.P. 1, held as follows:
" Ingredients necessary to prove a charge under Section 420 IPC:
50. Section 420IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine.
51. It is paramount that in order to attract the provisions of Section 420IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence i.e. (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. It goes without saying that for the offence of cheating, fraudulent and dishonest 1 (2021) 18 SCC 70 12 intention must exist from the inception when the promise or representation was made."
27. The Hon'ble Supreme Court in R.K. Vijayasarathy v. Sudha Seetharam 2, held as follows:
"13. A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:
13.1. A person should have been entrusted with property, or entrusted with dominion over property;
13.2. That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; and 13.3. That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
14. Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code. [406. Punishment for criminal breach of trust.--
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.]"
28. In view of the above, the offence of cheating is attracted when there is an element of deceit pursuant to which a person is induced to deliver property. To attract the offence of criminal misappropriation, there must be an entrustment of property, which is then 2 (2019) 16 SCC 739 13 misappropriated. However, once theft occurs, the question of cheating or criminal misappropriation does not arise.
29. In view of the discrepancies in the complaint and witness statements, and considering that proceedings are already pending before the Waqf Board, as discussed above, the prosecution against the petitioner cannot be sustained.
30. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioner in C.C. No. 29 of 2018, pending on the file of the XVI Chief Metropolitan Magistrate, Hyderabad, are hereby quashed.
__________________ K.SURENDER, J Date: 02.05.2025 tk 14 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.4697 OF 2018 Date: 02.05.2025 tk