Andhra Pradesh High Court - Amravati
Lagisetti Sailaja vs The State Of Andhra Pradesh on 29 October, 2019
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
HON'BLE SRI JUSTICE M. VENKATA RAMANA
CRIMINAL PETITION No.4620 OF 2019
ORDER:
The accused in Crime No.114 of 2019 of Narsapuram Town Police Station, is the petitioner. An offence under Section 420 IPC is registered against her.
2. The second respondent as the de facto complainant presented a complaint under Section 190(1) Cr.P.C. in the Court of learned Additional Judicial Magistrate of First Class, Narsapuram, against the petitioner and it was forwarded to the police under Section 156(3) Cr.P.C., whereupon, FIR was registered in Narsapuram Police Station at about 8.00 p.m. on 13.04.2019.
3. The material allegations in the complaint of the second respondent against petitioner are as under:
(i) M/s.Seiko Polyclosures, is a company having its manufacturing facility at plot No.11/8/A IDA, Nacharam, Uppal, Hyderabad. The petitioner and three others are in manufacturing activity of plastic buckets, paint buckets and curd buckets in the name and style of the above company. The petitioner has 40% share in it.
(ii) Sri Lagisetti Bharat Kumar, is a friend of the second respondent. Husband of the petitioner and Sri Lagisetti Bharat Kumar are cousins. He is also one of the 'partners' in the above company along with the petitioner. When the petitioner expressed her disinterestedness to continue as a 'partner' of the above company and wanted to sell away her 40% share, at the instance of Sri Lagisetti Bharat Kumar, the second respondent had agreed to purchase the same. Accordingly, on 27.02.2013, the petitioner along with Sri Lagisetti Bharat Kumar visited the house of the second respondent, where the petitioner agreed to sell away her share to him for Rs.60,00,000/- and it was also accepted by other partners of this company.
(iii) Therefore, on 27.02.2013, believing the promise of the petitioner, the second respondent paid Rs.60,00,000/- to her in the presence of Sri Lagisetti Bharat Kumar and others, who are cited as witnesses in this case towards sale consideration and there upon, the petitioner executed an unregistered agreement there for, offering to make necessary arrangements for transfer of 40% of her share in this company in his name.
(iv) Fifteen days later, when the second respondent visited the above company at Hyderabad and enquired about the petitioner, he came to know that she did not attend the company due to ill-health.
When he contacted her on phone, she informed her situation while requesting him to contact a few days later. Thereafter, when he tried to contact her many times, there was no response and then he proceeded to Hyderabad to enquire her in this respect.
(v) The petitioner was not available at Hyderabad, and hence, he enquired other partners of this company. Then, he came to know that the petitioner had sold away her 40% of share of this company to others for Rs.4.00 crores, without his knowledge and consent to make an unlawful gain. Thereby, she cheated him. Transfer of her share in favour of third parties, was also confirmed to the second respondent by Sri Lagisetti Bharat Kumar and other partners.
(vi) When the second respondent sought intervention of elders, the petitioner informed them that due to pressure of her family members, she had to sell away her share to third parties and that she would return Rs.60,00,000/- received, to him. On 20.02.2018, the petitioner visited the second respondent at his house at Narsapuram along with Sri Lagisetti Bharat Kumar and others, where the petitioner informed the elders that the second respondent demanded Rs.3.00 crores, which was settled for Rs.2.80 crores, finally. The second respondent accepted to receive the same in two instalments, one instalment of Rs.1.40 crores payable on 10.04.2018 and second instalment of Rs.1.40 crores to be paid on 15.10.2018. An undertaking letter was also given by the petitioner to the second respondent in respect thereof.
(vii) Inspite of several demands by the second respondent, the petitioner did not repay the agreed amount nor there was any response from her. Therefore, the petitioner gave a complaint to S.I. of Police, Town Police Station, Narsapuram, on 23.02.2019 in this respect against her and inspite of representing to the superior police officers for necessary action, there was no response. Hence, the complaint.
4. It is now contended by Sri K.Ratangapani Reddy, learned counsel for the petitioner that M/s.Seiko Polyclosures, is a partnership firm, registered in the office of Registrar of Firms, Ranga Reddy District, on 18.03.2013 under a partnership deed dated 18.01.2013 entered into by the petitioner and three others including Sri Lagisetti Bharat Kumar.
5. It is further contended for the petitioner that when Sri Lagisetti Bharat Kumar started interfering in the affairs of running of this business illegally, the petitioner along with Sri Lagisetti Praveen Kumar, who is another partner of this firm filed a suit in O.S.No.691 of 2018 on the file of the Court of learned Principal Junior Civil Judge, at L.B.Nagar, Ranga Reddy District, for perpetual injunction restraining him and another, from interfering with their peaceful possession and enjoyment of the business premises this firm M/s.Seiko Polyclosures, IDA, Nacharam, Hyderabad, wherein an ex parte injunction was also granted in their favour. It is further contention on behalf of the petitioner that Sri Lagisetti Bharat Kumar, is behind the second respondent in getting filed the complaint against petitioner with false allegations, on account of disputes including the suit filed by her against him.
6. Sri K.Ratangapani Reddy, learned counsel also contended that a complete reading of the complaint of the second respondent did not make out an offence of cheating and that the business concern is stated to be a company though in fact it is a partnership firm. Since, no such company is in existence with name and style 'M/s.Seiko Polyclosures', incorporated under Companies Act nor reference to 40% share in the alleged company, attributed to the petitioner being incorrect, on this premise alone, this complaint is liable to be quashed. It is further contended that even otherwise, this case is of civil nature and filing the same against petitioner is a clear abuse of process of law, after seven years of alleged transaction of sale of share. Thus stating, it is requested to allow this petition and quash the proceedings against the petitioner.
7. On behalf of the respondent, Sri Akurathi Rama Krishna, learned counsel contended that though the business concern M/s.Seiko Polyclosures, is a partnership firm, reference to it as a company in the complaint cannot be have any bearing nor has fundamentally affects the complaint of the second respondent against the petitioner while elaborating the nature of transaction with reference to agreements entered into. The delay pointed out on behalf of the petitioner in filing the complaint of about seven years cannot have any bearing nor there is any bar of limitation, since an offence alleged is under Section 420 IPC. It is further contended that since there are serious disputed questions of fact, which required to be investigated by the police and collection of evidence is required, the petition as filed need not be entertained nor it is as such, maintainable.
8. Referring to the averments in the plaint in O.S.No.691 of 2018, it is also contended for the 2nd respondent that it is preposterous that there was a settlement between the petitioner and Sri Lagisetti Bharat Kumar for Rs.20,00,000/- in April, 2017, whereby he went out of the partnership firm and that the petitioner and Sri L.Praveen Kumar took upon themselves, responsibility of running this factory. Referring to the contention of the petitioner about settlement in April 2017 and transaction in August 2017 as alleged in the complaint for Rs.20.00 lakhs and interest of Rs.2.40 lakhs, it is stated that when the settlement in fact was for Rs.60,00,000/- in the year 2013, alleged settlement for such amount after dragging on for several years, itself makes the contention of the petitioner to reject. Thus stating, it is requested to dismiss this petition.
9. In the light of the contentions of the petitioner and the second respondent, now the point for determination is:- "Whether the complaint of the second respondent made out any offence, including under Section 420 IPC?
10. In order to attract an offence under Section 420 IPC, requirements of Section 415 IPC have to be fulfilled.
11. Section 415 IPC defines cheating. The Section requires--
"(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 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."
12. Therefore, the complaint shall prima facie make out, on a bare and casual reading of its contents, these requirements under Section 415 IPC. One of the penal provisions in respect thereto, is under Section 420 IPC. It refers to cheating fraudulently and dishonestly inducing the person deceived to deliver to any person, a valuable security or capable of being converted into a valuable security.
13. To exercise power under Section 482 Cr.P.C., requirements are set out in "STATE OF HARYANA v. BHAJANLAL"1. In para-105 of this ruling, they are stated as under:
"105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. 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-1
1992 Supp(1) SCC 335 = AIR 1992 SC 604 facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR 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.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. 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.
5. 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.
6. 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.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
14. A careful consideration of the allegations in the complaint of the second respondent against the petitioner reflect that there was an earlier proposal to sell away her share of 40% in the alleged company M/s.Seiko Polyclosures, in favour of the second respondent for Rs.60,00,000/-, on 27.02.2013, which she received. It further reflects that there was alleged default by the petitioner and that, on account of intervention of elders, when the second respondent demanded Rs.3.00 crores, after it was allegedly known that the petitioner had already sold away her share to a third party for Rs.4.00 crores, there was another alleged settlement on 20.12.2018. It was not honoured by the petitioner, as per its contents.
15. There are no details how Rs.60,00,000/- lakhs was paid on 27.02.2013 to the petitioner by the second respondent and if it was either by way of cash or through any bank transaction. Important to consider in this context is silence on the part of the second respondent right from 27.02.2013 till 20.02.2018, when different transactions had allegedly took place. This circumstance should also be considered, in this respect.
16. Be it noted from the contents of this complaint that it is not alleged by the second respondent that the petitioner had ever avoided or evaded to stand by the transactions, to suspect her nature in this regard. Mere failure to repay the amount, in the circumstances, cannot be a factor in this context, when both the parties as per the recitals in this complaint had several transactions in between, where there were demands and assurances.
17. Therefore, in the above circumstances, the inference to draw is that on the face of these allegations in the complaint, neither it can be perceived that there was an intentional inducement by the petitioner on the second respondent to enter into such transactions, with a view to cause damage or harm, either with reference to any property nor suggest that the petitioner had fraudulently or dishonestly induced the second respondent to enter into such alleged transactions. There are no allegations in the complaint in this respect, specifically.
18. Even otherwise, having regard to the nature of these transactions, this complaint demonstrates that the dispute in between these parties is of civil nature.
19. There is reference on behalf of both the parties in the course of hearing, role of Sri Lagisetti Bharat Kumar. It is contended for the petitioner that he is instrumental in bringing out this alleged false complaint against the petitioner and in respect of the civil suit relating to the firm M/s. Seiko Polyclosures. But, it is not necessary to consider, these contentions, having regard to scope of this petition.
20. As rightly contended for the petitioner, when the complaint is in respect of the transactions relating to shares of an incorporated company, viz., M/s.Seiko Polyclosures as per its averments, when it is an admitted fact that there is no such company, question of cheating, in respect of its alleged transactions cannot arise. It is a fundamental flaw, affecting the very basis of the complaint. It is another reason to quash the complaint against the petitioner.
21. This case squarely falls within the scope and purview of requirements referred to in State of Haryana Vs. Bhajanlal, cited supra. Continuation of this complaint and investigation thereon would amount to abuse of process of law. Thereby, interference is required under Section 482 Cr.P.C.
22. In the result, the Criminal Petition is allowed. Consequently, FIR in Crime No.114 of 2019 of Narsapuram Town Police Station, registered on 13.04.2019 is quashed.
__________________________ M. VENKATA RAMANA, J Dt:29.10.2019 Rns HON'BLE SRI JUSTICE M. VENKATA RAMANA CRIMINAL PETITION No.4620 OF 2019 Date:29.10.2019 Rns