Andhra HC (Pre-Telangana)
K.Emanuel vs State Of Andhra Pradesh Through ... on 8 October, 2012
Author: R.Kantha Rao
Bench: R.Kantha Rao
THE HON'BLE SRI JUSTICE R.KANTHA RAO CRIMINAL PETITION NO.6368 OF 2010 08.10.2012 K.Emanuel State of Andhra Pradesh through Inspector of Police, Begumpet P.S., Secunderabad through Public Prosectuor, High Court of A.P., Hyderabad. <GIST: >HEAD NOTE: Counsel for Petitioner: Sri V.V.L.N.Sarma Counsel for Respondent: Additional Public Prosecutor ?Cases referred 1. 2005 (1) ALD (Crl.) 549 (SC) 2. 2007 AIR SCW 4816 ORDER:
This Criminal Petition is filed under Section 482 Cr.P.C. to quash the proceedings in C.C.No.58 of 2007 on the file of the Court of XI Additional Chief Metropolitan Magistrate, Secunderabad.
I have heard Sri V.V.L.N.Sarma, learned counsel appearing for the petitioner-A1 and the learned Additional Public Prosecution representing the State. The brief facts of the case, as could be seen from the report lodged by the Chief Manager, Andhra Bank, Prakasham Nagar, Hyderabad, are the following. On the application made by the petitioner for grant of housing loan, the bank sanctioned an amount of Rs.9,70,000/- on 04.05.2002 for purchasing the house property bearing municipal No.32-194, Plot No.138 in Survey Nos.378, 379, 381 and 386 situated at Green Fields Colony, Khanajiguda, Alwal Municipality, Malkajgiri Mandal, Ranga Reddy District, from one Y.Anil Kumar. The said sale deed was registered on 06.05.2002. The housing loan was repayable in 180 equated monthly instalments. The petitioner-A1 paid instalments for a total sum of Rs.1,80,600/- and thereafter failed to pay the remaining instalments and an amount of Rs.10,60,107/- ultimately became due.
It is stated that on enquiries made by the bank authorities, they came to know that the link documents of Mr. Y.Anil Kumar and Mrs. Y.Sujatha, who are predecessors in title of the property, were fabricated documents and that Mrs. Y.Sujatha, who originally possessed the property, mortgaged the said documents with Vasavi Cooperative Urban Bank Ltd., Malakpet Branch, for the loan limits availed by her husband, Mr. Y.anil Kumar. Thus, it came to be noticed by the bank that the above said persons, Mrs. Y.Sujatha and Mr. Y.Anil Kumar, availed loan from other financial institutions by mortgaging the documents of the same property.
Basing on the aforesaid report, the Begumpet Police registered case in crime No.306 of 2004 for the offences punishable under Sections 420, 468 and 471 IPC and filed charge sheet against the petitioner-A1 and A2 to A4. It is mentioned in the charge sheet that A1 with the connivance of A2 to A4 obtained house loan of Rs.9,70,000/- from Andhra Bank, Prakasham Nagar Branch, Hyderabad, by submitting the fabricated documents relating to house No.32-194, Plot No.138 situated at Green Fields Colony, Khanajiguda, Alwal Municipality, Malkajgiri Mandal, Ranga Reddy District, with an intention to cheat the bank. It is further alleged in the charge sheet that after obtaining the loan, A1 paid some amounts and failed to repay the amount relating to the remaining instalments and thereby, cheated the bank.
Perusal of the report lodged by the Chief Manager, Andhra Bank, Prakasham Nagar Branch, on 02.09.2004 with Begumpet P.S., does not show that the petitioner-A1 with the connivance of the remaining accused obtained loan from Andhra Bank. It was clearly mentioned in the report that the enquiries made by the bank authorities revealed that Mrs. Y.Sujatha and Mr. Y.Anil Kumar obtained loan from other financial institutions/banks by mortgaging the documents of the same property. The charge sheet also does not disclose as to how the petitioner-A1 entered into conspiracy with the other accused. In my view, mere making a bald allegation that the petitioner-A1 by conspiring with A2 to A4 obtained loan is not sufficient. It must be clearly mentioned in the charge sheet that there was a dishonest intention on the part of the petitioner-A1 at the inception i.e., at the time of borrowing loan from the bank.
Learned counsel for the petitioner, in support of his contention that the dispute between the petitioner and the de facto complainant is purely a civil dispute, relied on the following decisions.
(a) Suresh V. Mahadevapa Shivappa Danannava and another1, wherein the Supreme Court held that "it is necessary to show that he had a fraudulent or dishonest intention at time of making promise. The order of the Magistrate and of the High Court requiring the accused to face trial would not be in the interest of justice. On the other hand, in our considered opinion, it is a fit case to set aside the order of the Magistrate as confirmed by the High Court of issuance of process and the proceedings itself."
(b) Veer Prakash Sharma v. Anil Kumar Agarwal and Anr.2, wherein the Supreme Court held as follows: "non-payment or under payment of purchase price does not constitute the offence of criminal breach of trust or cheating. When cheques issued by the accused towards purchase price dishonoured, the same by itself does not amount to cheating. The fact that the accused had subsequently expressed that he knowingly issued fabricated cheques does not show intention of accused to cheat from the very inception. The fact that the accused had subsequently expressed that he knowingly issued the fabricated cheques also does not show that the accused had an intention to cheat from the very inception." Under these circumstances, refusal to quash criminal proceedings is improper. Turning to the facts of the present case, the petitioner purchased the property under a registered sale deed dated 06.05.2002. Normally, the bank authorities would make enquiries before advancing the loan as to whether the property was under mortgage to any other financial institution or bank. If they made enquiries, they would have certainly come to know as to whether the same property was under mortgage with any financial institution/bank. From the facts of the case, therefore, it has to be understood that either the bank did not take appropriate care in knowing about the fact as to whether the same property was under mortgage to any financial institution/bank or that despite knowing the said fact, they sanctioned the loan to the petitioner and when it became due, as the petitioner was unable to repay the future instalments after making some payments, the bank resorted to launching criminal proceedings to pressurize the petitioner to make the payments. In any event, if really, there was dishonest intention or deception on the part of the petitioner at the time of borrowing the loan, he would not have paid the instalments to the tune of Rs.1,80,600/-. From the facts of the case, it is obvious that the petitioner-A1 could not be able to pay the instalments after making payment up to an amount of Rs.1,80,600/- and on that the bank lodged a report with the Station House Officer, Begumpet P.S. From the averments of the report, it does not appear that there was any criminal intention on the part of the petitioner to cheat the bank while borrowing the loan. The mere fact that the loan borrowed by the petitioner became overdue does not involve any criminal liability. The dispute as well as the liability of the petitioner-A1, as rightly contented by the learned counsel for the petitioner, is purely a civil dispute and it does not involve any criminal offence. Launching criminal prosecution in a case of this nature is nothing but abuse of process of laws and if the prosecution is allowed to continue against the petitioner-A1, it would result in miscarriage of justice.
For the aforementioned reasons, the entire proceedings in C.C.No.58 of 2007 on the file of the Court of XI Additional Chief Metropolitan Magistrate, Secunderabad, in so far as they relate to the petitioner-A1 are quashed. The Criminal Petition is allowed and the miscellaneous petitions, if any, pending shall stand closed.
________________ (R.KANTHA RAO, J) 8th October 2012