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2004 DIGILAW 985 (AP)

P. Prem Kumar v. State Of A. P.

2004-09-13

T.CH.SURYA RAO

body2004
T. SURYA RAO, J. ( 1 ) THE petitioners seek to quash the proceedings in crime No. 237/2003 registered against them on the file of Banjara Hills police Station, Hyderabad, for the offences punishable under Sections 409,420,468 and 471 read with 34 and 109 of the Indian Penal code (for brevity ipc ) ( 2 ) THE second respondent herein filed a private complaint before the V Metropolitan magistrate, Hyderabad, against the petitioners. That complaint having been forwarded to the Station House Officer, banjara Hills P. S. , the crime was registered against the petitioners on 24-03-2003 as crime No. 237/2003 as aforesaid. While the investigation was in progress in the said case, the petitioners approached this Court seeking to quash the same. ( 3 ) IT is alleged inter alia in the complaint that the complainant was the owner of the premises bearing H. No. 8-3-684/3/1/a situate at Yellareddyguda, LICColony, Near Srinagar colony, Hyderabad. One Sri Rami Reddy was the eastern neighbour of the complainant. Both the accused who had acquaintance with the said Rami Reddy used to visit him. During their visits, they develped a dishonest intention to grab the complainant s plot covered by survey No. 96 and described in detail herinabove. The first peitioner met the complainant on 25-05-2000 and intorduced himself as the Managing Director of M/s. Doyen Constructions Pvt. Ltd. , and the second petitioner is his mother and the director. The petitioners informed the complainant that their company was having excellent reputation and vast experience in developing real estates into residential complexes and townships; and that Rami reddy, eastern neighbour of the complaint, was giving his premises to them for development. They further informed that he would develop the property of the complainant along with the property of Rami Reddy into a beautiful residential complex promising to give 50% of such built up area to the complainant. Both the petitioners with dishonest intention made the above false representation to the complainant and induced him by deceitful means to enter into a development agreement. Believing their false representation, the complaint entered into a development agreement on 04-06-2000 with the first accused and delivered the property to them for development. ( 4 ) THE accused constructed a building consisting of five stories consisting of one flat in each floor. Despite the protest from the complainant, they deviated the plan approved by the Municipal Corporation. Believing their false representation, the complaint entered into a development agreement on 04-06-2000 with the first accused and delivered the property to them for development. ( 4 ) THE accused constructed a building consisting of five stories consisting of one flat in each floor. Despite the protest from the complainant, they deviated the plan approved by the Municipal Corporation. Thereafter, with a fraudulent intention, they sold away four flats to various concerns without delivering 50% of the developed area to the complainant as promised, when in fact the complainant should get as per the development agreement 2 flats, so as to make a wrongful gain for themselves and to cause wrongful loss to the complainant. Further, the first petitioner executed sale deeds representing himself as General Power of Attorney (hereinafter referred to as gpa ) holder of the complainant by bringing into existence a forged GPA and used it as a genuine document. It is further alleged in the complaint that but for the inducement of the petitioners with the false promises to the complainant, he would not have entered into the development agreement on 04-06-2000 with the petitioners and would not have delivered the property to them. The petitioners with dishonest intention to have wrongful gain for themselves and to cause wrongful loss to the complainant, cheated him and fabricated the document purported to be the gpa executed by the complainant and thereby committed the offences punishable under Sections 409, 468, 471 and 420 read with 34 and 109 of the IPC. ( 5 ) IT is the further case of the complainant that when he made a criminal complaint to the Station House Officer, Banjara Hills P. S. , hyderabad, there had been no action on their part. Therefore, he was constrained to file a private complaint before the Court, which as aforesaid later was forwarded to the police for investigation. ( 6 ) THE premises on which the petitioners now seek to quash the said proceedings seemed to be that the matter is. pure civil nature and it is only to harass the petitioners and by abusing the process of the Court, the present complaint has been filed by suppressing certain facts. According to the petitioners, in accordance with the terms of the development agreement and by investing huge amounts, they developed the property by constructing a residential complex. pure civil nature and it is only to harass the petitioners and by abusing the process of the Court, the present complaint has been filed by suppressing certain facts. According to the petitioners, in accordance with the terms of the development agreement and by investing huge amounts, they developed the property by constructing a residential complex. When the constriction was also completed, the second respondent started harassing them. Although there was no dispute in regard to the development agreement, the second respondent filed an Arbitration Application no. 68 of 2002 on the file of the High Court of andhra Pradesh for appointment of an arbitratorto adjudicate the dispute in between them inter se in terms of clause-24 of the said agreement, when the matter was heard and reserved for Judgment, the second respondent started approaching various authorities by writing letters and also by interfering with the construction work. Therefore, the petitioner had to file O. P. No. 632/2003 on the file of the Chief Judge, city Civil Court, Hyderabad, accompanied by I. A. No. 763/2003 seeking interim injunction to restrain the second respondent from interfering with the construction activity. On 07-03-2003 interim injunction was granted by the Court and the same has been subsisting. The second respondent had also filed O. P. No. 349/2003 before the Court of the Chief Judge, City Civil Court, Hyderabad and the concomitant I. A. No. 283/2003 seeking interim directions against the petitioner not to alienate, deliver possession or create any encumbrances in respect of the property in dispute. Interim orders were also passed in the said application on 30-01-2003. Both the matters have been pending before the civil Court. Suppressing the above facts, the second respondent approached the Court of the V Metropolitan magistrate and filed the complaint only to harass the petitioners and it is nothing but the enforcement of the terms of the development agreement and, threfore, the present criminal case is nothing but sheer abuse of the process of the Court. ( 7 ) THE facts stated hereinabove are not in dispute. The development agreement dated 04-06-2000 entered into in between the parties inter se contains inter alia a clause to the effect that in the event of any dispute the same shall have to be referred to an Arbitrator. ( 7 ) THE facts stated hereinabove are not in dispute. The development agreement dated 04-06-2000 entered into in between the parties inter se contains inter alia a clause to the effect that in the event of any dispute the same shall have to be referred to an Arbitrator. While it is the case of the complainant that he never executed any GPA in favour of the petitioners, the case of the petitioners seems to be that the second respondent executed a development agreement-cum-GPA. The grievance of the compliant appears to be that the petitioners sold away four of the flats constructed in favour of others using the fabricated and forged GPA purported to have been executed by him. While it is the case of the second respondent that pursuant to the terms of the agreement, he should be given 50% of the developed portion and the petitioners should take the remaining 50% of the developed portion, in other words 2 flats out of the 5 flats constructed in five storeys of the building by the petitioners, the petitioners case appears to be that the second respondent is entitled to 50% of the built up space as per his land and that seems to be the contentious issue in between the parties inter se. Admittedly, a retired Judge of High court was appointed as an Arbitrator and the matter is pending settlement before the learned Arbitrator. ( 8 ) IN this backdrop, it is to be seen whether it is a case of pure civil nature and registration of the crime at the instance of the second respondent is nothing but an abuse of the process of the Court; or whether the facts give rise a civil profile as well as a criminal outfit in which event they are not mutually exclusive. Interface in between the civil profile and criminal outfit shall have to be considered. Having due regard to the same, it is expedient to notice the law on the point at the outset before adverting to the facts of the case. ( 9 ) IN Rajesh Bajaj v. State NCT of Delhi it was held that many a cheating is committed in the course of commercial or money transaction and, therefore quashing of criminal proceedings on the ground that the complaint discloses a commercial or money transaction was not justified. ( 9 ) IN Rajesh Bajaj v. State NCT of Delhi it was held that many a cheating is committed in the course of commercial or money transaction and, therefore quashing of criminal proceedings on the ground that the complaint discloses a commercial or money transaction was not justified. That was a case where the complainant s company was a manufacturer and exporter of readymade garments. On 15-11-1994 the Managing director of M/s. Avren Junge, the accused company approached the complainant for purchase of readymade garments of various kinds and induced the complainant to believe that he would pay the price of the said goods on receiving the invoice within 15 days there of. Believing the aforesaid representation as true, the complainant company despatched the goods worth 4,46,597. 25 DM (Deutsche marks ). Upon receiving 37 different invoices, the accused company got the goods released and sold them to others. However, it paid only a sum of 1,15,194 DM. It was specifically alleged that the respondent-accused company induced the complainant company to believe that it was genuine dealer but actually his/its intentions were not clear. It was further alleged that one of the representatives of the complainant company went to Germany in October, 1995 for realizing the amount on the strength of an understanding reached in between the complainant and the accused, believing that the accused would pay 2,00,000 DM in lieu of the remaining part of the price but the accused did not honour even that subsequent understanding between the parties; and that the complainant came to know about the modus operandi which the accused adopted in regard to certain other manufacturers too who were duped to the tune of rupees ten crores. In paras 10 and 11 under those circumstances the Apex Court held thus:"10. It may be that the facts narrated in the present compliant would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheating were committed in the course of commercial and also money transactions. It may be that the facts narrated in the present compliant would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheating were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian penal Code [illustration f] is worthy of notice now: " (f) A intentionally deceives Z into a belief that A means to repay any money the Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats". 11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment on receipt of invoices, and that the complainant realised late that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case of investigation by the authorities. " ( 10 ) IN Nagpur Steel and Alloys Pvt. Ltd. v. P. Radhakrishna Alias Rajan and others the apex Court held that merely because the alleged offence was committed during the course of commercial transaction, the High court was not justified in quashing the complaint. That was a case where on account of unequivocal assurances given by the accused to the complainant he supplied the material. Towards price thereof, the accused issued chaqus which were later on not honoured because of lack of funds. A compliant had been filed which was forwarded to the police for enquiry and a crime was registered against the accused. Upon a report submitted by the police, process was issued against the accused. At that stage, the accused filed an application under section 482 of the Code seeking to quash the same. That application was allowed by the high Court. Upon a report submitted by the police, process was issued against the accused. At that stage, the accused filed an application under section 482 of the Code seeking to quash the same. That application was allowed by the high Court. Under those circumstances, it was held that merely the offence was committed during the course of a commercial transaction, it would not be sufficient to hold that the complaint did not warrant a trial and that whether or not allegations in the complaint were true, was to be decided on the basis of evidence to be led at the trial in the complaint case. ( 11 ) IN Trisuns Chemcial Industry v. Rajesh agarwal and others the Apex Court held that existence of an arbitration clause in the contract for supply of goods between the appellant company and another is not sufficient for quashing the complaint filed alleging cheating by supplying inferirorgoods. That was again a case where in the month of october,1996 the Directors of the accused company approached the complainant and offered to supply 5450 metric tons of "toasted soybean extractions" for a price of nearly four and a half crores of rupees. The rate quoted by the accused was higher than the market price. The complainant had to pay the price in advance as demanded by the accused and accordingly he paid through cheques. The accused sent the commodity which was of the most inferior and sub-standard quality. The complainant got the sample of the same tested in a laboratory which issued a report to the effect that the sample was of "the most inferior and substandard quality". The complainant thus suffered a loss of Rs. 17 lakhs in the said transaction. According to him, he was induced to pay the price on the representation thatthe best quality commodity would be supplied and he paid the price on such representation. But by supplying the most inferior quality, the accused deceived the complainant and thereby cheated him. Under those circumstances, it was held by the Apex Court thus:"quashing of FIR or a complaint in exercise of the inherent powers of the high Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. Under those circumstances, it was held by the Apex Court thus:"quashing of FIR or a complaint in exercise of the inherent powers of the high Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to an arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement abut the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases. " ( 12 ) IN Lalmuni Devi v. State of Bihar the apex Court held thus:"it is true that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable it does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at his prima facie stage, that this is a frivolous complaint. " ( 13 ) IN M. Krishnan v. Vijay Singh and another the Apex Court held thus:"accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. The proceedings could not be quashed only because the respondents had filed civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. " ( 14 ) IN Kamal Devi Agargwal v. State of west Bengal and others in para 17 it was held thus:"in view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. " ( 15 ) IN S. W. Palanitkar v. State of Bihar at page 138 at the end of para 22, the Apex court observed thus:"merely because there is an arbitration clause in the agreement, that cannot prevent criminal prosecution against the accused if an act constituting a criminal offence is made out even prima facie. " ( 15 ) IN S. W. Palanitkar v. State of Bihar at page 138 at the end of para 22, the Apex court observed thus:"merely because there is an arbitration clause in the agreement, that cannot prevent criminal prosecution against the accused if an act constituting a criminal offence is made out even prima facie. "of course, on facts in that case, the Apex court was of the view that there had been nothing either in the complaint or in the sworn statements of the complainant and witnesses showing prima facie case of cheating and criminal breach of trust. However, we are concerned with the principle of law in this case. ( 16 ) THE Union of India v. Prakash P. Hinduja and another the Apex Court laid down the indicia for exercising the powers under Section 482 of the Code by the Court. In para 9 it was held thus:"grounds on which power under section 482 Cr. P. C. can be exercised to quash the criminal proceedings and basically they are: (1) where the allegations made in the FIR or complaint, even if they are taken at their face values and accepted in there entirety do not prima facieconstitute any offence of make out a case against the accused, (2) where the controverted allegations made in the FIR or complaint and the evidence collected in support of the some do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal procedure or the Act concerned to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection. "what is the material to be considered while exercising powers under Section 482 of the code by the High Court. ( 17 ) IN Delhi Municipality v. Ram Kishan the Apex Court held thus:"proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. ( 17 ) IN Delhi Municipality v. Ram Kishan the Apex Court held thus:"proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482. " ( 18 ) IN State of Haryana v. Bhajan Lal and others It was held in para 103 thus:"we also give a note of caution to the effect that the powers of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness of otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. " ( 19 ) IN Madhavrao Jiwajirao Scindia and another v. Sambhajiorao Chandrojirao angre" a three Judge Bench of the Apex court held in para 7 thus:"the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and whether in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. " ( 20 ) IN State of Maharashtra v. Ishwar piraji Kalpatri it was held thus:"at the state of quashing a first information report orcompliant, the High court is not justified in embarking upon an enquiry as to the probability, reliability or genuiness of the allegations made therein. " ( 21 ) IN Mushtaq Ahmad v. Mohd. Habibur rehman Faizip it was held that the High court was not justified in quashing the complaint by considering the rival versions and entering into debatable area of deciding which of the versions was true. ( 22 ) IN State of Bihar v. Rajendra Agrwalla" it was held thus:"so far as the order of cognizance by a magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie is made out" ( 23 ) IN Rupan Deol Bajaj v. Kanwar Pal singh Gill it was held thus:"it is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that fir is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is concluded and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non- compliance. It would be done after the trial is concluded. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non- compliance. It would be done after the trial is concluded. The court has to prima facieconsiderf rom the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge-sheet. But only in exceptional cases, i. e. , in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance, issue of process under criminal Procedure Code is availed of. A reading of a complaint or FIR itself does not disclose at all any cognizable offence-the court may embark upon the consideration thereof and exercise the power. When the remedy under Section 482 is availble, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under section 482 of the Code is available. When the court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When the investigation officer spends considerable time to collect the evidence and places the charge-sheet before the court, further action should not be short-circuited by resorting to exercise of inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before emarking upon exercising inherent power. " ( 24 ) IN Satvinder Kaur v. State (Govt, of nct of Delhi) it was held in para 14 thus:"the legal position is well settled that if an offence is disclosed the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. " ( 24 ) IN Satvinder Kaur v. State (Govt, of nct of Delhi) it was held in para 14 thus:"the legal position is well settled that if an offence is disclosed the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the court does not normally stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a long course of decisions of this court that for the purpose of exercising its power under Section 482 Cr. P. C. to quash an FIR or a complaint, the High court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations. " ( 25 ) IN State of Karnataka v. M. Devendrappa in para 9 the Apex Court held thus:"it would not be proper for the High court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does net disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trail to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. It is not, however, necessary that there should be meticulous analysis of the case before the trail to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexations, in that event there would be no justification for interference by the high Court. When an information is lodged at the police station and an offence is registered, then the ma/a fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decided the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis of quashing the proceeding. " ( 26 ) IN M. L Bhatt v. M. K. Pandita and others a three Judge Bench of the Apex court held thus:"at the stage of FIR, the High Court would be entitled to examine the allegation made in the FIR and would not be entitled to appreciate by way of sifting the materials collected in course of investigation including the statement recorded undersection 161 of the Code of Criminal Procedure. " ( 27 ) FROM the above, it is obvious that where from the matrix in a given case, both civil and criminal remedies are available, having regard to the principal that both are not mutually exclusive, it is left to the complainant/aggrieved party to pursue either of the remedies or both of them. Merely because a civil remedy is available, it will not exclude the criminal outfit. Nonetheless, it is to be seen by the Court that is it a case where a pure civil remedy is sought to be purposefully converted into a criminal out fit with an ulterior motive. Equally, it must be a case where allowing the criminal prosecution is nothing but a sheer abuse of process of the Court. Vide E. Arvinda Rao v. State of A P. In dr. Sri Hari Singh Gour s Penal Law of India, 10th Edition, Vol. Equally, it must be a case where allowing the criminal prosecution is nothing but a sheer abuse of process of the Court. Vide E. Arvinda Rao v. State of A P. In dr. Sri Hari Singh Gour s Penal Law of India, 10th Edition, Vol. 4 at page 3693 under subheading "civil liability" it has been written as follows:"there cannot be any absolute proposition of law that whenever a civil proceeding is pending between parties the criminal proceedings can never be proceded with. There are many transactions which result civil as well as criminal liabilities. Cheating, misappropriation and theft are undoubtedly the transactions of this type. Therefore, simply because civil proceedings between the parties are pending it cannot be said that the criminal proceedings cannot go on before the Magistrate. " ( 28 ) IN Mobarik Ali Ahmed v. State of bombay in para 8 the Apex Court held thus:"in a case of this kind a question may well arise at the outset whether the evidence discloses only a breach of civil liability or criminal offence. That of course would depend upon whetherthe complainant in parting with his money to the tune of about Rs. 5 lakhs acted on the representations of the appellant and in belief of the truth thereof and whether those representations, when made were in fact false to the knowledge of the appellant and whether the appellant had a dishonest intention from the outset. " ( 29 ) IN Madhav Rao Jiwaji Rao Scindia and another v. Sambhajirao Chandroji Rao I angre (referred to supra) a three Judge Bench of the Apex Court held in para 8 thus:"a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. " ( 30 ) THE test in such cases would appear to be as to whether it is a civil remedy which is sought to be converted into a criminal profile or not; or where both the remedies are available unless one comes to the conclusion that it is a case of wanton conversion of civil case into a criminal case purposefully, the civil remedy cannot exclude the criminal remedy. It is for the Court, with reference to the facts in each case, to decide whether it is a wanton conversion of civil remedy into a criminal remedy or not. ( 31 ) COMING to the facts of the case on hand, it has been specifically averred in para 4 of the complaint thus:"i submit that the accused after developing my property by constructing five flats in my property in five stories, one flat in each floot in violation of plan of Municipal Corporation of Hyderabad despite my protest, the accused with a dishonest intention, fraudulently sold away four flats to verious persons without delivering to me my 50% of the developed area as promised by them. The acucsed had developed five flats only in my property and therefore as per the development agreement I had to get 2 flats. But with a dishonest and fraudulent intenion to make a wrongful gain for themselves and to cause wrongful loss to me the accused had sold four out of the five flats including the flats that they deliver to me thereby making themselves liable for the offence of criminal breach of trust. "in para 6 again it is averred thus:"i respectfully submit that but for the intentional inducement by false promises made to me by the above mentioned two accused with fraudulent and dishonest intentions, I would not have entered into the development agreement on 04-06-2000 with the accused and I would not have delivered my property to the first accused for development. The accused with the intention of cheating only induced me by deceitful means into entering into an agreement and to deliver the property for development. The accused thus have wrongfully gained for themselves several lakhs worth of property causing wrongfully gained for themselves several lakhs worth of property causing wrongful loss of an equal amount. I was thus cheated by the above accused. The accused thus have wrongfully gained for themselves several lakhs worth of property causing wrongfully gained for themselves several lakhs worth of property causing wrongful loss of an equal amount. I was thus cheated by the above accused. " ( 32 ) NOTHWITHSTANDING the repeated use of the legal jargon attracting the offence of cheating on more than one occasion, the allegations made inter alia in the paras of the complaint excerpted hereinabove, sufficient foundation has been laid to see that at the inception the accused had the necessary intention and with that intention, they induced the complainant by making false promises and made him to deliver the land for development and the accused contrary to the plan sanctioned by the Municipal corporation of Hyderabad and in deviation whereof constructed the flats and sold away to the deprivation of the complainant and thereby made wrongful gain for themselves and caused wrongful loss to the complainant. These allegations prima facie attract the criminal profile sought in the case. The contention that there has been a subsequent development agreement and the construction has been made in accordance with the terms of two agreements and if the complainant were to get flats or the area in addition to what has been proposed to be delivered to him, he should pursue only the civil remedies available to him, for the above reasons, cannot be countenanced. It is too well settled by now that in a quash petition, the Court cannot engage itself in sifting the evidence. Such a process is exclusive only at the time of trial in the criminal case to the Court. Taking the face value of the allegations made inter alia in the complaint and considering the same along with the other documents, if any, annexed to the complaint, the Court has to examine whether prima facie the offence alleged is made out or not. If the complaint is totally devoid of the essential ingredients that constitute the offence, then only it merits quashing but not otherwise. If the complaint is totally devoid of the essential ingredients that constitute the offence, then only it merits quashing but not otherwise. In view of the sufficient allegations made in the complaint and as it is not permissible at this stage for this Court to indulge in sifting the evidence, the request of the petitioner to quash the complaint on the premise that it is nothing but a pure civil case and as the essential ingredients that constitute the offence alleged could prima faciebe seen, cannot be acceded to. It cannot be a case where it can squarely be said that it is a pure civil case which is now being sought to be converted into a criminal profile for personal purposes. ( 33 ) FOR the above reasons, the Criminal petition fails and is dismissed. The Court below shall dispose of the criminal case in accordance with the merits of the case not being influenced in any manner by any of the observations made by this Court inter alia in the order supra.