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Andhra High Court · body

2012 DIGILAW 712 (AP)

Mazhar Pasha v. State of A. P.

2012-08-13

G.KRISHNA MOHAN REDDY

body2012
Judgment : This criminal petition is filed under Section 482 Cr.P.C. to quash proceedings in Cr.No.306 of 2009, dated 23-09-2009 on the file of the Abid Road Police Station, Hyderabad, registered for offence punishable under Section 420 IPC. 2. The petitioner herein is the accused and the 2nd respondent herein is the defacto complainant in the Calender Case. For convenience, I refer them accordingly henceforth. 3. The defacto-complainant filed private complaint in the court of 2nd additional Chief Metropolitan Magistrate, Nampally, Hyderabad, against the accused with a request to refer the matter under Section 156(3) Cr.P.C. for necessary investigation and report to the Police Station, Abid Road. 4. The facts of the case, as pleaded or alleged by the prosecution, are as follows:- The defacto complainant is a businessman dealing in infrastructure business of sale and purchase of properties and various other related works. The accused is running a business under the name and style of M/s.ATW Forex & Travel (I) Private Limited situated at Liberty Plaza, Liberty, dealing in travel and ticketing business. The defacto complainant frequently used to purchase tickets from the accused, thereby the accused and the defacto complainant became acquainted to each other. Under those circumstances, the accused approached the defacto-complainant to lend an amount of Rs.5,50,000/-and the defacto complainant gave hand loan of Rs.5,50,000/-to the accused subject to the promise made by the accused that he would repay the amount after one month. But after one month, when the defacto-complainant approached the accused for the repayment of the amount, the accused avoided the defacto-complainant. On the other hand, the accused also denied that the defacto-complainant lent the amount to him. Thereby, the defacto-complainant realized that the accused induced him to part with the amount with dishonest intention and when the amount was given, the accused swallowed the amount. However, on repeated persuasions, the accused executed a promissory note and a receipt. He also issued cheque bearing No.204867, dated 15-02-2007 for a sum of Rs.5,50,000/-drawn on IDBI Limited, Basheerbagh Branch, Hyderabad, towards the legally enforceable debt. However, later the cheque was presented in the Bank of the de facto complainant wherefrom it was sent to the bank of the accused where it was dishonoured making endorsement “insufficient funds”. Later, the defacto complainant approached the accused to comply with the requirement, but the accused postponed the issue from time to time. However, later the cheque was presented in the Bank of the de facto complainant wherefrom it was sent to the bank of the accused where it was dishonoured making endorsement “insufficient funds”. Later, the defacto complainant approached the accused to comply with the requirement, but the accused postponed the issue from time to time. However, in the month of April, 2009, the accused assured the defacto-complainant that he would repay the amount within 90 days. It is further the claim of the defacto complainant that on 30-07-2009, he received a telephone call from Narayanaguda Police Station alleging that he and others beat the accused. On the same day, he went to the police station and had shown relevant documents. According to him, on 12-08-2009, the accused lodged a report against him with Narayanaguda police alleging that he committed offences punishable under Sections 448, 363, 384, 323 and 506 read with 34 IPC following which the case was registered in Cr.No.258 of 2009, to avoid payment of the amount due to him. Further, he claims that as no action was taken by the police, pursuant to his representations dated 31-07-2009 and 21-08-2009 to the Commissioner of Police, Hyderabad, he filed a writ petition before this Court under Article 226 of the Constitution of India for taking necessary action, which was disposed of with a direction to the police to take necessary action in Cr.No.258 of 2009. 5. Learned counsel for the accused would contend that the defacto-complainant forcibly attacked the accused, after picking up unnecessary quarrel and in that process, the defacto-complainant beat him black and blue mercilessly by reason of which, he suffered injuries and was admitted into a hospital. According to him while the defacto-complainant was beating the accused, one of his customer and staff came to his rescue which in fact was recorded in video cameras installed for security purpose, therefore, the accused lodged a report against the defacto-complainant in the Police Station at Narayanaguda on 12-08-2009 on the basis of which the case was registered as Cr.No.258 of 2009 for offences punishable under Sections 323, 363, 384, 448 and 506 read with 34 IPC. He claims that the defacto-complainant adopted wrong method of approaching the police and giving report for the offence punishable under Section 420 IPC and also filing writ petition before this Court. He claims that the defacto-complainant adopted wrong method of approaching the police and giving report for the offence punishable under Section 420 IPC and also filing writ petition before this Court. According to him, as a counter blast only, the criminal case was got registered by the complainant. Therefore, he prays to quash the proceedings in FIR No.306 of 2009. 6. Learned Additional Public Prosecutor has opposed the application on the ground that both are different incidents and there is clear material to prosecute the accused for the offence punishable under Section 420 IPC. 7. Thereby, it has to be seen as to whether the charge under Section 420 IPC is made or not? 8. Point No.1: At the outset it is necessary to examine the legitimacy of the defacto complainant to seek to refer the matter to the police. Here it is necessary to consider the ambit of Sections 200 to 203 Cr.P.C. Chapter XV of Cr.P.C. deals with Complaints to Magistrates. Section 200 Cr.P.C. reads Examination of complainant :-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or-purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. Section 201 Cr.P.C. reads “Procedure by Magistrate not competent to take cognizance of the case. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,- (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,- (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. Section 202 Cr.P.C. reads Postponement of issue of process:- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant. Section 203 Cr.P.C. reads Dismissal of complaint:-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing, 9. Discretion is given under Section 202 Cr.P.C. to the Judicial Magistrate of First Class either to conduct enquiry on a private complaint filed or send the private complaint to the police for necessary investigation and report when he finds or satisfies that it is necessary to do so. When such discretion is given under law the learned Magistrate has to exercise it independently uninfluenced by any plea. Hence, it is most improper to request the learned Magistrate to forward the complaint to the Police under Section 156 (3) Cr.P.C. If the learned Magistrate just forwarded the complaint on the request made, it amounts to that he had not acted independently and not exercised the discretion properly. Such request is against the sprit of the provision, which should not be allowed. Thereby, no cognisance of such complaints should be taken, on the other hand it should be returned when it is filed. All the judicial Magistrates of First Class should clearly adhere to this proposition. However at this belated stage, I am not inclined to interdict and set aside the proceedings. 10. Point No.2: Then it is to be considered about the question of cheating. Section 415 of IPC defines what is meant by cheating. It reads: “Cheating:-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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, is said to “cheat”. Section 420 IPC which is penal section reads as follows:- “Cheating and dishonestly inducing delivery of property:-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 11. The facts of the case clearly make out that the accused approached the defacto complainant and got a loan of Rs.5,50,000/-by virtue of his acquaintance with the defacto-complainant promising to repay the amount within one month, but failed to keep up his word by a reason of which, the defacto-complainant approached the police station and gave the report. In other words, it clearly provides prima facie that the accused intentionally induced the defacto complainant to part with the amount and when the defacto complainant lent the amount believing the accused, the accused retained the amount with malafide intention once for all. Therefore, the ingredients of Section 415 IPC are clearly set out. The argument that the ingredients of Section 420 IPC are not made out prima facie is unsustainable. At this stage, this Court cannot go into the merits of the case and come to a conclusion that the allegations made against the accused are false. Hence, the criminal petition is devoid of merits and is liable to be dismissed. 12. Accordingly, the criminal petition is dismissed. Consequently, the criminal miscellaneous petitions, if any pending, shall stand dismissed.