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2019 DIGILAW 362 (AP)

Paleti Hanumantha Rao v. State of A. P.

2019-12-09

D.V.S.S.SOMAYAJULU

body2019
ORDER : D.V.S.S. Somayajulu, J. 1. This Criminal Petition is filed by the petitioners under Section 482 of Criminal. Procedure Code seeking to quash all further proceedings in C.C. No. 676 of 2015 on the file of the 2nd Additional Judicial Magistrate of First Class, Eluru, West Godavari District. 2. This Court has heard Sri K.V.L. Narasimha Rao, learned counsel for the petitioners and the learned Public Prosecutor appearing for the State. Despite service of notice, the 2nd respondent did not appear. 3. Learned counsel for the petitioners basing upon a series of citations, which are filed along with a memo, argued that the dispute in question is purely a civil dispute. He has raised a twofold contention. (a) According to him the entire case is false case and that the petitioners did not purchase any fish or other product from the complainants and that it is not proved that they have purchased the material. (b) Alternatively, he also submits that the transactions between the parties are a pure business transaction and that the failure to pay the money under the said transaction is at best a civil wrong but not a criminal wrong. He, therefore, argues that virtually no case is made out, particularly, under Sections 420, 417 and 120-B IPC. He points out that all the witnesses, who were examined as fish farmers, could not prove that the petitioners have purchased fish and failed to pay the amount; He also argues, in the alternative, that if the transactions are taken as correct for an offence under Section 420 IPC etc., to be made out there should be an "intention to cheat" right from the very inception. He points out that a reading of the charge sheet or the statements of the witnesses does not lead to a conclusion that there was an intention to cheat right from the inception. He contends that the entire case is politically motivated and based on certain personal animosities. Lastly, he submits that this is a fit case to quash all further proceedings. 4. In reply to this learned Public Prosecutor points out that the peculiarity of this case as noted in the charge sheet is that the accused made the farmers to believe that they were genuine traders. Lastly, he submits that this is a fit case to quash all further proceedings. 4. In reply to this learned Public Prosecutor points out that the peculiarity of this case as noted in the charge sheet is that the accused made the farmers to believe that they were genuine traders. The petitioners initially paid money for the purchasers and later after paying the small amounts and convincing the fish farmers they took the stocks and failed to pay the money. Therefore, it is his contention that the intention of cheating is visible from the careful action of the accused. He points out that this is not a case to quash the entire proceedings. According to the learned Public Prosecutor a reading of the facts and the documents would show a very detailed investigation was carried out and that 120 witnesses were examined before the charge sheet is filed. He points out that there is adequate material available for continuation of the prosecution. The diametric stands taken by the accused, in the submission of the learned Public Prosecutor, would go to show that the transaction did occur since the petitioner alleges that a failure to pay is a civil dispute only and also that he did not purchase the material at all. 5. This Court after hearing the submissions of the learned counsel for the petitioners notices that the charge sheet proceeds on the basis that the accused (in the period upto 2009) made the farmers, packers and agents believe that they are genuine fish traders. Thereafter they lifted goods worth of Rs. 2.09 crores in the period of July-2010 to September-2010. This amount has not been paid. A reading of Section 161 Cr.P.C. statements of the witnesses examined shows that initially the accused gave money to L.W.1 for two transactions, for which the amount due was paid. Thereafter, on 05.07.2010 and 06.07.2010 L.W.1 gave goods for Rs. 10.39 lakhs for which payment was not received. The statement of L.W.3 also shows that initially he received a sum of Rs. 5,00,000/- and Rs. 18,00,000/- under the initial transaction and thereafter he gave fish worth Rs. 7.22 lakhs in September-2010, for which payment is not received. To a similar effect is the statement of LW 9, who stated that in the past Accused No. 2 was giving amount within 15 to 20 days, thereafter he failed to pay. 5,00,000/- and Rs. 18,00,000/- under the initial transaction and thereafter he gave fish worth Rs. 7.22 lakhs in September-2010, for which payment is not received. To a similar effect is the statement of LW 9, who stated that in the past Accused No. 2 was giving amount within 15 to 20 days, thereafter he failed to pay. L.W. 11 also states that initially he also received the payment and later he supplied fish worth of Rs. 6.12 lakhs. Therefore, a reading of the facts in this case would show that some of these witnesses were consistent in their statements that the accused made them believe that they were honest and genuine traders and thereafter deceived them. This is the manner in which charge sheet has also been filed. 6. Even the case law that is cited by the learned counsel for the petitioners i.e., Satishchandra Ratanlal Shar v. State of Gujarat and another Crl. Appeal No. 9 of 2019 of Hon'ble SCI, Jigar Shah v. State of West Bengal, 2017 Cri.L.J. 693, Vesa Holdings Pvt. Ltd., and another v. State of Kerala and others, 2015 (2) ALT (Crl.) 212 (SC) : (2015) 8 SCC 293 , UmaShankar Gopalika v. State of Bihar and another, (2005) 10 SCC 336 , Alpic Finance Ltd., v. Sadasivan, 2001 (1) ALT (Crl.) 234 (SC) : (2001) 3 SCC 513 , Hridaya Ranjan PD Varma v. State of Bihar, (2004) 4 SCC 168, Abdul Hakeem P.V. v. State of Kerala Cri.M.C. No. 1813 of 2014 of Kerala High Court and Anil Kohli v. State (National Capital Territory of Delhi), 2001 Law Suit (Del) 1489 : 2002 (95) DLT, shows that in a given set of facts there may be a civil wrong and also criminal offence. Merely because there is a civil wrong/and a civil remedy it is not enough to quash the criminal proceedings. The Hon'ble Supreme Court of India in Vesa Holdings Pvt. Ltd., case, 2015 (2) ALT (Crl.) 212 (SC) : (2015) 8 SCC 293 (supra), which is relied upon by the learned counsel for the petitioners, held that the real test is whether the allegations in complaint disclose the criminal offence of cheating or not. The intention of the accused persons to cheat is necessary for the offence to be made out. The intention of the accused persons to cheat is necessary for the offence to be made out. To a similar effect or the other judgments cited by the learned counsel for the petitioners, and the intention which could be manifested during the course of the business transaction is the crucial factor. A person could develop an intention not to pay and to cheat in the course of his dealings. Merely because he paid some amounts initially cannot come to an irresistible conclusion that there is no intention to cheat. It depends on the facts of each case. The argument that intention must be present from the inception does not mean that an offence of cheating cannot be laid if it is proven that the intention developed during the course of the business. This "intention" is a matter of evidence. The mere fact that some payments were made also cannot lead to irresistible conclusion that this is purely a civil wrong. Intention or the required mens rea could be developed in the midst of a number of transactions. If what is stated in this case is true, the accused made the farmers believe they are genuine people and then lifted stocks of Rs. 2.09 crores. Alternatively, it could also be argued that earlier transactions were completed by the payment for the goods upto July, 2010. Thereafter the transaction could be called as another set of transaction for which the intention is manifest. 7. As mentioned earlier some material is available to show that as the initial transactions appeared to be genuine, the farmers parted with stocks worth of more than Rs. 2.09 crores. In that view of the matter, this Court is of the opinion that this is not a case in which extraordinary power of this Court to quash the proceedings should be exercised. The material available, does show that there are issues which need to be tried and established during the course of the trial. This Court holds that the arguments of the learned counsel for the petitioners though appealing do not really apply to the facts and circumstances of this case, where from a reading of the charge sheet itself it is clear that in the initial period the accused established "great belief in the farmers, packers and agents" that they are the genuine fish traders. With this belief the farmers gave goods worth Rs. With this belief the farmers gave goods worth Rs. 2.09 crores to A1 to A3 between July-2010 and September-2010. Hence, this Court is of the opinion that there are no merits in the application and accordingly the same is liable to be dismissed. 8. Accordingly, the Criminal Petition is dismissed. The opinions that are expressed in this order are only for the purpose of disposal of this criminal petition only. The lower Court has the absolute liberty to decide the case on its own merits without being influenced by what is stated above. 9. Miscellaneous Petitions, if any, pending in this Criminal Petition, shall also stand dismissed.