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2020 DIGILAW 325 (TS)

Mirapakayala Rajesh v. State Of Telangana

2020-03-02

G.SRI DEVI

body2020
JUDGMENT G.Sri Devi, J. - The present Criminal Petition is filed by the petitioner/accused, under Section 482 of Cr.P.C., seeking to quash the proceedings initiated against him in C.C.No.543 of 2016 on the file of the VI-Metropolitan Magistrate at Medchal, Cyberabad. A charge sheet came to be filed against the petitioner/accused for the offences punishable under Sections 420 and 406 of I.P.C. 2. The facts, in issue, are as under: 3. The 2nd respondent/complainant filed a private complaint against the petitioner/accused before the VI-Metropolitan Magistrate at Medchal, Cyberabad, for the offences punishable under Sections 420 and 406 of I.P.C., which was referred to the police under Section 156 (3) of Cr.P.C. for investigation and report. Basing on the said reference, the Police, Jeedimetla Police Station, registered a case in Crime No.157 of 2016 against the accused and took up investigation. After completion of investigation, the police filed charge sheet and the concerned Court has taken cognizance of the aforesaid offences and thereafter the same was numbered as C.C.No.543 of 2016. 4. The case of the prosecution, in brief, is that the petitioner/accused had approached the 2nd respondent/ complainant and offered to sell his house bearing H.No.3-43, situated at Quthbullapur Village and Mandal, Ranga Reddy District, for a sale consideration of Rs. 38,00,000/-. The 2nd respondent/complainant agreed to purchase the same and paid an advance of Rs. 1,00,000/- on 16.03.2013 and thereafter he made part payments of Rs. 5,00,000/- on 25.03.2013, Rs. 66,000/- on 08.05.2013, Rs. 1,34,000/- on 23.05.2013. In total, the 2nd respondent/complainant paid Rs. 8,00,000/- to the petitioner/accused. After receiving the said amount, the petitioner/accused had entered into an agreement of sale, dated 23.05.2013, agreeing to receive the balance sale consideration of Rs. 30,00,000/- at the time of registration. Fifteen days thereafter, the 2nd respondent/complainant paid Rs. 7,00,000/- to the petitioner/accused and agreed to pay the balance amount within 30 days. The 2nd respondent/ complainant had applied for sanction of home loan for the purpose of paying balance sale consideration and the same was approved by Shriram Housing Finance. 30,00,000/- at the time of registration. Fifteen days thereafter, the 2nd respondent/complainant paid Rs. 7,00,000/- to the petitioner/accused and agreed to pay the balance amount within 30 days. The 2nd respondent/ complainant had applied for sanction of home loan for the purpose of paying balance sale consideration and the same was approved by Shriram Housing Finance. Immediately, the 2nd respondent/ complainant contacted the petitioner/accused and informed that he is ready to pay the balance sale consideration and demanded the petitioner/accused to execute registered sale deed, but the petitioner/accused had dodged the matter on one pretext or the other and intentionally postponed the registration and also demanded to pay some more amount, but the 2nd respondent/complainant did not agree for the same and demanded the petitioner/accused either to register the house in his favour or pay back the amount, upon which the petitioner/accused agreed to pay back the amount of Rs. 15,00,000/- and got issued cheque bearing No.000024, dated 03.11.2016 drawn on Bank of India, Ameerpet Branch, which was dishonoured due to "account closed" and the same was informed to the petitioner/accused, for which he requested the 2nd respondent/ complainant to give some more time. Thereafter, in the month of February, 2015, the 2nd respondent/ complainant went to the house of the petitioner/accused and demanded him to perform his contractual obligation by accepting the balance sale consideration, but the petitioner/accused refused to register the same and agreed to pay back the amount of Rs. 15.00 lakhs with interest from 23.05.2013 and issued two post dated cheques bearing Nos. 278646 and 278647, dated 10.02.2015 and 25.02.2015, each for Rs. 8.00 lakhs, drawn on Oriental Bank of Commerce, Balanagar Branch. Believing the version of the petitioner/accused, the 2nd respondent/complainant had deposited the said cheques, in ICICI Bank, Quthbullapur Branch, but the same were dishonoured due to "Account closed". Thus, with an ill motive, the petitioner/ accused had contacted the 2nd respondent/complainant, induced him to enter into an agreement of sale, and thereafter cheated him by misusing his hard earned money and issued cheques towards discharge of his legally enforceable liability knowing well that the account was closed and thereby caused loss to the 2nd respondent/complainant. 5. Heard learned Counsel for the petitioner/accused, learned Additional Public Prosecutor for the 1st respondent/State, learned Counsel for the 2nd respondent/complainant and perused the record. 6. 5. Heard learned Counsel for the petitioner/accused, learned Additional Public Prosecutor for the 1st respondent/State, learned Counsel for the 2nd respondent/complainant and perused the record. 6. Learned Counsel for the petitioner/accused would submit that the first and foremost thing is that the issue involved in the present case is purely civil in nature and the 2nd respondent/ complainant has cleverly converted the civil issue into criminal case, because the so-called agreement of sale said to have been executed by the petitioner/accused has been tampered and altered the date without any attestation. The 2nd respondent/ complainant knowing fully well that he will not succeed if a civil suit is filed, he hatched a plan and filed the private complaint. He further submits that the 2nd respondent/ complainant filed C.C.No.205 of 2015 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and after submitting arguments in the said C.C., he filed the present complaint on 20.11.2015, which was referred to the police, with an apprehension that he would not succeed in the said C.C. By its judgment, dated 27.12.2015, the learned Magistrate dismissed the said C.C. on the ground that the agreement of sale, which is the basis for issuance of cheques, was found to be suspicious. He also submits that there cannot be any double jeopardy for the same offence and as such the proceedings in the present case are nothing but an abuse of process of law. In support of his contentions, he relied upon the judgment of the Honourable Supreme Court in G.Sagar Suri and another Vs. State of U.P and others, 2000 2 SCC 636 . 7. On the other hand, learned Counsel for the 2nd respondent/complainant would submit that the petitioner/ accused with a dishonest intention induced the 2nd respondent to enter into an agreement of sale and thereafter cheated him by misusing his hard earned money and issued cheques towards discharge of his legally enforceable liability knowing fully well that the account was already closed and as such the private complaint alleging offences under Sections 420 and 406 of I.P.C. is maintainable. In support of his contention, he relied on the judgment of this Court in OPTS Marketing (P) Limited and others v. State of A.P. and another, 2001 1 ALD(Cri) 312 (AP) (FB) and the judgment of Punjab and Haryana High Court at Chandigarh in Sazid Khan v. State of Haryana and another,2018 SCCOnlineP&H 1733 . 8. A perusal of the material on record would show that in the charge sheet it is alleged that the petitioner/accused issued post dated cheques in order to discharge his legally enforceable liability as per the agreement of sale dated 23.05.2013 and the same were dishonoured. The 2nd respondent/ complainant filed C.C.No.205 of 2015 against the petitioner/accused for the offence punishable under Section 138 of the Negotiable Instrument Act. By its judgment, dated 27.11.2015, the learned Magistrate acquitted the petitioner/accused on the ground that the agreement of sale was found to be suspicious. The present private complaint came to be filed on 20.11.2015, which clearly shows that after arguing the matter, apprehending that he would not succeed in the said C.C., the 2nd respondent/complainant filed the present complaint with the same set of allegations. Even, the incidents which are explained in both the complaints are one and the same and they constitute the same ingredients. Therefore, it is very clear that for the same occurrence, the 2nd respondent/complainant has made an attempt to prosecute the petitioner/accused twice for the same offence, which is not permissible under the law. 9. In G.Sagar Suri and another Vs. State of U.P and others case (1 supra), a Finance Company lodged a police complaint against the borrowers under Section 406/420 IPC and an FIR was registered. Even before that, a complaint under Section 138 of Negotiable Instruments Act, 1881 was initiated before the Magistrate and the same was pending against the accused persons namely borrowers. When the criminal proceedings through police initiated were challenged by the borrowers, the Honourable Supreme Court held that the criminal proceedings for the alleged offences under Sections 406/420 amounting to abuse of process of law and accordingly quashed the said proceedings. The relevant portion is extracted hereunder: "14. When the criminal proceedings through police initiated were challenged by the borrowers, the Honourable Supreme Court held that the criminal proceedings for the alleged offences under Sections 406/420 amounting to abuse of process of law and accordingly quashed the said proceedings. The relevant portion is extracted hereunder: "14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly those who are the parents of the Managing Director of Ganga Automobiles Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with the sole purpose of getting the loan due to the Finance Company by browbeating and tyrannising the appellants with criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed." 10. From the above, it is clear that two proceedings cannot be initiated, against the accused for the same offence. Therefore, the 2nd respondent/complainant has made an attempt to abuse the process of law, by initiating two criminal proceedings against the petitioner/accused. 11. For the reasons stated above, the proceedings against the petitioner/accused in C.C.No.543 of 2016 on the file of the VIMetropolitan Magistrate at Medchal, Cyberabad, for the offences punishable under Sections 406 and 420 of I.P.C. are liable to be quashed and are hereby quashed. 12. Accordingly, this Criminal Petition is allowed. As a sequel thereto, Miscellaneous Petitions, if any, pending in this Criminal Petition shall stand dismissed.