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2023 DIGILAW 1260 (AP)

S. Reddeiah v. State of Andhra Pradesh

2023-09-05

DUPPALA VENKATA RAMANA

body2023
JUDGMENT DUPPALA VENKATA RAMANA, J. - In this Criminal Petition filed under Sec. 482 Cr.P.C., the petitioner/A.1 seeks to quash the proceedings against him in C.C.No.469 of 2012 on the file of the Court of III Additional Judicial First Class Magistrate, Tirupati for the offence under Ss. 420 and 423 read with 34 IPC. 2. The private complaint filed by the 2nd respondent herein was referred to the Police by the learned III Additional Judicial First Class Magistrate, Tirupati under Sec. 156(3) Cr.P.C for investigation and the same was registered by Tiruchanur Police, Tirupati Urban as a case in Crime No.203 of 2011 for the offence under Ss. 420 and 423 read with 34 IPC. The said crime was investigated and eventually, having found prima facie evidence against the petitioner/A.1 and A.2 to A.5 regarding their complicity in commission of the said offences, the investigating officer has filed a charge sheet in the trial Court and the same was numbered as C.C.No.469 of 2012 which is now pending trial before the trial Court. 3. Heard Sri V.Nitesh, learned counsel for the petitioner/A.1; Sri Y.Jagadeeswara Rao, learned Assistant Public Prosecutor for the 1st respondent/State and Sri T.Janardhana Rao, learned counsel for the 2nd respondent/de facto complainant. 4. Briefly, the case of the prosecution is that, the plot in an extent of 224 square yards as two items situated in Sy.No.33/2A of Avilala Village accounts, originally belongs to A.5- B.Ramanjineyulu and he sold the said property to the petitioner/A.1 under a registered sale deed dtd. 7/10/2005. In turn, the petitioner/A.1 executed an Agreement-cum-General Power of Attorney dtd. 21/4/2007 in favour of A.2 authorizing him to deal with the said property and subsequently, A.2 sold the same to the 2nd respondent/de facto complainant on 10/4/2008 under a sale deed vide Doc.No.1412 of 2008 by receiving the sale consideration of Rs.12, 30, 000.00(the Government Value of Rs.3, 70, 000.00). Thereafter, the 2nd respondent/de facto complainant sold the said property to N.Munichandra(LW2) for a valid consideration under a registered sale deed vide Doc.No.1442 of 2010, dtd. 30/4/2010. When the purchaser N.Munichandra(LW2) entered into the subject property, he came to know that the same was under civil litigation, which is the subject matter of O.S.657 of 2005 filed by L.W.5-N.Satya Prasunamba seeking the relief declaration and permanent injunction against A.5 and others, on the file of the Court of V Additional Junior Civil Judge, Tirupati. 30/4/2010. When the purchaser N.Munichandra(LW2) entered into the subject property, he came to know that the same was under civil litigation, which is the subject matter of O.S.657 of 2005 filed by L.W.5-N.Satya Prasunamba seeking the relief declaration and permanent injunction against A.5 and others, on the file of the Court of V Additional Junior Civil Judge, Tirupati. A.5, who is the vendor of A.1, was the 4th defendant in the said suit. On that, L.W.2(N.Munichandra) issued a notice to the 2nd respondent/de facto complainant about the fraud committed by them and in turn, the 2nd respondent/de facto complainant approached A.1 to A.4 requesting them to return the sale consideration paid by him, but they did not respond. As such, the 2nd respondent/de facto complainant filed a complaint before the Court of III Additional Judicial First Class Magistrate, Tirupati, the same was forwarded to Tiruchanur Police Station, Tirupati Urban for investigation. The said crime was investigated, and eventually having found prima facie evidence against the petitioner/A.1 and A.2 to A.5 regarding their complicity in commission of the said offence and causing loss of Rs.12, 30, 000.00 to the 2nd respondent/de facto complainant, the charge sheet was filed. 5. Learned Counsel for the petitioner/A.1 would submit that A.5-B.Ramanjineyulu sold the subject property to the petitioner/A.1 by suppressing the fact of pendency of the civil litigation, though he was a party to the said suit proceedings as 4th defendant in a suit in O.S.No.657 of 2005 filed by N.Satya Prasunamba(L.W.5) for declaration of title and permanent injunction and the said suit was decreed in her favour and subsequent to his purchase, many transactions were made in between A.2, 2nd respondent/de facto complainant and L.W.2(N.Mmunichandra). 6. Learned Counsel for the petitioner/A.1 would further submit that if petitioner/A.1 knows about the pendency of the litigation, he would not have purchased the property by paying the sale consideration in the year 2005. Subsequently, the petitioner/A.1 sold the said property to A.2. In turn, A.2 sold the very same property to the 2nd respondent/de facto complainant in the year 2008 and the 2nd respondent/de facto complainant sold the same to L.W.2(N.Munichandra) on 30/4/2010 and when he entered into the said property, he came to know about the civil litigation. Subsequently, the petitioner/A.1 sold the said property to A.2. In turn, A.2 sold the very same property to the 2nd respondent/de facto complainant in the year 2008 and the 2nd respondent/de facto complainant sold the same to L.W.2(N.Munichandra) on 30/4/2010 and when he entered into the said property, he came to know about the civil litigation. Immediately, the 2nd respondent/de facto complainant filed a suit in O.S.53 of 2013 for recovery of sale consideration of Rs.12, 30, 000.00 with interest against petitioner/A.1 and A.2 to A.4 and the said suit was decreed against A.2 directing him to pay the amount of Rs.3, 70, 000.00 as per the market value, and the said suit was dismissed against the petitioner/A.1, A.3 and A.4. He would further submit that if the petitioner/A.1 had knowledge about the pendency of the civil litigation, he would not have purchased the property and he was falsely implicated in this case and he has not committed any offence, much less the alleged offence. 7. Learned Counsel for the petitioner/A.1 further submits that, as per the allegations made in the complaint, no case is made out against the petitioner and the petitioner is nothing to do with the alleged offence. Further, he would submit that when the civil suit is decreed in favour of the 2nd respondent/de facto complainant for recovery of amount of Rs.3, 70, 000.00 against A.2, who received the sale consideration, and the claim against petitioner/A.1, A.3 and A.4 was dismissed, the present complaint filed the 2nd respondent/de facto complainant is false and vexatious. Further, he would submit that the private complaint filed by the 2nd respondent/de facto complainant on the file of III Additional Judicial Magistrate of First Class, Tirupati was forwarded to the Police for investigation without fulfilling the requirements under Priyanka Srivastava Vs. State of Utter Pradesh, (2015) 3 ALT (Cri.) 26 (SC). Since the 2nd respondent/de facto complainant did not file his sworn affidavit, the learned Magistrate ought not to have forwarded the complaint to the Police without recording the sworn statement of the 2nd respondent/de facto complainant. State of Utter Pradesh, (2015) 3 ALT (Cri.) 26 (SC). Since the 2nd respondent/de facto complainant did not file his sworn affidavit, the learned Magistrate ought not to have forwarded the complaint to the Police without recording the sworn statement of the 2nd respondent/de facto complainant. He further argued that it is a cardinal principle that when the complaint allegations essentially disclose a civil dispute and recovery of amount, which were decreed in favour of the 2nd respondent/de facto complainant against A.2, and not a criminal offence, continuation of criminal proceedings against the petitioner/A.1 would amount to an abuse of process of the Court. He, thus, prayed to quash the proceedings arising out of C.C.No.469 of 2012 on the file of the Court of III Additional Judicial First Class Magistrate, Tirupati against the petitioner/A.1. 8. Learned Assistant Public Prosecutor would submit that the complaint allegations amply disclose the offence committed by the petitioner/A.1, inasmuch as he executed an agreementcum-GPA in respect of the subject property in favour of A.2 and in turn, A.2 sold the subject property in favour of the 2nd respondent/de facto complainant without having any right or title or interest therein and with the aid of such sham and collusive documents, in turn A.2 sold the same property to the 2nd respondent/de facto complainant from whom L.W.2- N.Munichandra purchased the property under a registered sale deed dtd. 30/4/2010. Later, he came to know about the pendency of the civil litigation. Therefore, the acts of the petitioner/A.1 disclose criminal offence. Further, he argued that the 2nd respondent/de facto complainant filed a private complaint before the learned Magistrate and same was forwarded to the Police and investigated and filed charge sheet. He would further submit that there are specific allegations made against the petitioner/A.1 and A.2 to A.4 who suppressed the fact of pendency of the civil litigation and thereby, the 2nd respondent/de facto complainant sustained huge loss of an amount of Rs.12, 30, 000.00 paid to A.2 towards sale consideration. As such, the matter requires trial to ascertain the truth or otherwise of the said allegations. He would further submit that there is no merit in the contention of the petitioner/A.1 that there is no allegation against him with regard to the commission of the offence. Therefore, he would pray for dismissal of the criminal petition. 9. As such, the matter requires trial to ascertain the truth or otherwise of the said allegations. He would further submit that there is no merit in the contention of the petitioner/A.1 that there is no allegation against him with regard to the commission of the offence. Therefore, he would pray for dismissal of the criminal petition. 9. Learned counsel for the 2nd respondent/de facto complainant conceded with the arguments advanced by the learned Assistant Public Prosecutor. 10. Having perused the relevant facts and contentions made by the learned counsels both for the petitioner and the respondents, in my considered opinion, the foremost issue, which requires determination in the instant case is, Whether the allegations made against the petitioner/A.1 would attract the accusation made against him and whether there are any merits in the criminal petition to allow? POINT: 11. In a decision reported in State of Haryana and Others Vs. Ch.Bhajanlal and Others, AIR 1992 SC 604 . the Hon'ble Apex Court held that in exercise of extraordinary power conferred under Article 226 of Constitution of India or the inherent powers under Sec. 482 Cr.P.C, the following categories of cases are given by way of illustration, wherein, such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise clearly defined and sufficiently channelized and inflexible guide, myriad kinds of cases wherein, such power should be exercised. The relevant guidelines read as under: "(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 155(2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 12. As can be seen from the decision supra, the 1st guideline is to the effect that even if the complaint allegations are accepted to be true on their face value, if they do not constitute any offence, then the criminal proceedings against the petitioner/A.1 can be quashed. 13. In Chandran Ratnaswami Vs. K.C.Palanisamy and others, (2013) 6 SCC 740 . the Hon'ble Apex Court held at Para 60 as follows: "60. 13. In Chandran Ratnaswami Vs. K.C.Palanisamy and others, (2013) 6 SCC 740 . the Hon'ble Apex Court held at Para 60 as follows: "60. We are of the definite opinion that the complainant has manipulated and misused the process of court so as to deprive the appellants from their basic right to move freely anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of the alleged breach of a joint venture agreement specially when such disputes have been finally resolved by the court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No. 7 of 2007 to continue would be an abuse of the process of the court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law." 14. In another decision reported in Paramjeet Batra Vs. State of Uttarakhand and others, (2013) 11 SCC 673 . the Hon'ble Apex Court at Para No.12 held as follows: "12. While exercising its jurisdiction under Sec. 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court." 15. The above said judgments squarely applicable to the present facts of this case of nature. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court." 15. The above said judgments squarely applicable to the present facts of this case of nature. Admittedly, A.5 having knowledge about the pendency of the suit in O.S.657 of 2005 filed by L.W.5(N.Satya Prasunamba) seeking declaration of title and permanent injunction against him and others in connection with the subject property and the said suit was decreed, sold the property to the petitioner/A.1 in the year 2005. In turn, the petitioner/A.1 executed an agreement-cum-GPA in favour of A.2 and subsequently, A.2 sold the property to the 2nd respondent/de facto complainant, who sold the property to L.W2-N.Munichandra. Further, it reveals that when L.W.2- Munichandra tried to enter into the subject property, he came to know that none of the vendors have title over the subject property and notices were exchanged in between L.W.2(N.Munichandra) and the 2nd respondent/de facto complainant. When L.W.2-Munichandra demanded the 2nd respondent/de facto complainant to repay the sale consideration, he filed a suit for recovery of the amount in O.S.No.53 of 2013 against the petitioner/A.1 and A.2 to A.4 and the said suit was decreed on 11/10/2022 against A.2 directing him to pay the sale consideration of Rs.3, 70, 000.00 as per the market value, the claim against the petitioner/A.1, A.3 and A.4 was dismissed and the copy of the judgment is filed by the petitioner's counsel as a material paper. This itself, is an indicator of the position that it is essentially a dispute of civil nature. It is evident that there is no element of criminality which can stand attracted in a matter which essentially involves a civil dispute between L.W.2(Munichandra) and the 2nd respondent/ de facto complaint. In so far as the petitioner/A.1 is concerned, none of the ingredients for the offence under Ss. 420 and 423 IPC have been found to exist after the investigation was complete. Neither the F.I.R nor the charge sheet contains any reference to the essential requirements under Sec. 420 or 423 IPC. In this backdrop, the continuation of prosecution against the petitioner/A.1 would amount to an abuse of the process of law where the civil dispute is sought to be given the colour of criminal wrong. 16. Neither the F.I.R nor the charge sheet contains any reference to the essential requirements under Sec. 420 or 423 IPC. In this backdrop, the continuation of prosecution against the petitioner/A.1 would amount to an abuse of the process of law where the civil dispute is sought to be given the colour of criminal wrong. 16. Therefore, the issue is, assuming the allegations in the complaint are un-controverted, whether the offences under Ss. 420 and 423 IPC are made out against the petitioner/A.1. 17. At this juncture, it is relevant to refer to Sec. 420 IPC which reads as under: 420. 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. At this juncture, it is relevant to refer to Sec. 423 IPC which reads as under: 423. Dishonest or fraudulent execution of deed of transfer containing false statement of consideration.-- Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or instrument which purports to transfer or subject to any charge any property, or any interest therein, and which contains any false statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 18. In a decision reported in Mohammed Ibrahim and others Vs. State of Bihar and another, (2009) 8 SCC 751 . the Hon'ble Apex Court at Para No.8 held as follows: "8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes............." 19. In the instant case, a perusal of the material on record would show that the petitioner/A.1 had purchased the subject property from A.5 on 7/10/2005. The petitioner/A.1 executed a registered sale agreement-cum-GPA dtd. 21/4/2007 in favour of A.2 and in turn A.2 executed a sale deed in favour of the 2nd respondent/de facto complainant on 10/4/2008. Subsequently, on 30/4/2008 the 2nd respondent/de facto complainant sold the said property to L.W.2(N.Munichandra). When L.W.2 issued a legal notice to the 2nd respondent/de facto complainant about the fraud committed by him, without having a title over the subject property, to overcome the same, the 2nd respondent/de facto complainant filed a criminal complaint on 16/11/2011 against the petitioner/A.1 and A.2 to A.4 with a view to pressurize the parties to settle the dispute of payment of sale consideration. When the parties have not come forward to settle the dispute, he filed a suit in O.S.53 of 2013 against the petitioner/A.1 and A.2 to A.4 who are the defendants in the suit, for recovery of amount which was said to have been paid to his vendor, and the said suit was decreed against A.2, who received the sale consideration from the 2nd respondent/de facto complainant and the suit against the petitioner/A.1, A.3 and A.4 was dismissed. 20. Therefore, when a sale deed was executed by A.2 conveying the property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But, in this case, L.W.2(N.Munichandra) is the purchaser of the property from the 2nd respondent/de facto complainant. If at all he has any grievance, he should have filed a complaint against his vendor. But, L.W.2 has not initiated either civil or criminal proceedings, but his vendor i.e., the 2nd respondent/de facto complainant initiated the present criminal proceedings. But, in this case, L.W.2(N.Munichandra) is the purchaser of the property from the 2nd respondent/de facto complainant. If at all he has any grievance, he should have filed a complaint against his vendor. But, L.W.2 has not initiated either civil or criminal proceedings, but his vendor i.e., the 2nd respondent/de facto complainant initiated the present criminal proceedings. Therefore, there was no fraudulent intention of the petitioner/A.1 to deceive the 2nd respondent/de facto complainant by selling the property. There was another transaction between A.2 and the 2nd respondent with regard to the same subject property. Therefore, in this case of nature, clearly brings out a situation which is an abuse of process of the Court or for the purpose of securing ends of justice, the interference of this Court is absolutely necessary. One of such cases of this nature would be desirably fall for quashing criminal proceedings initiated illegally and vexatiously or as being without jurisdiction. 21. The present case would undoubtedly fall for the exercise of the power of this Court under Sec. 482 Cr.P.C. The criminal proceedings may also be quashed where there is a clear abuse of process of the Court, when the criminal proceedings is found to have been initiated with mala fides/ malice to wreak vengeance or to cause harm or where the allegations are absurd and inherently improbable. The 2nd respondent/de facto complainant himself executed a sale deed in favour of L.W.2 by receiving a sale consideration and filed a complaint alleging cheating by his sellers. The criminal proceedings initiated by the 2nd respondent/de facto complainant are nothing but the abuse of process of the Court for settling the repayment of sale consideration paid to A.2. When they did not come forward, he filed a civil suit for recovery of amount and the said suit was decreed against A.2. Therefore, continuation of criminal proceedings against the petitioner/A.1 amounts to an abuse of process of law. 22. In the instant case, the 2nd respondent/de facto complainant filed a private complaint before the Court of III Additional Judicial Magistrate of First Class, Tirupati and in turn, the learned Magistrate forwarded the said complaint to Tiruchanur Police Station, Tirupati Urban without complying the mandatory requirements as observed by the Hon'ble Apex Court in Priyanka Srivastava's case (supra). Admittedly, the learned Magistrate has not followed the mandatory requirement. Admittedly, the learned Magistrate has not followed the mandatory requirement. Since the 2nd respondent/de facto complainant did not file the sworn affidavit, the learned Magistrate ought not to have forwarded the complaint to the Police. 23. In Priyanka Srivastava's case (supra), the Hon'ble Apex Court at Para No.27 held as follows: "27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order............." 24. The 2nd respondent/de facto complainant is required to file sworn affidavit in support of the complaint allegations as observed by the Hon'ble Apex Court. But, in the instant case, the 2nd respondent/de facto complainant did not file any sworn affidavit and the learned Magistrate has not recorded the sworn statement of the 2nd respondent/de facto complainant. When the above mandatory requirement is not fulfilled, the learned Magistrate ought not to have forwarded the complaint to the Police. Therefore, on this ground also, the petitioner/A.1 is entitled to quash of proceedings against him. 25. In a decision reported in Ahmad Ali Quraishi and another Vs. State of Uttar Pradesh and another, (2020) 13 SCC 435 . the Hon'ble Apex Court at Para No.13 held as follows: "13. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539], had the occasion to consider the ambit of Sec. 482 CrPC. By analysing the scope of Sec. 482 CrPC, this Court laid down that authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It further held that court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice............." 26. It further held that court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice............." 26. On an overall consideration of the entire material placed on record and the decisions referred to above, and the law declared by the Hon'ble Apex Court in the judgments referred to supra, it is suffice to conclude that the contentions raised by the learned counsel for the petitioner/A.1 and the material produced before this Court directly indicate the malafides in prosecution of criminal proceedings against the petitioner/A.1 so also by abuse of process of the Court, as an arm-twisting method to bring the petitioner/A.1 to the terms of the 2nd respondent/de facto complainant and to cloak a civil dispute with criminal nature. Therefore, the continuation of the criminal proceedings against the petitioner/A.1 is nothing but an abuse of process of the Court. 27. In view of the foregoing discussion, I find that it is a fit case to exercise the inherent jurisdiction of this Court under Sec. 482 Cr.P.C to quash the proceedings arising out of C.C.No.469 of 2012 on the file of the Court of III Additional Judicial First Class Magistrate, Tirupati against the petitioner/A.1 for the offence punishable under Ss. 420 and 423 read with 34 IPC. 28. Resultantly, the criminal petition is allowed, and the proceedings in C.C.No.469 of 2012 on the file of the Court of III Additional Judicial First Class Magistrate, Tirupati, against the petitioner/A.1, are hereby quashed. As a sequel, the miscellaneous petitions, pending if any, shall stand disposed of.