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2023 DIGILAW 525 (TS)

Pasham Gopal Reddy v. State of Telangana

2023-07-19

G.ANUPAMA CHAKRAVARTHY

body2023
JUDGMENT 1. This Criminal Petition is filed under Sec. 482 Cr.P.C. by the petitioners/accused Nos.1 and 2 seeking to quash the proceedings in C.C.No.267 of 2019 on the file of the Principal Judicial First Class Magistrate at Suryapet, for the offences punishable under Ss. 120-B, 417, 420, 406, 447 and 506 r/w 109 I.P.C. 2. The brief facts, as culled out from the charge sheet, are that respondent No.2 herein lodged a complaint against the petitioners/accused Nos.1 and 2 and accused No.3 alleging that they have cheated him by not paying the sale consideration mentioned in the sale deed vide document No.91 of 2017; the cheques issued by the petitioners were not honoured and the original cheques were also returned to the petitioners by taking a sum of Rs.25, 00, 000.00 from the petitioners, as part payment of the sale consideration and that though the petitioners promised to complete the sale transaction within one week, despite making several demands, they did not complete the sale transaction. Therefore, the respondent No.2 filed the complaint against the petitioners and accused No.3. Based on the said complaint, the police have registered the crime vide FIR No.191 of 2018, for the offence punishable under Sec. 420 I.P.C. The Investigating Officer, after due investigation, has filed charge sheet against the petitioners for the offences punishable under Ss. 120-B, 417, 420, 406, 447 and 506 r/w 109 I.P.C. The Principal Judicial Magistrate of First Class at Suryapet has took cognizance of the said offences and numbered the case as C.C.No.267 of 2019. 3. Learned counsel for the petitioners contended that the respondent No.2 and his mother executed a sale deed vide document No.2717/2018, dtd. 12/7/2017 in favour of the petitioners; having received the total consideration from the petitioners by way of cash against the cheques, which were mentioned in the sale deed, the respondent No.2 has returned the original cheques to the petitioners. Further, the cheques were signed by petitioner No.1 since he was authorized to operate the account maintained by the account holder i.e., accused No.3 and knowing the said fact very well, respondent No.2 gave a complaint. Further, the cheques were signed by petitioner No.1 since he was authorized to operate the account maintained by the account holder i.e., accused No.3 and knowing the said fact very well, respondent No.2 gave a complaint. The learned counsel for the petitioners further contended that respondent No.2 and his mother have already filed a suit i.e., O.S.No.38 of 2018 on the file of the Additional District Judge, Suryapet, seeking cancellation of the subject document; that the petitioners have also filed a suit i.e., O.S.No.97 of 2018 on the file of the Senior Civil Judge at Suryapet, seeking perpetual injunction and that the complaint was filed by the respondent No.2 as a counter blast to the said civil suit filed by the petitioners. Further it is contended that the ingredients of the offences alleged against the petitioners do not attract the petitioners and therefore, the Magistrate ought not to have taken cognizance of the said offences. Learned counsel further contended that the parties have already filed suits against each other and the same are pending before the Civil Courts concerned and that non-payment of the agreed amount for sale consideration cannot be termed to be an ingredient of cheating and criminal conspiracy and in order to settle the civil disputes, a false case has been foisted against the petitioners. Therefore, prayed to quash the proceedings in C.C.No.267 of 2019. 4. In support of the said contentions, the learned counsel for the petitioners relied upon the judgments of the Apex Court in Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67. and Wyeth Limited v. State of Bihar, 2022 LiveLaw (SC) 721. 5. On the other hand, the learned counsel for respondent No.2 contended that it is not a fit case to quash the proceedings as it is for the trial Court to decide whether the ingredients of Ss. 120-B, 417, 420, 406, 447 and 506 r/w 109 I.P.C. are attracted or not only after conducting trial and this Court cannot quash the proceedings at this stage, and therefore, prayed this Court to dismiss the present criminal petition. 6. Heard the learned counsel for the petitioners, learned counsel for the respondent No.2 and Sri S. Ganesh, the learned Assistant Public Prosecutor. Perused the record. 7. In Usha Chakraborty's case, the Apex Court has held that the discretion under Sec. 482 of Cr. 6. Heard the learned counsel for the petitioners, learned counsel for the respondent No.2 and Sri S. Ganesh, the learned Assistant Public Prosecutor. Perused the record. 7. In Usha Chakraborty's case, the Apex Court has held that the discretion under Sec. 482 of Cr. P. C. is to be exercised with care and caution and sparingly. Exercise of the said power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of process of law. 8. In Wyeth Limited's case, the Apex Court has held that a criminal complaint has to be quashed, if no offence is made out by a careful reading of the complaint. 9. Time and again, the Apex Court has emphasized that mere breach of contract would not constitute an offence of cheating and that 'deceitful intention' to get wrongful gain to the accused and corresponding loss to the victim ought to be established at the very inception in order to constitute an offence of cheating. 10. The Court at the very outset perused the ingredients to constitute the offence of cheating, as had been laid down by the Apex Court in the case of Raghavender N. v. State of Andhra Pradesh, CBI (2021), which include: (i) deception of any person; (ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and (iii) mens rea of the accused at the time of making the inducement. 11. The Court further noted that it is a settled position of law that "the phrase 'dishonestly' emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under S.420 IPC". 12. The above judgments of the Apex Court squarely apply to the facts of the present case. 13. A perusal of the record discloses that two civil suits i.e., one filed by the respondent No.2 seeking cancellation of the document and another filed by the petitioners seeking perpetual injunction are pending before the Civil Courts concerned. Initially, the crime was registered in the year 2018 i.e., after institution of the suits. As per the sale deed document No.2717 of 2018, the possession of the property was handed over to the petitioners. 14. Initially, the crime was registered in the year 2018 i.e., after institution of the suits. As per the sale deed document No.2717 of 2018, the possession of the property was handed over to the petitioners. 14. Furthermore, a perusal of the FIR discloses about the pendency of the civil disputes relating to registration of the sale deed, amounts advanced by the respondent No.2, non-payments of the amounts advanced by the parties and issuance of the cheques. If at all the respondent No.2 has any grievance as to the non-payment of the sale consideration either in cash or by way of cheques, the remedy available to the petitioners is to approach the Civil Court. Admittedly, the civil suits are pending for adjudication before the Civil Courts. The contents of the complaint do not attract the ingredients of cheating and the civil disputes have been coloured as criminal disputes. 15. In view of the aforesaid discussion and in view of the judgments of the Hon'ble Supreme Court referred to above, this Court deems it appropriate that it is a fit case to quash the proceedings against the petitioner. 16. In view of the above, the proceedings in C.C.No.267 of 2019 on the file of the Principal Judicial First Class Magistrate, Suryapet, against the petitioners/accused Nos.1 and 2 are hereby quashed. 17. The Criminal Petition is, accordingly, allowed. Pending miscellaneous applications, if any, shall stand closed.