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2023 DIGILAW 557 (TS)

Nayakwadigopala Krishna v. State of Telangana

2023-08-07

G.ANUPAMA CHAKRAVARTHY

body2023
JUDGMENT 1. This Criminal Petition is filed under Sec. 482 of the Code of Criminal Procedure Code (for short 'Cr.P.C.,') by the petitioners, who are arrayed as accused Nos.1 to 4, praying this Court to quash the proceedings in F.I.R.No.396 of 2023 on the file of the Station House Officer, Patancheru Police Station, alleged for the offences under Ss. 406, 420 r/w Sec. 34 of the Indian Penal Code (for short 'IPC'). 2. Heard Sri S.Ashok Anand Kumar, learned Senior Counsel representing Sri Jaggari Manikanta Reddy, learned counsel appearing for the petitioners, Sri S.Ganesh, learned Assistant Public Prosecutor appearing for respondent No.1-State and Sri A.Ravinder Reddy, learned Senior Counsel representing Sri Jella Srikanth, learned counsel appearing for respondent No.2. 3. Brief facts of the case are that on 7/6/2023, the complainant - Sri S.Prakash, Managing Partner of Anmol Developers lodged a complaint alleging that while he was engaged in the business of Real Estate and during the course of the said business, he came across Mr.Nayakwadi Gopala Krishna, who revealed his interest in Real Estate and represented that he and his family members are absolute owners and possessors of the agricultural land admeasuring Ac.2.08 guntas in Sy.No.163, Ac.2.00 guntas in Sy.No.160, Ac.2.07 guntas in Sy.No.163/U, Ac.2.08 guntas in Sy.No.163/1/A/B, total admeasuring Ac.8.23 guntas situated at Rameswaram Banda Village, Patancheru Mandal, Sangareddy District by virtue of Sale Deed bearing Nos.19695/2015, 16814/2015, 1293/1983 and 2244/1982. Further, Nayakwadi Gopala Krishna insisted him to develop the subject property into residential duplex houses and as a result Development Agreementcum-Irrevocable General Power of Attorney bearing document No.1524/2019 was executed by Mr.Nayakwadi Gopala Krishna in favour of respondent No.2 and accordingly, respondent No.2 has became the absolute owner and possessor of the aforesaid property. In the complaint, it is also stated that the subject property was in an uneven and undulate condition and there was also huge pit on the subject property and after spending a huge amount of Rs.1,00,00,000.00 for leveling the subject property, respondent No.2 was subjected to hardships. Further, all of a sudden after applying for all the permissions, the petitioners herein opposed for developing the said property and the said action of Mr.Gopala Krishna and his family led respondent No.2 to mental agony and huge financial loss, which cannot be compensated in any manner. Further, all of a sudden after applying for all the permissions, the petitioners herein opposed for developing the said property and the said action of Mr.Gopala Krishna and his family led respondent No.2 to mental agony and huge financial loss, which cannot be compensated in any manner. It is also alleged in the complaint that the petitioners have suppressed the fact that the subject property was under mortgage with APSFC (Andhra Pradesh State Financial Corporation) vide document No.18688 of 2017. Basing on the above complaint, F.I.R. has been registered and the petitioners herein were arrayed as accused Nos.1 to 4. 4. It is submitted by the learned Senior Counsel appearing for the petitioners that the petitioners are innocent and they have not committed any offence as alleged in the complaint. He contended that the ingredients of Ss. 405, 420 read with Sec. 34 of IPC are not at all attracted against the petitioners. He also contended that the allegations made in the complaint discloses that the case is purely civil in nature and without involvement of the petitioners in crime, the case cannot be registered against the petitioners. 5. It is specifically contended by the learned Senior Counsel that originally the land admeasuring Ac.13.05 guntas situated in Sy.No.163, Rameswarambanda Village, Patancheru Mandal, Sangareddy District and that Sy.No.163 was sub-divided and Nayakwadi Ramaswamy was the absolute owner, pattadar holder and possessor of the agricultural land in Sy.No.163/Part admeasuring Ac.6.23 guntas, and the same is evident from the KhasaraPahani 1954-55. Further, Nayakwadi Ramaswamy died leaving behind his three sons namely Bojaiah, Laxmaiah and Narsimhulu and land was notionally recorded in the name of his three sons i.e., Anjaiah, S/o. Bojaiah (as Bojaiah also died), Laxmaiah and Nayakwadi Narsimulu (grandfather of petitioner No.1, 3 and 4 herein). In the meantime, Nayakwadi Ramaswamy (father of petitioner Nos.1, 3 and 4 and husband of petitioner No.2) purchased the land to an extent of Ac.2.08 guntas in Sy.No.163/1/A/AA through Registered Sale Deed bearing document No.2244/1982 dtd. 26/4/1982 from Anjaiah, S/o. Bojaiah including the share of 2nd son of Bojaiah and he had become absolute owner and possessor of the said land. Further, in the year 1983, N.Ramaswamy (father of petitioner Nos.1, 3 and 4) purchased another piece of land admeasuring Ac.2.08 guntas in Sy.No.163/Part from Nayakwadi Sudershan, S/o. Nayakwadi Sathaiah through registered sale deed bearing document No.1293/1983 and he had became the absolute owner and possessor. Further, in the year 1983, N.Ramaswamy (father of petitioner Nos.1, 3 and 4) purchased another piece of land admeasuring Ac.2.08 guntas in Sy.No.163/Part from Nayakwadi Sudershan, S/o. Nayakwadi Sathaiah through registered sale deed bearing document No.1293/1983 and he had became the absolute owner and possessor. In the meantime, Nayakwadi Gopala Krishna, petitioner No.1 herein purchased the land admeasuring Ac.2.07 guntas in Sy.No.163/U from Mohd.Khaja, through Registered Sale Deed vide document bearing No.19695 of 2015 and admeasuring Ac.2.00 guntas in Sy.No.160 from Ramineni Venkata Ramana, through Registered Sale Deed vide document bearing No.16814 of 2015, situated at Rameshwarambanda Village, Patancheru Mandal, Sangareddy District and became the absolute owner and possessor. After the death of Nayakwadi Ramaswamy, the property was divided among his legal heirs. 6. It is further contented by the learned Senior Counsel that respondent No.2 had approached petitioners herein and introduced himself as developer and expressed his willingness to develop the said land of the petitioners. Believing on respondent No.2, petitioners have entered into Development Agreement-cum-General Power of Attorney through document bearing No.1524/2019. 7. It is the specific contention of the learned Senior Counsel that the allegations against the petitioners are created, concocted, fabricated and invented for the purpose of filing the case and the allegation that the petitioners have stated to give vague and evasive responses is false. 8. In order to support his contentions, learned Senior Counsel for the petitioners relied upon the judgment of this Court in Kotagiri Ashwini and others V. State of A.P. and another,2018 (2) ALT (Crl) 237. wherein this Court categorically held that even if the averments taken at their face value are accepted in their entirety, they do not prima facie constitute an offence or make out a case against the accused. In such cases, the accused are entitled for quashing of the proceedings. 9. Learned counsel for the petitioners also relied upon the judgment of the Hon'ble Supreme Court in State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 SC 604 . wherein their Lordships held that if the dispute between the complainant and the accused is purely civil in nature, which has been attempted to convert into a criminal nature by the complainant is not permissible in the law. 10. wherein their Lordships held that if the dispute between the complainant and the accused is purely civil in nature, which has been attempted to convert into a criminal nature by the complainant is not permissible in the law. 10. On the other hand, Sri A.Ravinder Reddy, learned Senior Counsel appearing for respondent No.2 and Sri S.Ganesh, learned Assistant Public Prosecutor appearing for respondent No.1 vehemently contended that it is not a fit case to quash the proceedings against the petitioners at this juncture and the matter has to be decided only at the time of trial. 11. It is the specific contention of learned Senior Counsel for respondent No.2 that the petitioners have suppressed the fact that the subject property was under mortgage with APSFC (Andhra Pradesh State Financial Corporation) and entered into agreement and the said act of the petitioners' amounts to cheating. 12. To answer the said contention; the learned Senior Counsel for the petitioners relied on the judgment of the Hon'ble Supreme Court in Mohammed Ibrahim and others V. State of Bihar and another, (2009) 8 SCC 751 . wherein it was held as under: "18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. 19. To constitute an offence under Sec. 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). 25. In Dr. 25. In Dr. Vimla vs. Delhi Administration - AIR 1963 SC 1572 , this Court explained the meaning of the expression 'defraud' thus: "The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999 (2) SCC 617 . 26. The Penal Code however defines 'fraudulently', an adjective form of the word 'fraud', in Sec. 25, as follows : "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". 27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Sec. 24 as follows : "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". 28. To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include: (i) Fraudulent removal or concealment of property (sec.206, 421, 424) (ii) Fraudulent claim to property to prevent seizure (sec. 207). (iii) Fraudulent suffering or obtaining a decree (sec. 208 and 210) (iv) Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242 and 243). (v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253) (vi) Fraudulent acts relating to stamps (sec. 261-261) (vii) Fraudulent use of false instruments/weight/measure (sec.264 to 266) (viii) Cheating (sec. 415 to 420) (ix) Fraudulent prevention of debt being available to creditors (sec. 422). (x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423). (xi) Forgery making or executing a false document (sec. 463 to 471 and 474) (xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477) (xiii) Fraudulently going through marriage ceremony (sec.496). 415 to 420) (ix) Fraudulent prevention of debt being available to creditors (sec. 422). (x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423). (xi) Forgery making or executing a false document (sec. 463 to 471 and 474) (xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477) (xiii) Fraudulently going through marriage ceremony (sec.496). It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law." 13. Learned Senior Counsel for the petitioners further relied on a judgment of the Hon'ble Supreme Court in case of Inder Mohan Goswami and another V. State of Uttaranchal and others, (2007) 12 SCC 1 . wherein it was held as under: "41. Sec. 415 IPC thus requires1. deception of any person. 2. (a) fraudulently or dishonestly inducing that person- (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person 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. 42. On a reading of the aforesaid Sec. , it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning." 14. Learned Senior Counsel for the petitioners also relied on a judgment of the Hon'ble Supreme Court in Mitesh Kumar J. Sha V. State of Karnataka and others,2021 SCC OnLine SC 976. wherein it was held as under: "45. Applying this dictum to the instant factual matrix, it can be safely concluded that the present case clearly falls within the ambit of first, third and fifth category of the seven categories enlisted in the above said judgment. The case therefore warrants intervention by this Court, and the High Court has erred in dismissing the petition filed by the Appellants under Sec. 482 CrPC. We find that there has been attempt to stretch the contours of a civil dispute and thereby essentially impart a criminal color to it. 46. Recently, this Court in case of Randheer Singh Vs. The State of U.P. and Ors. has again reiterated the long standing principle that criminal proceedings must not be used as instruments of harassment. The court observed as under:- "33. ....There can be no doubt that jurisdiction under Sec. 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above." 47. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above." 47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety." 15. In the judgment of Hon'ble Supreme Court in Dr.Sharda Prasad Sinha V. State of Bihar, AIR 1977 SC 1754 . wherein it was held as under: "2. It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Sec. 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. The question which, therefore, arises for consideration is whether the allegations set out in the complaint constitute any offence against the appellant. The offences charged against the appellant are under Sec. 54(1)(a) and Sec. 57 (c) of the Act. Sec. 54(1) (a) provides that if any licensed vendor or any person in his employ and acting on his behalf, in contravention of Sec. 25, employs or permits to be employed, in any part of his licensed premises referred to in that Sec. any person under the age of 18 years or any women, he shall be liable to fine which may extend to Rs.500.00. It is an essential ingredient of this offence that the licensed vendor should employ or permit to be employed any women in any part of his licensed premises in contravention of Sec. 25. Now there can be no doubt that the Bankipore Club was a licensed vendor since it held an "OFF" licence in Form No. 2 given in the Bihar and Orissa Excise Rules. We will also assume for the purpose of argument that the place where the cabaret was going on was a part of the licensed premises.. Now there can be no doubt that the Bankipore Club was a licensed vendor since it held an "OFF" licence in Form No. 2 given in the Bihar and Orissa Excise Rules. We will also assume for the purpose of argument that the place where the cabaret was going on was a part of the licensed premises.. But in order that the alleged cabaret should constitute an offence under Sec. 54(1) (a), it was necessary that the women who were performing the cabaret should be employed or permitted to be employed by the Club and moreover that should in contravention of Sec. 25. Sec. 25. sub-sec. (2) provides that no person who is licensed to sell foreign liquor for consumption on his premises shall, without the previous writ- ten permission of the Board, during the hours in which such premises are kept open for business, employ or permit to be employed, either with or without any remuneration, any woman, in any part of such premises in which such liquor is consumed by the public. It will be seen that this provision also comes into play only when a woman is employed or permitted to be employed by a person licensed to sell foreign liquor. Moreover, the employment of the woman should be "in any part of such premises in which such liquor is consumed by the public." It is therefore, obvious that there could be no offence under Sec. 54(1)(a) read with Sec. 25(2) unless it could be shown by the prosecution that the women who were performing the cabaret were employed or permitted to be employed by the Club and they were performing the cabaret in a part of the club premises in which liquor was being consumed: by the public. We may point out that it was contended on behalf of the appellant that subsec. (2) of Sec. 25 can have no application in case of a person who is holding an "OFF" licence as distinct from an "ON AND OFF" licence in form No. 3 and since the appellant in the present case was 7--1546 SCI/76 holding an "OFF" licence, he could not be guilty of contravention of Sec. 25, sub-sect/on (2) and hence no question of offence under Sec. 54(1)(a) could arise. But we will assume for the purpose of argument that the appellant was covered by Sec. 25, subsec. But we will assume for the purpose of argument that the appellant was covered by Sec. 25, subsec. (2) and he was bound to obey the prohibition contained in that sub-sec. . But even so we find that the two essential ingredients of the offence under Sec. 54(1)(a) read with Sec. 25 sub- Sec. (2) were not even alleged in the complaint. The complaint did not aver that either of the two women who were performing the cabaret was employed or permitted to be employed by the club or that liquor was being consumed by the public in that part of the club in which the cabaret was being performed. No offence under Sec. 54(1)(a) could in the circumstances be said to have been committed on the allegations contained in the complaint." 16. In State of Haryana's case (supra 2), it was held as under: "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Sec. 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised." 17. In Kotagiri Ashwini's case (supra 1), it was held as under: "7. In the light of the judgment of the Honble Supreme Court in C.B.I. V/s. A. RAVI SHANKER PRASAD , certain guidelines rendered in STATE OF HARYANA V/S. BHAJANLAL case have been referred. The scope of Sec. 482 Cr.P.C is limited and this Court can exercise its inherent jurisdiction only to give effect to the orders passed under the Code, to prevent abuse of process of the Court and to secure the ends of justice. The scope of Sec. 482 Cr.P.C is limited and this Court can exercise its inherent jurisdiction only to give effect to the orders passed under the Code, to prevent abuse of process of the Court and to secure the ends of justice. Keeping in mind, the Apex Court in BHAJANLAL laid down the following seven guidelines, which are as follows : (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 FIR 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 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." 8. (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." 8. As per guidelines 2 and 3, when the allegations made in FIR or complaint if taken on its face value would not prima facie constitute commission of any offence, the Court can exercise its inherent power under Sec. 482 Cr.P.C. to quash the proceedings. Similarly, if the allegations made in the complaint are improper to the ordinary circumstances of a common man, the Court may exercise its inherent jurisdiction and quash the proceedings. 9. It is to be seen even if the averments taken at their face value are accepted in their entirety, they do not prima facie constitute offence or make out a case against the accused, in such cases the accused is entitled for quashing of the proceedings." 18. All the above, judgments cited above squarely apply to the facts and circumstances of the present case. 19. On perusal of Clauses of the Development Agreement-cum-Irrevocable General Power of Attorney, it is evident that if at all respondent No.2 is aggrieved by the acts of the petitioners, it is for him to avail civil remedy and the ingredients to constitute the offences under Ss. 406 and 420 IPC are not at all attracted to the petitioners. Admittedly, the dispute between the petitioners and respondent No.2 is purely civil in nature. 20. In view of the specific contention of the learned Senior Counsel for respondent No.2 that the petitioners have entered into agreement by suppressing the fact that the subject property was under mortgage with APSFC and the said act of the petitioners amounts to cheating, the legal maxim "Caveat Emptor" which clearly applies to the present case and it is for the purchaser to verify the genuineness of the ownership before entering into agreement or of purchasing the same under the valid registered sale deed. 21. Taking into consideration the above judgments of the Hon'ble Apex Court, contentions of all the parties and on perusal of the record, this Court is of considered view that the proceedings against the petitioners in F.I.R.396 of 2023 are liable to be quashed. 22. 21. Taking into consideration the above judgments of the Hon'ble Apex Court, contentions of all the parties and on perusal of the record, this Court is of considered view that the proceedings against the petitioners in F.I.R.396 of 2023 are liable to be quashed. 22. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioners in F.I.R.396 of 2023 on the file of Patancheru Police Station, Sangareddy District, for the offences punishable under Ss. 406, 420 read with Sec. 34 IPC are hereby quashed. Pending miscellaneous applications, if any, shall stand closed.