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2024 DIGILAW 865 (AP)

Kodali Satya Devi v. State of Andhra Pradesh

2024-07-30

V.SUJATHA

body2024
ORDER : V. Sujatha, J. This criminal petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the proceedings in C.C.No.18 of 2017 on the file of II Additional Munsiff Magistrate, Ongole, Prakasam District registered for the offences punishable under Section 190 and 200 Code of Criminal Procedure (for short “Cr.P.C.”). 2. Petitioner herein is the accused. Respondent No.2 is the de-facto complainant. Respondent No.2 filed a complaint against the accused stating that one Nalluri Ravi introduced the accused, her husband Narasimha Rao and one Chalicham Anil Kumar to the complainant stating that they want to purchase the house of complainant. Accordingly, the accused and other persons with mediation of the said Nalluri Ravi prepared to purchase the house of complainant. As there was short of Rs.18,00,000/- out of total consideration, on 28.02.2015 the accused and three other persons requested the complainant to accept the promissory note and a post dated cheque from them for the said amount and complete the execution of registered sale deed. Further, they promised that they will adjust the amount by 10.03.2015 by way of depositing the amount in the account of accused and then the complainant can present the said cheque. The accused also executed a promissory note dated 28.02.2015 in favour of the complainant for Rs.18,00,000/- and agreed to repay the same with interest @ 18% per annum. The accused and her husband also issued a post dated cheque bearing No.009399 dated 10.03.2015 for Rs.18,00,000/- drawn on ICICI Bank, Kurnool Road, Ongole. Subsequently, on receipt of pronote and post dated cheque, the complainant executed a registered sale deed on 28.02.2015 in favour of daughter of accused. When the complainant presented the above cheque on 05.06.2015 for collection, it was returned unpaid on 06.06.2015 with an endorsement of "Funds Insufficient". The said cheque and return memo were given to the complainant by his banker on 09.06.2015. Upon which, the complainant got issued a legal notice on 02.07.2015 to the accused demanding to pay the amount within 15 days. But, she had neither paid the cheque amount nor replied. Hence, the complainant filed a private complaint under Section 420, 506 IPC against the accused. 3. Upon which, the complainant got issued a legal notice on 02.07.2015 to the accused demanding to pay the amount within 15 days. But, she had neither paid the cheque amount nor replied. Hence, the complainant filed a private complaint under Section 420, 506 IPC against the accused. 3. Learned counsel for the petitioner submitted that in fact the petitioner/accused has entered into an agreement of sale with the 2nd respondent/de-facto complainant for purchase of his house for an amount of Rs.1,20,00,000/- on behalf of her daughter on 17.11.2014. As on that date, the petitioner advanced Rs.10,00,000/- in favour of 2nd respondent. But, however, the 2nd respondent demanded Rs.25,00,000/- as advance amount. Since the petitioner was having net amount of Rs.10,00,000/- only, she issued blank cheque as well as pronote for the balance amount and entered into an agreement with 2nd respondent on 17.11.2014. Subsequently, the petitioner have paid an amount of Rs.15,00,000/- on 28.12.2014 and asked the 2nd respondent to handover the pronote as well as cheque which was issued by the petitioner, but the 2nd respondent informed the petitioner that the blank cheque as well as the pronote were kept in bank and they are not readily available and will handover the same later. Believing the said words, the petitioner never insisted the 2nd respondent for the same. The 2nd respondent received Rs.25,00,000/- as an earnest money and Rs.90.00 lakhs was also paid on 30.12.2014. The balance amount will be paid at the time of registration. On 25.01.2015, Rs.5,00,000/- has been paid and on 08.01.2015 Rs.8,50,000/- was transferred. After payment of entire amount, the 2nd respondent registered the house in the name of the petitioner on 28.02.2015. Thereafter, once again when the petitioner asked the 2nd respondent to handover the documents such as pronote and post dated cheques, the 2nd respondent replied that after calculating total amount he will return the blank cheque and promissory note. The case of the petitioner is that though the house was registered on 28.02.2015 itself the 2nd respondent failed to hand over the possession of the said house. 4. As such, the petitioner herein filed a suit vide O.S.No.93 of 2016 seeking for eviction of the 2nd respondent from the schedule property house. The 2nd respondent filed a written statement in the said suit claiming that the total sale consideration was not Rs.1,20,00,000/- but it was Rs.1,43,00,050/-. 4. As such, the petitioner herein filed a suit vide O.S.No.93 of 2016 seeking for eviction of the 2nd respondent from the schedule property house. The 2nd respondent filed a written statement in the said suit claiming that the total sale consideration was not Rs.1,20,00,000/- but it was Rs.1,43,00,050/-. Unless the balance amount is paid the subject property will not be delivered to the petitioner. Subsequently, the 2nd respondent issued a notice stating that the total sale consideration was Rs.1,20,00,000/- and cheque was issued for Rs.18,00,000/-, which was dishonoured and the case was also registered vide FIR No.233 of 2015 for the offences under Section 420, 506 of IPC. But police after investigating the matter, filed a final report stating that the case is civil in nature. Subsequently, the present private complaint came to be filed and it was numbered as C.C.No.18 of 2017. Hence, prays to allow the petition. 5. None appeared for the 2nd respondent/de-facto complainant though notice was served. 6. Having heard the submissions made by the learned counsel and on perusal of the material available on record, the point that arises for consideration is as follows : “Whether the proceedings against the petitioner in C.C.No.18 of 2017 on the file of II Additional Munsif Magistrate, Ongole are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” The present petition has been filed under Section 482 of Cr.P.C. 7. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice. 8. Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: In “R.P. Kapur v. State of Punjab, AIR 1960 SC 866 ”, the Apex Court laid down the following principles: (i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 9. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in “Mrs. Dhanalakshmi v. R. Prasanna Kumar, AIR 1990 SC 494 ” 10. In “State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335” the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint : (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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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 Section 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. (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. 11. Keeping in view the above principles, I would like to examine the case on hand. 12. The main allegation made in the complaint lodged by the 2nd respondent is that the petitioner had entered into an agreement with the 2nd respondent for purchase of a house of the de-facto complainant/2nd respondent and as a part of out of the said transactions, the petitioner herein issued a post dated cheque and executed a pronote and the cheque was returned with an endorsement "insufficient funds", the present complaint came to be filed for the offence under Section 138 of N.I.Act. 13. Along with this criminal petition, a copy of FIR in Cr.No.233 of 2015 dated 08.08.2015 was filed for the offences under Section 420, 506 IPC stating that the petitioner herein executed a promissory note for Rs.18,00,000/- and also issued a post dated cheque for the said amount and the same was returned and all the accused cheated the complainant and threatened the complainant for return of cheque and keys of house. 14. The petitioner also filed a copy of the plaint in O.S.No.93 of 2016 filed by the daughter of petitioner herein along with others for recovery of amount of Rs.14,55,766/- from the de-facto complainant/2nd respondent and another stating that the daughter of petitioner herein purchased the suit schedule property from the 2nd respondent herein and another and did not vacate the suit schedule property. It is further averred that an excess amount of Rs.8,50,000/- was paid and the same was not returned and hence they filed the present suit. The written statement was also filed by the 2nd respondent herein and another denying the plaint averments and admitting the transaction of purchase of suit schedule property by the petitioner herein. 15. In that view of the matter, it can be clearly made out that civil transactions took place between the petitioner herein and the 2nd respondent and out of that transactions a civil suit came to be filed by the petitioner against the 2nd respondent and subsequently the present case came to be registered basing on a private complaint made by the 2nd respondent. 16. If the dispute is purely civil in nature and conversion of such civil dispute giving colour of criminal offence is abuse of process of Court. Pending the civil suit, the present complaint has been lodged by the complainant converting the civil dispute into criminal, which cannot be accepted in view of the law laid down by the Apex Court in various judgments. In “Mohammed Ibrahim and Ors. v. State of Bihar and another, (2009) 8 SCC 751 ” the Apex Court held as follows: “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 pressurize parties to settle civil disputes.” 17. In “Paramjeet Batra Vs. State of Uttarakhand and others, (2013) 11 SCC 673 ” the Apex Court held that, while exercising its jurisdiction under Section 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. 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 criminal proceedings to prevent abuse of process of Court. 18. In “Mohd. Khalid Khan Vs. State of Uttar Pradesh, (2015) 15 SCC 679 ” the Apex Court held that when civil suit is pending where the ownership of the property has to be decided in the pending suit as the same is subject matter of the suit, in such circumstances, pending civil litigation, criminal proceedings cannot be primarily prosecuted. 19. In the instant case also, a suit vide O.S.No.93 of 2016 is pending between the petitioner and the 2nd respondent before the learned Senior Civil Judge, Ongole. Therefore, it can be said that the dispute of a civil nature has been given colour of a criminal offence. Along with criminal petition a copy of FIR in Cr.No.233 of 2015 dated 08.08.2015 has been filed by the petitioner/accused for the offence punishable under Sections 420, 506 IPC of Ongole I Town Police Station, Prakasam District. But the said FIR was closed as per High Court R.O.C.No.274/SO/80 and the same was endorsed on the FIR copy, which also reveals that the report given by the 2nd respondent herein is false and hence the same may be closed. 20. Considering the above facts and circumstances of the case, this is a clear cut case of civil dispute in nature and in that view of the matter, this Court is of the opinion that in order to wreak vengeance against the petitioner herein, the criminal proceedings has been initiated against the petitioner/accused which shall not be entertained and liable to be quashed. 21. Accordingly, the criminal petition is allowed by quashing the proceedings in C.C.No.18 of 2017 on the file of learned II Additional Munsif Magistrate, Ongole against the petitioner/accused. The miscellaneous petitions pending, if any, shall also stand closed.