HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.1326 and 2280 of 2014 Date: 10-7-2014 Crl.P.No.1326 of 2014:
Between Gokari Jagadishwar Goud State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad G.Lakshmamma and 3 others and … Petitioner/ Accused No.2 … Respondent … Respondents/ Complainants Crl.P.No.2280 of 2014:
Between Rachakonda Shyam Rao and 2 others State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad G.Lakshmamma and 3 others and … Petitioners/ Accused 1, 3 and 4 … Respondent … Respondents/ Complainants HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.1326 and 2280 of 2014 Common Order:
These two criminal petitions are disposed of through this common order. Accused No.2 in the First Information Report (FIR) in Crime No.66 of 2014 on the file of Rajendranagar Police Station, Ranga Reddy District filed Criminal Petition No.1326 of 2014 seeking to quash the FIR against him. Similar petition was filed by accused 1, 3 and 4 through Crl.P.No.2280 of 2014.
2. A private complaint was lodged by respondents 2 to 5 before the VIII Metropolitan Magistrate, Cyberabad, Rajendranagar at Upparpally. The learned Magistrate referred the same to Police under Section 156(3) Cr.P.C. Police registered the same as Crime No.66 of 2014 under Sections 405, 406, 418, 420, 423 and 425 read with Section 34 IPC. There are as many as four complainants. The complainants are no other than the mother and younger brothers of accused No.2.
3. It is the case of accused No.2 that respondents 2 to 4 and accused No.2 have purchased land admeasuring 1388 square yards in house bearing Door No.1-8-74, old Door No.10-31-94. The purchase was on 11-5-1979. Smt. Kamala Bai was the vendor.
4. Accused No.2 further contended that as accused No.2 and respondents 2 to 5 possessed various properties in Ranga Reddy District including the property bearing Door No.1-8-74, accused No.2 filed O.S.No.1474 of 2013 on the file of the Principal District Judge, Ranga Reddy District against respondents 2 to 5 and other members of the family seeking for partition by metes and bounds and for separate possession. It is contended by accused No.2 that respondents 3 to 5 instigated the 2nd respondent to file the present complaint against accused No.2 and others.
5. One Mehdi Begum and her son Sajad Ali owned 500 sq. yards situate adjacent to the 1388 sq. yards of site purchased by the family of accused No.2.
Mehdi Begum and her son entered into an agreement of sale with one Shyam Rao on 03-3-1978 for the sale of the same. Shyam Rao took possession of the property.
It is further contended by accused No.2 that on 14-3-2012, accused No.2 purchased the property from Shyam Rao. As disputes arose, accused No.2 did not pay the entire sale consideration to Shyam Rao.
6. While things stood thus, Shyam Rao and accused No.2 sold 200 sq. yards out of the 500 sq. yards purchased by accused No.2 to one Damodar Goud and another through sale deed dated 22-11-2013.
The respondents 2 to 5 however filed the complaint that accused No.2 purchased the property and sold the same without any right with a view to harass respondents 2 to 5. Accused No.2 contended that no case is made out against him.
7. It is the case of accused 1, 3 and 4 that accused No.1 entered into an agreement of sale on 18-3-1978 to purchase 300 sq. yards from the owner of the property and that accused No.1 sold the same to accused No.3 on 17-10-2012. Accused No.3 in his turn sold the same to accused No.4 on 24-02-2013. Thus, accused 3 and 4 are subsequent purchasers of the property from accused No.1.
8. Respondents 2 to 5, on the other hand, contended that one Khaja Mir Vazid Ali owned 1388 sq. yards of site in Survey No.391 at Budvel Village, Rajendranagar Manda. The site bore Door No.10-31-94. Its present number is 1-8-74. It is the further case of respondents 2 to 5 that Khaja Mir Vazid Ali did not have title to any other property. On 13-7-1964, Khaja Mir Vazid Ali allegedly sold property of 1388 sq. yards situate in Survey No.391 to Smt. Kamala Bai. Smt. Kamala Bai on her turn sold the same on 11-5-1979 to the 2nd respondent. As the 2nd respondent is the mother of the respondents 3 to 5 and accused No.2, for sentimental reasons, the 2nd respondent obtained the sale deed in the name of her children. It is also contended by respondents 2 to 5 that accused No.2 did not acquire any right over this property as the mother (2nd respondent) is the owner of the 1388 sq. yards of site. It would appear that there is open site to the south of House No.1-8-74.
9. Sri B.Nalin Kumar, learned counsel for the respondents 2 to 5, submitted that the accused conspired and created link documents as if the property belonged to them whereas neither accused No.1 nor the other accused have any right over the property.
The agreement of sale in favour of accused No.1 was executed by Mehdi Begum and Sajad Ali, who are the wife and son of Khaja Mir Vazid Ali. The learned counsel for the respondents 2 to 5 contended that there are criminal acts on the part of the accused and that the investigation is still at the threshold. He submitted that it is not a fit case where the investigation deserves to be scuttled.
10. Sri E.Madanmohan Rao, learned counsel for the 2nd accused, submitted that the complaint was lodged by respondents 2 to 5 as a counterblast to O.S.No.1474 of 2013 filed by the 2nd accused to force accused No.2 to withdraw the partition suit. He submitted that accused No.2 has obtained ad interim injunction through orders dated 31-12-2013 in I.A.No.1108 of 2013 in O.S.No.1474 of 2013 by the learned III Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar restraining the defendants including the respondents 2 to 5 herein from alienating the properties. He submitted that the property purchased by him from accused No.1 is abutting ‘B’ schedule property in the suit and not part of the ‘B’ schedule property. He also pointed out that the respondents 2 to 5 filed the complaint after accused No.2 obtained the ad interim injunction. The learned counsel for the 2nd accused submitted that in November 2013, accused No.2 and accused No.1 jointly reconveyed the property to the vendor of accused No.1 and that as respondents 2 to 5 cannot have any claim over the property purchased by accused No.2, the question of accused No.2 committing any of the offences alleged against him cannot be sustained.
11. Sri Sarat Sanghi, learned counsel representing accused 1, 3 and 4, submitted that there is no privity of contract between accused 1, 3 and 4 on the one side and respondents 2 to 5 on the other side and that none of the ingredients of any of the offences is made out.
He pointed out that the dispute between the parties is a boundary dispute which is civil in nature. He placed reliance upon V.Y. JOSE v. STATE OF GUJARAT[1] and JOSEPH SALVARAJ A. v. STATE OF GUJARAT[2] where it was observed that when the criminal litigation is raised regarding pure civil controversy, such a criminal case deserves to be quashed.
12. It may be noticed that the accused claim that the respondents 2 to 5 have nothing to do with the property purchased by accused No.1 and sold to accused No.2 as well as to accused 3 and 4. On the other hand, the respondents 2 to 5 contended that the sale deeds were created by accused 1 to 4 with a view to acquire title over the property which none of them possessed.
It is contended by the learned counsel for the accused that the question of criminal breach of trust punishable under Section 406 IPC which was defined under Section 405 does not arise. As rightly submitted by the learned counsel for the accused, the complaint does not refer to any criminal breach of trust. I therefore agree that the offences under Sections 405 and 406 IPC are prima facie not made out.
13. The learned counsel for the accused submitted that there was no prima facie proof of cheating with knowledge that wrongful loss may be ensued to the person whose interest the offender is bound to protect. As rightly submitted by the learned counsel for the accused, there is no duty cast upon the accused to protect the interest of respondents 2 to 5. Causing wrongful loss by cheating respondents 2 to 5 therefore would not constitute an offence under Section 418 IPC.
14. Section 420 IPC envisages that cheating and dishonestly inducing delivery of property is punishable. If there is any cheating on the part of the accused, it must be against the vendor of accused No.1. None of the respondents 2 to 5 were induced by accused 1 to 4 to delivery any property. I consequently consider that the offence under Section 420 IPC is also not made out.
15. Section 423 IPC punishes the dishonest or fraudulent execution of transfer deed containing false statement regarding consideration. It is not the case of anybody that the sale deeds obtained by accused No.1 and obtained by accused 2 to 4 contained false recitals regarding consideration under the sale deeds.
The offence under Section 423 IPC therefore cannot be said to have been made out.
16. Section 425 IPC defines mischief whereas Section 426 IPC imposes punishment for mischief. Destructing property deliberately with a view to cause loss to the value of the property is mischief. There is no such allegation against any of the accused. Consequently, the offence under Section 425 IPC is also not made out against the accused.
17. Thus, none of the offences alleged prima facie is made out against the accused. The accused consequently are entitled to seek for the quashment of FIR in Crime No.66 of 2014. These two criminal petitions consequently are allowed. Crime No.66 of 2014 on the file of Rajendranagar Police Station, Cyberabad is quashed so far as the accused 1 to 4 are concerned.
The miscellaneous petitions, if any, pending in these petitions shall stand closed.
Dr. K.G.SHANKAR, J.
10th July, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.1326 and 2280 of 2014 (Common Order) 10th July, 2014. (Ak)
[1] (2009) 3 SCC 78
[2] (2011) 7 SCC 59