B.
Suresh Yadav Vs. Sharifa Bee & Anr [2007] Insc 1053 (12 October 2007)
S.B.
Sinha & Harjit Singh Bedi
(Arising
out of SLP (Crl.) No.705 of 2007) S.B. Sinha, J.
1.
Leave granted.
2. An
application for quashing the complaint being CC No.216 of 2006 filed in the
Court of the Metropolitan Magistrate, Cyberabad at Malkagiri filed the
petitioner under Section 482 of the Code of Criminal Procedure, has been
dismissed by the High Court of Andhra Pradesh by reason of the impugned
judgment.
3.
Basic fact of the matter is not in dispute.
4.
First respondent herein filed a complaint petition. The parties hereto entered
into an agreement for sale in respect of a house admeasuring 350 square yards
for a consideration of Rs.23,80,000/-. A sum of Rs.5,00,000/- was paid by way
of advance. A sale deed was executed on 30.9.2005 by the appellant herein on
receipt of the balance sum of Rs.18,79,000/-.
5.
Indisputably on or about 29.9.2005, two rooms, allegedly, constructed on the
said lands were demolished. A suit was filed in relation thereto.
Respondent
No.1 was also defendant in the said suit. In the written statement, she stated
:
Whereas
it is the Plaintiffs who by demolishing existing structure when the defendant
No.2 and her family members are away and even the electricity connection meter
was thrown away and in that regard this defendant No.2 herein has reported the
matter to the concerned police and this Plaintiffs herein have also filed a
caveat application having got signed the same in the affidavit. And whereas
before this Honble Court, the same Plaintiffs herein has put his thumb
impression and the Plaintiff herein by taking advantage of ad interim orders,
are trying to forcibly encroach upon the suit schedule property.
6.
Respondent herein, in the said suit, inter alia, contended that the suit
properties are different from the subject matter of the deed of sale. Although
the aforementioned written statement was filed only in March, 2006, first
respondent herein filed a complaint in the court of Metropolitan Magistrate, Cyberabad
at Neredmet alleging commission of an offence by the appellant purported to be
under Section 420 of the Indian Penal Code.
7.
Submission of Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the
appellant, is that the allegations contained in the complaint petition, even if
given face value and taken to be correct in their entirety, do not disclose any
offence. Learned counsel would contend that from a perusal of the written
statement filed by the first respondent, it would appear that they she at all
material times was aware of the purported demolition of the said rooms.
8.
Section 415 of the Indian Penal Code reads thus :
Section
415 Cheating Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived 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, is said to "cheat".
Explanation,A
dishonest concealment of facts is a deception within the meaning of this
section. Section 415 of the Indian Penal Code is required to be read with
the definition of the expression dishonestly as contained in Section
24 thereof in terms whereof something must be done with an intention of causing
wrongful gain to one person or wrongful loss to another.
9.
There exists a dispute as to whether the property whereupon the said two rooms
were allegedly situated was the same property forming the subject matter of the
deed of sale or not. A civil suit has already been filed in relation thereto.
Respondent No.1 herein was aware of the fact that the said two rooms stood
demolished. It is furthermore not in dispute that the demolition was not caused
by the appellant herein. In her written statement filed in the said suit, the
first respondent did not make any allegation against the appellant herein. The
High Court, in its judgment, inter alia, opined that, prima facie, the
appellant concealed the fact of demolition of the premises from the first
respondent before execution of the aforementioned deed of sale.
10.
The short question which arises for consideration is as to whether a case of
cheating within the meaning of Section 415 of the Indian Penal Code has been
made out or not.
11.
Ingredients of cheating are :
(i) deception
of a person either by making a false or misleading representation or by other
action or omission; and
(ii)
fraudulent or dishonest inducement of that person to either deliver any
property to any person or to consent to the retention thereof by any person or
to intentionally induce 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.
12.
While executing the sale deed, the appellant herein did not make any false or
misleading representation. There had also not been any dishonest act of
inducement on his part to do or omit to do anything which he could not have
done or omitted to have done if he were not so deceived.
Admittedly,
the matter is pending before a competent civil court. A decision of a competent
court of law is required to be taken in this behalf.
Essentially,
the dispute between the parties is a civil dispute.
13.
For the purpose of establishing the offence of cheating, the complainant is
required to show that the accused had fraudulent or dishonest intention at the
time of making promise or representation. In a case of this nature, it is
permissible in law to consider the stand taken by a party in a pending civil litigation.
We do not, however, mean to lay down a law that the liability of a person
cannot be both civil and criminal at the same time.
But
when a stand has been taken in a complaint petition which is contrary to or
inconsistent with the stand taken by him in a civil suit, it assumes
significance. Had the fact as purported to have been represented before us that
the appellant herein got the said two rooms demolished and concealed the said
fact at the time of execution of the deed of sale, the matter might have been
different. As the deed of sale was executed on 30.9.2005 and the purported
demolition took place on 29.9.2005, it was expected that the complainant/first
respondent would come out with her real grievance in the written statement
filed by her in the aforementioned suit. She, for reasons best known to her,
did not choose to do so.
14. In
this view of the matter, we are of the opinion that in the facts and
circumstances obtaining herein, no case has been made out for proceeding with
the criminal case.
15. In
G. Sagar Suri & Anr. v. State of U.P.
& Ors. [(2000) 2 SCC 636], this Court opined :
8.
Jurisdiction under Section 482 of the Code has to be exercised with great care.
In exercise of its jurisdiction the High Court is not to examine the matter
superficially. It is to be seen if a matter, which is essentially of a civil
nature, has been given a cloak of criminal offence. Criminal proceedings are
not a short cut of other remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For the accused it is a
serious matter. This Court has laid certain principles on the basis of which
the High Court is to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent abuse of the
process of any court or otherwise to secure the ends of justice.
Therein,
having regard to the fact that a criminal complaint under Section 138 of the
Negotiable Instruments Act had already been pending, the criminal complaint
under Section 406/420 found to be an abuse of the due process of law.
16. In
Anil Mahajan v. Bhor Industries Ltd. & Anr. [(2005) 10 SCC 228], this Court
held :
8.
The substance of the complaint is to be seen.
Mere
use of the expression cheating in the complaint is of no consequence.
Except mention of the words deceive and cheat in the
complaint filed before the Magistrate and cheating in the complaint
filed before the police, there is no averment about the deceit, cheating or
fraudulent intention of the accused at the time of entering into MOU wherefrom
it can be inferred that the accused had the intention to deceive the
complainant to pay. According to the complainant, a sum of Rs.3,05,39,086 out
of the total amount of Rs.3,38,62,860 was paid leaving balance of Rs.33,23,774.
We need not go into the question of the difference of the amounts mentioned in
the complaint which is much more than what is mentioned in the notice and also
the defence of the accused and the stand taken in reply to notice because the
complainants own case is that over rupees three crores was paid and for
balance, the accused was giving reasons as above-noticed. The additional reason
for not going into these aspects is that a civil suit is pending inter se the
parties for the amounts in question.
17. In
Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257], this Court opined :
It
is settled law, by a catena of decisions, that for establishing the offence of
cheating, the complainant is required to show that the accused had fraudulent
or dishonest intention at the time of making promise or representation. From
his making failure to keep promise subsequently, such a culpable intention
right at the beginning that is at the time when the promise was made cannot be
presumed. It is seen from the records that the exemption certificate contained
necessary conditions which were required to be complied with after importation
of the machine. Since the GCS could not comply with it, therefore, it rightly
paid the necessary duties without taking advantage of the exemption
certificate. The conduct of the GCS clearly indicates that there was no
fraudulent or dishonest intention of either the GCS or the appellants in their
capacities as office-bearers right at the time of making application for exemption
.
As
there was absence of dishonest and fraudulent intention, the question of
committing offence under Section 420 of the Indian Penal Code does not
arise. {See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005) 3 SCC 670] and Indian Oil
Corporation v. NEPC India Ltd. & Ors. [(2006) 6 SCC 736]}.
18.
For the reasons aforementioned, the impugned judgment cannot be sustained. It
is set aside accordingly. Appeal is allowed. No costs.
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