AI Structured Summary
Not yet generated for this judgment
Judgment
This Writ Petition is filed to declare inaction of 3rd respondent for not taking any legal steps to register FIR based on the complaints vide
MBNR/NAWA MBBNR/130221/00036, dated 13.02.2021 and 27.02.2021 lodged by the writ petitioner before respondents, as illegal and for
consequential direction to the respondents to register the said complaints.
Heard Sri A.Venkata Swamy Yadav, learned counsel for the petitioner and Sri S.Ram Mohan, learned Assistant Government Pleader for Home
appearing for respondent Nos.1 to 4. It is mentioned in the cause title of the Writ Petition that Respondent Nos.5 to 9 are not necessary parties.
Perused the record.
FACTS OF THE CASE
i) A perusal of record would reveal that the petitioner herein has lodged complaints dated 13.02.2021 and 27.02.2021 with respondent Nos.4 and 2
respectively. According to the petitioner herein, 5th respondent is the owner of agricultural land admeasuring Ac.1-06guntas in Sy.No.124-part of
Darpally Shiva, Nawabpet Mandal, Mahaboob Nagar district (for short, ‘the subject property’). 5th respondent has agreed to sell the subject
property and the petitioner herein agreed to purchase the same. Accordingly they have entered into an agreement of sale dated 24.02.2016 agreeing
for sale consideration of Rs.4,25,000/- per acre and total consideration of Rs.4,88,750/-. The petitioner herein has paid an amount of Rs.1,00,000/- and
agreed to pay the balance sale consideration within two months. In the said agreement of sale dated 24.02.2016, it is also mentioned that 5th
respondent has taken an amount of Rs.50,000/- from the petitioner herein for his personal needs. They have also entered into another agreement dated
05.03.2016 reiterating earlier agreement of sale dated 24.02.2016 and payment of balance sale consideration within two months and also conducting of
survey and fixing of boundaries.
ii) In the said complaints, dated 13.02.2021 and 27.02.2021, the petitioner herein has alleged that despite paying an amount of Rs.3,50,000/- towards
advance sale consideration, 5th respondent did not execute registered sale deed in his favour by receiving balance sale consideration and hatched a
plan with respondent Nos.6 to 9 and got sham document into existence. The petitioner came to know about the same in May, 2018 when galata took
place at the said land and a panchayat was conducted with the villagers in the month of June, 2018. 5th respondent has agreed before the elders of the
village to convince 7th respondent and will get registered sale deed in favour of the petitioner herein within six months. Even then the petitioner, aged
about 70 years, requested many times to get the land registered in his name, ultimately though waited for long time, in spite of receiving huge amount
from the petitioner, 5th respondent neither returned the money nor registered the land in his name which clearly attract criminal breach of trust.
iii) The above stated facts would reveal that 5th respondent herein being owner of the subject property, agreed to sell the said property to the
petitioner herein. Accordingly, they have entered into an agreement of sale dated 24.02.2016 for total sale consideration of Rs.4,88,715/- at the rate of
Rs.4,25,000/- per acre. Accordingly, the petitioner herein has paid an amount of Rs.1,00,000/- towards advance sale consideration and he agreed to
pay balance sale consideration within two months from the said date of said agreement of sale. As stated above, 5th respondent has received an
amount of Rs.50,000/- from the petitioner herein on 18.04.2016 towards his personal needs.
iv) It is also relevant to note that the petitioner and 5th respondent have entered into another agreement of sale dated 05.03.2016 wherein it is
specifically mentioned about the earlier agreement of sale dated 24.02.2016 and also the total agreed sale consideration of Rs.4,88,750/-. It is also
further mentioned that 5th respondent has taken an amount of Rs.1,00,000/- towards his personal needs and in all he has taken an amount of
Rs.2,00,000/-from the petitioner herein. They have further agreed that the balance amount will be paid within two months and also to conduct survey
and fixing of boundaries. Learned counsel for the petitioner herein vide memo dated 28.07.2021 filed a copy of registered sale deed bearing
No.416/2017, dated 18.01.2017.
v) A perusal of the said sale deed would reveal that 5th respondent has sold the said land admeasuring Ac.0.33guntas in Sy.No.124/D situated at
Dharpally Village and Gram Panchayat, Nawabpet Mandal, Mahaboob Nagar District in favour of 7th respondent Smt. Mallepally Amruthamma.
Thus, 5th respondent has sold part of the subject land to respondent No.7 on 18.01.2017 itself.
vi) It is also relevant to note that in the complaints dated 13.02.2021 and 27.02.2021, the petitioner herein has mentioned about sham document brought
into existence by 5th respondent in collusion with the respondent Nos.6 to 9, he has not mentioned the details of the said documents. He has also
mentioned about the panchayat said to have been held in June, 2018 by which time, 5th respondent has already executed the above said sale deed
bearing document No.416 of 2017, dated 18.01.2017 in favour of 7th respondent. It is also relevant to note that the petitioner herein did not file any suit
seeking cancellation of the said sale deed bearing Doc.No.416 of 2017, dated 18.01.2017 and for specific performance of agreements of sale against
5th respondent.
vii) The only allegation made by the petitioner herein in the complaints is that 5th respondent in collusion with respondent Nos.7 to 9 brought the sham
document into existence.
STAND OF 4TH RESPNODENT IN THE COUNTER
i) In the counter filed by 4th respondent-the Station House Officer, Nawabpet Police Station, it is specifically mentioned that 4th respondent has
received the complaint dated 13.02.2021 from the petitioner herein and they have made entry in the General Diary on 13.02.2021 itself and thereafter
they have conducted preliminary enquiry which reveals that the dispute between the petitioner as well as the respondent Nos.5 to 9 is purely a civil
dispute.
ii) Since the allegation is violation of terms of agreements of sale, 4th respondent tried to serve notice on the petitioner and the petitioner evading to
receive the same. Therefore, they have affixed the said notice dated 26.02.2021 on the house of the petitioner herein.
iii) The dispute between the petitioner and the unofficial respondents is a civil dispute and the petitioner is trying to involve the police into his personal
civil dispute.
iv) The report submitted by the petitioner discloses commission of cognizable offence and therefore, they have not registered any First Information
Report. The remedy to the aggrieved person is filing of a complaint under section 200 Cr.P.C. and also availing other remedies under Sections 154,
156(3) of Cr.P.C.
v) With the said submissions, 4th respondent sought to dismiss the present writ petition.
ANANLYSIS AND FINDINGS OF THE COURT
i) In view of the facts of the case as stated above and in support of his contentions, learned counsel for the petitioner relied on the principle laid down
by the then High Court of Andhra Pradesh at Hyderabad, in Rudravaram Jhansi Rani Vs. State of Andhra Pradesh 2014 (1)ALD(CRl) 213 AP. In
the said case, the accused have collected several lakhs of rupees from L.Ws.1 and 2 and other investors under ‘Money Investment Plan’
scheme. They have made some payments but subsequently stopped payments. The accused have issued cheques which were dishonoured. Therefore,
aggrieved persons/victims have lodged a complaint with the Police who in turn registered a case and after completion of investigation, laid charge
sheet. On examination of the facts of the said case, it was held that the pendency of a civil dispute between the parties does not preclude criminal
action if such civil dispute also constitutes the commission of criminal offence. Whereas, the facts in the said case are different from the case on
hand.
ii) It is relevant to mention that in Jallepalli Rama Koteswara Rao Vs. State of Andhra Pradesh rep. by its Principal Secretary, Home Department,
Hyderabad 2016(3) ALT 797, this Court, referring to the procedure laid down under Sections 154 and 155 of the Cr.P.C. and also principle laid down
by the Hon’ble Apex court in Lalita Kumari Vs. Government of Utter Pradesh 2014(2) SCC 1 held that it is not open to the Police authorities to
deviate therefrom or show any tardiness in taking appropriate necessary action after receiving a complaint alleging a cognizable criminal offence. In
the event, the offence alleged is a non-cognizable one, the police authorities are bound to follow the due procedure laid down under Section 155 of the
Cr.P.C. In any event, the police authorities must take suitable action in the matter expeditiously.
iii) The Hon’ble Apex court in Lalita Kumari (supra) laid down certain principles in connection with the registration of crimes which are relevant
to lis and the same are extracted hereunder;-
“1. The registration of a FIR is mandatory under Section 154 Cr.P.C., if the information discloses commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation.
If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted
only to ascertain whether a cognizable offence is disclosed or not.
If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where the preliminary inquiry ends in closing
the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose the
reasons in brief for closing the complaint and not proceeding further.
A police officer cannot avoid his duty of registering a FIR if a cognizable offence is disclosed. Action must be taken against erring officers who do
not register the FIR if information received by him discloses a cognizable offence.
The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information
reveals any cognizable offence.
As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category
of cases in which preliminary inquiry may be made are as under:
a. Matrimonial disputes/family disputes, b. Commercial offences,
c. Medical negligence cases,
d. Corruption cases,
e. Cases where there is abnormal delay/laches in initiating a criminal prosecution, for example, over 3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay,
While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it
should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the general diary entry.
Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, all information relating to cognizable
offences, whether resulting in registration of a FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the
decision to conduct a preliminary inquiry must also be reflected therein.â€
iv) Learned counsel for the petitioner has also placed reliance on the another decision reported in A.V.Santosh Kumar Vs. Sajjid Hussain, Partners of
the Delta Cabs Pvt.Ltd.,Hyderabad 2014(3) ALT(Crl) 22(AP), In the said case, the petitioner alleged that he joined as a shareholder Delta Cabs
Company by depositing Rs.1,00,000/-towards his share capital. The respondents therein are the partners of the said Delta Cabs Company and they
have entered into an agreement with the petitioner therein on 06.05.2012. Respondent Nos.1 and 2 therein absconded with the company funds and are
not paying interest on the petitioner’s capital amount or profit in the business, the petitioner has lodged a report on 11.11.2013 and also on
16.11.2013 against respondent Nos.1 and 2 for offences under Sections 420, 120-B, 406 and 409 of IPC. The Police have registered a case. Even
after expiry of more than one month, the petitioner filed the said Writ Petition.
v) In the said case, referring to the guidelines issued by the Hon’ble Apex Court in Lalita Kumari (supra) and also principle laid down in T.V.G.
Chandrasekhar Vs. State of Andhra Pradesh, represented by its Principal Secretary, Home Department, Secretariat, Hyderabad-2014(2)ALT(Crl) 6
(AP)., it was held that if the contents of the complaint constitute cognizable offence, it is duty bound on the part of the police to register First
Information Report.
vi) It is also relevant to refer Section 154(3), 156(3), 190 and 200 Cr.P.C, which are relevant for the purpose of the present case.
vii) As per Section 154(3) of the Cr.P.C. “Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the
information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned
who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an
officer in charge of the police station in relation to that offence.â€
viii) As per Section 156(3) of the Cr.P.C. “Any Magistrate empowered under section 190 may order such an investigation mentioned in Section
156(1) and (2) of the Cr.P.C.â€
ix) Section 190 of the Cr.P.C. deals with cognizance of offences by Magistrate and procedure to be followed.
x) Section 200 of the Cr.P.C. reads as follows:-
“Examination of complainant:- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the
witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses,
and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the
witnesses, the latter Magistrate need not re- examine them.â€
xi) It is relevant to note that Section 2© of Cr.P.C. deals with ""cognizable offence"" means an offence for which, and"" cognizable case"" means a
case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
In view of the law laid down in the above said decisions and also the above stated provisions of the Cr.P.C., coming to the facts of the case on
hand as discussed supra, the contention of the petitioner in the complaint is that 5th respondent, in collusion with respondent Nos.6 to 9, brought sham
document into existence to defraud him. As discussed above, the agreements of sale entered by the petitioner with 5th respondent were dated
24.02.2016 and 05.03.2016. 5th respondent has executed the above said registered sale deed bearing document No.416 of 2017, dated 18.01.2017 in
favour of 7th respondent with regard to part of the subject property. The petitioner came to know about said document before June, 2018 itself. In
June, 2018, according to the petitioner, a panchayat was held wherein, 5th respondent agreed to convince 7th respondent and execute a registered sale
deed in his favour. But 5th respondent neither paid the amount nor executed a registered sale deed.
Thus, it is trite to note that the petitioner herein kept quiet from June, 2018 itself and much prior to that he has not filed any suit for specific
performance. The above said two agreements of sale dated 24.02.2016 and 05.03.2016 are time barred. Knowing very well about the said sham
document, the petitioner herein kept quiet. After lapse of 5 years from the date of agreements of sale and also after lapse of three years from the date
of knowledge of the said sham document, the petitioner has lodged the present complaint on 13.02.2021. Therefore, the petitioner herein with an
intention to transform civil dispute into a criminal dispute and under the guise of pendency of the First Information Report, he wants to recover the
advance sale consideration paid by him under the above said agreements of sale to 5th respondent herein. The petitioner herein did not file any
complaint under Section 200 of the Cr.P.C. with the learned Magistrate. He was silent all through but submitted a representation to the 2nd
respondent.
8) According to 4th respondent, they have received the said complaint, made entry in the General Diary and after preliminary enquiry, they came to
know that the dispute between the petitioner and 5th respondent is a civil dispute and it is not a cognizable offence and therefore, they have closed it.
They have informed the said fact to the petitioner herein vide notice No.13/B1/2021, dated 26.02.2021. 4th respondent has filed counter stating the
said facts and the petitioner herein did not file any reply denying said facts. Thus, the above stated facts would reveal that according to the petitioner
herein, there is breach of terms of agreements of sale, dated 24.02.2016 and 05.03.2016 and the petitioner herein has to approach civil Court in stead
of involving the police with a request to register First Information Report. Thus, the principle laid down in the above said decisions is not applicable to
the facts of the present case since the petitioner herein did not avail the alternative remedy and the contents of the complaints dated 13.02.2021 and
27.02.2021 do not constitute cognizable offence. Thus, the petitioner fails to make out a ground to grant relief as prayed and therefore, the present
Writ Petition fails and is liable to be dismissed.
Therefore, the Writ Petition is dismissed. Miscellaneous Petitions, if any, pending, shall also stand closed.