Nirmala Jacob vs State Of Telangana

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) by the petitioners/A1 & A2 to quash the proceedings in C.C.No.10438 of 2021 on the file of XVII Additional Chief Metropolitan Magistrate at Hyderabad. The offences alleged against the petitioners/A1 and A2 are under Sections 420, 468, 506, read with 34 of the Indian Penal Code.

Heard learned counsel for the petitioners and learned Additional Public Prosecutor for 1st respondent-State and perused the record.

Briefly, the case of the prosecution is that on the basis of complaint filed by the 2nd respondent dated 11.11.2019, a crime was registered against the petitioners for the offences punishable under Section 420, 468 and 506 read with 34 of the Indian Penal Code. According to the complaint, the petitioners claimed to be the owners and purchasers of the property bearing Municipal Nos.8-2-293/82/A/711 and 8-2-293/82/A/711/1, admeasuring 1117 sq.yards bearing plot No.711 purchased from the Jubilee Hills Co-operative House Building Society. An amount of Rs.3.5 crores was paid by the 2nd respondent as advance on the promise of the petitioners registering the said plot after getting ‘No due certificate’ from the society. The complainant further stated that there was no such property in the name of the petitioners and all documents were forged and fabricated. When the 2nd respondent approached the petitioners to return the money, they refused and threatened the 2nd respondent. The 2nd respondent then approached Police and they refused to receive the complaint on the ground that the transaction is civil in nature. On the basis of the complaint, which was referred by the Magistrate, the crime was registered. After completion of investigation, it was found that the property existed with Municipal No. 8-2-293/82/A/711, and not with Municipal No. 8-2-293/82/A/711/1.

Inspite of the case being listed, thrice, there is no appearance on behalf of the 2nd respondent. Arguments of the petitioners are heard and having perused the record, the present order.

Admittedly, the 2nd respondent has filed a civil suit bearing O.S.No.414 of 2021 on the file of the Principal Chief Judge, City Civil Courts at Hyderabad, on 15.11.2021 i.e. nearly two years after filing the criminal complaint. The said suit is for Specific Performance of the agreement of sale and the schedule of the property reflects that a direction is sought against the house property bearing Municipal Nos.8-2-293/82/A/711 and 8-2-293/82/A/711/1.

Admittedly, even according to the 2nd respondent, the property is in existence and the allegations made in the complaint that there was no such property, all the documents are fabricated, are not acceptable. As seen from the statement made, the grievance of the 2nd respondent is that money was taken on a non-existent property. However, it is established during investigation that the property is in existence and also the 2nd respondent filed civil suit two years after filing criminal complaint for specific performance.

To attract an offence of cheating the necessary ingredients are;

a) Making a false representation

b) Believing such false representation a person must have been induced

c) Pursuant of such inducement the person should have delivered property.

The case is a sale transaction for which an amount of Rs.3.5 crores was given to the 2nd respondent. However, on failure to pay remaining amount, the registration was not done. Even according to the civil suit filed for specific performance, the agreement of sale was for Rs.14,25,00,000/-, out of which Rs.3.5 crores was paid. When the 2nd respondent himself agrees to the fact that the property is in existence and there was an agreement of sale for Rs.14.25 crores, out of which 3.5 crores was paid and seeks a direction from the civil court to register the property in his name, the question of cheating does not arise in the said sale transaction, since it is either a deferred registration or a delayed registration.

Since there is no dispute that the property is in existence, the question of attracting offence for fabrication of records under Section 468 of Indian Penal Code does not arise.

In view of the aforesaid reasons, the Criminal Petition is allowed and the proceedings in C.C.No.10438 of 2021 on the file of XVII Additional chief Metropolitan Magistrate at Hyderabad, against the petitioners/A1 and A2 are quashed.

Miscellaneous Petitions, pending if any, shall stand closed.