P.Vikram Deva Reddy, Kukatpally, Hyd. vs State, Rep Sho Kesara Ps., Thr Pp., Anr.

This Criminal Petition is filed by the petitioner-A5 under Section 482 Cr.P.C. to quash the proceedings in CC No.239 of 2012 on the file of X

Metropolitan Magistrate, Malkajgiri, Cyberabad for the offences under Sections 468, 471 and 420 IPC against him.

The case of the petitioner in brief was that the 2nd respondent filed a complaint before the Keesara Police on 08.06.2011 at 8.30 PM alleging that

he was the owner and possessor of agricultural land of an extent of Acs.8.16 gts., situated at Sy.Nos.581, 582 and 583 of Rampally Dayara village,

Keesara Mandal, R.R. District. He purchased the same from Smt. Kandadi Manemma and her sons K. Buchireddy and K. Jangareddy vide

registered sale deed document No.4530/1990 dated 06.06.1990 at the office of Sub Registrar, Medchal. Since then he has been enjoying the

uninterrupted possession of the said agricultural land. He was growing Mango, Teak and Coconut trees and also dug two borewells and constructed a

house 20 years back in the said land. He came to know that one K. Dharma Reddy, brother-in-law of Smt. Manemma, who had a criminal

background, obtained a forged revenue certificate under Section 38 E of the Tenancy Act showing him and his three deceased brothers as protected

tenants of Acs.31.06 guntas of land and clandestinely entered into an agreement of sale and registered Acs.24.00 gts., of land in the name of P.

Vikram Deva Reddy and P. Rama Devi at the office of the Sub Registrar, Keesara on 29.04.2011. The said deed was signed by the seller of his land

Smt. K. Manemma and her sons K. Buchireddy and K.Jangareddy. Her daughter K. Shobha was stated to have expired. The deed was also signed

by K. Dhrama Reddy and some others, who were his blood relatives. The agricultural land which was sold to him was part of the land dubiously

registered for the second time on another name. He verified with the concerned MRO and RDO offices, but no records pertaining to 38E certificate

was found. He requested to take necessary action against Smt. K. Manemma and her two sons and K. Dharma Reddy, who were involved in double

registration. Basing on the said report, the Inspector of Police of Keesara Police Station registered a case in Crime No.198 of 2011 for the offences

under Sections 420, 468 and 471 IPC and after investigation filed charge sheet against A1 to A8 showing A7 as absconding. It was mentioned in the

charge sheet that A1 to A6 knowing fully well that Form 38E certificate was not a genuine one used the same as genuine one and involved in double

registration of the land and committed the offence punishable under Section 471 IPC and A1 to A8 were involved in double registration in order to

cause wrongful loss to LW1 and for their wrongful gain and thereby committed the offence punishable under Section 420 IPC.

Heard the learned counsel for the petitioner, learned counsel for the 2nd respondent and the learned Assistant Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner and his wife (A6) were the Directors of Vikram Infra Ventures (P) Limited

Company which was engaged in real estate business and development of properties. The company under two registered sale deeds dated 29.04.2011

purchased an extent of Acs.12.02 gts., in Sy.Nos.581 to 583 and an extent of Acs.12.02 gts., in Sy.No.581 to 583 for a valuable consideration of

Rs.30.00 lakhs. The amount was paid through various cheques drawn on Karur Vysya Bank, Kukatpally Branch, Hyderabad. The sale deeds were

executed by 13 vendors including A1 to A4 in the above CC. The title of the parties was traced to the Protected Tenancy Rights under a certificate

issued under Section 38E of the A.P. (Telangana Area) Tenancy and Agricultural Land Act, vide LR No.B/464/LRE/75 dated 15.10.1975. The

petitioner purchased the property in the name of the Company under a bonafide belief of title in the vendors. The extent allegedly purchased by the

2nd respondent as per the complaint was only Acs.8.16 gts., whereas the company purchased a total extent of Acs.24.04 gts., Even assuming for

arguments sake that the said certificate was not genuine, even then purchasers could not be implicated in the offence for no fault of them. Learned

Magistrate ought not to have taken cognizance of the offence against the petitioner. The charge sheet would not specifically disclose as to who made

erasures in the certificate under Section 38 E of the Tenancy Act. The police were not clear as to whether the certificate under Section 38 E of the

Tenancy Act was tampered or whether the said certificate was fabricated. Mere calling the document as not genuine was not correct without saying

as to how it was not genuine. The FIR would not disclose the name of the petitioner and accused Nos.6 to 8 but their names were implicated in the

charge sheet. The statements recorded under Section 161 Cr.P.C. did not indicate any role of the petitioner in the fabrication or tampering of Section

38 E Certificate. Therefore, filing of the charge sheet against the petitioner was without any material and the continuation of prosecution against the

petitioner was an abuse of process of court and prayed to allow the petition.

The learned counsel for the 2nd respondent, on the other hand, contended that the police after investigation filed charge sheet against the petitioner

showing him as A5. A5 and A6 were also found to be hand in glove along with other petitioners - A1 to A4 in fabricating the 38 E certificate. A5 and

A6 having knowledge that 38E certificate was fabricated one, purchased the land from A1 to A4. They had not taken any steps against their vendors

A1 to A4 and the said document was pressed into service by the petitioner-A5. He further submitted that the alleged fabricated 38 E certificate was

not traceable in the revenue records and relied upon the judgments of the Hon’ble Apex Court in Dr. Lakshman v. State of Karnataka and others

2019 (9) SCC 677 and in Kaptan Singh v. State of Uttar Pradesh 2021 SCC Online SC 580 on the aspect that the power under Section 482 Cr.P.C. is

to be exercised sparingly and the High Court is not required to go into the merits of the allegations while exercising its power under Section 482

Cr.P.C.

The learned Assistant Public Prosecutor opposed the petition.

Perused the record. The record would disclose that police of Keesara filed charge sheet against the petitioner-A5 along with 7 other accused for

the offences under Sections 420, 468 and 471 IPC and they mentioned in the charge sheet that A1 to A6 knowing fully well that Form 38E certificate

was not a genuine one, used it as a genuine one and indulged in double registration of the land and caused wrongful loss to LW1 for their wrongful

gain and committed offences punishable under Sections 420 and 471 IPC. There were no allegations against the petitioner for the offence under

Section 468 IPC for creating the alleged 38E certificate. As per the charge sheet one P. Kondal Reddy of Alwal (A7, who was shown as absconding)

was instrumental in securing the Form 38 E certificate and arranged sale of the lands @ Rs.2,00,000/- per acre to the petitioner-A5 and his wife Smt.

P. Ramadevi. The Investigating Officer during the course of investigation collected the disputed Form 38E certificate and forwarded it to the Forensic

Science Laboratory for opinion of the handwriting expert and the expert opined that there were mechanical erasures in the red enclosed portions

marked as Q1 to Q10. The disturbance in surface of paper fibers, thinning of paper and remnants of previous ink strokes were clearly seen when

viewed under stereomicroscope and video spectral comparator, but original writings could not be deciphered. There was no charge of common

intention under Section 34 IPC against the petitioner. There were no allegations against him that he fabricated the said 38E certificate and no charge

was alleged against him under Section 468 IPC.

The Hon’ble Apex Court in Mohd.Ibrahim and others v. State of Bihar and another (2009) 8 SCC 751 held that:

“14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to

allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration.

But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant

that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case

that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to

intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the

first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of

executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused,

by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of

cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code.

When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false

document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a

property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the

purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not

be able to make such complaint. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is ""deliberate deception, treachery or

cheating intended to gain advantage"". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla vs.

Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus ""The expression ""defraud"" involves two

elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether

movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is

a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in

those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.

The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999 (2) SCC 617.

The petitioner was alleged to be a bonafide purchaser of the property who purchased the same for a valuable sale consideration. He had not only

purchased the property alleged to have been registered in the name of the 2nd respondent earlier, but also the other property including a total extent of

Acs.24.04 gts., from 13 vendors including A1 to A4 shown as vendors 8 to 11. The petitioner being the purchaser of the property for a valuable sale

consideration cannot be alleged to have deceived the 2nd respondent in any manner. The 2nd respondent had not made any allegations against the

petitioner-A5 that he tried to deceive him by making a false or misleading representation or offered him to deliver any property by any fraudulent and

dishonest inducement attracting the ingredients of the offence under Section 420 IPC. The charge sheet also would not disclose the knowledge of the

petitioner as to how he came to know that Form 38 E certificate was not a genuine one and used the same as genuine one.

Learned counsel for the petitioner relied upon the judgments of the Hon’ble Apex Court in Robert John D’Souza and others v. Stephen V.

Gomes and another 2015 (9) SCC 96 wherein it was held that:

“As far as offence of cheating is concerned, for which punishment is provided under Section 420, one of the essential ingredients is deception. But

in the present case, from contents of complaint, it nowhere reflects that complainant was deceived or her or anyone else was induced to deliver

property by deception. What was done, was so reflected in resolution and sale deeds. Hence, summoning order quashed. Complaint clearly nothing but

an abuse of process of law by the complainant to falsely implicate the appellants.â€​

He also relied upon the judgment of the Hon’ble Apex Court in Mitesh Kumar J Sha v. State of Karnataka and others 2021 SCC OnLine SC

976 on the aspect that criminal proceedings must not be used as instruments of harassment, wherein it was held that:

On an earlier occasion, in case of G. Sagar Suri v. State of UP [(200) 2 SCC 636] this Court has also observed:-

Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter

superficially. It is to be seen if a matter, which is essentially of 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 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.â€​

He also relied upon the judgment of the Hon’ble Apex Court in N. Raghuveer V. State of Andhra Pradesh, CBI Crl.A. No.5 of 2010, decided

on 13.12.2021 wherein the Hon’ble Apex Court stated the necessary ingredients to prove the charge under Section 420 IPC.

Learned counsel for the 2nd respondent, on the other hand, relied upon the judgment of the Hon’ble Apex Court in Dr. Lakshman case (1

surpa), wherein it was held that:

“…..Though the contract is of civil nature, if there is an element of cheating and fraud it is always open for a party in a contract, to prosecute the

other side for the offences alleged. Equally, mere filing of a suit or complaint filed under Section 138 of the N.I. Act, 1881 by itself is no ground to

quash the proceedings. While considering the petition under Section 482 of Cr.P.C., we are of the view that the High Court also committed an error

that there is a novation of the contract in view of the subsequent agreement entered into on 08.11.2012…..â€​

He further relied upon the judgment of the Hon’ble Apex Court in Kaptan Singh case (2 supra), wherein it was held that:

“….. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be

considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded,

evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is

required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of

decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is

exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to

examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can

exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of

FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences

from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in

such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-

sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.â€​

The Hon’ble Apex Court in a landmark judgment in State of Haryana v. Bhajanlal 1992 AIR 604 laid down the following categories of

incidents wherein inherent powers of the Court can be exercised under Section 482 Cr.P.C. to secure the ends of justice. Those are:

“(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 F.I.R. 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 uncontroverted 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;

(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.â€​

Applying the said principles to the case on hand, as the allegations made in the FIR or in the complaint or the charge sheet even if taken on their

face value or accepted in their entirety do not prima facie constitute any offence or case against the petitioner-A5, it is considered fit to quash the

proceedings against the petitioner-A5, as continuation of the proceedings against him, is considered as an abuse of process of law.

In the result, the Criminal Petition is allowed quashing the proceedings against the petitioner-A5 in CC No.239 of 2012 on the file of X

Metropolitan Magistrate, Malkajgiri, Cyberabad, Ranga Reddy District.

Miscellaneous petitions pending, if any, shall stand closed.