HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.4835 of 2009 ORDER: Heard Smt.Ammaji Nettam, learned counsel representing Sri M.Viswanadham, learned counsel for the petitioners, and Sri H.Prahalad Reddy, learned Additional Public Prosecutor, who entered appearance for the first respondent. No notice is being ordered to the second respondent as the matter is being disposed of at the stage of admission. C.C.No.1295 of 2006 on the file of the III Metropolitan Magistrate, Visakhapatnam, was filed against the petitioners and another alleging that in the year 1998 the second respondent joined as a nurse in Deepthi Nursing Home under the first petitioner and on knowing about the second respondent’s father’s retirement from service and his receiving retirement benefits, the accused were alleged to have planned leading to the request by the first petitioner for a loan of Rs.4,50,000/- on the pretext of his capability to register a house in the name of the second respondent. The second respondent claims to have persuaded her father to advance a loan of Rs.4,50,000/- with which the first petitioner was claimed to have purchased a house by the side of the Deepthi Nursing Home in the name of his wife, the second petitioner, instead of the second respondent with a preplan to cheat the second respondent. The charge sheet further claims that when questioned about the registration of house in the name of the second petitioner, the first petitioner stated that in view of the objection by the house owner, it was so registered and within six months the house will be again registered in the name of the second respondent and advised her to take house rents for some time. The charge sheet further alleges that the second petitioner again intervened and started collecting house rents from the tenants and it was further alleged that the second respondent was induced to advance a further loan of Rs.1,50,000/- on the promise of higher salary on conversion of the hospital to a Corporate hospital. It was further alleged that ultimately the second respondent was forced to leave the job on or about 27.05.2005. The conclusion of the statutory investigating agency on the complaint of the second respondent after examining various witnesses is that the three accused on a plan approached the second respondent, made her believe that the first petitioner can arrange a house at a cheaper rate and took cash of Rs.4,50,000/-. It was further alleged by the investigating agency that the house was registered in the name of the second petitioner, the wife of the first petitioner, with the legal brain of the third accused and thus the second respondent was cheated. What the petitioners contend in this criminal petition is that the second respondent foisted a false case after termination of her services as Nurse in their hospital and they further claim that what all stands alleged is only a breach of agreement and not any intention of cheating as there was no inducement or fraudulent intention to cheat the second respondent even as per the allegations. The petitioners claim the execution of the document alleged in the charge sheet with the amount advanced to be involving no dishonest inducement or intention and therefore the prosecution being an abuse of process of law, it has to be quashed. The learned counsel for the petitioners referred to the parameters of the proceedings under Section 482 of the Code of Criminal Procedure as reiterated in M/s.Suryalakshmi Cotton Mills Ltd. v. M/s.Rajvir Industries Ltd.[1]. The Apex Court while referring to the earlier precedents on the aspect from Bhajanlal’s case up to date, has reiterated that ordinarily the defence of an accused, although appears to be plausible, should not be taken into consideration for exercise of the inherent powers under Section 482 of the Code of Criminal Procedure and made it clear that the High Court at that stage could not ordinarily enter into disputed questions of fact. While the Apex Court was not oblivious to the fact that although a large number of disputes should ordinarily be determined only by the civil courts, criminal cases are filed only for achieving the goal namely to force the accused to pay the amount due to the complainant immediately. Therefore, the Apex Court advised that the Court on one hand should not encourage such a practice; but on the other cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine and the Court should not also lose sight of the fact that in certain matters both civil proceedings and criminal proceedings can be maintained. Thus, it is clear from the ratio laid down by the Apex Court that where the dispute has both civil and criminal ramifications, the criminal proceedings should not be subjected to any quashing solely because of the civil consequences that will follow the dispute, notwithstanding the criminal liability that may also co-exist in respect of the same transaction. Keeping these principles in view, it has to be seen whether the allegations of the charge sheet can be considered to prima facie disclose any possibility of attributing criminal liability to the petitioners herein. The allegations of the charge sheet containing result of the detailed investigation by the statutory investigating agency on the complaint of the second respondent show that what was alleged was that since inception of lending the amount of Rs.4,50,000/-, manipulated to be advanced from the father of the second respondent on the promise of registering the house in the name of the second respondent, the petitioners made the second respondent believe that they can register the house in her name and got the house registered in the name of the second petitioner. Even while taking the second loan of Rs.1,50,000/- a false promise of higher salary to the second respondent on the conversion of the hospital to a corporate hospital was made. It is not for this Court to go into the truth or otherwise of the conclusions of the investigating agency and the prosecution has cited 10 witnesses in support of the allegations in the charge sheet. Though the learned counsel for the petitioner states that the witnesses cited were to speak of only what they heard and not what they viewed personally, the memorandum of evidence attached to the charge sheet does not substantiate such contention and it is as though mostly the witnesses speak from their personal knowledge about the truth or otherwise of the allegation. The ingredients of cheating as defined under Section 415 of the Indian Penal Code contain deceit, fraudulent or dishonest inducement to deliver any property or an intentional inducement of the person so deceived to do or to omit to do but for such deceit etc. and the act or omission should have resulted in damage or harm to the person deceived in body, mind, reputation or property. The allegation herein is about the damage caused to the property of the second respondent and that she was fraudulently or dishonestly induced to deliver two loans at Rs.4,50,000/- and Rs.1,50,000/- respectively which she would not have done, but for the fraudulent inducement. Section 420 of the Indian Penal Code is a consequential penal section for imposing punishment against the person, who cheats and dishonestly induced delivery of property by any other person. The learned counsel for the petitioner referred to again the same decision of the Supreme Court in Suryalakshmi Cotton Mills case (1 supra), wherein the Apex Court referred to the essential ingredients of an offence under Section 420 of the Indian Penal Code as being the fraudulent or dishonest inducement on the part of the accused since inception and not at a subsequent stage. She had also similarly referred to Ajay Mitra v. State of Madhya Pradesh[2] wherein also the Apex Court laid down that no mens rea can be attributed to the accused to cheat or deceive the complainant when they were not in the picture at all at the relevant time of lending money for improving the bottling plant and merely due to the fact that a notice was subsequently issued about renewal agreement relating to bottling plant pursuant to the agreement, the intention cannot be attributed to the accused there. Thus, even if the allegations in the complaint are accepted to be true and correct, they prima facie did not disclose any involvement of the accused there when the moneys were spent by the alleged victim on improving the bottling plant. But the intervention of the accused with the bottling plant was subsequent, unconnected with the spending of money by the alleged victim unlike in the present case where it was alleged that since inception the accused had the preplan to have the house registered in the name of the second petitioner with the money of the second respondent. Similarly, the decision in Fakhruddin Ahmad v. State of Uttaranchal[3] was relied on by the learned counsel for the petitioners, wherein the Apex Court reiterated as to when the High Court should interfere in exercise of the inherent jurisdiction under Section 482 of the Code of Criminal Procedure. The Apex Court clearly held that the inherent powers are to be exercised very carefully and with great caution so that a legitimate prosecution is not stifled. It is only where the High Court is convinced that the allegations made, even if they are acted upon at their face value and accepted in its entirety did not prima facie constitute an offence or make out a case against the accused or where the allegations made are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is a sufficient ground to proceed against the accused, the powers under the provisions should be exercised. In that case, the High Court was observed to have recorded a finding not on the uncontroverted allegations alone, but without looking into the material placed before the Magistrate itself. Therefore, the Apex Court stated that the High Court should have looked into the material placed before the Magistrate. The charge sheet in this case tested on such parameters shows that it is not a case where the extraordinary jurisdiction under Section 482 of the Cr.P.C. can be invoked. Though the transactions between the parties began in the year 1998 and though they approached the Police only in the year 2005, the delay by itself cannot be considered to be sufficient to throw out the prosecution at the inception and the allegations made by the investigating agency after a thorough investigation need to be enquired into by the trial court on the oral and documentary evidence to be placed before it and it is not a case where it can be concluded that there is absence of any element of cheating or that it is a purely civil dispute without any criminal liability and hence the criminal petition cannot succeed. In the result, the criminal petition is dismissed. ______________________ G.BHAVANI PRASAD, J 13th JULY, 2009 SUR [1] AIR 2008 SC 1683 [2] AIR 2003 SC 1069 [3] 2008 CRI.L.J.4377