HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Petition No.7451 of 2008 ORDER: This criminal petition is ﬁled under section 482 Cr.P.C. for quashing further proceedings against the petitioner-sole accused in CC No.417 of 2008 on the ﬁle of the III Additional Judicial First Class Magistrate, Kakinada. 2. Heard both sides. 3. The ﬁrst respondent herein ﬁled private complaint against the petitioner before the III Additional Judicial First Class Magistrate, Kakinada, alleging the oﬀences under section 406 and 420 IPC and the same was forwarded by the learned Magistrate to the police for investigation and report under section 156(3) Cr.P.C. There upon, the police registered a case in Cr.No.129 of 2008 against the petitioner. After due investigation, police ﬁeld a charge sheet against the petitioner and the same was taken cognizance by the learned Magistrate in CC No.417 of 2008 for the oﬀence under Sections 406 and 420 of IPC. 4. According to the prosecution, the accused owned two buildings bearing D.Nos.11-3-40 and 11-3- 40/1 situated at Pitapuram and mortgaged the same in favour of the Indian Overseas Bank, Pitapuram on 19.03.2004 and obtained loan of Rs.6,20,261/-. The accused also borrowed a sum of Rs.1,20,000/- from one G.Tirupatiraju-LW.12 and failed to repay the loan and hence the said Tirupatiraju ﬁled OS No.2 of 2007 against the accused and got the above two houses attached before judgment in IA No.2 of 2007. It is further alleged that the accused with a view to make illegal gain and with an intention to cheat the complainant and his parents, oﬀered to sell the above two houses for Rs.17,75,000/- and took an advance of Rs.11,00,000/- on 29.07.2008 from the complainant and executed an agreement agreeing to execute the sale deed within six months. It is further alleged that the accused failed to execute the sale deed and postponed the same with an evil intention having misappropriated advance amount. It is further alleged that the accused told the complainant-LW.1 that he was in debts and he would execute registered power of attorney in favour of his sister and his sister in turn would execute the sale deed in favour of LW.1, but the same was also not executed. In the charge sheet, it is stated that the investigation discloses that A.1 alone was responsible for all the transactions and his wife- A.2 and brothers-A.3 and A.4 were not involved therein and therefore, their names were deleted. 5. Learned counsel for the petitioner-accused would contend that the dispute is purely civil in nature and the remedy for the complainant, if any, is to ﬁle a suit for speciﬁc performance, but not initiation of criminal proceedings. In that connection he relied upon the decision of the Apex Court in ‘B.Suresh Yadav v. Sharifa Bee[1]’, wherein it was held on the facts of the case that the dispute was a civil dispute and criminal prosecution in respect of the same amounted to abuse of process of law. In the above case, there was a dispute about the identity of the property, as it was contended that subject matter of the sale deed was diﬀerent from one in respect of which the complaint was ﬁled. It was further observed that the alleged demolition of two rooms was not caused by the appellant-accused. In the above case, it was held as follows: “….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 30.09.2005 and the purported demolition took place on 29.09.2005, 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.” 6. It is to be noted that in the above case, it was observed had the fact as purported to have been represented that the appellant therein got the two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been diﬀerent. In the present case, it is the speciﬁc allegation of the complainant that the accused has with a dishonest intention and with evil motive, suppressed the factum of mortgage of the property in favour of the bank, as also attachment in favour of Tirupati Raju-LW.12 at the time of entering into the agreement of sale and taken advance of Rs.11,00,000/-. It is therefore, not a case of mere failure to execute the sale deed having entered into agreement of sale, but it is a case where speciﬁc allegation is made to the eﬀect that the accused entertained intention of cheating from the beginning and with that intention only he suppressed the factum of mortgage in favour of the bank or attachment in favour of LW.12 at the time of the agreement of sale. Whether the said allegation is true or not, is a matter to be considered only on adducing evidence at the time of trial but not at this stage. The allegations in the complaint and the averments in the charge sheet, prima-facie attracts the ingredients of the alleged oﬀence and therefore, continuance of further proceedings cannot be termed as abuse of process of law so as to invoke the inherent powers of the court under section 482 Cr.P.C. and quash the same. 7. Learned counsel for the ﬁrst respondent relied upon the decision of the apex Court in ‘ALPIC Finance Ltd. V. P.Sadasivan [2]’ wherein it was held that ‘merely because remedy by way of civil suit is available is not an impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the oﬀence alleged’. It was further held that ‘in a transaction involving passing of valuable properties between the parties, the aggrieved party may sue for damages and also ﬁle a complaint against the wrongdoer for criminal breach of trust or cheating’. On facts, in the above case, it was of course held that the complaint did not disclose element of deception or fraud and therefore, it was liable to be quashed. 8. In the present case, as the complaint prima- facie discloses the ingredients of the alleged oﬀences, the truth or otherwise of which has to be tested only at the time of trial, it is considered not a ﬁt case to quash further proceedings against the petitioner- accused by invoking inherent powers of the court under section 482 Cr.P.C. 9. In the result, the criminal petition is dismissed. G.V.SEETHAPATHY, J Date: 24.11.2011 bss [1] (2009)1 SCC (Cri) 282 [2] (2001)3 SCC 513