HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.511 OF 2009 Dated : 26.08.2010. Between : Soham Modi & another … Petitioners a n d The State of A.P. & another … Respondents HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.511 OF 2009 ORDER: This Criminal Petition under Section 482 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the petitioners seeking to quash the proceedings in C.C.No.763 of 2008 on the file of the III Metropolitan Magistrate, Cyberabad at L.B. Nagar, for the offence punishable under Sections 406 and 420 of Indian Penal Code. Initially, the de facto complainant P.Varalaxmi lodged a written report before the Station House Officer, PS Nacharam, Cyberabad, submitting that she being the owner of Flat No.402 and a member of Mayflower Park Owner’s Association, Mallapur, which is a registered association, filed a Public Interest Litigation Writ Petition No.23228/2007 for removal of cellphone tower of Reliance Communications existed over her flat. The High Court allowed the said Writ Petition on 31.12.2007, in pursuance of which, the said tower was removed. It is her grievance that the counter affidavits and documents by respondents 3 and 4 in said Writ Petition before the High Court disclosed fraud, cheating and criminal breach of trust by way of fraudulently and dishonestly executing lease deeds in favour of Reliance Infocomm by collecting Rs.48000/- deposit apart from monthly rent of Rs.8000/- with periodical increases by A.1 in the capacity of General Secretary of said Association and A.2 stood as a witness to the said agreement. It is complained that the petitioners illegally executed the lease agreement deed without informing the same to other members of the Association and swallowed the rents to the tune of Rs.5 lakhs and gained wrongfully. Basing on the above complaint, Police registered a case in Crime No.40 of 2008 for the offence punishable under Section 420 of Indian Penal Code. However, after completion of due investigation, Police filed final report referring the case as ‘Civil Nature’. Aggrieved by the same, de facto complainant filed protest petition and after recording the statements of witnesses, learned Magistrate observing that prima facie case is made out against the accused for the offence punishable under Sections 406 and 420 of Indian Penal Code. Aggrieved by the same, the present Criminal Petition is filed by the petitioners-accused. Heard. Learned counsel for the petitioners submitted that to attract an offence punishable under Section 420 of Indian Penal Code, the element of deception at inception and for attracting the offence punishable under Section 406 of Indian Penal Code, there should be elements of entrustment and intentional misappropriation, which are absent in the present complaint. Learned counsel for the petitioners further submitted that such Association was not in existence at the time of erection of tower and also petitioners, being the builders of the flats, reserved their rights for further construction and also for utilization of the same while selling the flats to various persons and the present complainant is not an authorized person to lodge the complaint. As such, he prayed to quash the proceedings. As seen from the records, the petitioner No.1 is the builder, who sold flats to various persons. Further, the persons who purchased the flats formed into an Association as per the terms and conditions and also they have their own elected President and Secretaries apart from bye-laws. The allegations against the present petitioners are that even after handing over the flats to various purchasers, they allowed the Reliance Communication to erect towers in the open terrace, collected rents and also had advance amount of Rs.50000/-. This Court perused the records produced on behalf of the de facto complainant and also heard arguments on her behalf. By looking into the documents filed along with this Criminal Petition, this Court is of the view that as rightly pointed out by the learned counsel for the petitioners even admitting the allegations alleged by the de facto complainant in her complaint to be true, ingredients of Sections 420 and 406 of Indian Penal Code are not attracted. Further, the resolution dated 05.06.2008 passed by the said Association reveals that the said Association accepted the proposal of Modi Properties & Investments Pvt. Ltd. (to which A.1 is the Managing Director) to pay a compensation of Rs.1,50,000/- towards erection of reliance communication tower and accordingly said amount was paid by A.1 to the Association through cheque bearing No.118673 dated 05.06.2008 drawn on HDFC bank Limited and it is seen from the record that in view of said payment, the Association decided not to proceed further against the persons concerned. It is further seen from the records that the petitioner-builder has reserved his right over the terrace of the apartments concerned. In a criminal prosecution, for prosecuting a person, it should be proved that said person acted in a manner with an intention to commit a crime and mens rea is the prime element to attract a criminal offence. In the present case, mens rea is totally absent and further the allegations made by the complainant by no stretch of imagination attract an offence alleged in the complaint. In view of the same, this Court is of the view that there is need to proceed further in the matter, which would amount to an abuse of process of law. Hence, the Criminal Petition is allowed and the proceedings in C.C.No.763 of 2008 on the file of the III Metropolitan Magistrate, Cyberabad at L.B. Nagar, Ranga Reddy, are hereby quashed. _________________________ JUSTICE RAJA ELANGO Dated : 26.08.2010 sur