HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4824 of 2010 ORAL ORDER : The petitioner/A-2 is accused of offences punishable under Sections 406 and 420 I.P.C. in Crime No.5 of 2010 of Proddatur Rural Police Station of Kadapa District. The 2nd respondent filed private complaint before the I Additional Judicial Magistrate of the First Class, Proddaur, against A-1 and A-2 and it was referred to the police for investigation and report under Section 156 (3) Cr.P.C. A-1 is a Business concern being run by A-2 as partner. 2. It is alleged that on 6.8.2008 A-2 came to Proddatur, met the complainant and told him that he ventured two house site ventures namely “Simhapuri Prestige” and “Simhapuri County” at Pidathapalem Village of Muthukuru Mandal, Nellore District, and that A-2 requested the complainant to purchase 2 plots, one each in the above ventures, stating that he would get more profit in future, and that the complainant believing words of the accused agreed to purchase 2 plots as offered by A-2 for total consideration of Rs.20,00,000/- and demanded the accused to execute an agreement for sale and that A-2 with a fraudulent and dishonest intention represented that he would execute registered sale deed directly after obtaining permission and approval from the Departments concerned and requested the complainant to pay sale consideration and that when the complainant was hesitating to pay the amount, A-2 with a dishonest intention to induce the complainant to pay the amount, A-2 promised that he would execute a promissory note and issue post-dated cheque for the amount as security and would execute regular sale deed after getting approvals. It is alleged that the complainant without knowing fraudulent and dishonest intention of A-2 and having confidence in him paid Rs.20,00,000/- at Kakirenipalli on 6.8.2008 in the presence of a witness and that after receiving the said amount, A-2 issued post-dated cheque dated 9.12.2009 for Rs.10,00,000/- and executed promissory note dated 6.8.2008 for Rs.10,00,000/-. It is further alleged that since two months after payment of amount, the complainant has been demanding A-2 to execute regular sale deed for 2 plots, but A-2 managed to postpone the same by saying gullible words and that finally when A-2 did not respond properly, the complainant presented the cheque on his consent for collection through his banker and the said cheque was dishonoured for lack of sufficient funds. It is further alleged that when the complainant approached A-2 along with another person at Hyderabad and informed him about dishonour of cheque and requested him either to return the amount or to execute regular sale deed for the plots, A-2 arrogantly replied that he never had any intention either to repay the amount or to execute sale deed for the plots. 3. It is contended by the petitioner’s counsel that the transaction between the complainant and A-2 is one which is purely of civil nature and that in case there is any failure of the transaction, then remedy of the complainant is to file civil suit for recovery of the amount said to have been advanced by him to A-2. It is further contended that instead of availing remedy under Section 138 of the Negotiable Instruments Act, the complainant has resorted to criminal proceedings under Sections 406 and 420 I.P.C. against the petitioner by circumventing the procedure. 4. Simply because there is civil remedy available and simply because there is another remedy by way of proceedings under Section 138 of the Negotiable Instruments Act is available, it cannot be said that the complainant/2nd respondent is debarred from taking up proceedings for prosecuting the accused for offences under Sections 406 and 420 I.P.C., in case they are made out. Having regard to above allegations made by the 2nd respondent in the complaint and taking them on their face value, this Court is of the opinion that the case is made out under Sections 406 and 420 I.P.C. Truth or otherwise of the said allegations cannot be gone into in this petition filed under Section 482 Cr.P.C. The allegations reveal that A-2 was having dishonest and fraudulent intention from the time of inception of the transaction. Nothing prevented A-2 to execute an agreement for sale having received huge amount from the 2nd respondent. I do not find any valid or legal reasons to stop investigation of this case at its threshold. 6. Hence the petition is dismissed. _________________________________________ JUSTICE SAMUDRALA GOVINDARAJULU 10.06.2010. Msr HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4824 of 2010 10.06.2010 (Msr)