IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1366 OF 2009 Between: The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND 1. Adimulam Leelavathi 2. Tadepalli Nataraj 3. Akkala Ganesh Kumar ..... Accused/Respondents The Court made the following: JUDGMENT: The criminal appeal under Section 378(3) & (1) of Cr.P.C., 1973, is directed by the State against the order of acquittal of the accused passed by the learned II Additional Judicial I Class Magistrate, Machilipatnam, vide judgment, dated 06.01.2005, in C.C.No.133 of 2000, of the charge under Section 420, 417 and 506 IPC. 2. For the purpose of disposal of the criminal appeal, the case of the prosecution was stated as briefly as follows: All the accused are residents of Machilipatnam and they are close associates. During the lifetime of the husband of A1, a house site to an extent of 267 square yards, situated at Laxamanaraopuram was assigned in his favour. After assignment, the husband of A1 constructed a house in the said assignment land. After his death, the said property was devolved upon A1 and her three sons. A1 let out the said house to one Abdul Khayyam and started residing with her sons. A1 mortgaged the said house on 13.02.1998 in the Co-operative Urban Bank, Machilipatnam. But A1 did not discharge the said debt. While the matter stood thus, P.W.1 with an intention to purchase the said house, contacted A1 through mediators. On 05.12.1998, P.W.1 agreed to purchase the said house for Rs.56,000/-. As per the terms and conditions of the said agreement, P.W.1 has to discharge the loan amount of Rs.23,000/- due by A1 and her three sons to the Co- operative Urban Bank, Machilipatnam, by way of installments @ Rs.1,000/- per month for a period of 23 months. The remaining balance amount of Rs.33,000/- has to be paid at the time of registration of the house. In pursuance of the said agreement, P.W.1 paid Rs.1,000/- to the Co-operative Urban Bank, Machilipatnam, on 25.01.1999 and obtained receipt for the same. Thereafter, it is alleged that A1 joined with A2 and A3 with a fraudulent intention to deceive P.W.1 by suppressing his agreement in favour of A1, again offered to sell the same to one Abdul Khayyam who was the tenant in the said house and offered to sell the house @ Rs.61,000/-. The said Abdul Khayyam agreed to purchase the same and paid Rs.5,000/- to A1 as earnest money. On 24.01.1999 again A1 executed another agreement in favour of Abdul Khayyam with a view to cause wrongful loss to P.W.1. On coming to know about the same, when P.W.1 questioned A1, A1 misrepresented stating that she would cancel the other agreement if he (P.W.1) is ready to pay the agreement amount within the stipulated period and made a promise to P.W.1 that she would evict Abdul Khayyam from the said house and hand over the same to him. Believing the said representation, P.W.1 paid Rs.33,000/- within four days i.e., on 01.05.1999 to A1 and her elder son in the presence of A2 and A3. The elder son of A1 signed on the reverse side of the agreement by acknowledging the payment. A1 handed over the other agreement executed in favour of Abdul Khayyam to P.W.1, but A1 refused to acknowledge the above amount on the agreement and demanded an additional amount of Rs.5,000/- in addition to Rs.33,000/-. Subsequently, A1 filed a suit for injunction against P.W.1 by suppressing the real fact. After receipt of summons, P.W.1 approached A2 and A3 on 10.06.1999 and requested them not to drag him to litigation and also requested them to return his amount. But A2 and A3 stated that A1 filed a civil suit according to their advice only. Thereafter, P.W.1 approached elders for settlement, but in vain. Hence, he filed a report against the accused. P.W.1 also got issued a registered notice to the accused, but they did not give any reply. While the matter stood thus, on 08.11.1999 at about 8.00 p.m., when P.W.1 was alone at his house, all the accused came to his house and called him out and warned him that they would kill him if he proceed to Court of Law. Later, a private complaint was filed by P.W.1 against the accused on 09.11.1999 and the same was referred to police. The police registered a case in Crime No.3 of 2000 under Sections 417, 420 and 506 IPC. The Assistant Sub- Inspector of Police took up investigation and recorded the statements of P.Ws.1 to 7. After completion of investigation, the police filed the charge sheet against the accused. 3. When the charges under Sections 417, 420 and 506 IPC were framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 6 and got marked Exs.P1 to P13. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral evidence was adduced except marking Exs.D1 and D2. 6. The trial Court, after considering the evidence on record, acquitted the accused on the ground that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt as there was no criminal intention on the part of A1 to cheat P.W.1. Challenging the same, the present appeal is filed by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the charges under Sections 417, 420 and 506 IPC and whether the judgment of the trial Court is correct, legal and proper? 8. Counsel representing the learned Public Prosecutor contended that the evidence of P.Ws.1 to 3 is very clear that A1 cheated P.W.1; that A1 knowing full well that she entered into an agreement of sale with P.W.1, suppressing that fact, she executed a second agreement with one Abdul Khayyam; that with a malafide intention to cheat P.W.1, she entered into second agreement and hence, she prays to set aside the order of acquittal. 9. For the offence under Section 420 IPC, “Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” A dishonest concealment of fact is a deception within the meaning of this Section. 10. If A1 concealed the factum of entering into contract with P.W.1 and by suppressing that fact if she enters into a second agreement with Abdul Khayyam, then it is said to be the dishonest concealment of the fact. The intention to cheat is the crux of the offence, though it is difficult to prove the intention of the accused by the prosecution. Nevertheless the intention of the accused can be inferred from the circumstances of the case also. The evidence of P.W.1 would go to show that he entered into an agreement of sale with A1 to purchase the house site on 05.12.1998. In pursuance of the said agreement, P.W.1 undertook to discharge the loan taken by A1 from the Co-operative Urban Bank, Machilipatnam, by way of installments. It was agreed by P.W.1 to pay the remaining amount of Rs.33,000/- at the time of registration. Later, it is stated that A1 entered into another agreement of sale with one Abdul Khayyam. 11. P.W.2 is the son of A1. He was declared hostile by the prosecution. P.W.3 is the attester of Ex.P1 who speaks about the terms and conditions of agreement. He stated about A1 executing another agreement in favour of Abdul Khayyam in respect of the same property. He also speaks about Ex.P3 endorsement on Ex.P1 with regard to payment of Rs.33,000/- to the son of P.W.1. P.W.4 is another mediator for Ex.P3. The evidence of the attesters of Ex.P3, coupled with the evidence of P.W.1 and the recitals in Ex.P3 would go to show that an amount of Rs.33,000/- was paid to P.W.2 who is no other than the son of A1. Admittedly, P.W.2 has not executed any agreement of sale in favour of P.W.1. If the contention of P.Ws.1 to 3 is to be accepted that an amount of Rs.33,000/- was paid to A1, and they should have obtained the signature or thumb impression of A1. Even though A1 was present, they did not obtain the signature or thumb impression of A1 on Ex.P1. When P.W.2 is not an agreement holder and he is not a party to the document, it is highly improbable and unbelievable to accept the contention of P.Ws.1 to 3 that they have paid Rs.33,000/- to P.W.2 who is no other than the son of A1. 12. P.W.5 is Abdul Khayyam who said to have entered into the second agreement with A1. When A1 offered to sell the house site, he agreed to purchase for Rs.61,000/- and paid an advance of Rs.5,000/- to A1. Ex.P4 is the second agreement said to have been executed in favour of P.W.5. Basing on the evidence, the trial Court found that the evidence of P.Ws.1 to 5 does not indicate that A1 entertained the dishonest intention to cheat P.W.1 at the time of Ex.P1-contract. Ex.P4 is the second agreement executed in favour of P.W.5 by A1, wherein it is specifically mentioned about the first agreement. Therefore, there were no dishonest concealment of facts in the second agreement. There is no evidence to show that as per Ex.P1-agreement, he was paying the monthly installments to the Urban Cooperative Bank, Machilipatnam. Every breach of contract does not lead to criminal prosecution. A thin line of difference lies between civil and criminal prosecution in respect of a contract. Sofar as the criminal prosecution is concerned, there must be entertaining of dishonest intention from the inception. Inspite of fulfilling the terms and conditions of Ex.P1-agreement of sale by P.W.1, still A1 executed a second agreement-Ex.P5, then it can be said that there was a dishonest intention on the part of A1 to sell the property. 13. The factum of first agreement of sale was incorporated in the second agreement and that there were disputes between P.W.1 and A1. Therefore, she was executing the second agreement of sale. Such is the case, the acts of A1 do not come under the definition of cheating. There was no inducement to P.W.1 to purchase the property and there was no dishonest concealment of facts. Therefore, mere breach of Ex.P1- agreement does not amount to criminal prosecution. At best, it gives rise to a civil cause of action by filing a suit for specific performance basing on the agreement of sale. 14. It is not in dispute that A1 filed a suit for injunction in O.S.No.187 of 2000. Till then, he has not raised his little finger. There is no material on record to show that he was paying the monthly installments regularly to the Urban Cooperative Bank, Macilipatnam, in pursuance of the terms and conditions of the agreement. The complaint is lodged after receipt of summons from the Court in a suit filed by A1. The reason is obvious. Therefore, in the circumstances, it is not safe to place an implicit reliance on the evidence of P.Ws.1 to 3. P.W.1 has not given any explanation as to why he has not paid the amount of Rs.33,000/- to A1 when she was admittedly present and the reasons necessitated for P.W.1 to obtain the signature of P.W.2 who is no other than the son of A1 who was nothing to do with the contract. Viewed from any angle, it is not a case of inducement or deceit. Similarly, there were no circumstances to indicate that the acts of the accused would fall under the definition of cheating as mentioned in Section 415 IPC. 15. Considering these aspects, the trial Court rightly acquitted the accused. None of the findings is shown to be perverse or contrary to the evidence on record. In the absence of compelling or substantial reasons, the judgment under challenge does not call for interference by this Court. Hence, the appeal is devoid of merit and is liable to be dismissed. 16. Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 6.01.2005, in C.C.No.133 of 2000, on the file of the learned II Additional Judicial I Class Magistrate, Machilipatnam. _______________ (K.C. BHANU, J) Date: 10th August, 2009 KL