THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.Petition No.4223 of 2008 Date: 18.03.2011 Between: Bojja Venkata Ganesh … Petitioner/A.3 AND 1. State of A.P., Rep.by its Public Prosecutor High Court of A.P., Hyderabad. 2. Senapati Satyanarayana … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.4223 of 2008 ORDER: The petitioner is A.3. The second respondent is the de facto complainant. The second respondent lodged a complaint with the III Metropolitan Magistrate, Visakhapatnam under Sections 420 and 423 of the Indian Penal Code (‘IPC’ for short). The case was referred under Section 156 of the Criminal Procedure Code (‘Cr.P.C.’ for short) to police by the learned Magistrate. The police registered a case in Crime No.124 of 2007 of Kancharapalem Police Station, Visakhapatnam. Later, police laid charge sheet against three accused for the offences u/s.320 and 423 IPC with the aid of Section 34 IPC. The third accused is the petitioner herein. 2. Sri Y. Sudhakar, learned counsel for the petitioner contended that no case is made out against the petitioner and that the case against the petitioner is liable to be quashed. 3. It is a peculiar case. The accused 1 and 2 admittedly were owners of the property. It is the case of the second respondent-de facto complainant that he purchased property in Door No.58-2-5/2 from A.1 and A.2 for valuable consideration on 20.06.2003 through an unregistered sale deed. Subsequently, the petitioner entered into an agreement of sale-cum-general power of attorney with A.1 and A.2 on 05.07.2006 in respect of the same property. The agreement of sale-cum-GPA recites that the petitioner has been delivered possession of the property and that the petitioner may obtain sale deed as the entire sale consideration was paid. The learned counsel for the petitioner submitted that the petitioner indeed subsequently obtained a registered sale deed with the help of the agreement of sale-cum-GPA. 4. In any event, the petitioner has nothing to do with the purchase of the property by the de facto complainant-second respondent from A.1 and A.2. The de facto complainant alleged in the complaint that A.1 and A.2 connived with the petitioner and executed agreement of sale-cum-GPA in favour of the petitioner. This being a quash proceeding, it is not permissible to go into the merits of the complaint. 5. At the same time, what the second respondent allegedly obtained was an unregistered sale deed. The petitioner obtained an agreement of sale, which was equally an unregistered document. Merely because an agreement of sale exists in favour of the petitioner, it cannot be alleged that the petitioner was in connivance with A.1 and A.2. 6. Further, the petitioner has not issued a notice through his counsel to the second respondent and another regarding the purchase of the property by the second respondent. Instead of going to civil Court seeking for the specific performance and for the cancellation of the agreement of sale-cum-GPA in the name of the petitioner, the second respondent moved the Criminal Court through a complaint. I am afraid that the dispute between the petitioner and the second respondent is purely civil in nature. 7. The counsel for the petitioner further submitted that the second respondent is now no more and that the complaint laid by the second respondent automatically stood abated. He placed reliance upon Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (deceased by LRs)[1] in support of his contention. In that case, referring to Section 302 of Cr.P.C. the Supreme Court held that when a complainant dies, his legal representatives alone are entitled to continue the complaint. A reading of Section 302 Cr.P.C. leaves a distinct impression that it relates to complaints on police report. At any rate, in the present case also, it would appear that the case was ultimately registered as a case in Crime No.124 of 2007. Added to it, the second respondent is not before me although notice was served upon him; may be he is no more. Assuming that the second respondent died, no one took the foot steps before the trial Court to go on record in the place of the second respondent. Viewed from any angle, it shall be considered that notice was served upon the second respondent in this petition. 8. Where the second respondent does not contest the case, and where the petitioner prima facie established that he was not only agreement of sale holder but also obtained sale deed subsequently from A.1 & A.2, this litigation would be purely a civil litigation. The case against the petitioner before the III Metropolitan Magistrate, Visakhapatnam, consequently, is not maintainable. 9. Accordingly, the Criminal Petition is allowed. The proceedings on the file the III Metropolitan Magistrate, Visakhapatnam to the extent of the present petitioner, who is A.3 therein, accordingly, are quashed. _______________ K.G. SHANKAR, J Date: 18.03.2011 Isn [1] AIR 2005 SC 48p