THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5747 of 2006 Dated: 21st January, 2010 Between: Pamidi Sumathi And others …Petitioners AND The State of A.P. rep by its Public Prosecutor And another. …Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5747 of 2006 ORDER: This petition is filed by the accused Nos.2 to 6 under Section 482 Cr.P.C, for quashing proceedings in C.C.No.768 of 2006 on the file of II Additional Judicial Magistrate of the First Class, Ongole, relating to offences punishable under Sections 406, 420, 424, 425 and 427 I.P.C. The complainant/second respondent filed private complaint before the Magistrate for the above said offences and under Section 120B I.P.C. The Magistrate, after enquiry in which sworn statement of the complainant was recorded, dismissed the complaint under Section 203 Cr.P.C. by order dated 12.09.2005 on the ground that the case does not attract any of ingredients of any offences mentioned in the complaint and that it is a matter where remedy is in civil Court. As against the said order, the second respondent filed criminal revision petition No.77 of 2005 before the Sessions Court, Ongole. The III Additional Sessions Judge who was holding full additional charge of V Additional Sessions Judge (Fast Track Court), Ongole, by order dated 06.10.2006 allowed the said criminal revision petition directing the Magistrate to take cognizance of the case for all the offences mentioned in the complaint against all the accused after deleting Section 120B I.P.C. Thereupon, the Magistrate took cognizance of the offences other than Section 120B I.P.C. and issued summonses to A-1 to A-6. At that stage, A-2 to A-6 alone approached this Court by way of this petition. A-1 is not questioning taking cognizance against him, in this petition. It is contended by the petitioners’ counsel that allegations mentioned in the private complaint may attract the alleged offences against A-1 only and that those allegations do not sastisfy ingredients for the said offences insofar as A-2 to A-6 are concerned. The complainant and A-1’s father are brothers. A-2 is sister of A-1. A-3 is husband of A-2. Subject matter of dispute in this case is Ac.3.30 cents of land in S.No.124 of Mamidipalem village of Vengamukkapalem Gram Panchayat. There is no dispute that since the time of ancestors, the complainant and A-1 have been jointly cultivating the said land as tenants under A-4 to A-6 who are owners of the said land. It is alleged that the complainant and A-1 intended to purchase the said land of Ac.3.30 cents from A-4 to A-6 and that since the complainant is not educated and is not wordly wise, A-1 was negotiating purchase transaction on his behalf and on behalf of the complainant and that ultimately, A-4 to A-6 agreed to sell the said land of Ac.3.30 cents for total sum of Rs.1,80,000/-. According to the second respondent, his share in the land comes to Ac.1.65 cents and his share in sale consideration was Rs.90,000/- and he contributed Rs.20,000/- to A-1 for depositing Rs.40,000/- in savings bank account of A-5 and he paid cash of Rs.70,000/- to A-1 in the presence of elders. Further, the second respondent alleges that at the time of payment of Rs.70,000/- before elders, A-1 executed a stamped guarantee agreement at Ongole on 24.11.2004 in favour of the second respondent admitting receipt of Rs.90,000/- from him and promising that he would get registered sale deed for half share of land in favour of the second respondent. As per allegations in the complaint, A-1 further agreed in the stamped guarantee agreement that in case he fails to get registered sale deed for Ac.1.65 cents (half share out of Ac.3.30 cents) in favour of the second respondent, he would keep one acre of his own land in S.No.131/1 of Kothamamidipalem village as guarantee. According to the complainant, subsequently A-1 to A-6 conspired and colluded and sale deed for Ac.3.30 cents of land was executed by A-4 to A-6 in favour of A-2 and A-3 at the instance of A-1. As pointed out earlier, the Sessions Court deleted Section 120B I.P.C. from this case. In the absence of offence punishable under Section 120B I.P.C. in this case, it has to be seen whether there is any privity of contract or representation or dishonest representation by any of the petitioners who are A-2 to A-6, to the second respondent. On perusal of entire allegations in the complaint, it is evident that it was A-1 alone who had dealings with the second respondent. The second respondent had no privity of contract with the original owners A-4 to A-6 or with A-2 and A-3. If entire allegations in the complaint are taken on their face value, the then relevant offences are attracted as against A-1 alone and not against A-2 to A-6. A-2 to A-6 are admittedly not parties to any agreement with the second respondent specifically. They are not parties to the guarantee agreement executed by A-1 on 24.11.2004. Similarly, A-2 and A-3 are also not parties to any oral agreement of purchase between A-1 and A-4 to A-6. It is not the second respondent’s case that any of A-2 to A-6 made any representations or promises or offered any inducements to the second respondent directly and specifically, much less with any dishonest or fraudulent intention. When there is no privity of contract between A-2 to A-6 and the second respondent and when there was no representation or inducement by any of A-2 to A-6 to the second respondent in dishonest or fraudulent manner, none of the above penal sections of law can be applied as against the petitioners who are A-2 to A-6. Thus, even after taking allegations in the complaint for granted, this Court is of the opinion that there is no prima facie case made out by the second respondent against the petitioners/A-2 to A-6 for the above said offences. The second respondent’s counsel placed reliance on State of Maharashtra v. Salman Salim Khan[1] and contended that petition under Section 482 Cr.P.C. may not be allowed for quashing charges framed by the trial Court by trying correctness or sufficiency of evidence. In the said reported decision, it was further observed that principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The same test is applied herein and this Court comes to the conclusion that it is a fit case for quashing the proceedings. In the result, the criminal petition is allowed quashing proceedings in C.C.No.768 of 2006 on the file of II Additional Judicial Magistrate of the First Class, Ongole, insofar as the petitioners 1 to 5/A-2 to A-6 are concerned. ___________________________________ SAMUDRALA GOVINDARAJULU, J January 21, 2010 Bvv [1] AIR 2004 SC 1189