* THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRL.P.NO.1436 OF 2007. % Dated 04.02.2010 # Narne Constructions Private Ltd., having its office at No.1, Gunrock Enclave, Secunderabad, rep.by its Managing Director, Col.(Retd.) Narne Ranga Rao and others ... PETITIONERS V. $ V.Kusuma N.Rao and another ...RESPONDENTS ! Counsel for the Petitioners : Mr. Raja Reddy Koneti ^ Counsel for Respondent No.1 : Mr. T.Jagdish and others Counsel for Respondent No.2 : Public Prosecutor < Gist : > Head Note: ? Cases Referred: 1) AIR 1996 SUPREME COURT 2452 2) 2002(1) ALD (crl.) 108(SC) 3) 2006(3) ALT (Crl.) 231 (A.P.) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.P.NO.1436 OF 2007. Date:04.02.2010 Between:- Narne Constructions Private Ltd., having its office at No.1, Gunrock Enclave, Secunderabad, rep.by its Managing Director, Col.(Retd.) Narne Ranga Rao and others ..Petitioners/Accused And V.Kusuma N.Rao and another. .. Respondents ORDER:- This petition is filed by the accused Nos.1 to 14 (A1 to A14) under Section 482 Cr.P.C. for quashing F.I.R. in Crime No.399 of 2006 of Karkhana Police Station, Secunderabad. 2. The petitioner No.1/A1 is doing real estate business. A2 is C.M.D. of A1. A3 is wife of A2. A4 is Vice President and formerly General Manager (Marketing) and General Manager (Customer Services) in A1’s company. A5 is D.G.M. (Customer Service) in A1. A6 is General manager (Customer service) in A1. A7 is Vice President of A1. A8 is daughter of A2. A9 is Assistant General Manager (Customer service) in A1. A10 is General Manager in A1. A11 is D.G.M (Customer service) in A1. A12 is D.G.M (Finance) in A1. A13 is G.M. (Finance) in A1. A14 is Incharge of Registration Section for Plots in Central Park Layout of A1. The respondent No.1/complainant is a lady doctor. She filed private complaint in the Court of XI Additional Chief Metropolitan Magistrate, Secunderabad against A1 to A14 for offences punishable under Sections 406, 420, 384, 506 and 418 I.P.C. The Magistrate forwarded the complaint to the police under Section 156(3) Cr.P.C. for investigation and report. Thereupon, Karkhana police registered the complaint as case in Crime No.399 of 2006 and issued F.I.R. 3. There is no dispute that the complainant took membership No.30592 in Central Park Phase II of Serilingampally Mandal, Kondapur village belonging to A1 company and that A1 allotted plot No.324 to the complainant. It is the complainant’s case that she paid all instalments towards cost of plot including developmental charges by January, 2003 itself and that inspite of it and inspite of repeated requests, A1 did not register the plot in her name. Instead, A1 began sending letters to the complainant for payment of additional development charges of Rs.50/- per sq.yd and subsequently, at Rs.100/- per square yard. A1 sent another letter asking the complainant to pay Rs.70,000/- for 5 sq.yds extra land which A1 claimed as the amount due towards re-alignment of plots by HUDA and also extra registration charges. A1 further demanded additional sum of Rs.400/- per sq.yd on the ground that they have spent huge amounts for HUDA permissions. It is alleged that when the complainant requested executives of A1 to give statement of account, they did not give any statement of account. The complainant had to go round office of A1 company meeting one executive or the other. On 16.11.2006, the complainant received a registered letter from A1 stating that allotment of plot to her was cancelled. Along with that letter, A1 enclosed cheque for Rs.1,53,538/- on Syndicate Bank towards amount paid by the complainant. It is alleged that when the complainant went to office of the accused and represented the matter on 18.11.2006 to A2, she was told that the matter would be settled within three to four days and that it was not so done and that the complainant started going to office of the accused everyday and she was being informed various versions by A.G.M. (Customer Service) and G.M. (Finance) and that on 27.11.2006, when the complainant again went to office of the accused and met G.M. (Finance) and C.M.D., she was instructed to meet G.M. (Customer Service) as the file was with him and that when she met G.M. (Customer Service) and gave her letter requesting for registration enclosing crossed cheque of Andhra Bank dated 20.11.2006 for Rs.3,75,000/- towards due amount as stated by the accused and returning cheque of the accused which was sent by the accused towards amount paid by her, A4 acknowledged her letter by signing on it and received the cheques and duly filled in format for registration of the plot and asked her to go over there on 28.11.2006 so that he can get concurrence of C.M.D. It is further alleged that when she went to office of the accused on 28.11.2006, A4 asked her to give acknowledgment copy of letter which she was holding and that A4 pulled out papers from her hand and said that he was going to C.M.D to get concurrence. It is further alleged that after sometime, A4 came back and told her to come one week later to know about result and A4 also returned originals but did not return acknowledgment on photostat copy and that when she requested A4 to give that copy, A4 was rude to her and asked her to go out of the office and that when she insisted her letter back, A4 behaved oddly towards her which act lowered her dignity and that A4 was very angry with her and questioned as to why he should give back the letter to her and as to why he should sign on the letter previously. It is stated that A4 asked her to go away and do whatever she liked. Thus, in the complaint, the respondent No.1 narrated her plight and agony in hands of the accused for sin of joining as member in instalment scheme for allotment of house plot. The complainant had to face this sort of indignation in hands of the accused inspite of she paying entire instalment amounts and registration charges. She was driven from pillar to post by the executive of A1 company. Executives of A1 company exhibited more redtapism than in a Government office and tried to harass the complainant for the sake of extracting extra money. Even though agreed instalments together with registration charges were Rs.1,53,538/- as per the complainant, she was demanded huge amounts further. She was demanded additional development charges of Rs.50/- per square yard. Again, she was demanded additional development charges of Rs.100/- per square yard. Again, she was demanded to pay Rs.70,000/- for 5 sq.yds of site, which came to her plot additionally in HUDA realignment. Further, she was asked to pay Rs.400/- per square yard towards expenses alleged to have incurred by the accused for obtaining HUDA permissions. As no registration of the plot was made to the complainant, she went to the extent of submitting to alleged illegal demands of the accused by paying additional sum of Rs.3,75,000/- by way of Andhra Bank cheque over and above the original agreed amount of Rs.1,53,538/- towards value of plot and registration charges. Inspite of it, the complainant was stated to have been further harassed. The complainant who is a lady and who is a doctor was made to go round office of the accused almost on daily basis, but without any result. 4. It is contended by the petitioners’ counsel that in order to attract offence punishable under Section 420 I.P.C., the prosecution has to prove that dishonest or fraudulent intention must exist with the accused even at inception of the transaction. He further contended that offence under Section 406 I.P.C. is not attracted in this case as there was no entrustment of any property to the accused by the defacto complainant. In CENTRAL BUREAU OF INVESTIGATION, SPE, SIU (X), NEW DELHI v. DUNCANS AGRO INDUSTRIES LTD., CALCUTTA[1], it was held by the Supreme Court that for purpose of quashing complaints, it is necessary to consider whether allegations in the complaint prima-facie make out an offence or not and that it is not necessary to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial and that for quashing the complaint by way of action at the threshold, it is necessary to consider whether on the facts of the allegations, a criminal offence is constituted or not. It was further held therein that if the case involves a civil dispute and when the investigation was not completed even after 7 to 9 years, the complaint can be quashed. It is contended by the petitioners’ counsel that the dispute covered by complaint of the 1st respondent is one of civil nature. No doubt, if there is only mere breach of contract between the parties, it gives rise to cause of action for civil litigation. But, in S.W.PALANITKAR AND OTHERS v. STATE OF BIHAR AND OTHERS[2], the Supreme Court observed that an act of breach of trust involves a civil wrong in respect of which, the person wronged may seek his redress for damages in a civil court, but a breach of trust with mensrea gives rise to a criminal prosecution as well. Therefore, it has to be seen whether allegations in the complaint in the present case throw any light on mensrea of the accused. From narration of facts in the complaint, which constituted F.I.R., it is suggested that the accused did not intend to comply with terms of the contract even at the beginning. So long as the complainant paid instalments completely, the accused did not raise any little finger. After the complainant paid instalments completely and requested for registration of the plot in her name, the accused are stated to have started making one demand or the other towards additional development charges of Rs.50/- per square yard, further additional development charges of Rs.100/- per square yard, additional amount of Rs.70,000/- towards 5 sq.yds of site because of re-alignment of plots by HUDA and finally Rs.400/- per square yard towards expenses said to have been incurred by the accused for getting HUDA permissions. Thus, it is evident that the accused prima-facie never intended to register the plot for the amount of instalments originally fixed by A1. From this fact, one can prima facie perceive dishonest intention on the part of A1 even from beginning of the transaction. Further, the accused did not intend to register the plot in the name of complainant even after she offered to pay extra sum of Rs.3,75,000/- towards further demands made by the accused, by way of Andhra Bank cheque. It is prima facie evident that executive of the accused in finance division and in customer service division were making consultations with C.M.D. of A1 and finally, returned all the papers canceling allotment of plot. Further, one of the executives namely A4 went to the extent of snatching papers from the complainant and refused to return one of the papers and when the complainant who is a lady questioned the same, A4 behaved rudely and oddly towards her. The accused had forgotten that they were after all doing business, and in any business, as Gandhiji said, customer is a God for a businessman. Thus, on total consideration of averments in the complaint/F.I.R., this Court has absolutely no doubt in mind that prima-facie offences punishable under Sections 420, 406, 384, 506 I.P.C. are made out against A1 company and its executives. Even though the Magistrate forwarded the complaint containing allegations constituting the above said offences, the police registered F.I.R. only under Section 420 I.P.C. This mistake on the part of the police can be corrected during and after completion of investigation. 5. The petitioners’ counsel contended that in a similar case, this Court (Dr.G.Yethirajulu J.) in M/S.NARNE ESTATES PRIVATE LTD AND OTHERS v. DR.E.SURENDER RAO AND ANOTHER[3], quashed F.I.R. in that case. From a reading of the said reported decision, it is evident that fact situation in that case is entirely different from fact situation in the present case. In the reported decision, there were defaults committed by the customer in payment of instalments under the scheme. Further, there was no rude and odd behaviour by executives of A1 company towards that customer. Penal sections of law also differ from that case to the present case on hand. In the reported decision, the complaint was only as against non compliance of terms of contract by A1 company and nothing more. So, the said reported decision cannot be applied to facts of the present case. 6. Even though prima-facie case is made out against A1 company and its executives, it is not known as to why the accused Nos.3 and 8 who are wife and daughter of A2 were impleaded in this complaint. No specific overt acts were attributed to any of the accused Nos.3 and 8. No designations of the accused Nos.3 and 8 in A1 company are given. It is not known as to how the accused Nos.3 and 8 are connected with A1 company and with this case. Therefore, I find that there is no prima-facie case in so far as the accused Nos.3 and 8 are concerned. 7. In the result, the petition is partly allowed quashing F.I.R. in Crime No.399 of 2006 of Karkhana police station in so far as the petitioner Nos.3 and 8/accused Nos.3 and 8 are concerned and the petition is partly dismissed directing investigation of the crime as against the petitioner Nos.1, 2, 4 to 7 and 9 to 14/accused Nos.1, 2, 4 to 7 and 9 to 14. _​____________________________ SAMUDRALA GOVINDARAJULU, J 4th February 2010 Note:- L.R. Copy to be marked. B/o AMD [1] AIR 1996 SUPREME COURT 2452 [2] 2002(1) ALD (crl.) 108(SC) [3] 2006(3) ALT (Crl.) 231 (A.P.)