IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.P.NO.4330 OF 2006. Date:27.01.2010 Between:- Yedali Rambabu and others ..Petitioners/A-1 to A-7 And A.V.V.Satyanarayana @ Chanti and another .. Respondents ORDER:- This petition is filed by the accused Nos.1 to 7 (A1 to A7) under Section 482 Cr.P.C for quashing proceedings in C.C.No.500 of 2006 on the file of II Additional Judicial Magistrate of the I Class, Rajahmundry relating to offences punishable under Sections 406, 420, 427 and 477/34 I.P.C. 2. Subject matter of dispute between the parties is agreement for sale in respect of land in R.S.No.367/1 of Jegurupadu village of Kadiyam Mandal. Extent of land is Ac.7- 70cs and as per documents and it is claimed to be Ac.8.50cs on land. The respondent No.1/complainant claims to be cultivating tenant in that land under A2. A1 is stated to be distantly related to A2. Even though tenancy of the 1st respondent has been subsisting, settlement deeds were executed by A2 in favour of A4 and A2’s wife Satya Prabha. It is alleged that A1 and father of A1 are the persons behind attempts to dispossess the 1st respondent from the land. While so, it is alleged that there was compromise among all the parties under which the 1st respondent has to pay Rs.40,00,000/- to the accused, obtain sale deed for the land and continue to remain in possession of the land. There is no dispute that in the first instance, Rs.9,000/- was collected from the 1st respondent on 15.10.2004 and Rs.4,00,000/- on 02.11.2004 and agreements for sale were entered into on the respective dates. It is alleged that with a view to overcome capital gains tax, sale consideration was mentioned in draft sale deed as Rs.12,50,000/- even though agreed sale consideration was Rs.40,00,000/-, and it was represented to the 1st respondent that difference between agreed amount and mentioned amount can be paid by the 1st respondent by way of demand drafts, and that on 27.01.2005, sale deed was prepared with directions of the accused on requisite papers and Rs.1,44,720/- was deposited with Andhra Bank, Kadiyam Branch towards stamp duty payable on the proposed sale deeds and challans were obtained there for and that the accused signed on the sale deeds and the attestors were also taken to the Sub Registrar and the sale deeds were presented for registration and that before completing requisite formalities for registration, A1 and A2 suddenly pulled out the sale deed presented to the Sub Registrar from his hands along with counter foils of challans evidencing deposit of stamp duty and torn them off and that the accused retained demand drafts for Rs.14,00,000/- collected by them at the time of execution of the sale deed. In those circumstances, the 1st respondent instructed the banker not to honour demand drafts on presentation. It is further alleged that the accused are still holding back the demand drafts with dishonest motive. 3. While so, the 1st respondent herein filed O.S.No.18 of 2005 in the District Court, East Godavari at Rajahmundry against A1 to A5 for specific purpose of agreement for sale dated 02.11.2004 and for possession of the land, or in the alternative, for Rs.40,00,000/- including advance collected by the defendants as compensation for breach of contract, and for Rs.10,00,000/- as compensation for loss caused by the defendants to the plaintiff and also for permanent injunction. After trial, the I Additional District Judge, East Godavari at Rajahmundry decreed the suit for the alternative relief to the extent of Rs.20,53,180/- towards refund of advance sale consideration and expenses for stamp duty and registration. The District Court also granted permanent injunction. It is stated that as against the said decision of the I Additional District Judge, Rajahmundry, two appeals are pending in this Court, one filed by the plaintiff/1st respondent herein and the other filed by the defendants/accused. Out of the accused, A1 is no more. 4. It is contended by the petitioners’ counsel that in the civil suit, the then Sub Registrar, Kadiyam was examined as P.W.6 and he denied snatching of presented sale deed and tearing it off and that therefore, this criminal case for offences under Sections 427 and 477 I.P.C. cannot stand. In my opinion, the said contention cannot be accepted. Line of examination-in-chief as well as cross examination differs from civil case to criminal case. In a criminal case where there is previous statement of the witness, the witness can be cross examined by the prosecution in case the witness did not subscribe to the version contained in the previous statement recorded by the Investigating Officer during investigation. Such facility is not there in respect of P.W.6 in the civil suit because there is no previous statement or commitment by P.W.6 in that matter. Evidence of P.W.6 in civil suit cannot be read as evidence or piece of evidence in criminal case even prior to trial of the criminal case. Deposition of P.W.6 in the civil suit can be used as a previous statement during trial of the criminal case and veracity and truthfulness of this witness can be judged by the criminal court having regard to deposition of P.W.6 in the civil suit. Except to that extent, deposition of P.W.6 in the civil suit cannot have any bearing in the present criminal petition. 5. I n B.SURESH YADAV Vs. SHARIFA BEE AND ANOTHER[1], it was observed by the Supreme Court in para No.13: “For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance.” 6. The petitioners’ counsel further placed reliance on VIR PRAKASH SHARMA VS. ANIL KUMAR AGARWAL AND ANOTHER[2] , SHARON MICHAEL VS. STATE OF TAMILNADU[3] and DEVENDRA AND OTHERS VS. STATE OF UTTAR PRADESH AND ANOTHER[4] and contended that for making out an offence punishable under Section 420 I.P.C., deception should have been there from the time of entering into the transaction. No doubt, in the present case, both the parties agreed sale consideration at Rs.40,00,000/-. But to overcome tax problems, the sellers intended to mention lesser amount of sale consideration in the sale deed and it was also agreed by the purchaser. Ultimately, differences arose between the parties after drafted sale deed along with challans evidencing payment of stamp duty and registration were presented to the Sub Registrar. At that moment, some of the accused are stated to have snatched executed sale deeds along with challans from the Sub Registrar before completing formalities of registration and have torn them off. Executed sale deed and bank challans are valuable securities. Destruction thereof would certainly attract penal liability under Sections 427 and 477 I.P.C. The question to be decided by the trial Court would be whether any such incident, as alleged by the complainant, took place and if so, which of the accused was responsible therefor. At this stage, this Court cannot go into details thereof and come to one conclusion or the other. It is contended by the petitioners’ counsel that there are differences with regard to identity of the persons who snatched papers from the Sub Registrar and torn them off between allegations in the civil suit as well as allegations in the private complaint. It is a matter which has to be appreciated by the trial Court after conclusion of trial in which the petitioners will present all the necessary documents including pleadings and evidence in the civil suit, in appropriate manner. This Court while exercising power under Section 482 Cr.P.C. cannot be expected to make wholesale appreciation of evidence by looking into civil court record. At the same time, this Court finds that there was no bad intention or fraudulent intention on the part of the accused in entering into agreement for sale. After entering into agreement for sale, the accused proceeded further and went to Sub Registrar’s office and subscribed their signatures on drafted sale deed and presented the papers before the Sub Registrar for completing formalities of registration. At that moment, some differences arose between the parties and it might have led to the incident of snatching presented papers from the Sub Registrar and tearing them off. From these facts, one cannot infer that there was any fraudulent or dishonest intention for the accused even from the beginning of transaction of sale. Even though registration of the sale deed was not completed, the 1st respondent alleges that the accused retained demand drafts obtained by them from him and it amounts to criminal breach of trust. In these circumstances, I am of the opinion that there is no prima-facie case for the 1st respondent in so far as offence punishable under Section 420 I.P.C. is concerned. In respect of other offences alleged in the private complaint, it is for the trial Court to decide after full trial. 7. In the result, the petition is partly allowed quashing proceedings relating to offence punishable under Section 420 I.P.C. are concerned in C.C.No.500 of 2006 on the file of II Additional Judicial Magistrate of the I Class, Rajahmundry. The Magistrate is at liberty to proceed with the case in respect of other offences punishable under Sections 406, 427 and 477 I.P.C. against the accused/petitioners. _​_________________________ SAMUDRALA GOVINDARAJULU, J 27th January, 2010 AMD [1] (2009)1 Supreme Court Cases (Cri) 282 [2] (2007)7 Supreme Court Cases 373 [3] 2008(TLS) 47833 [4] (2009)3 Supreme Court Cases (Cri) 461