THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No: 4639 of 2008 Date: 31st March, 2011 Between : C. Sridhar and another … Petitioners A n d State of A.P., through S.H.O. Sangareddy Town rep. by Public Prosecutor and another … Respondents THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No: 4639 of 2008 ORDER: The petitioners herein are accused Nos.2 and 3 in C.C.No.1267 of 2007 on the file of the Court of the Additional Judicial Magistrate of the First Class, Sanga Reddy and the said case has been subsequently transferred to Judicial Magistrate of the First Class, Special Mobile Court, Sanga Reddy and it was re- numbered as C.C.No.485 of 2009. 2. The petitioners filed this petition under Section 482 Cr.P.C. to quash proceedings against them in the aforesaid Criminal case. 3. The 2nd respondent herein namely R. Santhosh Kumar filed a complaint before the Additional Judicial Magistrate of the First Class, Sanga Reddy against petitioners herein and also one B.Vijay Bhaskar-A1 in the said case, alleging offences punishable under Sections 420 and 406 read with 120(b) I.P.C., i.e., cheating and criminal breach of trust with criminal conspiracy. His allegations are that these two petitioners and the 1st accused in the case approached him in the year 2004 for a loan of Rs.2,50,000/- to the 1st accused, in order to enable him to start business in computers and subsequently they did not repay the amount. The complainant relied upon certain papers including a promissory note and an undertaking and a cheque given by the 1st accused which was dishonoured. It is stated that both these petitioners signed promissory note in question as sureties and further they also signed undertaking letter given by the 1st accused as witnesses. The version of the complainant is that all the three had an intention to cheat him right from the beginning and they entered into a criminal conspiracy and made him to part with a sum of Rs.2,50,000/- in favour of the 1st accused. These allegations are specifically mentioned in para 7 of the complaint. It is said that the complaint was referred to police by the learned magistrate but the police have filed final report in the case closing it on the ground that it discloses only civil liability. It is brought to my notice that subsequently the complainant filed a protest petition before the Additional Judicial Magistrate of the First Class and after considering the matter, he took cognizance of the complaint as C.C.No.1267 of 2007 against all the three accused i.e., including the petitioners herein, for the offences punishable under Section 420 and 406 read with 120 (b) I.P.C. 4. The main contention of the petitioners is that the allegations made against them in the complaint do not disclose the offences of cheating or criminal breach of trust or criminal conspiracy and that, at best, they can be made liable for recovery of amounts in a civil action and consequently proceedings against them in the aforesaid criminal case should be quashed. Sri.Chilumala Pratap Reddy, learned counsel for the petitioners relied upon two decisions of Apex Court, one in V.P. SHRIVASTAVA v. INDIAN EXPOSIVES LTD.[1] and the other which is an earlier decision in HOTLINE TELETUBES AND COMPONENTS LTD. AND OTHERS v. STATE OF BIHAR AND ANOTHER[2], in support of his contention that the allegations in the present criminal case against the petitioners disclose only a civil liability and therefore, the said proceedings should be quashed. In both the aforesaid decisions where the facts also show a civil liability, it has been held that unless there are specific allegations in the complaint to hold that the accused had an intention right from the date of the inception of the agreement to cheat the complainant, the allegations must be held to disclose only a civil liability but not criminal offences. Basing on these two decisions and the fact that the police have earlier closed the case on the ground that allegations disclosed only a civil liability, the petitioners counsel pointed out that the principle laid down in the above two decisions is enough to quash the proceedings. 5. It is however difficult to agree with the above contention of petitioners’ counsel. In para 7 of the complaint herein allegations have been specifically made that these two petitioners and the 1st accused in the case approached the complainant with a dishonest intention and induced him to pay the amounts to the 1st accused. Thus, it can be said that in the present case, complainant has made the allegations which are necessary to show the offences of cheating, criminal breach of trust with criminal conspiracy. Further, after the closure report was filed by the police, the learned Magistrate examined the protest petition filed by the complainant and recorded his sworn statement and then decided to take cognizance of the case. It cannot be said at this stage that the learned Magistrate has erred in exercising his discretion. Hence, I am of the opinion that the contentions raised by the learned counsel for the petitioners revolve around disputed questions of fact and these can be gone into only by the trial Court which can hold an enquiry at the time of framing of charges initially or subsequently in the course of trial. 6. Hence, it follows that this petition cannot be entertained and, accordingly, it is dismissed. It is however made clear that it shall always be open for the petitioners to make an application for their discharge from the case as offences are triable as warrant cases and put forth their case for a discharge. _________________________ JUSTICE N. RAVI SHANKAR Date: 31st March, 2011 KSM [1] (2010) 10 Supreme Court Cases 361 [2] 2005 Supreme Court Cases (Cri) 1515