IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.A.No.159 of 2005 Dated:12-08-2011 Between: Mohd. Afzal ….Appellant And J.Raghuraj Goud and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No.159 of 2005 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal under Clause XV of Letters Patent is directed against the Orders of learned Single Judge dated 18.11.2004 in W.P.No.12332 of 2004. Respondent Nos.1 and 2 herein are the writ petitioners and they prayed for issuance of writ of mandamus quashing the F.I.R. in Crime No.423 of 2004 of Kukatpally Police Station. The writ appellant, who is the respondent No.3 in the writ petition has filed a private complaint under Sections 190 and 200 of Code of Criminal Procedure before Judicial First Class Magistrate, West and South, Ranga Reddy District at L.B.Nagar against the Satyanarayana Yadav, Smt. Jaligam Lakshmi, Ch.Narender Reddy and B.Ravi Babu for the offences under Sections 415, 420 and 409 IPC alleging that he is the General Power of Attorney holder of the owners of plots bearing Nos.205, 206, 208, 209, 213, 214, 216, 217, 222, 223, 229 and 244 in Sy.Nos.26 to 29 situated at Allapur village of Balanagar Mandal, Ranga Reddy District, who has purchased the said plots under registered sale deeds of the respective plots from Hari Co-operative Housing Society in the year 1983-84. The complainant is looking after the affairs of the said properties and safeguarding the interest of the principals over the said property. Plot No.216 admeasuring 200 Sq. Yards in Survey Nos.26 and 29 situated at Allapur Village, Balanagar Mandal, Ranga Reddy District was purchased by his principal under registered sale deed dated 20.01.1984 from Hari Co-operative Housing Society, Hyderabad. At that time one Mr. K.Kishan Rao was the president of the Society and P.Pratap Reddy was the Secretary of the said society and they have executed sale deeds in favour of the Principal of the complainant. Accused No.1 is the Secretary of the said society and accused No.2 is the G.P.A. holder of accused No.1 started selling the vacant plots which were long back sold away by the Society to its members and they also started demanding money from the plot owners by stating that No Objection Certificate has to be taken from Society for construction of houses on the said plots. Accused Nos.1 and 2 knowing fully well that all the plots including the complainant’s plot was already sold in the year 1983 itself again registered the same plot in favour of son of accused No.3 and brother of accused No.4 through registered sale deeds dated 29.04.1995. Under the guise of the said sale deeds accused Nos.3 and 4 with the help of accused Nos.1 and 2 are trying to grab the said property. Accused No.1 being the agent of the society maliciously registered sale deed and thereby he has committed cheating by deceiving the complainant and also committed criminal breach of trust as the Secretary of the Society. The said complaint was referred to Station House Officer, Kukatpally Police Station under Section 156 (3) of Code of Criminal Procedure by the Judicial First Class Magistrate, West and South, Ranga Reddy District at L.B.Nagar and Kukatpally Police has registered the case in Crime No.423 of 2004 under Sections 415, 420 and 409 IPC and took up investigation. Questioning the said registration of the crime and investigation by the Kukatpally Police Station, the writ petitioners have filed the writ petition on the ground that the plots, which are in dispute are situated outside the territorial jurisdiction of respondent No.1, Sub-Inspector of Police, Kukatpally Police Station, and the respondent No.1 illegally and un-authorisedly interfering with the affairs of the Society and the Society has resumed Plot Nos. 206, 208, 209, 213, 214, 216, 217, 222, 223, 229 and 244 from the respective allottees as they did not commence the construction as per the bye-laws of the society. After the resumption of the said plots, they were allotted to fresh members of the society and sale deeds were duly executed by the office bearers of the Society. They further pleaded that the respondent No.1 has no jurisdiction to investigate into the case and the F.I.R. does not reveal any offence under Sections 415, 420 and 409 IPC and thereby sought for issuance of writ of mandamus for quashing the said F.I.R. Respondent No.2 in the writ petition, who is the Sub-Inspector of Police, Kukatpally Police Station, in his counter has stated that after receipt of the complaint from Judicial First Class Magistrate, West and South, Ranga Reddy District at L.B.Nagar registered the said crime under Sections 415, 420 and 409 IPC on 07.06.2004 and took up investigation. During the course of investigation, it is revealed that the petitioner herein is also involved in the above said crime in addition to one B.Laxminarayana, accused No.2 and other three accused are not involved in the commission of the said offences. Accordingly, the petitioner herein was shown as accused No.1 in the above said crime in addition to one B.Laxminarayana (accused No.2) while deleting the other three accused i.e. accused Nos.1, 3 and 4. He has further stated that during the course of investigation, he arrested accused No.2 on 07.07.2004 and produced before the Judicial First Class Magistrate Court on the same day and the present petitioner, who is accused No.1 found absconding. He denied about his pressurizing the office bearers of the respondent No.2 Society. He has also denied that he has no jurisdiction to investigate into the said crime. He further pleaded that the place of offence as per the private complaint in Crime No.423 of 2004 is the Sub-Registrar’s Office at Kukatpally, Ranga Reddy District, which comes within his jurisdiction. He also denied that the private complaint does not reveal any offence under Sections 415, 420 and 409 IPC and pleaded that the petitioner in order to avoid the criminal liability has filed the present writ petition. The learned Single Judge by taking into consideration of the rival contentions has allowed the writ petition and thereby quashed the FIR in Crime No.423 of 2004 on the file of respondent No.1 by holding that there is no inducement much less any representation to the complainant in regard to the alleged act. The persons, who are really affected i.e. subsequent purchasers or earlier owners, are not the complainants. In view of the same, it cannot be said that any of the provisions mentioned namely Sections 409, 415 and 420 IPC are attracted and thereby held that no case is made out against the present petitioners and thereby quashed the said F.I.R. The learned Single Judge has not gone into the aspect of jurisdiction of respondent No.1 to investigate the above said crime. Learned counsel for appellant has pleaded that the writ petitioner No.1 has sold the plots which were already sold to the principals of the complainant by registering the same at Sub- Registrar’s office at Kukatpally and thereby he has cheated the complainant’s principals and also committed criminal breach of trust, which was reposed on the society by its members. The writ petitioners have not disputed about the selling of the plot Nos. 206, 208, 209, 213, 214, 216, 217, 222, 223, 229 and 244 by executing registered sale deeds in favour of original allottees. But according to them as they have not made any constructions over the said plots, the society has resumed the same from them and re- allotted to fresh members by duly executing sale deeds in their favour. Therefore, it is evident that the writ petitioner No.2 i.e. Hari Co- operative Housing Society has resold the plots, which were already sold in favour of its members. Whether the said act of the writ petitioners would amount to cheating or not is to be examined. Section 415 IPC deals with cheating. As per the said Section “whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat.” As per explanation to Section 415 IPC, “a dishonest concealment of facts is a deception within the meaning of this section”. Therefore, the writ petitioners herein by concealing the fact of executing registered sale deeds earlier has got sold the property in favour of new members by executing registered sale deeds, amounts to deception on the part of the writ petitioners. By such act of deception played by the writ petitioners, the property of the complainant’s principals was affected as the purchasers of the said property are trying to dispossess the complainant principals. As per the illustration- (i) under the explanation to Section 415 IPC, “‘A’ Sells and conveys an estate to ‘B’. ‘A’, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to ‘Z’, without disclosing the fact of previous sale and conveyance to ‘B’, and receives the purchase or mortgage money from ‘Z’. ‘A’ cheats.” The present case squarely falls within the said illustration (i) under explanation to Section 415 IPC. Thus, the acts of the writ petitioners would amounts to cheating. Moreover, the writ petitioner No.1 being the Secretary of the Society, the members of the society kept a trust on him by entrusting the property of the Society to him, but he has disposed of the said property, by cheating the members, to 3rd parties, thereby committed criminal breach of trust. By the said acts of the writ petitioners, the principals of the complainant, who are the original owners of the plot No.216 are affected parties, and their rights are being affected in view of execution of registered sale deeds by the accused for the second time. Therefore, the finding of the learned Single Judge that the persons, who are really affected i.e. subsequent purchasers or earlier owners, are not the complainants is not correct. Moreover, under the registered sale deeds executed by the Society in favour of the principals of the complainant, who is the writ appellant herein, the title over the said property transferred to them and without cancellation of the registered sale deeds, the said property cannot be sold to 3rd persons by the same society. Therefore, it cannot be said that the prima-facie offence under Sections 415, 420 and 409 IPC are not made out as per the averments made in the complaint, moreover the matter is under the investigation and the same has to be established during the course of investigation and at this stage, it cannot be said that the said complaint made by the writ appellant is in abuse of process of law. The writ petitioner also pleaded that the respondent No.1 has no jurisdiction to investigate into the crime as the property falls beyond his jurisdiction. Admittedly, the writ appellant has filed the complaint before the Judicial First Class Magistrate, West and South, Ranga Reddy District at L.B.Nagar and the said complaint was referred to the respondent No.1, Station House Officer, Kukatpally Police Station under Section 156 (3) of Code of Criminal Procedure. The allegation in the said complaint is that the offence has taken place at Sub- Registrar’s Office at Kukatpally, Ranga Reddy District as the second sale deed was registered in the said Sub-Registrar’s Office, which is within the jurisdiction of respondent No.1. In “RASIKLAL DALPATRAM THAKKAR V. STATE OF GUJARAT AND OTHERS[1]”, the Apex Court held that when a complaint is referred for investigation by the Magistrate under Section 156 (3) Code of Criminal Procedure, the said Magistrate has got ample power to refer the said complaint to any police officer for investigation and report and the question of jurisdiction of the said investigating agency does not arise. Thus, in view of the above, the findings recorded by the learned Single Judge are liable to be set aside and accordingly set aside. All observations made herein as to the private complaint made by the appellant herein against respondent Nos.1 and 2 herein (the writ petitioners), constituting offences within the ambit of the provisions of the IPC enumerated in Crime No.423 of 2004, are observations made in the context of the challenge in the writ petition, to the legality of the investigation; and shall not be construed as findings recorded by this Court on the guilt or otherwise of the accused. On conclusion of the investigation if trial is warranted on the basis of the final report filed, the trial Court is at liberty to record its findings on the basis of the evidence on record, uninfluenced by the observations in this Judgment. In the result, the writ appeal is allowed and consequently the writ petition stands dismissed. _____________________________ JUSTICE GODA RAGHURAM _____________________________ JUSTICE P. DURGA PRASAD Dated:12-08-2011 Ksp [1] 2010 (1) SCC 1