THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.Petition No.3874 of 2008 Date: 15.04.2011 Between: Ch. Srinivasa Rao … Petitioners AND 1. Smt. Eda Sujatha 2. State of A.P., through Public Prosecutor, High Court of A.P., Hyderabad. … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.3874 of 2008 ORDER: The petitioner is the sole accused in Crime No.154 of 2008 on the file of the Miyapur Police Station, Cyberabad. He seeks for the quashing of the proceedings in Crime No.154 of 2008. He allegedly committed the offences under Sections 420, 405 and 403 of the Indian Penal Code (‘IPC’ for short) read with Section 426 IPC. 2. The petitioner is one of the developers/builders. Along with one Kasi Nageswara Rao as his co-builder and developer and with the owners of the property situate in Sherlingampally, Ranga Reddy District, the petitioner entered into an agreement with the first respondent herein who is the de facto complainant. Inter alia, the agreement dated 18.02.2006 envisages that the builders including the petitioner herein shall make constructions in the property of the owners and the same shall be shared with the owners and the builder-cum- developer. One of the plots out of the property to be developed was agreed to be sold in favour of the first respondent at Rs.54,00,000/-. The developers and owners of the property agreed to sell a plot to the first respondent is the agreement referred to as the agreement dated 18.02.2006. 3. The first respondent contended that she made payments in various instalments at a total of Rs.17,00,000/- to the developers/builders and more particularly to the petitioner and that the builders including the petitioner evaded making constructions and handing over the premises to the first respondent. The first respondent consequently considered that the petitioner committed cheating, criminal breach of trust and criminal mischief. She filed a private complaint before the learned IX Metropolitan Magistrate, Kukatpally. The learned IX Metropolitan Magistrate, Kukatpally referred the case to police u/s.156 (3) of the Criminal Procedure Code (‘Cr.P.C.’ for short). Police subsequently issued the First Information Report (FIR) registering the complaint as Crime No.154 of 2008. Aggrieved by the same, the present petition is laid by the sole accused. 4. Sri K. Sankaraiah, learned counsel for the petitioner drew my special attention to the complaint and the absence of the name of Kasi Nageswara Rao as one of the accused in the complaint. It may be recalled that the developers are not only the petitioner but Kasi Nageswara Rao also. While so, the private complaint was against the petitioner only. The learned counsel for the petitioner considered that the petition was laid by abusing the process of law and that the complaint therefore is liable to be quashed. That the first respondent did not array Kasi Nageswara Rao as one of the accused is presented by the learned counsel for the petitioner as a pointer that the first respondent wanted to harass the petitioner. 5. Sri V. Jithendar Rao, learned counsel for the first respondent pointed out that the petitioner issued receipts for the monies received by him on behalf of M/s. Sri Sai Nivas Homes and Estates Private Limited and that the complaint, therefore, was laid against the sole accused as he has been denying the payments made by the first respondent barring for the payments made on 23.01.2006 and 22.02.2006. The learned counsel for the petitioner on the other hand claims that the petitioner has not received any monies under these receipts. I am afraid that whether the receipts were issued by the petitioner or not is a question of fact which cannot be given effect in this application u/s.482 Cr.P.C. Where the first respondent produced receipts purportedly issued by the petitioner and where the petitioner considers that these receipts were not issued by the petitioner, it is appropriate for the Court to decide the authenticity of these receipts. When the first respondent invoked the jurisdiction of the criminal Court, it is for such a criminal Court to decide the truth and genuineness of these receipts. It is not appropriate for me to go into the truth of these receipts. I, therefore, shall go by the assumption that the receipts were passed by the petitioner. 6. Assuming that the receipts were passed by the petitioner, the question is whether the offences alleged against the petitioners are made out. 7. The first of the offences alleged against the petitioner is u/s.420 IPC. It is the contention of the learned counsel for the first respondent that the petitioner received monies from the first respondent with the dishonest intention of cheating the first respondent. I consider that the offence of cheating u/s.420 IPC would arise if the petitioner had the mens rea to cheat the first respondent at the time of the receiving of the monies. It is not the case of the first respondent herself that when the petitioner passed receipts on 23.01.2006 and 22.02.2006, the petitioner had intention to cheat the first respondent. Therefore, even if the alleged receipts were passed by the petitioner, prima facie, no offence u/s.420 IPC is made out against the petitioner. The FIR to the extent of the offence u/s.420 IPC is liable to be quashed. 8. The FIR was also registered curiously as a case read with the offence under Section 426 IPC. Section 426 IPC provides punishments of mischief. The first respondent prima facie failed to show any mischief on the part of the first petitioner. There is no allegation of destruction of any property or wrongful loss or damage to the petitioner. I, therefore, deem it appropriate to hold that prima facie, offence u/s.420 IPC is not made out. Police also registered a case u/s.403 and 405 IPC. Section 403 IPC deals with the punishment for dishonest misappropriation of property. Section 405 IPC defines criminal breach of trust while Section 406 IPC provides punishment for criminal breach of trust. It is the case of the first respondent that the petitioner received money on behalf of developer or on behalf of M/s.Sri Sai Nivas Homes Estates Private Limited. Admittedly, the petitioner received Rs.5,00,000/- under two instalments. The petitioner, however, disputed further payment set up by the first respondent. 9. The learned counsel for the petitioner, in fact, pointed out about the notice issued by the learned counsel for the petitioner to the first respondent about the breach of the agreement by the first respondent and about the cancellation of the agreement. These questions, indeed, are the subject matter of the civil litigation in C.C.No.165 of 008 on the file of the District Consumer Forum, Ranga Reddy District. It is the contention of the learned counsel for the petitioner that where the dispute is before a civil forum, this case, however, does not lie. 10. For appreciation of the case and Section 482 Cr.P.C., primary consideration is whether a prima facie case would be made against the petitioner in the absence of contrary proof from the accused for the allegations against the accused from the complainant or the de facto complainant. Where the petitioner allegedly received monies and where the petitioner allegedly did not make constructions in terms of the agreement, it would prima facie constitute criminal breach of trust and dishonest misappropriation of monies. The offences u/s.403 and 406 IPC, thus, prima facie are made out against the petitioners. 11. Consequently, this petition deserves to be allowed so far as the allegations of the first respondent are for the offences u/s.420 IPC and 426 IPC are concerned. This petition is liable to be dismissed so far as the offences u/s.405 and 406 IPC is concerned. 12. Accordingly, the Criminal Petition is partly allowed. Crime No.154 of 2008 is quashed so far as the offences u/s.420 and 406 IPC are concerned. _______________ K.G. SHANKAR, J Date: 15.04.2011 Isn