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CASE NO.: Appeal (crl.)  274 of 2007

PETITIONER: T. Vengama Naidu

RESPONDENT: T. Dora Swamy Naidu & Ors

DATE OF JUDGMENT: 27/02/2007

BENCH: P.K. Balasubramanyan & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (Criminal) No.4542 of 2004

V.S. SIRPURKAR, J.

1.      Leave granted. 2.      An order passed by a learned Single Judge of the Andhra  Pradesh High Court is in challenge in this appeal.  By that order the  learned Single Judge allowed the Criminal Petition filed by the  respondents herein and quashed the FIR registered against them. 3.      The appellant herein had filed a private complaint against these  respondents which was sent for investigation under Section 156 (3)  Cr.P.C. to the Police whereupon a criminal case was registered as  Crime No.22/2002 dated 13.1.2002 for the offences punishable under  Sections 464, 423, 420 read with Section 34 of the Indian Penal  Code.  It is an admitted position that this investigation is not complete  and while the investigation was in progress, the respondents filed a  petition under Section 482 Cr.P.C. before the High Court for quashing  the FIR, which was lodged on the basis of the complaint, as well as  the investigation.  Aggrieved by the order passed by the High Court,  the original complainant has now come up before us.   4.      We have gone through the FIR ourselves.  In the FIR the  complainant had complained that he was the absolute owner of the  vacant site in Sy.No.479/2 situated at Tirupathi in Ward No.18 of  Santhi Nagar Residential area jointly along with one Dammalapati  Nagulu Naid.  He had executed a General Power of Attorney in  favour of the first respondent.  However, since the first respondent  was seen misusing the General Power of Attorney, the appellant- complainant cancelled the said General Power of Attorney on  26.6.1997 by issuing a legal notice.  It is alleged that the first  respondent had filed a false complaint against the appellant herein  alleging the offences punishable under Sections 447, 506 read with  Section 34 of the Indian Penal Code wherein the respondent no.2  was shown as one of the witnesses.  It is alleged that inspite of  cancellation of General Power of Attorney in 1997, the first  respondent executed a registered sale deed dated 16.6.2000 in  favour of the second respondent. The other accused, namely,  respondent nos.3 to 6, who are not parties before us, were shown as  the witnesses therein.  It was, therefore alleged that both the accused  persons were well aware that the first respondent did not own the  said land and could not have executed such a document and thereby  had cheated the complainant.  The respondent no.1 had also  dishonestly executed sale deed without any authority and had also  made a false document.   5.      While this FIR was under investigation by the orders of the  Magistrate under Section 156(3) Cr.P.C., the only two accused, who  are respondents before us, out of the original six accused had filed a  petition under Section 482 Cr.P.C. for quashing of the same.  The

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learned Single Judge of the High Court has allowed that petition by  the impugned judgment.  The learned Single Judge has held that this  was a case of civil profile and none of the ingredients that constitute  the offences punishable under Section 464, 423 and 420 read with  Section 34 IPC were discernible from the said allegations.  It was  held that the petitioner herein, the original complainant, was the  Principal and the first respondent was his Agent and if an agent  mismanages the property and fails to account for the same, the  proper remedy available to the Principal was to file a suit against the  agent for rendition of accounts.  It was also observed that if at all the  first accused had sold away the property in favour of the second  respondent and if at all the offence of cheating was alleged, the  aggrieved party would be the purchaser who purchases the property,  i.e., the second respondent.  The learned Judge observed that there  was a remedy available under the common law to the complainant to  get the property by filing a suit.  It was on this ground that the learned  Single Judge quashed the FIR and the investigation. 6.      The learned counsel for the complainant firstly points out that  the learned Single Judge was in complete error in allowing the  petition and quashing the FIR inasmuch as the learned Judge has  completely misunderstood the allegations made as also the  ingredients of the offences.  Secondly it was contended that the  investigation was yet incomplete and at that stage the respondents  could not have rushed to the High Court for getting the FIR quashed.   As against this the counsel for the respondent supported the order  suggesting that there was much to be said against the original  complainant and that there were some genuine disputes amongst  them.  It was also urged before us that there could not be any offence  alleged and none could be viewed against the second respondent  who was merely a purchaser.  It was urged that the complaint was  filed only to harass the accused persons and the learned Judge was  right in quashing the FIR as well as the complaint. 7.      It cannot be disputed that a private complaint was filed before  the learned Magistrate who had made over the said complaint for  investigation under Section 156(3) Cr.P.C.  That order of the  Magistrate has not been challenged.  On the basis of that order the  police registered a crime probably treating the complaint as the FIR.   It is settled law that an FIR and the consequent investigation cannot  be quashed unless there is no offence spelt out from the same.  The  law in this respect is settled that the said FIR has to be taken on its  face value and then it is to be examined as to whether it spells out the  offences complained of.  There was no question of considering the  merits of the allegations contained in the FIR at that stage or testing  the veracity of allegations.  In this case, admittedly, the investigation  was in progress.  The police had also not reported back to the  Magistrate the result of their investigation.  Under such  circumstances, the FIR could have been quashed only and only if  there appeared to be no offence spelt out therein.  A glance at the  FIR suggests that there were serious allegations against both the  accused, respondents 1 and 2 herein inasmuch as it was specifically  alleged that inspite of the revocation of the General Power of Attorney  and inspite of a specific notice to that effect by the complainant to the  first respondent, the first respondent went on dishonestly to execute  the sale deed in favour of his own daughter on the basis of the said  revoked General Power of Attorney.  It is alleged against the first  respondent that he had no right over the property and yet he had  executed a document in favour of the second respondent without any  authority with an intention to cause loss to the complainant and to  cheat him.  It was alleged against the second respondent that she  was well aware that the first respondent was not competent to sell the  property so as to defraud and cheat the complainant and, therefore,  she also was liable to be punished under Sections 464, 423, 420 read  with Section 34 IPC.  It was not for the learned Judge at the stage of  investigation to examine the nature of the transaction and further to  examine as to whether any offence was actually committed by the

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accused persons or not.  At that stage the only inquiry which could  have been made was as to whether the complaint or the FIR did  contain allegations of any offence.  Whether those offences were  made out, even prima facie, could not have been examined at that  stage as the investigation was pending then.  We, therefore, do not  agree with the learned Single Judge that the FIR was liable to be  quashed.  We also do not agree with the learned Judge that there are  no ingredients of the offences complained of in the FIR and this was  a civil dispute.  However, we do not wish to go deeper into that  question.  Our prima facie examination satisfies us that there were  ingredients of offences complained of and, therefore, at that stage the  High Court could not have quashed the FIR as well as the  investigation.  The appeal, therefore, has to be allowed, setting aside  the order of the learned Single Judge.  8.      This appeal is accordingly allowed and the order of the learned  Single Judge is set aside.