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CASE NO.: Appeal (crl.)  1444 of 2007

PETITIONER: B. Suresh Yadav

RESPONDENT: Sharifa Bee & Anr

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.705 of 2007) S.B. Sinha, J.

1.      Leave granted. 2.      An application for quashing the complaint being CC No.216 of 2006  filed in the Court of the Metropolitan Magistrate, Cyberabad at Malkagiri  filed the petitioner under Section 482 of the Code of Criminal Procedure, has  been dismissed by the High Court of Andhra Pradesh by reason of the  impugned judgment. 3.      Basic fact of the matter is not in dispute.   4.      First respondent herein filed a complaint petition.  The parties hereto  entered into an agreement for sale in respect of a house admeasuring 350  square yards for a consideration of Rs.23,80,000/-.  A sum of Rs.5,00,000/-  was paid by way of advance.  A sale deed was executed on 30.9.2005 by the  appellant herein on receipt of the balance sum of Rs.18,79,000/-.   5.      Indisputably on or about 29.9.2005, two rooms, allegedly, constructed  on the said lands were demolished.  A suit was filed in relation thereto.   Respondent No.1 was also defendant in the said suit.  In the written  statement, she stated : \023Whereas it is the Plaintiffs who by demolishing  existing structure when the defendant No.2 and her  family members are away and even the electricity  connection meter was thrown away and in that  regard this defendant No.2 herein has reported the  matter to the concerned police and this Plaintiffs  herein have also filed a caveat application having  got signed the same in the affidavit.  And whereas  before this Hon\022ble Court, the same Plaintiffs  herein has put his thumb impression and the  Plaintiff herein by taking advantage of ad interim  orders, are trying to forcibly encroach upon the  suit schedule property.\024

6.      Respondent herein, in the said suit, inter alia, contended that the suit  properties are different from the subject matter of the deed of sale.  Although  the aforementioned written statement was filed only in March, 2006, first  respondent herein filed a complaint in the court of Metropolitan Magistrate,  Cyberabad at Neredmet alleging commission of an offence by the appellant  purported to be under Section 420 of the Indian Penal Code.   7.      Submission of Mr. M.N. Rao, learned Senior Counsel appearing on  behalf of the appellant, is that the allegations contained in the complaint  petition, even if given face value and taken to be correct in their entirety, do  not disclose any offence.  Learned counsel would contend that from a  perusal of the written statement filed by the first respondent, it would appear  that they she at all material times was aware of the purported demolition of  the said rooms.

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8.      Section 415 of the Indian Penal Code reads thus : \023Section 415 \026 \023Cheating\024 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".

Explanation,\027A dishonest concealment of facts is  a deception within the meaning of this section.\024

       Section 415 of the Indian Penal Code is required to be read with the  definition of the expression \021dishonestly\022 as contained in Section 24 thereof  in terms whereof something must be done with an intention of causing  wrongful gain to one person or wrongful loss to another.   9.      There exists a dispute as to whether the property whereupon  the said  two rooms were allegedly situated was the same property forming the  subject matter of the deed of sale or not.  A civil suit has already been filed  in relation thereto.  Respondent No.1 herein was aware of the fact that the  said two rooms stood demolished. It is furthermore not in dispute that the  demolition was not caused by the appellant herein.  In her written statement  filed in the said suit, the first respondent did not make any allegation against  the appellant herein.  The High Court, in its judgment, inter alia, opined that,  prima facie, the appellant concealed the fact of demolition of the premises  from the first respondent before execution of the aforementioned deed of  sale.   10.     The short question which arises for consideration is as to whether a  case of cheating within the meaning of Section 415 of the Indian Penal Code  has been made out or not. 11.     Ingredients of cheating are : (i)     deception of a person either by making a false or misleading  representation or by other action or omission; and   (ii) fraudulent or dishonest inducement of that person to either deliver any  property to any person or to consent to the retention thereof by any  person or to intentionally induce that person 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.

12.     While executing the sale deed, the appellant herein did not make any  false or misleading representation.  There had also not been any dishonest  act of inducement on his part to do or omit to do anything which he could  not have done or omitted to have done if he were not so deceived.    Admittedly, the matter is pending before a competent civil court.  A decision  of a competent court of law is required to be taken in this behalf.   Essentially, the dispute between the parties is a civil dispute.  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.  Had the fact as purported to have been represented before us  that the appellant herein got the said two rooms demolished and concealed  the said fact at the time of execution of the deed of sale, the matter might  have been different.  As the deed of sale was executed on 30.9.2005 and the  purported demolition took place on 29.9.2005, it was expected that the

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complainant/first respondent would come out with her real grievance in the  written statement filed by her in the aforementioned suit.  She, for reasons  best known to her, did not choose to do so. 14.     In this view of the matter, we are of the opinion that in the facts and  circumstances obtaining herein, no case has been made out for proceeding  with the criminal case.   15.     In G. Sagar Suri & Anr. v. State of U.P. & Ors. [(2000) 2 SCC 636],  this Court opined : \0238. Jurisdiction under Section 482 of the Code has  to be exercised with great care. In exercise of its  jurisdiction the High Court is not to examine the  matter superficially. It is to be seen if a matter,  which is essentially of a civil nature, has been  given a cloak of criminal offence. Criminal  proceedings are not a short cut of other remedies  available in law. Before issuing process a criminal  court has to exercise a great deal of caution. For  the accused it is a serious matter. This Court has  laid certain principles on the basis of which the  High Court is to exercise its jurisdiction under  Section 482 of the Code. Jurisdiction under this  section has to be exercised to prevent abuse of the  process of any court or otherwise to secure the  ends of justice.

       Therein, having regard to the fact that a criminal complaint under  Section 138 of the Negotiable Instruments Act had already been pending, the  criminal complaint under Section 406/420 found to be an abuse of the due  process of law. 16.     In Anil Mahajan v. Bhor Industries Ltd. & Anr. [(2005) 10 SCC 228],  this Court held : \0238. The substance of the complaint is to be seen.  Mere use of the expression \023cheating\024 in the  complaint is of no consequence. Except mention of  the words \023deceive\024 and \023cheat\024 in the complaint  filed before the Magistrate and \023cheating\024 in the  complaint filed before the police, there is no  averment about the deceit, cheating or fraudulent  intention of the accused at the time of entering into  MOU wherefrom it can be inferred that the  accused had the intention to deceive the  complainant to pay. According to the complainant,  a sum of Rs.3,05,39,086 out of the total amount of  Rs.3,38,62,860 was paid leaving balance of  Rs.33,23,774. We need not go into the question of  the difference of the amounts mentioned in the  complaint which is much more than what is  mentioned in the notice and also the defence of the  accused and the stand taken in reply to notice  because the complainant\022s own case is that over  rupees three crores was paid and for balance, the  accused was giving reasons as above-noticed. The  additional reason for not going into these aspects is  that a civil suit is pending inter se the parties for  the amounts in question.\024

17.     In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC  257], this Court opined : \023It is settled law, by a catena of decisions, that for  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. From his  making failure to keep promise subsequently, such  a culpable intention right at the beginning that is at

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the time when the promise was made cannot be  presumed. It is seen from the records that the  exemption certificate contained necessary  conditions which were required to be complied  with after importation of the machine. Since the  GCS could not comply with it, therefore, it rightly  paid the necessary duties without taking advantage  of the exemption certificate. The conduct of the  GCS clearly indicates that there was no fraudulent  or dishonest intention of either the GCS or the  appellants in their capacities as office-bearers right  at the time of making application for exemption .  As there was absence of dishonest and fraudulent  intention, the question of committing offence  under Section 420 of the Indian Penal Code does  not arise.\024

    {See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005) 3  SCC 670] and Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006) 6  SCC 736]}. 18.     For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  Appeal is allowed.  No costs.