DASARI LEELA VENIKATA LAXMI, VIJAYAWADA - 11 v. POLICE NUNNA RURAL, HYD & 2 OTHRS

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dated 10.02.2014 dismissed the Revision, confirming the order of the learned Magistrate. Challenging the same, the present Criminal Petition came to be filed.

3. Learned counsel for the petitioner submits that the 1^strespondent entertained dishonest intention from the time of entering into the agreement of sale and thereafter all the accused conspired together in order to deprive the petitioner of the property agreed to be sold under the subject agreement of sale; that the truth or otherwise of the allegations made in the report is to be decided during the course of trial and the learned Magistrate as well as the Revisional Court erred in dismissing the private complaint filed by the petitioner.

4. On the other hand, the learned counsel for the respondents submitted that the dispute between the petitioner and the unofficial respondents is civil in nature and criminal prosecution is sought to be set in motion to settle the civil scores and that the allegations in the report do not reveal that the 1^strespondent entertained dishonest or fraudulent intention from the time of inception or any conspiracy among the accused, and the police rightly referred the matter as civil in nature and Protest Petition has been rightly dismissed by the learned Magistrate and the same is rightly confirmed by the learned Sessions Judge.

5. Case of the petitioner herein is that she agreed to purchase property from 2^ndrespondent/A-1 under an

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agreement of sale for a total sale consideration of Rs.3,16,116/- and entered into an agreement of sale by paying an advance of Rs.1,51,116/- on 20.10.2003; that she paid further sum of Rs.9,000/-on 01.11.2003 and Rs.7,000/- on 03.12.2003 and endorsement was made to that effect; she also gave Rs.47,000/- for discharging loan in the bank and the same was endorsed on the back of the agreement. It is her further case that 2^ndrespondent without executing sale deed and delivering possession to her, entered into criminal conspiracy with other accused, and in furtherance of the same, sold the property to 3^rdrespondent herein under registered sale deed, and though she questioned, the accused did not pay any attention. Thus, she lodged the report.

6. As already stated above, police after completion of investigation, filed final report to treat the crime as civil nature and non-cognizable, and the Protest Petition filed by the petitioner was dismissed by the learned Magistrate, and the same was confirmed by the learned Sessions Judge vide the impugned order.

7. The offences alleged against the respondents 2 and 3 are punishable under Section 420 IPC and 120-B IPC. In order to attract the offence of cheating, fraudulent or dishonest intention must be shown to have been existing from the inception i.e., at the time of making the promise and simple breach of contract does not constitute the offence of cheating. The recourse available to the aggrieved party is to

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approach Civil Court. It is clear from the record that the petitioner has already approached Civil Court by way of filing Original Suit No.234 of 2007 on the file of the V Additional Senior Civil Judge, Vijayawada seeking specific performance the agreement of sale. It is settled law that if the facts in the complaint give raise to a civil cause of action and also amount to an offence, there is no bar to maintain criminal action. Mere failure to honour a promise is not cheating. Admittedly, the petitioner paid a sum of Rs.2,40,116/- and the balance was not paid and subsequently notices were exchanged between the parties. It is also stated in the final report filed by the police after completion of investigation that the petitioner failed to pay the balance of sale consideration, and though the 2^ndrespondent gave one year time to pay, she did not pay the balance amount. The date of agreement of sale is 20.10.2003 and 2^ndrespondent allegedly sold the property on 04.11.2006. Therefore, the 2^ndrespondent herein, after waiting for more than three (3) years sold the property to 3^rd respondent herein.

8. There cannot be any dispute that inherent powers of this Court under Section 482 Cr.P.C. can be exercise to prevent abuse of process of Court or to give effect to any order passed under the Code or to secure the ends of justice. The Revisional Court, upon analyzing the material available on record, rightly observed that though the balance of sale consideration was agreed to be paid within a short time, the

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petitioner made only a part payment and that there was pressure from the bank as property was mortgaged by the bank and the bank was taking steps to sell the property in the auction to realize the loan amount.

9. In the facts and circumstances of the case, the dishonest intention from the time of inception is absent in the present case so as to attract the offence of cheating punishable under Section 420 IPC. Similarly, there are no allegations attracting the offence punishable under Section 120-B IPC.

10. Therefore, in the circumstances, compelling the respondents 2 and 3 herein to face criminal prosecution is nothing about abuse of process of Court. Therefore, there are no grounds to interfere with the impugned order and the criminal petition is liable to be dismissed.

11. Accordingly, the criminal petition is dismissed. Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.

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JUSTICE K. SREENIVASA REDDY

Date: 10.03.2022 GR/DRK

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THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL PETITION No.2801 of 2015 Date: 10.03.2022

GR/DRK

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