important point
Liability of a person can 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.

judgment

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 :

“Whereas 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 Honble 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.”

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.

8.Section 415 of the Indian Penal Code reads thus :

”Section 415 “Cheating” 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,A dishonest concealment of facts is a deception within the meaning of this section.”

Section 415 of the Indian Penal Code is required to be read with the definition of the expression dishonestly 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 ali