ORDER :

1. Petitioners are being prosecuted for the offences under Sections 406 and 420 of IPC on the file of IX Additional Metropolitan Magistrate at Medchal on the basis of private complaint filed by the 2nd respondent and taken cognizance by the learned Magistrate.

2. Briefly, the facts of the case are that the 2nd respondent, his wife along with these petitioners purchased undivided share in open land at Dullapally village, Quthbullapur Mandal, Medchal Malkajgiri District to an extent of Ac.1.30 gts in Sy.No.155, Ac.0.11.332 gts in Sy.No.154 & Ac.0.13.444 gts in Sy.No.154 admeasuring Acs. 2-14.776 gts. There were civil disputes in respect of the land and the cases were pending before the civil court.

3. It is alleged that the 2nd respondent issued a notice to these petitioners on 11.06.2018 asking these petitioners not to alienate their share in the entire property without giving first option of purchase to the 2nd respondent. However, these petitioners issued reply notice on 26.07.2018 stating that there was no such understanding and mentioned that the 2nd respondent had already refused offer of purchase of share of these petitioners. The 2nd respondent’s wife filed O.S.No.316 of 2018 on the file of XVI Additional District & Sessions Judge, Cyberabad at Malkajgiri, against these petitioners for partitioning the property. The Civil Court by order dated 03.10.2018 in I.A.No.1152 of 2018 directed these petitioners not to alienate the property and such interim orders were extended up to 28.02.2019.

4. The allegations in the present complaint are that the petitioners have sold the said property through four sale deeds on 23.02.2019 and 28.02.2019 when the interim orders were subsisting. For the reason of selling the property without demarcating the share of the 2nd respondent and his wife, which is 1/6th share in the property, a criminal complaint was filed with the police Pet Basheerabad and the same was registered for the offence under Section 420 r/w 34 of IPC.

5. The police having investigated the case filed final report stating that the dispute was purely civil in nature and accordingly filed final report.

6. The 2nd respondent filed protest petition before the XXII Metropolitan Magistrate, Cyberabad at Medchal. The learned Magistrate, having examined P.Ws.1 and 2 found that there was prima facie evidence of criminal misappropriation and cheating against these petitioners. Accordingly, learned Magistrate directed issuance of summons to these petitioners to be tried for the said offences. Learned Magistrate found that according to the sale deeds, the 2nd respondent and his wife and these petitioners have jointly purchased the property, however, these petitioners have alienated the said property to third parties. In the civil suits that were filed by the wife of the 2nd respondent, Petitioners/accused admitted that the 2nd respondent and his wife have rights in the property and also stated in the written statement that there is no property available for partition and the 2nd respondent does not have any right over the subject land. On the said basis, learned Magistrate found that prima facie case of Section 420 IPC and 406 of IPC are made out. Learned Magistrate also relying on the judgment of Hon’ble Supreme Court found that pendency of civil suit does not bar criminal prosecution.

7. After taking cognizance, the petitioners filed petition under Section 245 of Cr.P.C. with a prayer to discharge them from the case, mainly on the ground that by virtue of Section 44 of the Transfer of Property Act, the petitioners have right to alienate their share in the joint property. However, the learned Magistrate found that though the property was sold, the petitioners have failed to mention the details of the undivided share and boundaries of the 2nd respondent and his wife before selling the property. When the boundaries did not indicate the property of the 2nd respondent, it implies fraudulent intention of the petitioners. Since several fac