Holding

A private complaint filed after an inordinate delay that does not prima facie disclose the ingredients of cheating is not maintainable, and the magistrate should not have taken cognizance.

Summary

The appellant was accused of cheating under Section 420 IPC for allegedly failing to honour a 1988 agreement to sell a house and retain an advance payment. The complainant sent a legal notice in 1996, which the appellant denied, and only filed a private complaint under Section 200 CrPC in 1999, more than eleven years after the alleged transaction. The police investigation cleared accused Nos. 2‑4 and filed a charge sheet only against the appellant. The magistrate took cognizance of the offence and issued summons, a decision upheld by the High Court. The Supreme Court held that the complaint was not maintainable due to the inordinate delay and because it disclosed only civil, not criminal, allegations, failing to satisfy the ingredients of cheating. Consequently, the Court set aside the magistrate’s and High Court’s orders and dismissed the complaint, allowing the appeal.

Issues considered

Whether a private complaint under Section 200 CrPC for cheating is maintainable after an eleven‑year delay.
Whether the allegations in the complaint disclose the essential ingredients of the offence of cheating under Section 420 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 190(1)(b), s. 200, s. 41
Indian Penal Code, 1860s. 415, s. 420

Subjects

private complaintinordinate delaycheatingSection 420 IPCSection 200 CrPCcognizancemagistratehigh courtappeal allowed

Judgment

SU RESH A
\I.

MAHADEVAPPA SHIV APPA DA NANNA VA AND ANR.

FEBRUARY 16, 2005

~
[ASHOK BHAN AND DR. AR. LAKSHMANAN, JJ.} a
Criminal Procedure Code, 1973-Section 190(/)-Complaint of cheating
filed after 11 years ofalleged transaction-Maintainability of-On facts, held,
complaint not maintainable on account of inordinate delay on the part of
complainant himself-Moreover, allegations as contained in complaint were
c
ofcivil nature and did not disclose commission ofalleged offence ofcheating-
Hence, Magistrate not justified in taking cognizance of offence.

Grievance of complainant-respondent was that appellant had agreed
to sell a house to his wife against which advance was paid to him. However, D
appellant failed to discharge the contract and sold the house to wife of
fourth accused. After eight years, complainant sent notice to appellant to
execute the alleged agreement. Appellant replied to the notice denying the
alleged agreement and the payment of advance. Three years thereafter,
respondent filed a complaint. Police registered case against appellant under
Section 420, IPC. Magistrate took cognizance of the offence and issued E
summons against which appellant preferred revision. High Court dismissed
the same. Hence, the present appeal.
.... Allowing the appeal, the Court

HELD : 1. The High Court has passed the order in a mechanical F
way without applying -its mind. A perusal of the complaint would show
that the entire dispute raised by the complainant is based on the alleged
agreement to sell entered into on 25.12.1988 nearly 11 years prior to the
filing of the private complaint on 17.5.1999. The existence of any such
agreement or any advance taken has been specifically denied by the
G
- appellant by way of his reply dated 6. 7.1996 in response to the legal notice
dated 11.7.1996 sent by the complainant through his lawyer. For nearly 3
years from the date of reply, the complainant kept quiet before filing his
complaint before the Magistrate. It is stated that even as per the police
report, no offence is made out against accused Nos. 2-4. Despite this, the
131 H
132 SUPREME COURT REPORTS (2005) 2 S.C.R.

A Magistrate issued process against accused Nos. 2-4 as well which clearly
shows the non-application of mind by the Magistrate. A perusal of the
complaint would only reveal that the allegations as contained in the
complaint are of civil nature and do not primafacie disclose commission
of alleged cri"minal offence under Section 420 IPC. The Magistrate, has
B not judicially considered the report filed by the police. (135-B-DI

2. In the instant case, police has given a clean chit to accused Nos.
2-4. The Magistrate ought not to· have taken cognizance of the alleged
offence against the accused No. 1, the appellant herein and that the
complaint has been made to harass the accused No. 1 to come to terms by
C resorting to criminal process. !he complaint was filed after a lapse of 11 Yz
years and, therefore, the very private complaint filed by the respondent
No. I is not at all maintainable at this distance of time. It is the specific
case of accused No. I that he has not executed any agreement to sell or
received any advance payment. The complaint does not disclose the
ingredients of Section 415 of Cr.PC and, therefore, this is a fit case for
D setting aside the order of the Magistrate as confirmed by the High Court,
of issuance of process and proceedings itself. (135-E-G; 136-AJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 308
of 2005.

E From the Ju.dgment and Order dated 17 .2.2004 of the Karnataka High
Court in Crl. R.P. No. 932 of 2000.

Mohan, V. Katarki and Javed Mahmud Rao for the Appellant.

Sanjay R. Hegde, (NP) for the Respondent.
F
The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. Leave granted.

The present appeal was filed against the final judgment and order dated
G 17.02.2004 passed by the High Court of Karnataka at Bangalore in Criminal
Revision Petition No. 932/2000 dismissing the said petition filed by the
appellant-herein (accused No. I). --
The short facts leading to the filing of the above appeal are narrated . ·~·

herein below :
H
SURESH v. M.S. DANANNAVA [LAKSHMANAN. J.] 133

Respondent No. I is the complainant. According to the complaint, the A
appellant herein had executed an agreement to sell dated 25.12.1988 in r~spect
ofthe house premises bearing No.120, K.H.B. Colony, Agrahara Dasarahalli,
Bangalore in favour of the wife of the complainant Renukamma and as per
the said agreement a sum of Rs.1,25,000 was paid as advance out of the total
consideration of Rs.2,50,000 and the remaining amount was to be paid at the
time of registration of sale deed. It is stated in the complaint that the second B
accused being the father of the first accused, the appellant herein was a
member of the Kamataka Housing Board, who negotiated the transaction
among the parties and in spite of several requests and demands made by the
complainant it did not yield any fruits and that the first accused had solQ the
said property in favour of the wife of the fourth accused. It was further stated C
that the complainant approached all the accused persons several times for
possession of the said premises and was ready to pay the balance sale
consideration, but all the accused persons failed to discharge the obligations
of the contract. Certain other averments have also been made in the complaint
in regard to the receipt of Rs.5 lacs from one Uma Belagavi and Nadigar for
vacating the said premises on filing civil cases with which we are not presently D
concerned in this appeal. A legal notice dated 11.07.1996 was also issued by
the complainant calling upon the appellant herein to execute the sale deed in
respect of the premises in question. The appellant herein on 18.07.1996 replied
to the said legal notice. He denied the very existence of the alleged agreement
to sell. He also denied that he had ever received Rs.1,25,000 as considerati,on E
amount.

According to the complainant, all the accused persons committed
offences attracting penal provisions of IPC under Sections 196, 209, 3S6,
403, 406 and 420. The complainant requested the Chief Metropolitan
Magistrate, Bangalore to take cognizance of the offence against the accused F
persons and punish them in accordance with law in the interest of justice and
equity. This complaint was numbered as PCR No. 453/1999 dated 17.05.1999.

The appellant denied the execution of such an agreement or received
.:.ny advance from the complainant or his wife.
G
The IV Addi. Chief Metropolitan Magistrate directed the office to register
the case as PCR and refer the same to the sub-inspector Kamakshi Palya P.S;
for investigation and submit a report as per Section 156(3) of Cr.PC b)".
27.08.1999. This order was passed by the Magistrate on 17.05.1999 (Annexure-
P2). On 04.08.2000 the IV Addi. Chief Metropolitan Magistrate passed the H
134 SUPREME COURT REPORTS [2005] 2 S.C.R.

A following order :
"ORDER

Perused the record. Cognizance of the offence alleged against the
accused is taken u/s. I 90(i)(b) of,Cr.P.C. Office to register the case
B in CC register and issue SS to accused by 30-9-2000:

Sd/- 4-8-2000"

Aggrieved by the order dated 04.08.2000 passed by the IV Addi. CMM,
the appellant accused preferred a criminal revision under Section 40 l Cr.PC
C praying the High Court to set aside· the said order. The said revisfon was
dismissed-by the High ,Court by the impugned order dated 17.02.2004.

We have perused.the entire.pleadings and.the order passed by the High
Court in}evision and heard.the counsel appeari!lg for the appellant. Though
notice was s~rved .on t~e first·respondent, no one has entered appearance on
D his behalf.. Mr. Sanjay .R. Hegde, learned counsel for:. the .respondent filed
vakala~ama on behalf of the1State but.has.not fiJed· any counter affidavit on
behalf of· respondent No2,:~ 1 .State of Karnataka: .- :.. , i ..· . . .
~ • 0.. - o r " Fii If. • • J ._ -
It is pertinent to notice that}he. alleged agreement .to sell was executed
on 25.12.1988."A. legal noti~e was issued to the app~llant herein o~ 11.07.1996
E calling upo~,t~e ;ppellant to ex~cu~e the sal~ deed in ;espect of the premises
in question. Thus the complaint was submitted after 7 l/2 years of splendid
silence from the date of the alleged,agreement to selLi.e. 25~12.1988. It is
further to be noticed that the.appellant herein responded to the legal l}Otice
dated 11.07 .1996 by his reply dated 18.07 .1996 through h!.s l!iwyer specifically
F denying.the alleged agreement and the.payment.<;>f Rs.1,25,000 as advanc.e.
Nothing was heard thereafter and the complainant after keeping quiet for
nearly 3 years filed private complaint under Section 200 Cr.PC before the IV
Addi. CMM, Bangalore on 17.05.1999; The learned Magistrate on the same
date directed his office to register the case as PCR and referred the same to
the local police for investigation and to submit a report as per Section 156(3)
G Cr.PC. A charge sheet was filed on 04.08.2000 by the police against the
appellant/accused No.l only for offence under Section 420 IPC. The learned
· Magis.trate took cognizance of the alleged offence under Section 190 (I) (b)
Cr.PC and issued summons to the accused/appellant herein. Aggrieved by the
aforesaid process order dated 04.08.2000 passed· by the Magistrat~, the
H appellant accused preferred the above criminal revision which was dismissed
SURESH v. M.S. DANANNAVA [LAKSHMANAN, .I.] 135
by the High Co~rt for the reasons stated therein. A
We have also perused the Annexures Pl-P3 which are copies of the
pleadings/documents which form part of the records of the case in the High
Court against whose order leave to appeal was sought for in this appeal. We
have catefJ;I!ly perused the order passed by the High Court. The High Co~rt,
in our opinion, has passed the ·order in a mechanical way without applying B
its mind. A perusal of the complaint would show that the entire dispute raised
by the complainant is based on the alleged agreement to sell dated 25.12.19$8
. nearly 11 years prior to the filing of the private complaint on 17.05.1999.
The existence of any such agreement or. any advance taken has bee.n
specifically denied by the appellant by way of his reply dated 06.07 .1996 in C
response to the legal notice dated 11.07.1996 sent by the complainant through
his lawyer. For nearly 3 years from the date of reply, the complainant kept
quiet before filing his complaint on 17 .05.1999 before the Magistrate. It is
stated that even as per the police report, no offence is made out against
accused Nos. 2-4. Despite this, the Magistrate issued process against accused
Nos. 2-4 as well which clearly shows the non-application of mind by the D
Magistrate. A perusal of the complaint would only reveal that the allegations
as contained in the complaint are of civil nature and do not prima facie,
disclose commission of alleged criminal offence under Section 420 IPC. The
Magistrate, in our opinion, has not considered the report filed by the police
under Section 156(3) Cr.PC judicially. Irrespective of the opinion of the E
police, the Magistrate may or may not take cognizance under Section 190(1)
of Cr.PC. In the instant case, as could be seen from the records, that the
police has given a clean chit to accused Nos. 2-4. In our opinion, the Magistrate
ought not to have taken cognizance of the alleged offence against the accused
No. I, the appellant herein and that the complaint has been made to harass the
accused No. I to come to terms by resorting to criminal process. F
As already noticed, the complaint was filed on 17.05.1999 after a lapse
of 11 Yi years and, therefore, the very private complaint filed by the respondent
No. l is not at all maintainable at this distance of time. It is the specific case
of accused No. I that he has not executed any agreement to sell or received
any advance payment. In our view, the complaint does not disclose the G
ingredients of Section 415 of Cr.PC and, therefore, we have no hesitation to
set aside the order passed by the Magistrate taking cognizance of the offence
alleged. It is also not clearly proved that to hold a person guilty of cheating,
it is necessary to show that he had a fraudulent or dishonest intention at the
time of making the promise. The order of the Magistrate and of the High H
136 SUPREME COURT REPORTS [2005) 2 S.C.R.

A Court requiring the accused No. I appellant herein to face trial would not be
in the interest of justice. On the other hand, in our considered opinion. this
is a fit case for setting aside the order of the Magistrate as confirmed by the
High Court of issuance of process ana the proceedings ·itself.

We, therefore, set aside the impugned order of the High Coult and of
B the Magistrate. The complaint is liable to be di~missed on the question of
0

inordinate latches on the part of the complainant himself. Viewed from any
angle, we do not find any good reasons to maintain the order passed by the
learned single Judge of the High Court confinning the orders of the Magistrate.
Accordingly, this appeal stands allowed and the judgment and order dated
17 .02.2004 in Criminal Revision Petition No. 932/2000 of the High Court of
c Kamataka at Bangalore is set aside.

D.G. Appeal allowed.

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