The High Court · 2025

Petition under Section 4B2 of Cr'P'C praying that in the .circumstances statedintheMemorandumofGroundsofCriminalPetition,theHighCourtmay U"-pL"."O To extend the interim order passed in CrlP No'2t697/2018 dt: \tt{o[0is pending before this High Court, in the interest of !ustice' I.A. NO: 1 OF 2018 Petition under Section 482 of Cr'P 'C praying that in the circumstances statedintheMemorandumofGroundsofCriminalPetition,theHighCourtmay u" pl"u."o to grant Stay oi all further proceedings in CC No 29 of 2o1B pending on [f," fif" of iVt Ctriet-Metropolitan Magistrate, City Criminal Courts, Nampally' Hyderabad, pending disposal of the Criminal Petition' This Petition coming on for hearing, upon perusing the Memorandum of Grounds of criminar petition and upon hearing the arguments of sri VEDULA SRINIVAS, Advocate for the petitioner and Sri M.VIVEKANANDA REDDY, Assitant Public Prosecutor on behalf of the Respondent No.1 and Sri Mohammed Adam, advocate for the Respondent No.2 The Court made the following: ORDER M HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.4697 OF 2018 ORDER: ThispetitionisfrledunderSection4S2ofCrPCbythepetitioner, who is accused no. 1, praying to the court to quash C'C' No' 29 of 2018, pending on the file of the XVI Chief Metropolitan Magistrate' Hyderabad, which is registered against him, along with accused nos' 2 and 3, for the offences under Sections 42O, 379, 406' and 506 read with 34 of IPC.

2.TheXVlAddl.ChiefMetropolitanMagistratetookcognizanceof the offences against ttre petitioner/ accused no' 1 under Sections 420' 37g, 406, and 506 read with 34 of IPC, based on the private complaint lrled by respondent no -2 /complatnant against accused nos' I to 3 on 8.1t.20 17. Prior to the hling of the private complaint, respondent no' 2hadalsohledacomplaintwiththeSHO,ShahalibandaP'S''andthe police issued an acknowledgement of receipt of the complaint on

25.1 1.2015. In the private complaint, according to respondent no' 2' th.e 3. petitioner is the Muttawalli of Dargah IFlazarattl Miskin Shah Sahib, Masjid-e-A.lmas, situated at Adilabad, Hyderabad' The father of respondent no. 2 w'as a Hakim (Unani Physician) by profession and used to run the clinic by providing Ayurvedic medicine in Mulgi No' 1' 2 bearing No. 2O-6-62O, situated at Dargah Miskin Shah Sahib, Masjid_ e-Almas, as a tenant since 1969, and had been paying the rent regularly. It is further mentioned in the complaint that in the year 1999, due to the old age of respondent no. 2,s father, the tenancy of the aforesaid Mulgi was transferred in respondent no. 2,s name by the uncle of the petitioner, who was then the Muttawalli of the said Dargah. Since then, respondent no. 2 has been paying the rent, ald the Muttawalli was issuing receipts for the pa5rments. The father of respondent no. 2 died on 18.L2.2OI2, and after his demise, respondentno. 2, being a Unani Doctor (BUMS) himself, used to store Unali medicines in the said Mulgi.

4. It is also mentioned by respondent no. 2 that in the month of October 2015, the petitioner called respondent no. 2 and asked him to pay Rs. IO,OOO / - for the renovation of the outside of the Mulgi, and he further contended that the petitioner was collecting this amount from all tenants. Therefore, respondent no. 2 paid the sum by way of cheque bearing no. 233157 dated 7. 10.2015, in the name of the petitioner's son, Mohammed Mujtaba Siddiqui, as per the demand of the petitioner, and the same has been encashed.

5. Respondent no. 2 has further alleged in the complaint that the petitioner, along with accused nos. 2 and 3, on 23.10.2015, without a,y intimation, broke open the lock and replaced the sarne. @Gw ,ttttttttt*t&,..,r,,,44-.t Respondent no. 2 approached the petitioner immediately and questioned him, but the petitioner spoke to respondent no' 2 rudely and threatened him with dire consequences and to see his end' Due to ,; the illegal act of breaking open the lock of the Mulgi and removing the medicines amounting to Rs.SO,OO0 /-, and also taking away the fridge and cooler belonging to respondent no' 2' a loss to the tune of Rs.1,2O,OOO/- was caused to respondent no' 2'

6. The counsel for the petitioner admitted that Mulgi No' 2O-6-620 was given on rent to respondent no' 2's father for carrying on a Unani clinic, and after his death, respondent no' 2 was in possession of the Mulgi by paying rent of Rs' 5OO/-' However' the counsel contended that respondent no. 2 was not payrng rent regularly and had kept the Mulgi occupied for several years, due to which the Mutgi got damaged and became a dump yard' According to ttre petitioner' respondent no. 2 ultimately surrendered possession of the Mulgi to the petitioner in September 20 15- The petitioner got the Mulgi reconstructed by spending Rs. 8O,OOO/- and later let it out to Ali Pasha (accused no' 3) for a period of 1 1 months for carrying on tJre business of travel agents' under an unregistered rental deed dated 2'11'2O15' Thereafter' another lease deed dated 21'10'2016 was executed' renewing the lease for one more Year 4

7. The counsel further contends that, as per respondent no. 2, the incident of accused nos. I to 3 entering into the premises and breaking open the lock occurre d on 23.ro.20 15. However, the police complaint was frled only on 2S.Ll.2Oll', and it is respondent no. 2,s claim that since no action was taken by the police, he filed.a private complaint on 8.11.2017. Thus, there is a delay of one month in frling the police complaint a,d a delay of nearly two years in filing the private complaint, a,d no reasons have been explained for the delay.

8. It was arso contended that from a reading of the complaint and the deposition of the witnesses, it is very clear that the contents of the sarne are false and liable to be rejected because the complaint does not refer to any eyewitnesses to the alleged breaking open of the lock of the Mr:lgi and taking away of the valuable movables from the Mulgi. The petitioner contended that neither in the police complaint nor in the private complaint has respondent no. 2 mentioned that there were eyewitnesses to the acts committed by the accused on 2Q.10.2015. However, respondent no.2 has produced three witnesses before the Magistrate. The court below recorded the statements of four persons on 30.lr-2o17 and 14.r2.2orr and passed an order dated 5. 1.201g whereby it took cognizance of the case. I Moreover, though the complaiyt does not state anything about a hre being set up by the accused persons before breaking open the ri. door, strangely, the witnesses have deposed in the court below that a fire was set up at the backside of the shop on 23'11'2O15 and thereafter the lock was broken' They further stated that all of ttrem witnessed the Muttawalli removing the articles from the shop and also threatening respondent no' 2 to vacate the shop' Moreover' one of the witnesses has stated that ttre police visited the shop and made enquiries with the local persons and the petitioner' Yet such a thing has not been stated by respond'ent no' 2in his complaint' Thus' there is a total variance between the contents of the complaint and the statements of the witnesses' t

10. On the other hand, the counsel appearing for respondent no. 2 would submit that respondent no' 2 was left with no other option but to file a private complaint' having waited for over a year for the police to take action' Once the delay is explained and the complaint discroses the necessary ingredients of tJre penal provisions, this Court cannot thwart the prosecution at the threshold' and the petitioner must undergo trial'

11. AdmittedlY, there ts a delay in the filing of the complaint' in his private complaint, mentioned that the Respondent no. 2, on 23.10.2015. However, the police issued an incident occurred acknowledgement of receipt of the complaint only on 25'11'2015' . \., 6 Thereafter, the private complaint was filed again a delay of nearly two years. 1 on 8.11.2012. There is

12. Respondent no. 2 has given arr explarration for the delay in the pnvate complaint. According to him, after the incident, he had tmmediately approached the shahalibarrda pS and gave a compraint in writing' since the porice refused to take the complaint, respondent no. 2approached tl e DCp, South Zone, Hyderabad, and after the DCp,s endorsement to "examine and take necessary action as perrfacts and law'" the police issued an acknowledgement of receipt of the compraint on 25'11'2015' How6vs1, till date, no action has been taken. Being constrained, respondent no. 2gave a reminder dated 1g.5.2016, but even after reminding, according to the respondent no. 2, no action was taken. Respondent no. 2also gave a complaint to the Waqf Board on 4.12.2015. Thereafter, he filed a private complaint on g. I l.2OIZ . 13' Respondent no' 2's craim that the police refused to take action and that he had to approach the DCp, and only after ihe Dcp,s endorsement did the police issue the acknowledgement, is believable, as on the compraint filed by respondent no. 2 with the sHo, Shahalibanda pS, there is an endorsement of the DCp stating ,please examine and take necessary action as per facts and. law,,and the DCp has also signed with the d,ate 22.1 l.2O 15. 7

14. Along with the private complaint' respondent no' 2 has frled the ofhce copy of the reminder to SHO PS Shahalibanda dated 18'5'20 16 in the list of documents. Thus, respondent no. 2 has explained the reasons for the delay in frling the complaint'

15. The Magistrate has taken cognizance against the petitioner and two other accused mainly on the basis of the private complaint' statements of resPondent no . 2 aad three witnesses recorded by the of M.A. GaIfar, OSD, Telangana Waqf Magistrate, and the rePort Board, dated 7.4-2016, wherein it was mentioned that the petitioner was directed to hand over the possession of the Mulgi to respondent no. 2, who was found to be the tenant' 16. Though the initial complaint was lodged by respondent no' 2 with the police immediately after the incident' there is no mention of the date of the incident or of any eyewitnesses to the incident of the petitioner and other accused breaking open the door of the Mulgi' removing medicines, and taking away the fridge and cooler belonging to responden t rro' 2' Further' even in the private complaint filed before the Magistrate, responden t rlo' 2 has only mentioned tlle date of the incident as 23.10'2O15 but did not mention any witnesses to the incident. $owever, along with the private complaint' respondent no' 2 frled a list of witnesses containing four names' 8

17. The Magistrate recorded the statements of three of the witnesses-two on 30'11'2017 and one on 14.12.2017. In their statements' the witnesses alleged that they had witnessed the incident' However, a, three witnesises stated that the incident occurred on 23.11.2OL5, rnstead of 23.1O.2O I 5 as a_lleged by respondent no. 2. Further, as rightly contended by the petitioner, although the compraint does not mention the petitioner setting rrre in the lane behind the shop, two witnesses, Nawab Mir Warisullah Khan and Mohd' Javed, stated that they witnessed the petitioner setting lire in the lale. \.1

18. In light of t.l.e witnesses, narnes not being mentioned in the complaint, the discrepancy in the date of the incident between the complaint ald the witness statements, and the improvements made in the statements of the witnesses, it is apparent that the names of the witnesses were added rlz years later as an afterthought and that they were brought in at a later stage to speak against the petitioner and have been tutored.

19. Hence, even though the delay in the complaint has been explained by respondent no. 2, in view of the above discussion, proceedings against the petitioner cannot continue I

20. Lastly, the Magistrate has also relied upon the report of M'A' Gaffar, OSD, Telangana Waqf Board' dated 7 '4'2016' According to respondent rro. 2, he submitted a complaint to the Waqf Board on 4.12.2015, and the waqf Board appointed two inspectors' both of whom conducted inquiries into the matter in different ways' 2L. In the report d'ated' 7 '4 '2016 by M'A' GaIfar' it is stated that the petitioner was questioned regarding the dispute concerning the Mttlgi' and he admitted that respondent no' 2 was his tenant but was not regular in paying rent' It was further noted that during November 2015, the petitioner constructed the back wall of the said Mulgi (without obtaining permission from the Waqf Board) and had allotted the Mulgi to another person (name not known)' who was running a business in the name and style of Pasha Travels' The report also mentioned t-Ilat the petitioner was directed to hand over possession of the Mulgi to resPondent no' 2'

22. However, the report was only intended to assist the Waqf Board in determining the allegations in the complaint hled by respondent no.2 on 4.12.2015' Following the report' a show-cause notice was issued to the petitioner' and based on the same' the Chief Executive Offrcer (CEO), Telangana State Waqf Board' passed an order on it was found that the petitioner had 5.1.2017. As Per the order' committed grave irregularities by leasing out the Mulgies to different 10 :"- tenants without the prior approval of the waqf Board and by failing to submit accounts duly audited by a chartered Accountant. Accordingly, the petitioner was held liable for violations under Sections 56 and 47 of the waqf Act, aird since he was found liable for action under Sections 6a(1xg), (h), (i), (i), and (k) of the Act, he was removed from the office of Muthawalli.

23. The petitioner challenged,the CEO,s order by filing W.p.-No. 1492 of 2017, and this Court, by order passed in W.p.M.p. No. 1700 of 2017, temporarily suspended the CEO,s order. However, the suspension was granted on the limited ground that the Waqf Board had also considered certain issues which were not specirred in the show-cause notice dated 15. 10.2016. The above discussion shows that proceedings are already underway before the waqf Board based on the complaint filed by respondent no. 2 against the petitioner.

24. The report dated 07.04.2016 by M.A. Gaffar cannor be reried upon to determine whether a prima facie case exists against the petitioner, as it merely records that respondent no.2 was in possession. [t does not mention, nor does it provide any evidence, of the petitioner breaking open tJre door of the Mulgi, removing medicines, or taking away the fridge and cooler belonging to respondent no. 2. 11

25. Cognizatrcewas taken for the offences under Sections 379' 4O6' and 42O of the IPC' If the altegation against the petitioner is that he had ransacked the Mulgi and committed theft of medicines' it would fall under Section 379 ofthe IPC' Once it is a case under Section 379' the question of the offence falling under Sectiot 42O' which pertains to cheating, or under Section 406' which deals with criminal breach of trust, does not arise ' The Honlrle Supreme Court in N' Raghauender a' State of

6.P.r, held as follows: "IngredientsnecessarJrtoproveachargeunderSection42olPC: 5(.. Section 42OIPC, prouides ttwt uhoeuer cheats and ttwrebg di.slonestlg indues a person deceiued to d'eliuer anA propertA to anA person, or to make' alter or destrog ' the rt'thole or ong port of ualuable seanitg, or angthing' uhich ts signed or sealed' ond uhich is copable of being conuerted into a ualuoble seatitg ' shall be liable to be punisled for a term tt-thich mag extend to seuen gears and slwtl also be liable to fine' 57- It is paramount thnt in ord'er to rrttrcict tle prouisions of Section 42,IPC, the proseantian lw,s to not onlg proue that the ocansed llns cheated someon'e but also tlnt bg doing so' le ho;s dishonestly induced tle person ula is cleated to deliuer propertA' Tlere are' *rus, three @mponents of this offence i'e' (i) deception of ang person, (ii) fraudulentlg or di'shonestlg inducing that person to deliuer ang propertA to anA person' and (iii) mens rea of the accused at tle time of making th'e inducemenL lt goes uithout saging ttut for the offence of cheating ' froudulent and dislanest '(lozt ) t8 scc lo 12 tntention must exist from tle rep re s entation u.t as made." tnception uhen the promise or

27. The Hon'ble Supreme Court in R.-K. Seethqram2, held as follows: Vijagasarathg v. Sudho- " 13. A careful readrng of Section 405 sLaws that the ingred.ients of a criminal breach of trust are as follouts: 13.7. A person sLauld haue been entrusted uith property, or entrusted with dominion ouer propertg; 73-2. That person sfutuld dishanestlg mi.sappropiate or @nuert to tLeir own use that propertA, or dislanestlg use or d.ispose of that propertA or wilfullg suffer any other person to d.o so; and. 13-3. Tlnt such mi.sappropri.ation, conuersion, use or d.isposal should be in uiolation of ang direction of la ut prescibing the mode in uthich such trust is to be di.schhrged., or of any legal contract which tle person has mad.e, touching the discharge of such trust. 74. Entntstment is an essential ingredient of tle offence. A person utho dishonestly misappropriates propertA entrusted. to them contrary to the tenns of on obligation imposed is liable for a criminal breach of trust and. is puni.sLed und.er Section 4O6 of tLrc Penal Code. 1406. punishment Jor criminal breach of trust._ Whoeuer commits criminal breach of trust slwll be punished with imprisonment of either description for a tem uhich mag ertend. to three gears, or with fine, or uith botLLf

28. In view of the above, the offence of cheating is attracted when there is a. erement of deceit pursuant to which a person is induced to deliver property' To attract the offence of criminal misappropriation, there must be an entrustment of property, which is then '1zote; ro scc 239 13 misappropriated. However' once theft occurs' the question of cheating or criminal misappropriation does not anse'

29. In view of the discrepancies in t:l1e complaint and witness statements, and considering that proceedings are a-lready pending before the Waqf Board, as discussed above' ttre prosecution against the petitioner cannot be sustained'

30. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioner in C'C' No' 29 of 2018' pending on the frle of the XVI Chief Metropolitan lvtagrstrate' Hyderabad' are hereby quashed' P.PADMANABHA REDDY DEPUTY REGISTRAR /ITRUE COPY// SECTION OFFICER i l , , : : 1 : l I I I t I I I I I I I I : I i I I L. to'', HYderabad' . ,n" XVI Chief Metropolitan Magistrate' City Criminal Courts' Nampally' 2. The Station House officer' Shahalibanda' Hyderabad city 3. Two CCs to the P'di#;;;i"t' + o'"1 cc to Sri Vedula Srinivas' Advocat'e toPUCl ; o;; ic io snr Mohammed Adam' Advocate toPUCl 6. Two CD CoPies High b""t for the state of Telangana at HYderabad (OUT) ARZ/PSL o { ,,-\ I ) o '+ * IHE Sf s o^ 05 rt,s a6 a -t P4rcrtEi )!r HIGH COURT DATED:0 2t0st2121 ORDER CRLP.No.469t of 2018 ALLOWING THE CRLP oqm.