ORDER
K. Ramanna, J.
1. This criminal petition is filed by the petitioner under Section 482 of the Criminal Procedure Code, 1973 to quash all the proceedings in Crime No. 160 of 2004 (PCR No. 8650 of 2004) of Mahalakshmi Layout Police Station.
2. The brief facts leading to this case are as follows.-
That the petitioner is one Subhadra who is a permanent resident of Subedarpet, Nellore in Andhra Pradesh and she is the owner of the vacant premises at Nellore bearing No. 15/374 situated at Subedarpur, Nellore, Andhra Pradesh. First respondent-Company approached her as they wanted the said building for rent to run their company Accordingly, petitioner agreed for the same. The petitioner and first respondent agreed that the first respondent would pay a sum of Rs. 1 lakh as rental advance and the petitioner agreed to let out the premises on a monthly rent of Rs. 10,000/-. To that effect, agreement was entered into between the parties at Nellore and the rental agreement was prepared at Nellore on 19-1-2003. The petitioner handed over possession of the said premises to the first respondent-Company on the same date i.e., on 19-1-2003. It is the further case of the petitioner that the first respondent-Company started its business in the said premises and the business was running smoothly. After some time, first respondent-Company was not successful in the business which was started in the premises of the petitioner. Therefore, the first respondent wanted to closed down its business in the Branch Office at Nellore Therefore, first respondent approached the petitioner and told her that the first respondent has incurred a loss in the business and he wanted to close the office and would vacate the premises. Saying so, first respondent handed over the possession of the building on 2-4-2004. It is further case of the petitioner that she is turn handed over the rental advance of Rs. 1 lakh to the first respondent and after refund of the (sic) sum of Rs. 1 lakh rental advance, first respondent vacated the premises. He has filed a private complaint before the 7th City Municipal Magistrate, Bangalore on the allegation that petitioner with (sic) and intentionally did not refund the said rental advance and that (sic) has cheated him. Thereafter, the learned Magistrate, after perusing (sic) allegations made in the complaint, has referred the complaint to that Police Inspector, Mahalakshmi Layout Police Station, Bangalore under Section 156(3) of the Cr.P.C. to investigate and submit a report on or before 30-10-2004. In the meanwhile, the petitioner has come up with this petition under Section 482 of the Cr.P.C. to quash the entire proceedings initiated against her mainly on the ground that when the first respondent handed over the keys of the premises in question to her, on the very same day, she has refunded the rental advance of Rs. 1 lakh and no tenant will handover the keys to the landlord without obtaining rental advance paid to the landlord and private complaint filed by the first respondent herein is to harass her and tornish her image in the society. She further contends that since the matter is civil in nature, first respondent cannot invoke and initiate criminal proceedings against her. It is further contended that the learned Magistrate, without applying his mind, referred the matter to Police Inspector, Mahalakshmi Layout Police Station, Bangalore as he has no jurisdiction to entertain the complaint because the property is situated at Nellore and the agreement was entered into between the parties at Nellore. She further contends that first respondent caused huge loss to the petitioner by damaging the walls, furnitures and also while removing the interior decorations and first respondent has not paid damages and he has also not paid rent for a period of four months. Hence, this petition.
3.Heard the arguments of learned Counsel for the petitioner, Advocate for respondent 1 and High Court Government Pleader for respondent 2.
4. During the course of arguments, learned Counsel for the petitioner vehemently argued that petitioner is a old lady hailing from Nellore in Andhra Pradesh being the owner of the premises bearing No. 15/374, Subedarpur Town, Nellore in Andhra Pradesh. He submits that it is not in dispute that talk took place at Nellore and agreement was entered into between the parties at Nellore; the first respondent started a branch of its company in the said premises. He further submits that the advance rent of Rs. 1 lakh paid by the first respondent was refunded when he handed over the keys at Nellore. He has contended that, in fact, first respondent-Company has not yet paid rents for a period of four months. There is no element or ingredient of Section 420 of the Indian Penal Code, I860, placed on record to come to the conclusion that there is a prima facie case to proceed against the petitioner for the offence under Section 420 of the IPC. Moreover, learned Counsel for the petitioner contended that even though the matter was referred to the Police Inspector of Mahalakshmi Layout Police Station in the month of April 2004, the petitioner has not received any notice from the second respondent-Police. Hence, initiation of criminal proceedings against a landlady residing at Nellore as it is very difficult for her to attend the Court at Bangalore at her old age. Therefore, petition may be allowed by quashing the FIR issued, complaint registered in Crime No. 160 of 2004 (PCR No. 8650 of 2004) before Mahalakshmi Layout Police Station.
5. On the other hand, learned Counsel for first respondent hkd contended that Company has filed its complaint against the petitioner for the offence punishable under Section 420 of the IPC and the first respondent himself has requested the Court to refer the matter to jurisdictional police under Section 156(3) of the Cr. P.C. with a direction to the Investigating Officer to investigate the case and to deal with in accordance with law. It is further contended that first respondent had started its business in the premises of the petitioner for a short period at Subedarpur at Nellore. The petitioner informed the first respondent that she will return advance of Rs. 1 lakh at the time of handing over vacant possession of the building and the petitioner has not yet paid refund advance amount. So, believing the version of the petitioner-accused, he handed over the keys of the premises by vacating the same’. Therefore, the petition is not at all maintainable. Accordingly, this petition be dismissed as not maintainable.
6. On the other hand, learned High Court Government Pleader for respondent 2 contended that the matter is still at the investigation stage and the petitioner is required to wait till the investigating report is submitted by Police Inspector, Mahalakshmi Layout Police Station. If there is a prima facie case made out, then, the petitioner said to be residing at Subedarpur Town, Nellore is bound to appear before the Magistrate Court and to commence the trial and that the present petition filed is premature. Hence, the present petition is liable to be dismissed.
7. Having heard the arguments on both the sides, the point that arises for consideration is whether the petitioner has shown any prima facie case to quash further proceedings in Crime No. 160 of 2004 (PCR No. 8650 of 2004) on the file of Police Inspector, Mahalakshmi Layout Police Station.
8. No doubt, relationship between the petitioner and the first respondent is a landlord and tenant. First respondent being the complainant also admits that petitioner and himself entered into a lease agreement and he had agreed to give Rs. 1 lakh by way of rental advance and agreed to pay monthly rent of Rs. 10,000/-. According to the first respondent, with the intention to cheat the first respondent-Company, petitioner has not paid the advance rent of Rs. 1 lakh.
9. I have perused the copy of the rent agreement dated 19-1-2003. First sentence of the lease agreement reads that; this agreement of rent of premises executed on this, 19th day of January, 2003 between the petitioner, S. Subhadra, W/o S. Subramanyam, No. 15/374, Subedarpet, Nellore and the first respondent is a resident of Bangalore. It was also agreed that respondent-Company pays a sum of Rs. 1 lakh by way of rent advance as a security deposit by way of DD and also pay monthly rent of Rs. 10,000/-. It is seen that the stamp paper of the face value of Rs. 100/- was sold on 18-1-2003 in the name of first respondent by one Anand Reddy, Stamp Vendor of Tirupati. According to the petitioner, she has repaid the said amount rental advance of Rs. 1 lakh when the first respondent handed over the keys. If such being the case, she ought to have produced a copy of the receipt, if any issued by the first respondent. Considering the fact that the relationship between the parties viz., landlady and tenant, the transaction entered between them is civil in nature. During the course of arguments, learned Counsel for the petitioner relied on a decision in Alpic Finance Limited v. P. Sadasivan and Anr. wherein the Apex Court held thus:
Although a person has civil as well as criminal remedies in cases of cheating misappropriation and breach of trust which can run simultaneously, But, if a criminal proceeding is initiated without alleging and showing ingredients of criminal offence but with an oblique motive of causing harassment to the respondents by seizing the entire articles given under a finance lease for hire purchase of Dental chairs through magisterial proceedings the same are an abuse of the process of Court and High Court was right in quashing them under Section 482 of the Criminal Procedure Code, 1973.
On the other hand, learned Counsel for the respondent relied on a Division Bench decision of the Apex Court in Rajesh Bajaj v. State NCT of Delhi and Ors. wherein it was held that the facts narrated in the complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not.
10. I have carefully examined the contents of private complaint filed by the first respondent. In para 6 of the complaint it is stated that first respondent issued a legal notice to the petitioner-accused about the fraudulent act of cheating and also the deception played on it. Inspite of service of legal notice, the petitioner did not reply. The lease agreement entered into between the parties is only a civil in nature. The first respondent has made an allegation that he inspite of handing over keys of the said premises, she failed to return the advance amount or security deposit. The contention of the first respondent that petitioner herself approached its Company at Bangalore and the lease agreement was said to have been entered into at Bangalore even though premises was taken in lease situated at Nellore District, cannot be accepted. The agreement discloses that the owner of the building is a resident of Subedirpat, Nellore District, the premises which was leased to the respondent is at Nellore and the stamp paper was purchased by the first respondent from one Ananda Reddy at Tirupati in Andhra Pradesh. Therefore, the first respondent ought to have been filed a complaint before the jurisdictional Court in Andhra Pradesh. Hence, considering the facts and circumstances, initiation of proceedings by the first respondent against the petitioner for an offence punishable under Section 420 of the IPC, before the second respondent-police on the basis of private complaint and the proceedings so pending before the jurisdictional police in Crime No. 160 of 2004 (PCR No. 8650 of 2004) is an abuse of process of law. Considering the nature of transaction took place as per the lease agreement viz., rental agreement is civil nature. Accordingly, petition is allowed and initiation of proceedings in Crime No. 160 of 2004 in PCR No. 8650 of 2004 filed by the first respondent which is pending on the file of VII Additional Chief Judicial Magistrate, Bangalore is hereby quashed.