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2002 DIGILAW 1447 (AP)

M. Ganapathi Raju v. Station House Officer

2002-12-12

P.S.NARAYANA

body2002
P. S. NARAYANA, J. ( 1 ) THIS petition is field to quash the proceedings in Cr. No. 31/2002 of Gajuvaka police Station registered against the petitioner. ( 2 ) THE criminal petition was admitted on 15-5-2002 and directed the 1st respondent not to take coercive steps against the petitioner. The facts of the case in brief, are as follows: it is stated that the substance of the complaint said to have been given by dr. M. Ravinder Rao is that he purchased h. I. G. No. 502 plot admeasuring 520 sq. yds. at Agnampudi village under a registered sale deed dated 25-7-1986 and took possession of the same in the month of august, 1986 and the petitioner was the secretary of Vijaya Lakshmi Co-operative house Building Society Limited, visakhapatnam (for short the "society") and the Society sold the said plot to him and that as he is very busy person in his Hospital work he visited his site recently and found that a house was built in the land by mr. Srinivasa Rao, LIC of Gajuwaka eight months back and that he came to know that the petitioner sold the same plot to the other party i. e. , Mr. Srinivasa Rao and therefore he lodged the present complaint. It is also stated that it is revealed from the remand report that the petitioner did not sell the same plot of land purchased by the complainant to mr. Srinivasa Rao and it further shows that ryot by name one Somu Naidu sold the land to Srinivasa Rao, who is working in the LIC office through one Murthy Raju. The remand report also states that the society was established in the year 1982 and obtained approval for lay out for 673 plots in an extent of Ac. 98-00 of land and developed the lay out with roads and electricity facilities and that the petitioner was the Secretary of the Society at that time. It is further stated that a big lay out for 673 plots was approved and that the society sold its plots to its members and out of the said plots Dr. M. Ravinder Rao purchased plot HIG 502 through registered sale deed dated 25-7-1986 and he took possession of the land. The said plot was sold to him by the society which sold the other plots to other members. M. Ravinder Rao purchased plot HIG 502 through registered sale deed dated 25-7-1986 and he took possession of the land. The said plot was sold to him by the society which sold the other plots to other members. It is also stated that it is clear that from 1986 onwards the plot was in possession of Dr. M. Ravinder rao and it was only eight months back srinivasa Rao was said to have built the house in the land. For all these years, it is stated, there was never any complaint in respect of sale of the plots by Society. It is further stated that if any dispute arises with regard to the plot, his remedy is only to agitate the matter in accordance with section 61 of the A. P. Co-operative Societies act, 1964 (for short the "act" ). But, however, instead of adopting to the procedure under the Act, Dr. M. Ravinder Rao with a mala fide intention to harass the petitioner herein appeared to have lodged the present complaint. ( 3 ) SRI P. V. Rama Raju, learned counsel representing the petitioner had taken me through the material available on record and had submitted that even if the allegations are true on the face value none of the ingredients u/s. 420, IPC are satisfied. The learned counsel further contended that as per the allegations in the complaint, it is purely a civil dispute and unnecessarily the petitioner is being harassed. The learned counsel further maintained that even otherwise the remedy, if any, available to the complainant is to agitate the matter U/s 61 of the Act and he is not entitled to resort to criminal action of this nature. The learned counsel also submitted that the Society sold the land in question in the year 1986 and for over a period of 16 years there was no action at all for the alleged cheating and this itself shows that the present action is not a bona fide one. The learned counsel also submitted that the Society sold the land in question in the year 1986 and for over a period of 16 years there was no action at all for the alleged cheating and this itself shows that the present action is not a bona fide one. The learned counsel also had placed strong reliance on a division Bench decision of this Court in salauddin Owaisi v. DSP, CID, SDT, Hyderabad (APHCP and contended that in similar circumstances the Division Bench of this court arrived at a conclusion that launching of prosecution against the petitioner under vaious provisions of the Indian Penal Code is nothing but gross abuse of the process of the Court apart from an exercise in futility. ( 4 ) ON the contrary the learned Additional public Prosecutor had contended that there is material to show that in the plot of dr. M. Ravinder Rao some other person had built a house and hence the ingredients of section 420, IPC are attracted. ( 5 ) IT is to be seen that several of the facts are not in dispute. As can be seen from the material available on record substantially for a long time there was no complaint from any quarter whatsoever relating to the allotment of plots by the Society. It is also available on record that one Somu Naidu sold the land in question to Srinivasa Rao, who was working in the LIC office through one Murthy Raju. In view of the material available on record it is clear that it is only a civil dispute relating to a plot of land. Section 61 of the Act reads as follows:"61. In view of the material available on record it is clear that it is only a civil dispute relating to a plot of land. Section 61 of the Act reads as follows:"61. Disputes which may be referred to the Registrar: (1) Notwithstanding any thing in any law for the time being in force, if any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, arises- (a) among members, past members and persons claiming through members, past members and deceased members; or (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society; or (c) between the society or its committee, any officer, agent or employee, or any past officer, past agent, or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent or deceased employee of the society; or (d) between the society and any other society, such dispute shall be referred to the Registrar for decision. Explanation:- For the purposes of this sub-section a dispute shall include- (i) a claim by a society for any debt or other amount due to it from a member, past member, the nominee, heir or legal representative of a deceased member, whether such debt or other amount be admitted or not; (ii) a claim by surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or other amount due to it from the principal debtor as a result of the default of the principal debtor whether such debt or other amount due to be admitted or not; (iii) a claim by a society against a member, past member, or the nominee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the conditions of assignment or allotment of such land or other immovable property (2) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, such question shall be decided by the Registrar. (3) Every dispute relating to, or in connection with, any election to a committee of a society shall be referred for decision to the Tribunal having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final. (4) Every dispute relating to, or in connection with any election shall be referred under sub-section (3) only after the date of declaration of the result of such election". ( 6 ) IN Salauddin Owaisisi s case (1 supra) the Division Bench of this Court dealing with a similar case came to the conclusion that where irregular acts by the society or its members regarding allotment of plots by housing society and the allegations are in the nature of touching the constitution and business of the society, the Division Bench held that unless strong reasons are made out, initiation of prosecution under the provisions of the Penal Code cannot be resorted to and the recourse ought to have been take under the provisions of the Act. ( 7 ) IT is not in dispute that for over sufficiently a long time there was no complaint at all from any quarter whatsoever relating to the allotment of plots by the Society and hence in view of the facts and circumstances it cannot be said that any of the ingredients of Section 420, IPC are attracted. Apart from this, inasmuch as this is a matter to be agitated under the provisions of the Act, initiation of criminal prosecution cannot be said to be a justifiable ground. Viewed from any angle the petition of the petitioner is liable to be allowed. ( 8 ) IN the result the criminal petition is allowed and the proceedings in cr. No. 31 /2000 of Gajuvaka police station is quashed.