Research › Search › Judgment

Andhra High Court · body

2012 DIGILAW 867 (AP)

A. Vidyadhar Rao v. K. V. S. Narayana Rao

2012-09-13

R.KANTHA RAO

body2012
ORDER 1. This criminal petition is filed under Section 482 of Cr.P.C. to quash the proceedings against the petitioners/accused 1 to 6 in P.R.C.No.11 of 2009 on the file of the Additional Judicial First Class Magistrate, at Kovvur, Nellore District. 2. I have heard the learned counsel appearing for the petitioners/accused, the learned counsel appearing for the first respondent/de facto complainant and the learned Additional Public Prosecutor representing the second respondent/State. 3. The brief facts leading to the filing of the present criminal petition are as follows: According to the first respondent/de facto complainant, the accused 2 to 4 transferred a granary to the father of the first respondent in satisfaction of an amount of Rs.45,000/-which became due in connection with settlement of partnership business under an agreement dated 29.08.2003. The first respondent constructed asbestos sheets house in place of the said granary and was residing in the said house, whereas, the parents were residing on the Western side. The first respondent requested A-2 to A-4 to execute a regular sale deed in terms of the agreement dated 29.08.2003. It is said that A-1 to A4 approached the first respondent and asked him to redeliver the said house to them on their paying an amount of Rs.45,000/-for which the first respondent refused. On that, it is said that A-1 to A-4 threatened the first respondent/de facto complainant stating that they will demolish the said house and sell it away. Thereafter, the first respondent shifted his residence to Nellore. It is alleged in the complaint that on 31.01.2009 at 7.00 a.m. the first respondent received a phone call from one Ogili Ramesh Reddy to the effect that all the accused and some unknown persons formed into unlawful assembly arming with deadly weapons and highhandedly trespassed into the house of the complainant and were demolishing the house and household articles. On receiving the information, it is said that the first respondent reached the spot along with his wife and found the accused and some other persons demolishing the house. On receiving the information, it is said that the first respondent reached the spot along with his wife and found the accused and some other persons demolishing the house. When they questioned A-1 to A-4 about their illegal and highhanded acts, they replied that they sold the house to A-5 as the first respondent refused to redeliver the said house, so saying, they proceeded with demolition of the house by threatening the first respondent to kill and damaged the household articles worth Rs.50,000/-and took away some valuable items, , such as, iron safe, sofa set, dining table worth Rs.1,00,000/- belonging to him and accordingly caused damage to a tune of Rs.3 lakhs. It is on the said allegations the first respondent filed a complaint before the Magistrate and the Magistrate took cognizance of the offences under Sections 147, 148, 448, 427, 395, 420, 406 IPC r/w 190, 200 and 202 Cr.P.C. and issued process to the accused. 4. It is contended by the learned counsel appearing for the petitioners/accused that even if the entire allegations are taken to be true, it is purely a civil dispute and prosecuting the accused for a criminal offence which is created by the first respondent to harass them is nothing but abuse of process of law. The learned counsel therefore seeks to quash the entire proceedings in P.R.C.No.11 of 2009. 5. On the other hand, it is contended by the leaned counsel appearing for the respondents that the alleged incident though arises out of civil dispute, is an independent one, and the acts committed by the accused attract criminal offences for which they are liable to be tried. 6. In this case, the incident allegedly took place on 31.01.2009. The complaint was filed on 12.02.2009. Thus, there is inordinate delay in filing the complaint. In this case, the legal notices exchanged between the parties are important to arrive at an appropriate decision. 6. In this case, the incident allegedly took place on 31.01.2009. The complaint was filed on 12.02.2009. Thus, there is inordinate delay in filing the complaint. In this case, the legal notices exchanged between the parties are important to arrive at an appropriate decision. The first respondent-complainant got issued a legal notice dated 06.10.2008 to A-2 to the tenant and also to another stating that the house property in question belongs to him, the father of the first respondent was in possession and enjoyment of the property in question for which the second accused never objected and by remaining in possession of the property for a period of 50 years, the first respondent perfected his title to the property by adverse possession and that the second accused has no title to the property. It is also mentioned in the said notice that if the second accused purchases the property, he would not acquire any valid title to the property. For the said notice, the second accused got sent a reply dated 04.11.2008 asserting his rights in the property and possession over the same and to advise the first respondent not to indulge in any sort of spurious litigation. 7. Again on 02.07.2009 the first respondent issued another lawyer’s notice wherein he stated that he is the joint owner of the property and one Meda Vishnuvardhan Reddy to whom also the same notice was issued cannot purchase the property from the second accused since the first respondent is the joint owner of the property. To the said notice, a reply dated 23.07.2009 was sent by the second accused stating therein about the first respondent taking contradictory versions about their possession and co-ownership and reiterating that the first respondent has no rights in the property in question. 8. It is crucial to notice that the incident mentioned in the complaint allegedly took place on 31.01.2009. The second legal notice was issued on 02.07.2009. But, there is no mention about the said incident in the second notice issued by the first respondent. If really, the petitioners/accused demolished the house and caused loss to a tune of Rs.3 lakhs, certainly the first respondent ought to have mentioned the same in the notice issued by him on 02.07.2009. The second legal notice was issued on 02.07.2009. But, there is no mention about the said incident in the second notice issued by the first respondent. If really, the petitioners/accused demolished the house and caused loss to a tune of Rs.3 lakhs, certainly the first respondent ought to have mentioned the same in the notice issued by him on 02.07.2009. Omission to mention the incident in the said notice creates any amount of doubt as to the truthfulness of the version of the first respondent about the incident alleged. 9. The crucial question required to be determined in the criminal petition relates to the nature of jurisdiction of this Court under Section 482 Cr.P.C. and the extent of the inherent powers. For proper understanding, it is necessary to have a look at the following decisions: i) In MADHAVRAO JIWAJIRAO SCINDIA AND OTHERS v SAMBHAJIRAO CHANDROJIRAO ANGRE AND OTHERSS (1988(1)SCC 692)the Supreme Court observed as follows: “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether he un-controverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” ii) IN STATE OF HARYANA AND OTHERS v. CH. BHAJAN LAL AND OTHERS (1992 SCC (Crl.) 426), the Supreme Court held that where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just first conclusion that there is sufficient ground for proceeding against the accused, the criminal proceedings are liable to be quashed.” iii) IN ZANDU PHARMACEUTICAL WORKS LTD. v. MOHD.SHARAFUL HAQUE ( 2005 (1) SCC 122 ) the Supreme Court held that "It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 10. In PREETI GUPTA AND ANOTHER v STATE OF JHARHAND AND ANOTHER ( (2010) 7 SCC 667 ) the Supreme Court after reviewing several of its earlier judgments, laid down that the Courts have consistently taken the view that they must use the extraordinary powers under Section 482 Cr.P.C. to prevent injustice and to secure the ends of justice. 11. The facts of the present case have to be examined in the light of the principles laid down by the Apex Court in the aforesaid judgments. In the instant case, it is obvious that the dispute between the parties is purely a civil dispute. It is true that there may be cases wherein owing to the civil dispute a criminal offence is also likely to be committed. But, the court while exercising the jurisdiction under Section 482 Cr.P.C. in such cases is under a duty to examine the allegations levelled in the complaint with great care and circumspection. The Court shall not adopt a mechanical or casual approach and it is under a duty to find out whether the allegations mentioned in the complaint are prima facie false. In the instant case, owing to the civil dispute between the parties, there is every possibility for the first respondent/de facto complainant to involve the petitioners/accused in a false criminal case so as to make them to come to his terms. In the two lawyers’ notices sent by him, he took contradictory versions. In one notice, he stated that he perfected the title to the property by adverse possession. In the two lawyers’ notices sent by him, he took contradictory versions. In one notice, he stated that he perfected the title to the property by adverse possession. In the latter notice, he stated that he is the joint owner of the property. For both the notices, the second accused gave prompt reply asserting his rights in the property and stating that the first respondent did not even have a pretence of claim in the property. As already said, if really the house was demolished and some property in the house was taken away by causing loss to the tune of Rs.3 lakhs, the said facts ought to have been mentioned by the first respondent in the second notice. The conspicuous absence of the said facts in the second legal notice clearly shows that the incident in the present case was invented by the first respondent for the purpose of involving the petitioners/accused in a false criminal charge. By carefully examining the litigation between the parties, having regard to the facts and circumstances of the case, I am thoroughly convinced that the allegations made in the complaint seem to be ex facie false and they were invented by the first respondent to implicate the petitioners/accused in a false criminal charge owing to the civil litigation pending between the first respondent and the petitioners, probably with a view to make them to agree for his terms. In any event, even if the entire allegations levelled by the first respondent against the accused are considered to be true, they only indicate the civil dispute between the parties, but do not in any way constitute a criminal offence. Making the petitioners/accused to face the trial of criminal offences, basing on the aforesaid allegations mentioned in the complaint filed by the first respondent, in my view is nothing but abuse of process of court and if it is allowed to stand any longer, it will result in miscarriage of justice. 12. For the foregoing reasons, the entire proceedings against the petitioners/accused 1 to 6 in P.R.C.No.11 of 2009 on the file of the Additional Judicial First Class Magistrate, at Kovvur, Nellore District are hereby quashed. The criminal petition is allowed.