Research › Search › Judgment

Andhra High Court · body

2012 DIGILAW 984 (AP)

Vasa Hiriprasada Reddy v. State of Andhra Pradesh

2012-10-05

R.KANTHA RAO

body2012
ORDER This criminal petition is filed under Section 482 Cr. PC to quash CC No.794 of 2007 on the file of the Court of II-Additional Judicial Magistrate of First Class, Nellore, Nellore District. 2. Heard the learned Counsel appearing for the petitioner and the learned Additional Public Prosecutor representing the first respondent-State. None appears for the second respondent-de facto complainant. 3. The brief facts disclosed from the complaint-petition filed by the second respondent before the learned Magistrate are the following: The second respondent, A1 and A2 entered into a partnership deed on 30.9.2003 to carry on the business in purchase and sale of Acqua feeds and chemicals on wholesale and retail basis under the name and style "Sapthagiri Enterprises". As per the terms and conditions of the said partnership deed, A1 was the Managing Director of the firm and he has been managing the day-to-day affairs of the firm including maintenance of accounts. A2 another partner was staying with his family in the office and was assisting A1. The second respondent-complainant who is also one of the partners was moving around the farmers and was obtaining orders for purchase of Acqua feeds and chemicals. A1 used to purchase stocks from the companies and he was in-charge of all money transactions relating to the firm. The business activity of the firm commenced from 1.10.2003 and lasted for about four months. It is said that during the relevant period while the firm was carrying on its business, the second respondent deposited the share capital of Rs. six lakhs from time to time in the firm reposing trust in the accused. The said fact was mentioned in the account maintained by the firm. A3 is the clerk in the office and was in-charge of writing accounts. 4. According to the second respondent-complainant, the first accused with the connivance of A2 and A3 fabricated false accounts of the partnership firm by manipulating the entire purchase invoices and sales bills with the connivance of A2 and A3 and misappropriated an amount of Rs. ten lakhs belonging to the firm. 5. The second respondent having come to know about the said fact placed the matter before the elders, who were running similar acqua companies. On verification of the accounts they found that A1 to A3 misappropriated an amount of Rs. ten lakhs belonging to the firm. 5. The second respondent having come to know about the said fact placed the matter before the elders, who were running similar acqua companies. On verification of the accounts they found that A1 to A3 misappropriated an amount of Rs. ten lakhs and that they did not enter all the payments made by the farmers into the books of accounts of the fim1. The mediation done by the elders found to be futile, as the accused did not repay the amount alleging misappropriated. 6. With the aforesaid allegations on 8.10.2005 a complaint against A1 to A3 alleging misappropriation and cheating was lodged. The second Additional Judicial Magistrate of First Class, Nellore before whom the complaint was filed forwarded the same to the police under Section 156(3) Cr. PC for investigation. The police after conducting investigation filed final report referring the case as that of civil nature and non-cognizable. Aggrieved thereby, the second respondent filed a protest petition before the learned Magistrate. The learned Magistrate inconsideration thereof took cognizance of the offence under Sections 406, 408, 415, 420 IPC and issued summons to A1 to A3. Thereafter, the first accused filed the present criminal petition to quash the entire proceedings in CC No.794 of 2007 on the file of the Court of II-Additional Judicial Magistrate of First Class, Nellore. 7. The point for consideration in the present criminal petition is whether the proceedings in CC No.794 of 2007 on the file of the Court of II-Additional Judicial Magistrate of First Class, Nellore are liable to be quashed on the ground that the dispute between the parties is of civil nature. 8. It is well settled that if the dispute is purely of civil nature, initiation of criminal proceedings and their continuance is abuse of process of law. There are cases wherein a civil dispute also essentially involves criminal offence. In such an event, the dispute cannot be said to be purely of civil nature. The civil remedy available to a party does not preclude him from initiating the criminal prosecution if the dispute also involves criminal offence committed by the opposite party. In the instant case, even the investigation conducted by the police also reveals that the accounts do not tally and there is misappropriation of an amount of Rs. ten lakhs. The civil remedy available to a party does not preclude him from initiating the criminal prosecution if the dispute also involves criminal offence committed by the opposite party. In the instant case, even the investigation conducted by the police also reveals that the accounts do not tally and there is misappropriation of an amount of Rs. ten lakhs. But the police referred the case on the ground that the dispute is of civil nature and the offence complained of is non-cognizable. The contention of the second respondent is that the petitioner A1 with the connivance of A2 and A3 with fraudulent and dishonest intention misappropriated an amount of Rs. ten lakhs. Therefore, I do not think that no criminal offence is involved in the dispute between the parties. Subsequent to the complaint, the second respondent also filed a civil suit for dissolution of partnership and rendition of accounts. It is contended by the learned Counsel appearing for the petitioner that the firm was registered in the year 2006 whereas the complaint was filed by the second respondent in the year 2005 and therefore, the criminal proceedings initiated by the second respondent are liable to be quashed. 9. The second respondent clearly mentioned in the criminal petition that the partnership deed was entered into between the parties on 30.9.2003 to carry on the business of purchase and sale of Acqua feeds and chemicals in the name and style "Sapthagiri Enterprises". It seems that subsequently the formality of registration of the firm was done but in any event the technicalities pertaining to the registration of the firm do not come in the way of prosecuting the accused persons if really the facts prima facie discloses commission of criminal offence involving the accused in misappropriation and cheating. The dispute between the parties prima facie makes out criminal offence committed by the accused and consequently, the criminal prosecution is certainly maintainable irrespective of the fact that subsequently the second respondent-complainant pursued his remedies by filing a civil suit. In the instant case, since the dispute between the parties also involves a criminal offence allegedly committed by the accused, the criminal proceedings are not liable to be quashed. Considering all the aspects of the matter, I arrived at a positive conclusion that• the complaint filed by the second respondent discloses prima facie case of involvement of accused in commission of offence of misappropriation and cheating. Considering all the aspects of the matter, I arrived at a positive conclusion that• the complaint filed by the second respondent discloses prima facie case of involvement of accused in commission of offence of misappropriation and cheating. The matter needs detailed trial by a Court of criminal jurisdiction and is not supposed to be quashed at the threshold, as the dispute is not purely a civil dispute. Consequently the criminal petition is dismissed.