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2019 DIGILAW 212 (AP)

Peram Venkata Samba Siva Rao v. State of Andhra Pradesh

2019-08-30

M.SATYANARAYANA MURTHY

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ORDER : M. Satyanarayana Murthy, J. 1. This petition is filed under Section 482 Cr.P.C. to quash the proceedings in Crime No. 156 of 2013 on the file of Arundalpet Police Station, Guntur Urban, registered for the offence punishable under Section 420 of Indian Penal Code (for Short 'I.P.C'). 2. The second respondent lodged a report with the police alleging that one S. Radha Krishna Murthy is well known to her younger son-Hari Babu. The said S. Radha Krishna Murthy made believed the second respondent that he will arrange MBBS seat in Siddartha Medical College, Vijayawada to her granddaughter namely Babitha, collected an amount of Rs. 12 lakhs, but did not provide any seat and cheated her. Later, the petitioners herein/P.V. Sambasiva Rao, Naveen, Venkata Ramana and Damodar approached the second respondent and made to believe that they traced S. Radhakrishna Murthy, collected an amount of Rs. 4.50 lakhs on different occasions from the second respondent in order to ascertain property details of S. Radhakrishna Murthy and recover second respondent's amount from him, thereby, the petitioners cheated the second respondent and committed an offence punishable under Section 420 of I.P.C. 3. The present petition is filed by the petitioners/accused Nos. 2 to 5 on the ground that the second respondent filed two suits OS Nos. 401 and 409 of 2013 for attachment of petition schedule property and they are pending on the file of different Courts. It is also contended that lodging report with the police while prosecuting the civil suit before the concerned Court for recovery of the amount is an abuse of process of the Court and that prosecuting the petitioners for the said offences is nothing but an arm twisting method adopted by the second respondent to collect the amount and that the allegations made in the complaint do not constitute an offence punishable under Section 420 of I.P.C. and requested to quash the proceedings against these petitioners. 4. 4. During hearing, learned Counsel for the petitioners reiterated the contentions urged in the petition and main endeavour of the learned Counsel for the petitioners is that, when two suits are pending for adjudication before the II Additional Senior Civil Judge at Vijayawada, for recovery of the amount and filed a petition under Order XXXVII Rule 5 and Section 151 CPC for ordering attachment before judgment, the petitioners cannot be prosecuted for the offence punishable under Section 420 I.P.C. and requested to quash the proceedings against these petitioners. 5. Learned Public Prosecutor for the State supported the case of prosecution, while submitting that the investigation is pending and within short time, the investigating agency will complete investigation and file final report before the Magistrate. 6. A bare look at the contents of the report lodged with the police, accused No. 1/5. Radha Krishna Murthy made a false promise to provide medical seat to the granddaughter of the second respondent and collected Rs. 12.00 lakhs from the second respondent. But, he did not provide medical seat to the second respondent's granddaughter and avoided even receipt of phone calls from the second respondent. While the second respondent was traveling in a bus, she had an occasion to meet the petitioners herein, who promised to recover the amount from S. Radha Krishna Murthy and also to provide his details. The petitioners herein also collected Rs. 4.50 lakhs from the second respondent for securing and providing the details of S. Radha Krishna Murthy, but they did not collect any amount from S. Radha Krishna Murthy/accused No. 1 and thereby, the petitioners committed an offence punishable under Section 420 of I.P.C. 7. Collection of amount from the second respondent by the petitioners on the pretext of securing the presence, details and property documents of S. Radha Krishna Murthy and failure to obtain the said documents would amount to cheating, as they are not competent to make such investigation. The first petitioner/accused No. 2 filed OS No. 401 of 2013 for recovery of amount due under promissory note dated 10.4.2011 for Rs. 3,00,000/- against the second respondent, alleging that the second respondent borrowed an amount of Rs. 3,00,000/- from accused No. 2 for securing seat to her granddaughter in MBBS and for family expenses and the second respondent executed a promissory. 3,00,000/- against the second respondent, alleging that the second respondent borrowed an amount of Rs. 3,00,000/- from accused No. 2 for securing seat to her granddaughter in MBBS and for family expenses and the second respondent executed a promissory. Another suit OS No. 409 of 2013 was filed by second petitioner/accused No. 3 for recovery of Rs. 2,00,000/- on the basis of promissory note executed on 5.6.2011. 8. It appears from the record that these suits were filed in the year 2011 by petitioners 1 and 2/accused Nos. 2 and 3 against the second respondent, whereas, a report was lodged with the police on 1.4.2013 i.e., during pendency of two suits. 9. It appears that the second respondent lodged a report with the police with a view to wreck vengeance against the petitioner on account of filing of two suits by accused Nos. 2 and 3 for recovery of amount based on the promissory note allegedly executed and to avoid payment of amount due under the promissory note. 10. There is absolutely no basis to establish the second respondent's contention. Apart from that, the second respondent did not disclose the details of alleged payment on three occasions, except making a vague allegation. When the second respondent lodged report with a view to wreck vengeance against these petitioners, the Court can quash the proceedings by exercising power under Section 482 Cr.P.C. 11. In State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335, the Apex Court considered in detail the provisions of Section 482 Cr.P.C. and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 12. In view of Guideline No. 7 in the above judgment, where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Apart from that, filing of a complaint to avoid payment of amount due under the decree that may be passed is another strong circumstances and it is nothing but abuse of process of the law. Therefore, I find that it is a fit case to quash the proceedings against the petitioners in Crime No. 156 of 2013 on the file of Arundalpet Police Station, Guntur Urban, registered for the offence punishable under Section 420 of I.P.C. 13. Therefore, I find that it is a fit case to quash the proceedings against the petitioners in Crime No. 156 of 2013 on the file of Arundalpet Police Station, Guntur Urban, registered for the offence punishable under Section 420 of I.P.C. 13. In the result, criminal petition is allowed. 14. Consequently, miscellaneous petitions pending, if any, shall also stand closed.