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Telangana High Court · body

2022 DIGILAW 190 (TS)

G. v. Anna Rao VS State Of Telangana. , rep. , PP

2022-03-11

G.RADHA RANI

body2022
ORDER : This petition is filed by the petitioners-A1 to A3 under Section 482 Cr.P.C. to quash the proceedings in CC No.998 of 2015 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad. 2. The case of the petitioners in brief was that the 2nd respondent-de facto complainant and the 1st accused were own brothers. The complainant lodged a private complaint before the XI Additional Chief Metropolitan Magistrate, Secunderabad submitting that the mother and father of the complainant died in the year 2013. During the lifetime of their father, he used to look after the ancestral agriculture and plotted property situated at Telladeverapalli, Thiruvuru, and the plot at Jubilee Hills. In the year 1986, while the complainant was working as an Engineer in Grindwell Norton Limited, Renigunta, Thirupati and his brother (LW.2) was working at Chennai, for convenience in obtaining agricultural loans, he and his brother signed on blank stamp papers and two white papers and kept the same with their father. A1 and their father with the help of A2 and A3 conspired and created a Memorandum of Partition by using the said papers. The complainant and LW.2 never signed on the said Memorandum of Partition and the said document was created by A1 to A3 and their father. The property which was not in existence was also mentioned as fell to the share of the complainant in the forged document. A1 was born on 09.08.1969 but the age of A1 was mentioned in the forged document as 20 years and he signed as a party to the forged document. The age of A1, as on the date of the forged document, was 17 years (minor). This, itself would show the criminal intention of A1 in getting the forged document in existence causing wrongful loss to the complainant and LW.2, and wrongful gain to A1 with the help of A2 and A3. A1 admitted in cross-examination in O.A .No.706 of 2005 in the Court of Junior Civil Judge, Thiruvuru that he was born in Madras City in St. Isabel’s Hospital and denied that he was born on 09.08.1969. This would also establish that he was a minor as on the date of bringing the forged document in existence. A1 admitted in cross-examination in O.A .No.706 of 2005 in the Court of Junior Civil Judge, Thiruvuru that he was born in Madras City in St. Isabel’s Hospital and denied that he was born on 09.08.1969. This would also establish that he was a minor as on the date of bringing the forged document in existence. The plot bearing No.484 admeasuring 1200 square meters, situated at Jubilee Hills Cooperative Housing Society got registered in the name of A1 when he was minor at the time of registration of the sale deed by the Society. A1 got registered the sale deed directly in his name to deprive the legitimate rights of the complainant and LW2 in the said plot. At the time of allotting the land by the Society, A1 was not born. On the date of fabrication of the forged document on 09.07.1986, the complainant attended his duties at Renigunta, Thirupati. The complainant obtained a certificate from the company to establish that he attended duty on the said date and the copy of the muster rolls in the month of July, 1986 was also obtained from the company. When A1 informed the complainant about the Memorandum of Partition in the year 2006, the complainant filed a suit for partition in O.S. No.442 of 2006 on the file of II Additional Chief Judge, Hyderabad in respect of all the properties. The complainant also gave a complaint to the Inspector of Police, Karkhana Police Station. The Police registered a case in Crime No.107 of 2014 for the offences under Sections 120-B, 406, 420, 416 and 471 IPC, but without conducting proper investigation filed a final report that the case was civil in nature. A1 to A3 with a dishonest intention to cheat the complainant and LW.2 conspired together and brought the forged Memorandum of Partition into existence. The said complaint was taken into cognizance by the Court and registered as CC No.998 of 2015. 3. Heard the learned counsel for the petitioners and the learned counsel for the 2nd respondent. 4. Learned counsel for the petitioners submitted that a reading of the complaint would disclose that it was a case of civil nature, the police were justified in filing the final report. No protest petition was filed as seen from the complaint. 3. Heard the learned counsel for the petitioners and the learned counsel for the 2nd respondent. 4. Learned counsel for the petitioners submitted that a reading of the complaint would disclose that it was a case of civil nature, the police were justified in filing the final report. No protest petition was filed as seen from the complaint. Even according to the complainant, he filed O.S No.442 of 2006 seeking partition of all the properties contending that the said Memorandum of Partition dated 09.07.1986 was fabricated. Having filed a civil suit, and when the said suit was dismissed for non-prosecution, they have filed an application for restoration along with condonation of delay of 1658 days. The complainant resorted to give criminal colour to the civil litigation by adding the attestors of the said document as A2 and A3, who were kith and kin and respectable persons of the community. A3 was a Senior Scientist in ICRISAT. The Court without reference to the delay of 30 years from the date of the alleged document and a decade after filing of the civil suit, entertained the application. The aspect of limitation was totally lost sight by the Magistrate. The 1st petitioner, who was the younger brother of the complainant filed O.S No.706 of 2005 on the file of Principal Junior Civil Judge, Thiruvuru against the 2nd respondent for permanent injunction in respect of one of the properties that fell to his share under the very same Memorandum of Partition and the said suit was decreed on 09.08.2012 and it became final. Further, the nd respondent and his brother had sold their respective properties that fell to their shares under the very same Memorandum of Partition. Even in the notice dated 03.04.2006, preceding the filing of the partition suit, they categorically admitted that they had been in possession and enjoyment of their properties that fell to their share. The 2nd respondent having maintained that his father had fabricated the said document in the suit filed by him had now came up with a different story that A1 was responsible for bringing the said document into existence with the help of the other two accused, who were witnesses. Even according to the 2nd respondent, A1 was a minor as on the date of the said Memorandum of Partition and prayed to quash the proceedings against the petitioners in CC No.998 of 2015. 5. Even according to the 2nd respondent, A1 was a minor as on the date of the said Memorandum of Partition and prayed to quash the proceedings against the petitioners in CC No.998 of 2015. 5. Learned counsel for the 2nd respondent, on the other hand, contended that the 1st petitioner-A1 was addicted to bad vices and created the Memorandum of Partition in collusion with A2 and A3, and filed the forged document in the civil case in O.S. No.442 of 2006. There was no partition between the brothers. Only to gain himself wrongfully, the 1st petitioner created the said document. The truth or otherwise of the allegations in the complaint could be decided only after full-fledged trial and prayed to dismiss the petition. 6. Perused the record. The record would disclose that the complaint was filed by the 2nd respondent on 08.06.2015 in the court of XI Additional Chief Metropolitan Magistrate, Secunderabad alleging about a forged document filed by the 1st petitioner - A1 in collusion with A2 and A3 in O.S. No.442 of 2006 on the file of II Additional Chief Judge, Hyderabad. Admittedly, the said suit was filed by the 2nd respondent along with his another brother against the 1st petitioner and his parents in the year 2006. The 1st petitioner who was shown as defendant No.2 filed his written statement in the said suit on 23.01.2007. In the written statement, the notice given by the plaintiffs before filing the said suit was referred and the said words in para-6 of the said notice are extracted as under: “....My client never executed the alleged Memorandum of Past Partition Deed Dated 9-7-1986. No.1 of you obtained the signature of my client on blank white papers and the stamp papers at the time of family arrangement in the year 1986. Thus, the alleged Memorandum of Partition is not valid and not binding on my client.” 7. Thus, the 2nd respondent was aware of the alleged forged Memorandum of Past Partition Deed dated 09.07.1986 by the date of filing the suit itself in O.S. No.442 of 2006 on the file of II Additional Chief Judge, City Civil Court, Hyderabad. But, he did not choose to lodge a complaint immediately. Thus, the 2nd respondent was aware of the alleged forged Memorandum of Past Partition Deed dated 09.07.1986 by the date of filing the suit itself in O.S. No.442 of 2006 on the file of II Additional Chief Judge, City Civil Court, Hyderabad. But, he did not choose to lodge a complaint immediately. The present complaint would disclose that he lodged a report before the police Karkhana in the year 2014 which was registered as Crime No.107 of 2014 for the offences under Sections 120-B, 406, 420, 416 and 471 IPC and the police filed a final report in the said case that it was civil in nature. Thus, the 2nd respondent kept silent for a long time without taking any action on the alleged forged document from the year 2006 to 2014. He also admittedly had not filed any protest petition before the Court on the final report filed by the police but chose to lodge a private complaint in June, 2015. No explanation was given by the 2nd respondent-complainant for the long delay in filing the private complaint before the Court with regard to the alleged forged document though it came to his notice even prior to filing of the civil suit for partition in the year 2006. 8. Learned counsel for the petitioners also brought to the attention of this Court to the civil suit filed by the 1st petitoner-A1 against the 2nd respondent and two others seeking the relief of permanent injunction vide O.S No.706 of 2005 on the file of the Principal Junior Civil Judge, Thiruvuru with regard to one of the properties that fell to his share. He stated about the oral partition that was reduced into writing as Memorandum of Partition on 09.07.1986 as a cause of action for the said suit. The said suit was decreed ex parte as the defendants remained ex parte. 9. Learned counsel for the petitioners also brought to the notice of this Court the sale deed document No.2103 of 1992 dated 17.08.1992 wherein the nd respondent sold one of the properties to third parties stating that it was ancestral property which fell to his share and since then he was in possession and enjoyment of the same. 9. Learned counsel for the petitioners also brought to the notice of this Court the sale deed document No.2103 of 1992 dated 17.08.1992 wherein the nd respondent sold one of the properties to third parties stating that it was ancestral property which fell to his share and since then he was in possession and enjoyment of the same. He also brought to the notice of this Court the sale deed document No.1429 of 1995 dated 29.07.1995 executed by the 2nd respondent to third party wherein he had referred that the schedule mentioned immovable property was acquired by him from his father and the same was received towards his share in the joint family oral partition and since then, he was in possession and enjoyment of the same. He also brought to the notice of the Court about the sale deed document No.1430 of 1995 dated 29.07.1995 wherein the 2nd respondent sold another property to third parties vide above document stating that it was ancestral property which fell to his share and since then he was in possession and enjoyment of the same. He also brought to the notice of this Court the sale deed document No.2701 of 1998 dated 07.10.1998 wherein another brother of the 1st petitioner cited as LW.2 in the complaint also sold some of the properties to the third parties stating that it was ancestral property that fell to his share in the joint family oral partition among him, his father and his brothers and since then he was in possession and enjoyment of the same. 10. Learned counsel for the petitioners further submitted that the 2nd respondent and his another brother after selling the properties that fell to their share filed the partition suit in O.S No.442 of 2006 and the same was dismissed on 02.09.2009 and a petition for condonation of delay of 5 ½ years was filed and the same was pending. He further submitted that O.S. No.442 of 2006 was filed by the 2nd respondent and his another brother during the pendency of O.S. No.706 of 2005 instituted by the 1st petitioner wherein the petitioner succeeded in the said suit. In the legal notice issued before filing O.S. No.442 of 2006 itself, the 2nd respondent stated about the partition deed which he was aware by that time itself. 11. In the legal notice issued before filing O.S. No.442 of 2006 itself, the 2nd respondent stated about the partition deed which he was aware by that time itself. 11. The above documents would prima facie prove the contentions of the 1st petitioner that the 2nd respondent was aware of the oral partition and that the same was reduced into writing on 09.07.1986 and the 2nd respondent and his another brother also acted upon the said partition and sold the properties that fell to their share. As the civil litigation of partition suit vide O.S. No.442 of 2006 though dismissed, was kept alive by filing a petition for condonation of delay and the same was pending before the said court, the 2nd respondent can pursue his remedy before the civil court itself by taking his contention of the partition deed being a forged document. The parties cannot convert civil litigation into criminal litigation by mis-using the process of the court. 12. Learned counsel for the petitioners relied upon the judgment of the Hon’ble Apex Court in Rajib Ranjan and others v. R. Vijaykumar, (2015) 1 SCC 513 , wherein it was held that: “Allegations of fabricating records were mischievously made as afterthought, just to give colour of criminality to a civil case. Further, same were made after losing battle in civil proceedings. Hence, filing of complaint was not bona fide and amounted to misuse and abuse of process of law. High Court should have quashed such criminal proceedings in exercise of its inherent powers under Section 482 Cr.P.C.” 13. He also relied upon the judgment of the High Court of Andhra Pradesh in Indu Dalmia and others v. State of Andhra Pradesh, represented by Police, Alipiri, wherein it was held that: “when the dispute is purely civil in nature attributions by complainant by inserting something with malicious intent to convert a purely civil dispute into criminal offence cannot survive and liable to be quashed.” 14. Hence, considering the above judgment of the Hon’ble Apex Court and of the High Court of Andhra Pradesh, as the allegations of fabricating the records were made as an afterthought to give colour of criminality to a civil case, that too after a long delay without any explanation and the filing of the complaint appears not to be bona fide but amounting to misuse and abuse of process of law, it is considered fit to quash the proceedings in CC No.998 of 2015 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad. 15. In the result, the Criminal Petition is allowed quashing the proceedings in CC No.998 of 2015 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad against the petitioners – A1 to A3. Miscellaneous petitions pending, if any, shall stand closed.