Research › Search › Judgment

Telangana High Court · body

2022 DIGILAW 22 (TS)

Syed Abdul Khader, Hyd Ano v. P. P. , Hyd Ano

2022-01-07

G.RADHA RANI

body2022
ORDER : This criminal petition is filed by the petitioners – A2 to A5 under Section 482 Cr.P.C. to quash the proceedings against them in CC No.813 of 2014 on the file of II Metropolitan Magistrate, L.B. Nagar, Ranga Reddy District. 2. The case of the petitioners in brief was that the 2nd respondent filed a private complaint before the II Metropolitan Magistrate, L.B. Nagar, Ranga Reddy District which was referred to Meerpet Police, registered as Crime No.190 of 2013 for the offences under Sections 379, 447 and 120-B IPC and the police, after investigation filed a final report referring the case as ‘lack of evidence’. Aggrieved by the same, the 2nd respondent filed a protest petition and the court, after recording the sworn statement of the 2nd respondent, had taken cognizance of the offences and registered the case as CC No.813 of 2014 and issued summons to the petitioners. 3. The case of the 2nd respondent as per the private compliant and the sworn statement recorded by the court below was that A1 was the owner of two shops in plot No.33, Jillelaguda, Shakthi Nagar, Saroornagar Mandal, Ranga Reddy District and he let out the shops to the 2nd respondent. The oral agreement between them was reduced into writing on 05.11.2007. The 2nd respondent gave an advance of Rs.1,00,000/-. The accused let out two shops, two rooms and a shed in plot No.33 on a monthly rent of Rs.1,000/- from 01.12.2007. A1 assured the 2nd respondent that he would provide water and drainage line within three months from the date of tenancy. Several times the nd respondent requested A1 to provide Municipal door number, but A1 dodged the matter and threatened the 2nd respondent to vacate the premises. Then the 2nd respondent filed an injunction suit against A1 before the II Additional Junior Civil Judge, Ranga Reddy District vide O.S No.5 of 2009. A1 filed his written statement. The said suit was dismissed by the court on 22.01.2013. The 2nd respondent went to Mumbai on 02.02.2013 to attend the funeral of his brother. When he returned to Hyderabad and went to open the shop, he found the lock of the shop broken and costly motor vehicle parts to a tune of Rs.10,00,000/- and cash of Rs.3,000/- was missing. He immediately, went to Meerpet Police Station to lodge a complaint. When he returned to Hyderabad and went to open the shop, he found the lock of the shop broken and costly motor vehicle parts to a tune of Rs.10,00,000/- and cash of Rs.3,000/- was missing. He immediately, went to Meerpet Police Station to lodge a complaint. To his utter surprise, he found A1 in the police station, who threatened him that if he did not vacate the shops, he would file SC and ST case against him. The Inspector of Police told the 2nd respondent that he would investigate the case and refused to acknowledge the complaint given by him. When the police refused to take the complaint, the 2nd respondent sent the complaint through speed post on 18.02.2013. He also sent copies of the complaint to the ACP, DCP and the Commissioner of Police, Cyberabad. On 04.03.2013 at 3.00 PM, when the 2nd respondent was in the shop, A1 along with A2 to A6 came to the shop and forcibly thrown out the table and chairs outside the shop. When the 2nd respondent resisted their acts, he was thrown outside by A2 to A4 and A1 to A6 locked the shop. Immediately, the friend of the 2nd respondent, by name, K. Salahuddin made a phone call to Meerpet Police. The Police arrived and took the 2nd respondent to the police station. The Inspector of Police warned the 2nd respondent not to go back to the shops and if he returned or did any act, he would be implicated falsely in a SC and ST case. Immediately, the 2nd respondent sent the complaint through registered post and telegram. Till date no action was taken by the police inspite of several representations made by him. 4. Heard the learned counsel for the petitioners and the learned counsel for the 2nd respondent – complainant. 5. The learned counsel for the petitioners submitted that the offences alleged against the petitioners were under Sections 379, 447 and 120-B IPC, but there were absolutely no allegations against the petitioners that they were involved in any kind of theft. It was not the case of the complainant that the petitioners had stolen any goods from the shop. The petitioners did not even know who the complainant was and who the accused No.1 was. There were absolutely no allegations against the petitioners regarding the offence under Section 447 IPC. The petitioners 2 and 3 were women. It was not the case of the complainant that the petitioners had stolen any goods from the shop. The petitioners did not even know who the complainant was and who the accused No.1 was. There were absolutely no allegations against the petitioners regarding the offence under Section 447 IPC. The petitioners 2 and 3 were women. There was no reason as to why they would assist A1 in throwing the 2nd respondent from out of the shop. The 2nd petitioner was aged about 52 years. The 4th petitioner was not all present in India on the date of the alleged offence. The complaint was an abuse of process of law. The complaint was a dirty game played by Mr. S.A. Waheed Shahbaz, Advocate against whose daughters the petitioners filed civil suits vide O.S. No.2098 of 2012 pending on the file of the I-Senior Civil Judge, City Civil Court, Hyderabad and the suits in O.S. Nos.2082, 2083, 2084, 2085 and 2086 of 2012 for partition and separate possession which were decreed by the 1-Senior Civil Judge, City Civil Court, Hyderabad, and prayed to quash the proceedings against the petitioners in CC No.813 of 2014. 6. The learned counsel for the 2nd respondent, on the other hand, contended that the II Metropolitan Magistrate, L.B. Nagar, took cognizance of the case as there were prima facie allegations against the petitioners for the above offences. The contention of the learned counsel for the petitioners that the 4th petitioner was not present in India on the date of the alleged offence could be examined during trial. The passport entries filed by the learned counsel for the petitioners being photostat copies could not be considered at that stage and he relied upon the judgment of the Hon’ble Apex Court in Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and others, 2010 (10) SCC 423 on the aspect that the courts should not have marked as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have been declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. It should have been declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. He further relied upon the judgment of the Supreme Court in Parbatbhai Aahir alias Parbatbhai Bhimsinhbai Karmur and others v. State of Gujarat and another, 2017 (9) SCC 641 , wherein guiding principles were given to the High Courts for quashing the proceedings under Section 482 Cr.P.C. 7. The learned counsel for the petitioners, on the other hand, relied upon the judgment of the Hon’ble Apex Court in Md. Akram Siddiqui v. State of Bihar, LAWS (SC) 2018 10 144, wherein it was held that: “5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung Vs. Essem Chemical Industries [ 2011(15) SCC 207 ]; State of Haryana & Ors. Vs Bhajan Lal & Ors.[1992 Supp.(1) SC 335] and Harshendra Kumar D. Vs. Rebatilata Koley Etc. [ (2011) 3 SCC 351 ] to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered. 6. In the present case we have looked into the passport documents and immigration papers which have been brought on record before this Court by the accused-appellant. The said papers do indicate that on the date in question i.e. 27.08.2005 the accused-appellant was not in India. At no point of time either before the High Court or before this Court any dispute has been raised with regard to the said fact. The complainant had not made the appellant a party in the earlier complaint. In the subsequent FIR the grievance of the complainant is in respect of the incident alleged to have been taken place on 27.08.2005. The complainant had not made the appellant a party in the earlier complaint. In the subsequent FIR the grievance of the complainant is in respect of the incident alleged to have been taken place on 27.08.2005. When it is not in dispute that on the said date i.e. 27.08.2005 the accused appellant was not in India, we are of the view that the document(s) evidencing the said fact which are public documents can and should be looked into. Looking into the passport papers and the immigration records, we find that the prosecution, if allowed to stand, would be a futile exercise and that the present was an appropriate case where the High Court ought to have exercised its power under Section 482 of the Criminal Procedure Code. We accordingly set aside the order of the High Court and quash the impugned proceeding pending in the Court of Sub- Divisional Judicial Magistrate, Patna City, Khajekala arising from PS Case No.153/05 against the accused-appellant. Appeal is consequently allowed.” 8. As this court is not marking the documents while dealing with the petition under Section 482 Cr.P.C., and as observed by the Hon’ble Apex Court in the case of Md. Akram Siddiqui (2 supra) photostat copies of the passport documents also can be looked into being public documents, the same can be considered to notice whether the 4th petitioner was present in the country at the time of the alleged incident. 9. On a perusal of the record, the complainant filed the private complaint alleging about two incidents, one occurred on 18.02.2013 and the other occurred on 04.03.2013, which were having no connection with each other. With regard to the incident occurred on 18.02.2013, he contended that he went to Mumbai on 02.02.2013 and returned to Hyderabad and when opened his shop on 18.02.2013 at 12.00 PM, he found the locks of his shop broken and the costly motor vehicle parts to a tune of Rs.10.00 lakhs and cash of Rs.3,000/- was missing. He did not make allegations against the petitioners suspecting their role in the said offence of theft. No complaint was given by him to the police immediately. He did not make allegations against the petitioners suspecting their role in the said offence of theft. No complaint was given by him to the police immediately. With regard to the second incident, the complainant alleged that it happened on 04.03.2013 at 3.00 PM when he was in the shop, A1 along with A2 to A6 came to his shop and forcibly thrown the table and chairs outside the shop and when he resisted their acts, he was also thrown outside by them and all of them locked the shop. He had not stated whether there was any connection between these two incidents or not. Filing a single complaint for the unconnected two incidents would amount to misjoinder of cause of action. Though he contended that he went to Meerpet Police Station to lodge a compliant, the police had not registered the same and even refused to acknowledge the receipt of the complaint as such, he sent the complaint through speed post on 18.02.2013 and the police also not received the complaint given by him on 04.03.2013 and on the other hand, the Inspector of Meerpet police station warned him not to return to the shop else he would be implicated in a false SC and ST case as such, he sent the complaint through registered post and telegram, but not filed the said documents before this Court to know the veracity of the same. 10. Learned counsel for the petitioners relied upon the judgment of the Hon’ble Apex Court in Priyanka Srivastava v. State of U.P., LAWS(SC) 2015 3 78 wherein it was held that: “27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/larches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.” 11. Learned counsel for the petitioners contended that no applications, given to the police, were filed by the 2nd respondent along with the private complaint and the delay in lodging the complaint before the court for the incident occurred on 18.02.2013 was also not explained by the complainant. Learned counsel for the petitioners contended that no applications, given to the police, were filed by the 2nd respondent along with the private complaint and the delay in lodging the complaint before the court for the incident occurred on 18.02.2013 was also not explained by the complainant. He further filed the copy of the judgment in O.S.No.2082 of 2012 of the I-Senior Civil Judge, City Civil Court, Hyderabad dated 01.05.2014 to show that the petitioners No.2 and 3 along with two others filed a civil suit against the daughters of the counsel Mr. S.A. Waheed Shahbaz for partition and separate possession due to which he bore grudge against the petitioners and got them involved in this criminal case to settle the issue in the civil suit. 12. Considering that the complaint would not prima facie disclose any allegations against the petitioners for the offence under Section 379 IPC, and it was not believable that the petitioners 2 and 3 being women and the petitioner No.2 being a old aged woman of 52 years had assisted A1 in throwing the complainant out of the shop and committed the offence of trespass under Section 447 IPC and that they had any reason to conspire along with A1 against the complainant for throwing him out of the shop and the passport entries of the 4th petitioner would disclose that he was not even in India at the time of the alleged incident on 04.03.2013, it is considered fit to quash the proceedings against the petitioners – A2 to A5 in CC No.813 of 2014. 13. In the result, the Criminal Petition is allowed quashing the proceedings in CC No.813 of 2014 on the file of II Metropolitan Magistrate, L.B. Nagar, Ranga Reddy District against the petitionersA2 to A5. Miscellaneous petitions pending, if any, shall stand closed.