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2022 DIGILAW 859 (AP)

Vemuri Sambasiva Prasad v. Allu Srinivasa Rao

2022-09-09

DUPPALA VENKATA RAMANA

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JUDGMENT DUPPALA VENKATA RAMANA,J. - This Criminal Petition is filed by the petitioner under Sec. 482 of the Code of Criminal Procedure ('for short 'Cr.P.C') to set aside the dismissal order in Criminal Revision Petition No.38 of 2012 passed by the learned XI Addl.District and Sessions Judge, Gudivada on 11/12/2013, confirming the order of dismissal dt.5/6/2012 passed in C.F.R.No.1850 of 2012 by the Additional Judicial Magistrate of First Class, Gudivada and direct the learned Magistrate to take cognizance of the complaint by issuing process against the respondents. 2. The facts in issue are that the petitioner had taken the land to an extent of Ac.5.65 cents from one K.Sayamma who is the lawful power of attorney holder of the original landlady K.Sravya and obtained a loan eligibility card from the Revenue Authorities. Thereafter, some misunderstandings arose between the petitioner and the landlady, as such, the petitioner filed A.T.C.2 of 2012 on the file of the Tenancy Tribunal, Gudivada, and obtained injunction orders on 13/2/2012. One day prior to granting of an injunction, R.1 to R.4 (A.1 to A.4) trespassed into the land and committed theft of Black Gram crop. With the help of R.5 to R.7 (A.5 to A.8) by misusing their official positions, a case was registered in Cr.No.28/2012 against the petitioner and others. Though the petitioner gave a police complaint against the respondents, the Police did not register the crime against the respondents 1 to 4. As such, the petitioner filed a private complaint under Ss. 378 and 447 r/w 34 IPC against R.1 to R.4 and Sec. 379 , 120 (a) (b) IPC against A.5 and A.6 and Sec. 167, 120 (a) (b) IPC against A.7 and A.8 in C.F.R.No.1850 of 2012 on the file of Additional Judicial Magistrate of First Class, Gudivada to punish them as per law. 3. The duty of a Magistrate receiving a complaint is set out in Sec. 202 Cr.P.C and there is an obligation on the Magistrate to find out if there is any matter which calls for an investigation by a criminal Court. 3. The duty of a Magistrate receiving a complaint is set out in Sec. 202 Cr.P.C and there is an obligation on the Magistrate to find out if there is any matter which calls for an investigation by a criminal Court. The scope of enquiry under this Sec. is restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether the process has to be issued or not and the scope of enquiry under Sec. 202 Cr.P.C is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint. The learned Magistrate based on the said statutory principle conducted enquiry, examined the complainant and two other witnesses, and dismissed the complaint on the ground that the complainant came to the Court with unclean hands and the complaint is frivolous and vexatious and there is no prima facie case made out against the accused and the statements of the witnesses do not inspire the confidence of the learned Magistrate and no prima facie is made out to take cognizance against A.1 to A.8 and dismissed the petition. Aggrieved by the order of the learned Magistrate, the petitioner filed Criminal Revision Petition No.38 of 2012 on the file of the learned XI Additional Sessions Judge, Gudivada, and the same was dismissed, confirming the order of the learned Magistrate by giving cogent reasons that the petition is vexatious and is nothing but abuse of process of law without there being any proper and valid document to show his rights which has to be decided by a Civil Court and the revision petition lacks merit and confirmed the order of the learned Magistrate and the revision petition is dismissed. 4. Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor. 5. Learned counsel for the petitioner submitted that the learned Magistrate committed an error while evaluating the evidence of L.Ws.1 to 3 whose sworn statements were recorded and also failed to evaluate the documents filed along with their evidence. Inspite of having a prima facie case in favour of the petitioner, the learned Magistrate dismissed the complaint. 6. 5. Learned counsel for the petitioner submitted that the learned Magistrate committed an error while evaluating the evidence of L.Ws.1 to 3 whose sworn statements were recorded and also failed to evaluate the documents filed along with their evidence. Inspite of having a prima facie case in favour of the petitioner, the learned Magistrate dismissed the complaint. 6. Learned Assistant Public Prosecutor submitted that the contents in the complaint disclose that the petitioner and the original landlady and the 1st respondent were having civil disputes and multiplicity of litigations since 2011 and the petitioner filed A.T.C.2 of 2012 and obtained an injunction against the 1st respondent and the original landlady which clearly shows, prima-facie that the matter appears to be civil in nature. Therefore, the rights of the parties should be decided by the Civil Court only. Therefore, the continuation of proceedings against the respondents is nothing, but, an abuse of the process of law. 7. Now the point for determination is, "Whether the impugned order passed in Criminal Revision Petition No.38 of 2012 by the learned XI Addl.District and Sessions Judge, Gudivada, suffers from any illegality and infirmity and directed the learned Magistrate to take cognizance of the complaint by issuing process against the respondents?" 8. The facts and circumstances of the present case and the litigations pending between the parties, clearly show, prima facie, that the matter appears to be civil in nature. 9. A distinction must be made between a civil wrong and a criminal wrong. When a dispute between the parties constitutes only a civil wrong and not a criminal wrong, the Courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out. 10. In the light of the above circumstances, the matter appears to be purely civil in nature and there appears to be no criminal trespass or theft of property. The present petition filed by the petitioner is an abuse of the process of law. The purely civil dispute is sought to be given a colour of a criminal offence to wreak vengeance against the respondents. It does not meet the strict standard of proof required to sustain a criminal accusation. 11. At this juncture, it is relevant to refer the judgment of the Hon'ble Apex Court in the case of Mohammed Ibrahim and others Vs. It does not meet the strict standard of proof required to sustain a criminal accusation. 11. At this juncture, it is relevant to refer the judgment of the Hon'ble Apex Court in the case of Mohammed Ibrahim and others Vs. State of Bihar and another 2009 (8) SCC 751 wherein the Hon'ble Apex Court has held as under: "This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure of the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes." 12. In the present case, the learned Magistrate has opted to hold such enquiry himself for taking cognizance of offence in an area exclusively within the domain of the Magistrate. But, the learned Magistrate has not satisfied, as there is no sufficient ground for proceeding against them, and recorded the reasons that the contents of the complaint and the sworn statements of the witnesses disclose that the petitioner filed A.T.C. 2 of 2012 against the 1st respondent and the landlady to declare the petitioner as a cultivating tenant and to grant a permanent injunction and that those reliefs were granted in favour of the petitioner by the Tenancy Tribunal on 24/8/2015, prima-facie show that the mater appears to be civil in nature. But, according to the averments of the complaint, much prior to the granting of a temporary injunction, it is alleged that R.1 to R.4 trespassed into the property and committed theft of Black gram crop. But, there is no material evidence to prove the same. On the other hand, the 7th respondent issued a possession certificate to the 1st respondent and he was in possession of the property, raised crop as stated by the learned XI Additional Session Judge, Gudivada in its order dt.11/12/2013 and rights of the parties have to be decided by the Civil Court. 13. On the other hand, the 7th respondent issued a possession certificate to the 1st respondent and he was in possession of the property, raised crop as stated by the learned XI Additional Session Judge, Gudivada in its order dt.11/12/2013 and rights of the parties have to be decided by the Civil Court. 13. Having regard to the principles laid down by the Hon'ble Apex Court in the case referred above and in view of the civil litigation between the parties with regard to the same property where the uncontroverted allegations made in the 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 respondents, I am of the considered view that the continuation of criminal proceedings against the respondents would amount to an abuse of process of law. 14. For the above reasons, the Criminal Petition is devoid of merits, and the impugned order passed in Criminal Revision Petition No.38 of 2012 by the learned XI Addl.District and Sessions Judge, Gudivada on 11/12/2013, confirming the order of dismissal dt.5/6/2012 passed in C.F.R.No.1850 of 2012 by the learned Magistrate is perfectly sustainable under the law and there is no illegality or irregularity in the said order and it warrants no interference in this criminal petition. 15. Therefore, the criminal petition is dismissed. Consequently, miscellaneous applications, pending if any, shall stand closed.