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2023 DIGILAW 1119 (AP)

P. Raghuram Kumar v. State Of A. P.

2023-07-21

DUPPALA VENKATA RAMANA

body2023
ORDER : In this Criminal Petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”) petitioner/accused seeks to quash the proceedings against him in Crime No.138 of 2009 of Mandapeta Rural Police Station, East Godavari District, registered for the offence under Sections 403, 406 and 409 IPC. 2. The 2nd respondent is the de facto complainant, who was the-then Deputy Executive Engineer, lodged a report to the Police alleging that the Managing Director of Andhra Pradesh State Housing Corporation Limited (A.P.S.H.C.L.), Hyderabad, has ordered for third party enquiry basing on the adverse news items published in Eenadu daily newspaper and the complaint petitions received from MPP and ZPTC, Mandapeta, through M/s. Gayathri Rural Educational Society. Basing on the enquiry report submitted by the Executive Engineer(Housing), Amalapuram, it was found that certain grave irregularities were committed by the petitioner herein and seven others in construction of Indiramma Housing Colonies at Tapeswaram Village, Mandapeta Mandal. It is alleged that there are lot of lapses in implementing the procedures besides high misappropriation involved which could only clearly be established at the second level enquiry besides taking appropriate action based on the first level report. The irregularities pointed out in the report, are i) the amounts paid without starting house or to ineligible candidates, ii) amount paid to old houses, iii) double payments made to same houses, and iv) amount paid to Pink Ration Card holders and the amount involved is Rs.59,98,000/- and the Executive Magistrate-cum-District Collector, APSHCL, East Godavari District directed the Deputy Executive Engineer, Housing, Rajahmundry to file a case (F.I.R) against the persons, who committed irregularities in construction of Indiramma Housing Colonies in Tapeswaram Village of Mandapeta Mandal for misappropriation of funds of Rs.59,98,000/-. On the basis of the said report, a case in Crime No.138 of 2009 was registered by Mandapeta Rural Police Station, East Godavari District for the offence under Sections 403, 406 and 409 IPC against eight persons wherein the petitioner herein was shown as one of the accused. The said crime was investigated and eventually found prima facie evidence against the petitioner/accused herein and others. When the investigation is at the fag end, the petitioner herein approached this Court, seeking to quash the criminal proceedings in the above crime against him. 3. The said crime was investigated and eventually found prima facie evidence against the petitioner/accused herein and others. When the investigation is at the fag end, the petitioner herein approached this Court, seeking to quash the criminal proceedings in the above crime against him. 3. Heard Sri G.L.Nageswara Rao, learned counsel for the petitioner and Sri P.M. Mithileswara Reddy, learned Assistant Public Prosecutor for the 1st respondent-State. 4. Learned counsel for the petitioner would submit that one Saladi Venkateswara Rao (Srinu Babu), who was the husband of the Sarpanch, Tapeswaram Village has committed the misappropriation, but the Petitioner herein is no way concerned with the alleged offence. Further, he would submit that the Executive Engineer is the Supervising Authority against the petitioner/accused and to release the funds. Further, he would submit that the act of misappropriation of funds cannot be attributed against the petitioner herein only since the Superiors of the petitioner/accused are also responsible and to save their responsibility, fixed the liability against the petitioner/accused, though he is no way connected for misappropriation of funds. Further, he would submit that even if the entire accusations in the First Information Report are accepted to be true and correct, no prima facie case for the offences alleged is made out against the petitioner/accused and that there is no dishonest intention on the part of the petitioner/accused to commit criminal breach of trust right from its inception. Therefore, the criminal complaint filed by the 2nd respondent is frivolous and vexatious. Hence, he prays to quash the impugned proceedings. 5. On the other hand, learned Assistant Public Prosecutor opposed the petition stating that there are specific accusations levelled against the petitioner herein and the case is at crime stage and it is too premature stage to quash the proceedings. Further, he would submit that there is a large scale of misappropriation committed by the petitioner along with other accused in huge transactions amounting to Rs.59,98,000/- as stated in the complaint. The modus operandi of the petitioner in routing the amount with the connivance of the other accused caused loss of Rs.59,98,000/- to the Exchequer. He would further submit that since the matter is at the stage of investigation, the truth or otherwise of the said allegations would reveal during the course of investigation and therefore, this Court may not interfere at this stage. He would further submit that since the matter is at the stage of investigation, the truth or otherwise of the said allegations would reveal during the course of investigation and therefore, this Court may not interfere at this stage. Further, he would submit that there is no merit in the contention of the petitioner that there are no allegations against him with regard to the commission of the offence in connection with the misappropriation of funds. Therefore, he would pray for dismissal of the criminal petition. 6. I have given my anxious consideration to the submissions made by the learned counsels appearing for the respective parties and perused the material on record. 7. It is not in dispute that the petitioner/accused was an Assistant Engineer(Housing), Mandapeta, during the relevant period. It is also not in dispute that the de facto complainant i.e., the Deputy Executive Engineer during the relevant period is the next Superior to the petitioner/accused. It is also not in dispute that the matter is still being investigated by the Police. The offences punishable are as afore-quoted. The entire issue springs from the complaint, certain allegations were made in the complaint and the enquiry reports of first and second level committees communicated to the Collector and directed the 2nd respondent to file a complaint with the allegations made in the report are required to be investigated to ascertain the truth in the allegations made therein. 8. The complaint was lodged by the 2nd respondent basing on the enquiry report alleging that the individuals i.e., petitioner herein and seven other accused committed irregularities and misappropriated the funds to a tune of Rs.59,98,000/-. Such irregularities and misappropriation of funds were narrated in the enquiry report which was enclosed with the complaint. Basing on the said enquiry report, the Executive Magistratecum- District Collector directed the 2nd respondent to lodge a report against the erring officials and others. Upon the said instructions, the present report came to be lodged. Therefore, the issue in the complaint allegations under Sections 403, 406 and 409 IPC made out against the petitioner/accused herein and other accused is uncontraverted. 9. At this juncture, it is relevant to refer to Sections 403, 406 and 409 IPC which read as follows: 403. Upon the said instructions, the present report came to be lodged. Therefore, the issue in the complaint allegations under Sections 403, 406 and 409 IPC made out against the petitioner/accused herein and other accused is uncontraverted. 9. At this juncture, it is relevant to refer to Sections 403, 406 and 409 IPC which read as follows: 403. Dishonest misappropriation of property.--Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 10. This Court perused the record and office note dated 04.08.2009 submitted by the Superintending Engineer, Housing to the District Collector basing on the enquiry report under 5th reference cited. The allegations made in the complaint made out a prima facie case for the offences alleged against the petitioner/accused, for the reason that there is a dishonest intention on the part of the petitioner/accused from the beginning and as directed by APSHCL, the petitioner being Assistant Engineer supervised to construct Indiramma Housing Colonies at Tapeswaram, Mandapeta Mandal, East Godavari District in Phase-I under the supervision of the Engineers of the Corporation. Admittedly, there were lapses alleged against the petitioner/accused during the construction of Housing Colonies. The Superior Engineers noticed about the misappropriation of funds through a news item published in newspapers and the complaints received from MPP and ZPTC and ordered for enquiry and noticed certain irregularities and misappropriation of funds committed by them. Admittedly, there were lapses alleged against the petitioner/accused during the construction of Housing Colonies. The Superior Engineers noticed about the misappropriation of funds through a news item published in newspapers and the complaints received from MPP and ZPTC and ordered for enquiry and noticed certain irregularities and misappropriation of funds committed by them. In order to examine as to whether the factual contents of the report disclose any cognizable offence or not, this Court cannot act like an investigating agency nor can exercise the powers like an Appellate Court and the question is required to be examined by the investigating agency keeping in view the contents of the F.I.R and prima facie material on record. At this stage, this Court cannot appreciate the evidence nor can draw its own inferences from the contents of F.I.R and the material relied on as it is the job of the Investigating Authority. 11. In Kaptan Singh Vs. State of Uttar Pradesh, (2021) 9 SCC 35 the Hon’ble Apex Court at Para No.9.2 held as follows: “9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94], Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 .” 12. In the light of the above judgment, exercise of the powers under Section 482 Cr.P.C to quash the proceedings is an exception and not a rule. It is further observed that the appreciation of evidence is not permissible at this stage of quashing the proceedings in exercise of powers under Section 482 Cr.P.C. 13. In the light of the above judgment, exercise of the powers under Section 482 Cr.P.C to quash the proceedings is an exception and not a rule. It is further observed that the appreciation of evidence is not permissible at this stage of quashing the proceedings in exercise of powers under Section 482 Cr.P.C. 13. Having perused the entire record and considered the fact that there are serious allegations made in the complaint which are required to be gone into which will emerge during course of investigation. It is to be investigated as to whether the petitioner/accused had any role to play or not. It would not be a fit case for this Court to exercise the powers under Section 482 Cr.P.C. Upon completion of the investigation, necessary investigation report would be filed either as (A) charge sheet against the petitioner and other accused or as (B) report if he is not involved. At this stage, it cannot be stated that the petitioner is not involved in the aforesaid misappropriation. The petitioner being an Assistant Engineer during the relevant period, it cannot be said that such a huge amount was misappropriated without his knowledge or otherwise. 14. In view thereof, when the investigation is pending, I am of the considered opinion that it is not a fit case to exercise the extraordinary inherent power vested with this Court under Section 482 Cr.P.C. 15. The petitioner/accused or his Superior Engineers are permitted to place all the relevant details and the documents before the Investigating Officer during the course of investigation as and when required. In the light of the disputed questions of fact and serious issues existing in the case at hand, and the judgment of the Hon’ble Apex Court referred to supra, this Court declined to entertain the petition, particularly at this crime stage which is under investigation. However, it is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C only and the Investigating Officer has to proceed with the investigation in accordance with law and without being influenced by any of the observations made by this Court hereinabove. 16. However, it is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C only and the Investigating Officer has to proceed with the investigation in accordance with law and without being influenced by any of the observations made by this Court hereinabove. 16. In view of the foregoing discussion, the present criminal petition seeking quash of the proceedings in Crime No.138 of 2009 of Mandapeta Rural Police Station, East Godavari District, lacks merit and is liable to be dismissed. 17. Resultantly, the Criminal Petition is hereby dismissed. (ii) The Investigating Officer is directed to complete the investigation in the above crime within a period of three months from the date of receipt of a copy of this Order. (iii) The Registry is directed to communicate the copy of this Order to the Station House Officer, Mandapeta Rural Police Station, East Godavari District, within a period of one week from today. As a sequel, the miscellaneous petitions, pending if any, shall stand disposed of.