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2023 DIGILAW 1274 (AP)

Kuravadi Bala Narayana v. State of Andhra Pradesh

2023-09-11

DUPPALA VENKATA RAMANA

body2023
JUDGMENT : 1. This Criminal Petition is filed under Sec. 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") by the petitioner/A.1 seeking to quash the proceedings in Crime No.40 of 2017 of Savalyapuram Police Station, Guntur, registered for the offence under Ss. 181, 218, 420, 467, 468 and 471 read with 34 IPC, and Sec. 82 of the Registration Act. 2. The private complaint filed under Sec. 156(3) Cr.P.C. by the 2nd respondent herein was referred to the Police by the learned Judicial First Class Magistrate, Vinukonda, Guntur District, which was registered as a case in Crime No.40 of 2017 and investigation is reported pending. 3. The brief facts leading to filing of the present criminal petition, in a nut-shell, are as under: (i) The petitioner/A.1 and A.2 are the brother and sister and A.3 is a public servant working as a Village Revenue Officer, Potluru, A.5 is the brother-in-law of A.2 and A.4 and A.6 are the close associates of the petitioner/A.1. The husband of the 2nd respondent/de facto complainant worked in Municipality and retired from service and settled in their village. He got landed property of Ac.1.40 cents in D.No.356 of Potluru Village. Her husband died intestate on 30/7/2015. After his death, petitioner/A.1 and A.2 made several illegal attempts to knock away the aforesaid property. The Government started a scheme of land acquisition for formation of railway track from Nadikudi to Srikalahasti and acquired the said land to an extent of Ac.1.10 cents out of Ac.1.40 cents belongs to the husband of the 2nd respondent and awarded compensation of Rs.22.00 lakhs to the family of the 2nd respondent/de facto complainant. The petitioner/A.1, A.2 and A.3 colluded together and forged the thumb impression of the 2nd respondent/de facto complainant and withdrew the said amount of Rs.22.00 lakhs by manipulating the revenue records. The petitioner/A.1 and A.2 fabricated a false document on 22/7/2016 in collusion with A.4 to A.6 to an amount of Rs.2,70,000.00 worth and registered in favour of A.2 for the rest of the land by the petitioner/A.1 vide Doc.No.4503 of 2016. (ii) After coming to know the illegal acts, the 2nd respondent/de facto complainant questioned the petitioner/A.1 and A.2 and they have not given proper reply and threatened her with dire consequences and she obtained the forged documents under Right to Information Act with the help of L.W.2(Prabhakara Rao). (ii) After coming to know the illegal acts, the 2nd respondent/de facto complainant questioned the petitioner/A.1 and A.2 and they have not given proper reply and threatened her with dire consequences and she obtained the forged documents under Right to Information Act with the help of L.W.2(Prabhakara Rao). All the accused colluded with each other and caused huge loss to the 2nd respondent/de facto complainant. As such, the 2nd respondent/de facto complainant presented a private complaint and the same was forwarded to the Police. The crime was investigated about the complicity of the accused in commission of offence. Pending investigation, the petitioner/A.1 filed the present petition seeking to quash the criminal proceedings against him in the above crime. 4. Heard the learned counsel for the petitioner/A.1; learned Assistant Public Prosecutor for the State and the learned counsel for the 2nd respondent. 5. The learned counsel for the petitioner/A.1 would submit that the allegations made in the complaint are purely civil in nature and instead of approaching the Civil Court, the 2nd respondent/de facto complainant initiated criminal proceedings to pressurize the parties to settle the compensation amount. He would further submit that initiation of criminal proceedings is nothing but an abuse of process of law and the allegations made in the complaint are purely civil in nature are sought to be given the colour of a criminal offence in collusion with the L.W.2 (Prabhakara Rao), who is the another son of the 2nd respondent/de facto complainant, to wreak vengeance against the petitioner/A.1. Further, he would submit that during the life time of the husband of the 2nd respondent/de facto complainant, he executed an unregistered Will on 25/7/2015 in favour of petitioner/A.1, which was duly attested by the attestors and after his death, the said Will came into force. 6. Further, he would submit that there was exchange of notices in between the parties. It was mentioned in the reply notice dtd. 28/3/2017 that the petitioner/A.1 is in exclusive possession and enjoyment of the schedule property. He would further submit that as per the Will the petitioner/A.1 is entitled to receive the said amount and after making enquiry, the Revenue Authorities paid the compensation amount to the petitioner/A.1. Further, he would submit that there is absolutely no material in the complaint showing the commission of any offences much less to say that the offence under Ss. He would further submit that as per the Will the petitioner/A.1 is entitled to receive the said amount and after making enquiry, the Revenue Authorities paid the compensation amount to the petitioner/A.1. Further, he would submit that there is absolutely no material in the complaint showing the commission of any offences much less to say that the offence under Ss. 181, 218, 420, 467, 468 and 471 read with 34 IPC, and Sec. 82 of the Registration Act. Further, he would submit that referring the complaint to the Police by the learned Magistrate under Sec. 156(3) Cr.P.C. without mentioning the reasons as to what circumstances have weighed in the mind for referring the complaint to the Police, which is a sine qua non to transmit the complaint to the Police for investigation. Since no such reasoned order was passed by the learned Magistrate, on that ground alone the criminal proceedings are liable to be quashed in view of the judgment of Hon'ble Apex Court in Priyanka Srivastva Vs. State of Uttar Pradesh, (2015) 6 SCC 287 and in the instant case, since the complainant did not file her sworn affidavit and the learned Magistrate without recording her sworn statement ought not to have forwarded the complaint to the Police. Further, he would submit that the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint and the continuation of criminal proceedings is an abuse of process of law. He thus, prayed to quash the proceedings in the above crime. 7. Per contra, the learned counsel for the 2nd respondent/de facto complainant would argue that the complaint allegations amply disclose the commission of the offence. Further, he would submit that while forwarding the complaint under Sec. 156(3) Cr.P.C at the pre-cognizance stage, the learned Magistrate need not give any elaborate reasons. Further, he would submit that if the investigating agency is permitted to investigate the case thoroughly, the truth would come out as to whether the Will is genuine or not and whether the thumb impression of the 2nd respondent/de facto complainant in the revenue record while making an enquiry for payment of compensation, is that of her or not. As such, the matter requires investigation to ascertain the truth or otherwise of the said allegations. As such, the matter requires investigation to ascertain the truth or otherwise of the said allegations. He would further submit that there is no merit in the contentions of the petitioner/A.1 that there are no allegations against the petitioner/A.1 with regard to the commission of offence. Further, he would submit that continuation of investigation in Crime No.40 of 2017 cannot be said to be an abuse of process of law. Therefore, he would pray for dismissal of the criminal petition. 8. Learned Assistant Public Prosecutor conceded to the arguments advanced by the learned counsel for the 2nd respondent. 9. Having perused the relevant facts and contentions raised by the learned counsels for both the petitioner and the respondents, in my considered opinion, the primary issue which requires determination in the instant case is : Whether the allegations made against the petitioner/A.1 would attract the accusation made against him and whether there are any merits in the criminal petition to allow? POINT: 10. In a decision reported in State of Haryana and Others Vs. Ch. Bhajanlal and Others, AIR 1992 SC 604 the Hon'ble Apex Court held that in exercise of extraordinary power conferred under Article 226 of Constitution of India or the inherent powers under Sec. 482 Cr.P.C, the following categories of cases are given by way of illustration, wherein, such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise clearly defined and sufficiently channelized and inflexible guide, myriad kinds of cases wherein, such power should be exercised. The relevant guidelines read as under : "(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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 155(2) of the Code; (3) where the uncontroverted 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 Sec. 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." We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 11. As can be seen from the above guidelines, the 1st guideline is to the effect that even if the complaint allegations are accepted to be true on their face value, if they do not constitute any offence, then the criminal proceedings against the petitioner can be quashed. On this touchstone, when the complaint allegations are perused, the pivotal allegation is that without having knowledge of the 2nd respondent, the petitioner/A.1 and A.2 to A.6 in collusion withdrew the amount of compensation by forging the thumb impression of the 2nd respondent. The further allegation is that an extent of Ac.1.40 cents is the self acquired property of the husband of the 2nd respondent and he died intestate and, therefore, all the family members are entitled to claim their respective shares in the compensation amount. 12. Before filing of the complaint by the 2nd respondent/de facto complainant, exchange of notices were made in between the petitioner/A.1 and A.2 and the 2nd respondent/de facto complainant and her another son L.W.2(K. Prabhakara Rao). The said notices were filed along with the complaint. Admittedly, in the reply notice dtd. 28/3/2017 issued by the petitioner/A.1 and A.2 through their counsel claiming that the compensation claimed under the property by the 2nd respondent/de facto complainant is the self-acquired property of the late husband of the 2nd respondent/de facto complainant. The above said fact is not in dispute. The another plea taken by the petitioner/A.1 is that, during the life time of his father, he executed an unregistered Will dtd. 25/7/2015 duly attested by the attestors. Under the said Will, he succeeded with the property and the compensation amount was paid to him as per the procedure. The above said issue is purely civil in nature, which has to be decided by a competent Civil Court. 13. At this stage, even if the complaint allegations are taken into consideration, one cannot conclude prima facie that the petitioner/A.1 has committed the alleged offence. It is a cardinal principle that when the complaint allegations essentially disclose the civil dispute and not a criminal offence, continuation of criminal proceedings would amount to the abuse of process of the Court. 14. In Devendra and others Vs. State of Uttar Pradesh and another, (2009) 7 SCC 495 the Hon'ble Apex Court at Para No.27 held as follows : "27. ................. 14. In Devendra and others Vs. State of Uttar Pradesh and another, (2009) 7 SCC 495 the Hon'ble Apex Court at Para No.27 held as follows : "27. ................. A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute 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." 15. In Paramjeet Batra Vs. State of Uttarakhand and others, (2013) 11 SCC 673 the Hon'ble Apex Court held at Para No.12 held as follows : "12. While exercising its jurisdiction under Sec. 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court." 16. In Chandran Ratnaswami Vs. K.C. Palanisamy and others, (2013) 6 SCC 740 the Hon'ble Apex Court held at Para 60 as follows : "60. We are of the definite opinion that the complainant has manipulated and misused the process of court so as to deprive the appellants from their basic right to move freely anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of the alleged breach of a joint venture agreement specially when such disputes have been finally resolved by the court of competent jurisdiction. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of the alleged breach of a joint venture agreement specially when such disputes have been finally resolved by the court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No. 7 of 2007 to continue would be an abuse of the process of the court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law." 17. In the light of the above judgments, if the allegations made in the complaint are read together, the criminal prosecution is a serious matter, which affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. The petitioner/A.1 claimed the amount under an unregistered Will. When the same is disputed by the 2nd respondent, she has to approach a competent Civil Court proving that the said Will said to have been executed by her deceased husband is not true. Instead, the 2nd respondent lodged a private complaint in support of her another son L.W.2 (Prabhakara Rao). As the civil suit takes long number of years to settle the disputes, therefore, she approached the Police to pressurize the parties to settle their respective shares in the compensation amount awarded under the land acquisition. 18. In Mohammed Ibrahim and others Vs. State of Bihar and another, (2009) 8 SCC 751 the Hon'ble Apex Court at Para No.8 held as follows : "8. This Court has time and again drawn attention to the growing tendency of the 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 on 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 pressurise parties to settle civil disputes...................." 19. In Joseph Salvaraja Vs. State of Gujarat and others, (2011) 7 SCC 59 at Para No.17, the Hon'ble Supreme Court of India held as follows : "17. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes...................." 19. In Joseph Salvaraja Vs. State of Gujarat and others, (2011) 7 SCC 59 at Para No.17, the Hon'ble Supreme Court of India held as follows : "17. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the appellant. It does not meet the strict standard of proof required to sustain a criminal accusation............." 20. In V.Y. Jose and another Vs. State of Gujarat and another, (2009) 3 SCC 78 the Hon'ble Apex Court at Para Nos.27 and 28 held as follows : "27. The said principle has been reiterated in All Cargo Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain [ (2007) 14 SCC 776 : (2007) 12 Scale 391 ] stating: (SCC p. 781, para 16) "16. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice." 28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. Superior courts while exercising this power should also strive to serve the ends of justice." 28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Sec. 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts." 21. In the light of the decisions referred to supra, there is absolutely no material in the complaint showing the commission of any offence much less the offences under Ss. 181, 218, 420, 467, 468 and 471 read with 34 IPC, and Sec. 82 of the Registration Act. The continuation of criminal proceedings is an abuse of process of law. The criminal proceedings initiated by the 2nd respondent are nothing but an abuse of process of law for settling their respective shares in the compensation amount in which the petitioner/A.1 claimed the amount under a Will said to have been executed by the husband of the 2nd respondent in his favour, which is purely civil in nature. Further, the allegations made in the complaint disclose civil transactions may also have a criminal texture. But, this Court is of the view that such dispute which is in substance of civil nature is given a cloak of criminality with an intention to pressurize the petitioner/A.1 to bring him to her own terms. As observed above, the Hon'ble Apex Court in several judgments held that where the ingredients of certain offences were not made out in the F.I.R/complaint, such criminal proceedings are liable to be quashed under Sec. 482 of Cr.P.C. 22. In the instant case, the 2nd respondent/de facto complainant filed a private complaint before the Court of Judicial Magistrate of First Class, Vinukonda, Guntur District and in turn, the learned Magistrate forwarded the said complaint to Savalyapuram Police Station, Guntur without complying the mandatory requirements as observed by the Hon'ble Apex Court in Priyanka Srivastava's case (supra). Admittedly, the learned Magistrate has not followed the mandatory requirement. Since the 2nd respondent/de facto complainant did not file the sworn affidavit, the learned Magistrate ought not to have forwarded the complaint to the Police. 23. Admittedly, the learned Magistrate has not followed the mandatory requirement. Since the 2nd respondent/de facto complainant did not file the sworn affidavit, the learned Magistrate ought not to have forwarded the complaint to the Police. 23. In Priyanka Srivastava's case (supra), the Hon'ble Apex Court at Para Nos.27 & 30 held as follows : "27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order............. 30. In our considered opinion, a stage has come in this country where Sec. 156(3) CrPC 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.........." 24. The 2nd respondent/de facto complainant is required to file sworn affidavit in support of the complaint allegations as observed by the Hon'ble Apex Court. But, in the instant case, the 2nd respondent/de facto complainant did not file any sworn affidavit and the learned Magistrate has not recorded the sworn statement of the 2nd respondent/de facto complainant. When the above mandatory requirement is not fulfilled, the learned Magistrate ought not to have forwarded the complaint to the Police. Therefore, on this ground also, the criminal proceedings are liable to be quashed. 25. When the above mandatory requirement is not fulfilled, the learned Magistrate ought not to have forwarded the complaint to the Police. Therefore, on this ground also, the criminal proceedings are liable to be quashed. 25. On an overall consideration of the entire material placed on record and the law laid down by the Hon'ble Apex Court in the judgments referred to supra, it is suffice to conclude that the contentions raised by the learned counsel for the petitioner/A.1 and the material produced before this Court directly indicate the malafides in prosecution of criminal proceedings against the petitioner/A.1 so also abuse of process of the Court, as an arm-twisting method to bring the petitioner/A.1 to the terms of the 2nd respondent/de facto complainant and to cloak a civil dispute with criminal nature. 26. In view of the foregoing discussion and in the facts of the present case, this Court is fully satisfied that the present is a case where the criminal proceedings have been initiated by the 2nd respondent with ulterior motive due to private and personal grudge with the support of her another son L.W.2(Prabhakara Rao), and such criminal proceedings to go on is nothing but an abuse of process of the Court, which needs to be interfered by this Court. As such, it is a fit case to exercise the inherent jurisdiction of this Court under Sec. 482 Cr.P.C to quash the proceedings in the above crime. 27. Resultantly, the Criminal Petition is allowed. The criminal proceedings initiated against the petitioner/A.1 in Crime No.40 of 2017 of Savalyapuram Police Station, Guntur, are hereby quashed. As a sequel, the miscellaneous petitions, pending if any, shall stand disposed of.