Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 165 (AP)

Bandaru Venkata Prasad v. State of Andhra Pradesh

2023-01-20

K.SREENIVASA REDDY

body2023
ORDER : 1. Since the Criminal Petitions, under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) are filed by A1 in Crl. Pet. No. 7196 of 2021 and by A2 to A8 in Crl. Pet. No. 7192 of 2021, to quash the entire proceedings in PRC No. 116 of 2020 on the file of the VII Additional Metropolitan Magistrate, Visakhapatnam and the grounds urged are almost same in both the petitions, they are being disposed of by this Common Order. 2. Based on a report lodged by 2nd respondent herein who is the defacto complainant, a case in crime No. 367 of 2020 was registered by Kancharapalem police station, and after completion of investigation, police laid charge sheet, for the offences punishable under Sections 417, 420, 376, 406, 506, 509 IPC against A1 and 506, 509, 323 r/w with 34 IPC against A2 to A8. Allegations, in brief, in the charge sheet are as follows: The respondent No. 2 is resident of D. No. 37-12-41/7/1/2, NGGOS Colony, Kancharapalem, Visakhapatham. Her husband is an auto driver. Prior to that, he worked in EPDDS at Kalapaka electrical sub-station in Parawada Mandal. At that time, they resided in Kotturu village in a rented house belonging to Someswara Rao. During that time, A1, who is son of the house owner, used to propose her and demanding her to leave her husband and he would marry her. During 2002, she was aged about 19 years. She insisted her husband to change the house. While so, during temporary absence of her husband, A1 came to her house and forcibly had sexual trap over her and used to threaten her stating that if it comes to the notice of her husband, she will be deserted by her husband. Within one month, thereafter, they shifted to another house in the same village. As her husband was transferred to RCL Company, they came to their own house situated in 104 Area. Even to there also A1 used to come along with her husband under the guise of attending exams in Polytechnic College and her husband used to invite him for lunch. A1 continued to propose her and leave her husband so that he would marry her, by saying that he would marry her and that he cannot live without her. Even to there also A1 used to come along with her husband under the guise of attending exams in Polytechnic College and her husband used to invite him for lunch. A1 continued to propose her and leave her husband so that he would marry her, by saying that he would marry her and that he cannot live without her. During the year 2010, mother-in-law of 2nd respondent disposed of their own house and gave them cash of Rs. 18.00 lakhs, towards their share. They kept Rs. 8.00 lakhs in fixed deposit and Rs. 10.00 lakhs was invested in Interest business. Later, they shifted to Bapuji Nagar. In the year 2012, A1 asked her husband for Rs. 10.00 lakhs, towards hand loan for starting a business and also for education of his brother. Her husband gave money to him. Whenever A1 visits their house, she used to be under fear that he may disclose their affair to her husband. During the year 2016, marriage of A1 was fixed and he asked her for Rs. 12.00 lakhs money. On his assurance that he would return the money after getting dowry amount from his in-laws, she raised hand loan of Rs. 8.00 lakhs from her friend Y. Syamala and Rs. 2.00 lakhs from her sister Ch.Saraswathi, and pledged her gold and raised another loan of Rs. 2.00 lakhs, and gave Rs. 12.00 lakhs to A1. But, after the marriage, whenever she called him over phone, she used to get “Busy” Message and if she lifts the phone, A1 used to abuse her in vulgar language. After few months, A1 gave a cheque for Rs. 2.50 lakhs and informed that he would give the remaining amount later. He has not repaid the money thereafter. On 05.04.2019, when she went to his house at Duvvada, his wife A2 beat her and pushed her on to the road by holding her plait. She lodged a report at Duvvada. The police sent her to hospital treating it as Medico Legal Case (MLC). While she was proceeding from Hospital to Duvvada, A1 contacted her and stated that their close postures are available with him and threatened to post them in the college where her daughter is studying. After a week, he called her to come to his house and when she was proceeding, on the way, A2 to A8 beat her and took her cell phone. After a week, he called her to come to his house and when she was proceeding, on the way, A2 to A8 beat her and took her cell phone. They had also taken her photos and kept them in their friend’s whataspp, threw dust on her face and beat her with chappals and harassed her. When she went to Duvvada police station, she received a phone call with the same threat that her photos are with them. Since then, A1 and his family members are black mailing her and one Duvvada Srinu, who is politically influenced, is supporting them. A1 was arrested and was sent for remand by the police. A2 to A8 were served with Notice under Section 41-A Cr.P.C. and police obtained bonds from them. Thus, on completion of investigation, charge sheet is laid for the offences punishable under Sections 417, 420, 376, 406, 506 and 509 IPC 323 r/w 34 IPC against A1 and under Sections 506, 509, 323 r/w 34 against A2 to A8. 3. Learned counsel for the petitioners contended that even accepting all the allegations in the charge sheet are true, still the offences 417, 420, 376, 406, 506 and 509, 323 r/w 34 IPC are not attracted against the petitioners for the reason that there is civil dispute pending between 2nd respondent and the petitioners. The de facto complainant/2nd respondent in order to settle the disputes with the petitioners, she made false allegations against the petitioners and foisted false case against them. 4. On the other hand, learned counsel for 2nd respondent submitted that the contentions raised by the learned counsel for the petitioners are all disputed questions of facts and the same have to be decided during the course of trial. Hence he prays to dismiss the present petitions. 5. Learned Special Assistant Public Prosecutor too concurred with the submissions made by the learned counsel for the respondent No. 2 and stated that the contentions raised by the learned counsel for the petitioners are all disputed questions of facts and the same have to be decided during the course of trial. Hence prays to dismiss petitions. 6. Heard both the learned counsel. Perused the record. 7. On perusal of the charge-sheet, report given by 2nd respondent and statements recorded under Section 161 Cr.P.C. they all reveal the same as narrated above in the charge sheet. 8. Hence prays to dismiss petitions. 6. Heard both the learned counsel. Perused the record. 7. On perusal of the charge-sheet, report given by 2nd respondent and statements recorded under Section 161 Cr.P.C. they all reveal the same as narrated above in the charge sheet. 8. Learned counsel for the petitioners relied upon the judgment of the Hon’ble Apex court in Lalmuni Devi vs. State of Bihar and Others, (2001) 2 SCC 17 wherein it was held: “There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed.” 9. Learned counsel for the petitioners has also relied upon another judgment of the Hon’ble Apex court in S.W. Palanikar and Others vs. State of Bihar and Another, (2002) 1 SCC 241 wherein it is held: “The ingredients in order to constitute a criminal breach of trust are: (1) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust.” 10. Learned counsel for the petitioners relying upon the aforesaid judgments has strenuously contended even accepting the entire allegations, absolutely there is no offence against the petitioners. The aforesaid judgments are not applicable to the present case. 11. Learned counsel for the petitioners relying upon the aforesaid judgments has strenuously contended even accepting the entire allegations, absolutely there is no offence against the petitioners. The aforesaid judgments are not applicable to the present case. 11. A reading of the charge-sheet, makes it clear that A1, proposing the de facto complainant/2nd respondent herein and demanding her to leave her husband so that he would marry her and on one day during temporary absence of her husband, A1 came to her house and forcibly had sex with her and started threatening her that if it comes to the notice of her husband, her husband would leave her. Thereafter on other occasions also, the accused used to visit the house of the de facto complainant and threaten her. Thus, a reading of the charge sheet goes to show that there is relationship between the de facto complainant and A1. Whether this relationship is by force or it is with the consent of de facto complainant has to be established during the course of trial. This Court, at this stage, would not be in a position to go into these aspects. A reading of the charge sheet further goes to show that the alleged incidents have been occurring from 2002. It is that A1 had sexual intercourse with the de facto complainant forcibly under the guise of marrying the de facto complainant in the absence of her husband. The other accusation is that certain amounts have been taken by A1 from the de facto complainant and her husband. Even on repeated demands, A1 failed to repay the same. The alleged accusation cannot be thrown out merely on the ground that the alleged incidents have taken place a long back and they are complained at belated stage. 12. The another accusation is that while the de facto complainant was proceeding from Hospital to Duvvada, A1 contacted her and stated that their close postures are available with him and threatened her stating that he would post them in the college where her daughter is studying. Truth or otherwise of the said allegation is also be decided during the course of trial. At this stage, this Court is not inclined to go into the disputed questions of facts. 13. The accusation as against A2 to A8 is very vague and bald. It is alleged that A2 to A8 beat her and took her cell phone. Truth or otherwise of the said allegation is also be decided during the course of trial. At this stage, this Court is not inclined to go into the disputed questions of facts. 13. The accusation as against A2 to A8 is very vague and bald. It is alleged that A2 to A8 beat her and took her cell phone. They had also taken her photos and kept them in their friend’s whataspp and that they threw dust on her face and beat her with chappals and harassed her. Except the said statement there is no other whisper against A2 to A8. All the allegations are directed against A1 only. No specific date, as to when the said incident had taken place. Hence implicating A2 to A8, who are related to A1 by attributing some accusations at a belated stage goes to show the intention of the de facto complainant and that the omnibus allegations are made against A2 to A8. The said accusation has been made at a belated stage. 14. A perusal of Doctor’s Opinion, goes to show that there are no injuries over the body of the de facto complainant. Except making omnibus allegations against A2 to A8, there is no material to connect them with the crime. 15. In view of the aforesaid circumstances, as there is no material against A2 to A8, subjecting them to face the rigmarole of the trial would be nothing but abuse of process of court. 16. In view of the aforesaid facts and circumstances, this Court is of the opinion that continuation of proceedings against A2 to A8 would be nothing but abuse of process of law. Hence, this Court is inclined to quash the proceedings in PRC No. 116 of 2020 on the file of the VII Additional Metropolitan Magistrate, Visakhapatnam, only against A2 to A8/the petitioners in Crl. Pet. No. 7192 of 2021. Insofar as the A1/the petitioner in Crl. Pet. No. 7196 of 2021 is concerned because of disputed questions of facts are involved and the truth or otherwise of the allegations has to be decided during the course of trial, Crl. Pet. No. 7196 of 2021 is dismissed against him. 17. Accordingly, Crl. Pet. No. 7196 of 2021 is dismissed and Crl. Pet. No. 7192 of 2021 is allowed. 18. As a sequel, all the pending miscellaneous applications shall stand closed.