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2023 DIGILAW 426 (AP)

Jammula Suganamani v. P. P. of Andhra Pradesh

2023-02-21

V.R.K.KRUPA SAGAR

body2023
ORDER : 1. This Criminal Revision Case under Section 397 and 401 of Criminal Procedure Code is filed by a complainant. It questions the correctness of Order dated 22.07.2008 of learned Judicial Magistrate of First Class, Srikakulam. Under the said impugned order the learned Magistrate having enquired into complaint filed by the revision petitioner dismissed the same. It is against that dismissal the present revision is filed. 2. Respondent No. 1 is the State. Respondent Nos. 2 to 10 are the accused. Learned counsel on both sides submitted arguments. 3. The point that falls for consideration is: Whether the order of refusal to take cognizance on the part of the learned Magistrate suffers from any illegality or irregularity or impropriety requiring interference of this Court in this revision? 4. POINT: To Sri K. Vasayya and his wife Smt Ramanamma there are eight children. Seven of them are sons who are arrayed as accused/Respondent Nos. 2 to 8. One of the children is daughter who is the complainant/revision petitioner herein. Respondent Nos. 9 and 10 are children of Respondent No. 2. The revision petitioner was given in marriage to Sri D. Amarnath. The father of the complainant Sri Vasayya died intestate in the year 1996. Among his children the properties remained joint and were not partitioned yet. During the life time of their father Sri Vasayya, it is stated that his daughter/revision petitioner and her husband lived with him and he allegedly gave four shops and a vacant site for his daughter. During his life time his daughter/revision petitioner enjoyed the rents of all the shops. However, on his death her brothers drove away the revision petitioner and her husband from their house and they have been high handedly taking away the rents from three out of the four shops. The remaining one shop and the vacant site lying behind the shops are allegedly in possession of the revision petitioner. It is in the back drop of these facts, the revision petitioner alleged that despite her best efforts the brothers were not partitioning the properties. On the other hand, their brothers are harassing them physically and mentally and threatening her and her husband always. That she complained the issue to Women’s Organizations and on their intervention her brothers agreed to give her shop bearing Door No. 11-4-65 and the vacant site behind the shop and a cash of Rs. 28 Lakhs. On the other hand, their brothers are harassing them physically and mentally and threatening her and her husband always. That she complained the issue to Women’s Organizations and on their intervention her brothers agreed to give her shop bearing Door No. 11-4-65 and the vacant site behind the shop and a cash of Rs. 28 Lakhs. A suit for partition that was filed was brought to Lok-Adalat. The brothers showed her a photostat copy of cheque bearing No. 0312790 dated 01.02.2003 drawn on Vijaya Bank. They did not give her the cheque. They did not comply with the terms of compromise arrived at before Women’s Organizations. They did not get the matter settled at Lok-Adalat. It is further stated that on the request of the revision petitioner, her husband commenced construction in the vacant space that has been in their possession and at that time the accused came there and with hands they beat her husband and criminally intimidated him. It is stated that A6 is a practicing lawyer and at his behest all these criminal behaviour was there on the part of all her brothers. 5. With the aforementioned allegations this revision petitioner initially presented a petition before Station House Officer on 29.07.2007 but the police failed to register a case. Thereafter, she filed a complaint before the learned Judicial Magistrate of First Class, Srikakulam, who in turn, in terms of Section 156(3) Cr.P.C. referred the matter to police. Thereupon police registered Crime No. 167 of 2007. After due investigation they filed a report before the learned Magistrate stating that it is a false case. In response to that this revision petitioner filed the protest petition before the learned Magistrate. 6. The learned Magistrate enquired into that protest petition during which course the revision petitioner gave her sworn statement as PW-1 and her husband Sri Amarnath gave his sworn statement as PW-2 and one Mr. T. Rama Rao who is a social worker gave his sworn statement as PW-3. No documents were exhibited. 7. After considering the entire material that was available on record, the learned Magistrate recorded its observations to the affect that the property between the parties remained joint and with reference to those properties a civil suit was pending and the allegations in the complaint and the sworn statements of witnesses merely indicated the dispute is of civil nature. 7. After considering the entire material that was available on record, the learned Magistrate recorded its observations to the affect that the property between the parties remained joint and with reference to those properties a civil suit was pending and the allegations in the complaint and the sworn statements of witnesses merely indicated the dispute is of civil nature. It was in that view in the matter, it found no prima-facie case. The offences are alleged mainly under Sections 323, 420, 447, 509, 427, 385, 355, 336, 147, 148 r/w. 34 IPC. In those circumstances, the learned Magistrate dismissed the complaint. 8. It is that Order which is challenged in this revision stating that the material on record clearly disclosed trespass into the property and criminal intimidation with deadly weapons and causing hurt with hands and the facts do indicate the ingredients for the offences under Sections 323, 423, 509 and 385 IPC. However, the learned Magistrate failed to considered the material on record and he erroneously dismissed the complaint and the said Order shall be set-aside. Learned counsel appearing for revision petitioner submits that prima-facie case could be seen from material and the observations of the learned Magistrate that it is a case in civil nature is erroneous. 9. As against that, appearing for Respondent No. 1/State, the learned Special Assistant Public Prosecutor submits that the police after due investigation found the allegations of this revision petitioner false and thereby referred the case and there is no merit in the impugning order of the learned Magistrate. 10. Learned counsel for accused argued that this very revision petitioner filed O.S. No. 102/2003 before the learned Senior Civil Judge, Srikakulam, as against the present accused and others and the relief prayed therein was for partition of properties and the said suit was dismissed for default for non-prosecution on 19.07.2007 by the learned Additional Senior Civil Judge, Srikakulam. Be it noted, this aspect of the matter is not disputed by the revision petitioner. Learned counsel appearing for Respondent Nos. Be it noted, this aspect of the matter is not disputed by the revision petitioner. Learned counsel appearing for Respondent Nos. 2 to 10/accused submit that instead of sorting out remedies through civil action, the revision petitioner has been attempting to cause unnecessary harassment to the respondents by making false, wild and baseless allegations and the reading of the entire complaint and sworn statements of witnesses do not make out any case at all for any of the offences and the learned Magistrate rightly appreciated the material and dismissed the complaint. Learned counsel further submits that imparting criminal colour to a civil dispute is nothing but abuse of the process of law and must be discouraged as was held by the Hon’ble Supreme Court of India in Mitesh Kumar J. Sha vs. State of Karnataka, 2021 (2) ALD (Crl.) 719 (SC). Learned counsel also cited P. Mallesh vs. State of Telangana, 2021 (1) ALD (Crl.) 85 (TS) wherein in a quash petition, it was held that from the available facts on record it was found that concerning the very same property a civil dispute was pending between the parties and in such circumstances initiation of criminal case is unwarranted. It is on these principles learned counsel for Respondent Nos.2 to 10 submit that there is no merit in the revision. 11. In the back drop of above contentions and the facts on record the point that fell for consideration is to be decided. 12. A Magistrate of the first class is empowered to take cognizance of any offence upon receiving a complaint of facts which constitute such offences as provided in Section 190(a) Cr.P.C. Cognizance means taking notice of an offence. On presentation of such a complaint praying the learned Magistrate to take cognizance, it is incumbent upon the learned Magistrate to examine the complainant and her witnesses as provided under Section 200 Cr.P.C. In the case at hand, the sworn statement of the complainant and her two witnesses were accordingly recorded by the learned Magistrate. On presentation of such a complaint praying the learned Magistrate to take cognizance, it is incumbent upon the learned Magistrate to examine the complainant and her witnesses as provided under Section 200 Cr.P.C. In the case at hand, the sworn statement of the complainant and her two witnesses were accordingly recorded by the learned Magistrate. After considering such material if there is still doubt in the mind of the learned Magistrate as to the non-availability of adequate material for him to consider a case, he could postpone the issue of process and make further inquire by himself or direct an investigation to be made by a police officer or by such other person and this procedure is provided in Section 202 Cr.P.C. The purpose of this provision is to enable the learned Magistrate to gather so much of material so as to scrutinize the same to find out whether there exists sufficient ground for him to proceed further or not. In the case at hand, at the first instance itself the complaint that was filed by the revision petitioner was forwarded to the police and the police after due investigation filed a report referring the case as false. So perhaps, it was for that reason the learned Magistrate did not collect any further material by way of investigation conducted by police. Section 203 Cr.P.C. provides that the learned Magistrate after considering the statements of the complainant and her witnesses, if holds an opinion that there is no sufficient ground for proceeding, the course open to him is that he shall dismiss the complaint and while doing so he must briefly record its reasons. In the case at hand, the learned Magistrate recorded his reasons briefly and dismissed the complaint as it did not find sufficient material to proceed further. Thus, he acted in terms of procedure prescribed under law. Therefore, the procedure adopted by the inquiring Court has been in accordance with law. Before this Court, revision petitioner did not point out any procedural errors on the part of the learned Magistrate. 13. While considering the aspect of taking cognizance the only duty of learned Magistrate is to see whether the material produced before him discloses commission of offence or not. If he finds that the facts disclosed do not indicate an offence he is precluded from taking cognizance. 13. While considering the aspect of taking cognizance the only duty of learned Magistrate is to see whether the material produced before him discloses commission of offence or not. If he finds that the facts disclosed do not indicate an offence he is precluded from taking cognizance. Certain facts may give raise to civil as well as criminal consequences. That there was a civil dispute between the parties is not in dispute as per the allegations in the complaint and the sworn statements of PWs. 1 and 2 and the impugned order. Now the only question is whether the material placed before the learned Magistrate disclosed any offence. 14. The complaint and the sworn statements of witnesses do indicate that the dispute between parties arose concerning joint family properties. The stated case of the complainant/revision petitioner is that the properties remained joint and un-divided. If that be the case, every joint sharer is deemed to have possession of the properties. Possession of one sharer is possession of others. Viewed in that context, now the allegation made in the complaint where trespass is alleged cannot be countenanced. When the properties are joint one sharer entering into property of other does not amount to trespass. One major offence alleged is cheating under Section 420 IPC. The facts concerning this offence are that while the civil suit for partition was pending, because of intervention of social service organizations both parties arrived at an amicable settlement. The amicable settlement was that the civil suit shall be brought to Lok-Adalat where the terms could be settled and a compromise could be recorded. Even according to the revision petitioner though matter was taken to Lok-Adalat the same was not settled. Thus, there was no legally concluded amicable settlement between parties. The allegation is that with a view to make her to enter into compromise the brothers promised to pay Rs. 28 Lakhs and towards that they showed a photostat copy of cheque for Rs. 3 Lakhs but they did not give her the cheque. The thrust of the allegation is that not giving the cheque to her is cheating. It is also argued that not entering into compromise is also cheating. Both the contentions are invalid. Parties expressing their willingness to compromise and finally failing to enter into compromise cannot be called as cheating at all. The thrust of the allegation is that not giving the cheque to her is cheating. It is also argued that not entering into compromise is also cheating. Both the contentions are invalid. Parties expressing their willingness to compromise and finally failing to enter into compromise cannot be called as cheating at all. If there was some sort of agreement arrived at between parties and if one party resiles from it the other one should pursue civil remedy for enforcement of those agreed terms. No one can compel a party to enter into any compromise. If that be so, failure to enter into compromise can never be called as cheating. On looking at the photostat copy of cheque or the cheque itself, the revision petitioner did not deliver any property to her brothers and did not consent for anything else and she did not stop from doing anything she intend to do and therefore in terms of Section 415 IPC there were no constituting facts to say that there was cheating to be taken cognizance for the offence under Section 420 IPC. 15. The other offence alleged under Section 385 IPC provide punishment for putting person in fear of injury in order to commit extortion. Section 383 IPC defines extortion. These provisions required facts showing that accused intentionally put PW-1/revision petitioner or her husband/PW-2 that they created fear in their mind, that accused would cause injury to them and thereby dishonestly induced them to deliver any property or valuable security to them. The allegations in the complaint and the material spoken through sworn statements do not indicate PW-1 or PW-2 giving any property or delivering anything to accused when they were allegedly intimidated by the accused. Therefore, there was no material for the learned Magistrate to take cognizance for the offence under Section 385 IPC. 16. The other offence alleged is under Section 323 IPC which operates on facts of voluntarily causing hurt. At Para 3 of the complaint, it is mentioned that it was during January, 2007 the accused with their hands beat the husband of complainant and that was witnessed by Sri Jami Surya Chandra Rao. The date of offence, the nature of injury sustained by PW-2 are not mentioned in the complaint. The said witness Jami Surya Chandra Rao was not examined by the complainant. The date of offence, the nature of injury sustained by PW-2 are not mentioned in the complaint. The said witness Jami Surya Chandra Rao was not examined by the complainant. There was no indication from the complainant as to whether her husband suffered hurt and whether he took any treatment etc. Thus, there was one mere allegation. Her husband gave sworn statement as PW-2 and said that on that occasion the accused beat his wife with hands. He did not say about the accused beating him. It was in such circumstances of contradictory statements the learned Magistrate could not find sufficient ground to proceed further and therefore dismissed the complaint. The arguments of the learned counsel for the revision petitioner could not persuade this Court to find out any prima-facie material that an offence was committed. Before inviting an innocent citizen to criminal Court directing him to stand up for trial, there should be sufficient material on record for a Court of law to summon the citizen. This Court finds absolutely no such material on record. In such facts and circumstances, the view taken by the learned Magistrate is in accordance with law and it does not suffer from any illegality or irregularity or impropriety and therefore there are no merits in this revision. Point is answered against the revision petitioner. 17. In the result, this Criminal Revision Case is dismissed. 18. As a sequel, miscellaneous applications pending, if any, shall stand closed.