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2024 DIGILAW 1029 (AP)

Jameela Shaik v. State Of AP

2024-08-08

V R K KRUPA SAGAR

body2024
ORDER: V R K Krupa Sagar, J. This Criminal Revision Case filed under Sections 397 and 401 of Code of Criminal Procedure (Cr.P.C.) questions the correctness of docket order dated 16.09.2019 of learned II Additional Chief Metropolitan Magistrate, Vijayawada in C.F.No.10161 of 2019. 2. Smt. Kulsoom Bi and Smt. Jameela Shaik are stated to be real sisters. Smt. Kulsoom Bi filed O.S.No.860 of 2018 against her sister Smt. Jameela Shaik before the learned VII Additional Senior Civil Judge, Vijayawada. She claimed that the immovable property is owned by her and was under her use and occupation and out of affection her sister was permitted to stay on the first floor of the building gratuitously and as a licensee. Thereafter, despite the demands to vacate the premises and take away her movable properties, she failed to oblige and therefore, the suit was filed for a direction to the defendant to vacate and deliver vacant possession of the plaint schedule property within a period of two months. The defendant in the suit did not put up contest. After due hearing, the learned trial Court by judgment dated 18.03.2019 allowed the suit directing a decree to be drawn up for delivery of vacant possession of the property. 3. The judgment debtor did not comply with the said order. In such circumstances, the decree holder filed E.P.No.67 of 2019. After requisite enquiry, the executing Court issued a warrant for delivery. A Field Assistant of the Court acting upon the warrant instructions and in the presence of police, effected delivery of the immovable property. This execution was done in the presence of mediators also. As per the proceedings of the Field Assistant, judgment debtor and her family members were present when this execution was done. When they were asked to remove their movables, they refused and created galata. As the judgment debtor refused to remove the articles, the Field Assistant in the presence of police and panch witnesses prepared an inventory and seized the articles and kept them in the custody of decree holder on 01.07.2019. 4. Thereafter, judgment debtor approached the executing Court and filed E.A.No.56 of 2019 in E.P.No.67 of 2019 in O.S.No.860 of 2018 seeking redelivery of her movables. After due hearing, the learned executing Court granted redelivery. Accordingly, on 06.07.2019 a detailed list of articles was handed over to the judgment debtor and proceedings were prepared by the Field Assistant. 4. Thereafter, judgment debtor approached the executing Court and filed E.A.No.56 of 2019 in E.P.No.67 of 2019 in O.S.No.860 of 2018 seeking redelivery of her movables. After due hearing, the learned executing Court granted redelivery. Accordingly, on 06.07.2019 a detailed list of articles was handed over to the judgment debtor and proceedings were prepared by the Field Assistant. Judgment debtor signed the proceedings and received the articles. There are altogether item Nos.1 to 45 totalling worth Rs.1,05,950/-. In these papers she has specifically mentioned that she had verified the inventory of articles that was made and having found that everything tallied with and was intact, she received them. Thus, by 06.07.2019 those aspects stood concluded. 5. Subsequent thereto, judgment debtor filed a complaint under Sections 190 and 200 Cr.P.C. on 16.07.2019 before the learned II Additional Chief Metropolitan Magistrate, Vijayawada. As per the list of documents mentioned in this complaint, there are two documents. Serial No.1 is photostat copy of a complaint given by judgment debtor/complainant to police at Krishna Lanka. Serial No.2 is photostat copy of delivery report of the Field Assistant in E.P.No.67 of 2019. This complaint was filed against two individuals. The first one is the decree holder. The second one is the husband of the decree holder. They are shown as accused in the complaint. In the complaint Sections 378 and 379 I.P.C. are mentioned. The essence of the allegation of the complaint is that the Field Assistant was not expected to keep the seized articles in the custody of decree holder. He ought to have kept them in the custody of respectable mediators. It is then stated that she had now verified and found missing of gold ornaments worth Rs.1,00,000/-, valuable watches and cash worth Rs.46,000/- and valuable documents that were kept in the trunk box. It is alleged that they were taken away by the decree holder. To complain about it, the complainant went to police station and they refused to entertain the same stating that it was a matter civil in nature. Therefore, the said complaint was filed. 6. The learned II Additional Chief Metropolitan Magistrate raised certain objections and finally on 16.09.2019, after hearing the learned counsel and after perusing the record, it found that there was no case to be prosecuted and refused to entertain the complaint. 7. Aggrieved by that order, the complainant/judgment debtor preferred this revision. 8. Therefore, the said complaint was filed. 6. The learned II Additional Chief Metropolitan Magistrate raised certain objections and finally on 16.09.2019, after hearing the learned counsel and after perusing the record, it found that there was no case to be prosecuted and refused to entertain the complaint. 7. Aggrieved by that order, the complainant/judgment debtor preferred this revision. 8. Sri M.Giri Babu, the learned counsel for revision petitioner strongly contends that: The complaint disclosed cognizable offence and the Court below erred in not acting upon it. It could have either forwarded the case to the police or it could have inquired into and proceeded further and it failed to do so. In this regard, the learned counsel cited Seema Devi v. State of U.P., AIRONLINE 2018 ALL 4316 wherein all the principles concerning taking cognizance and entertaining complaint have been mentioned. Since the executing Court completed the task of execution of the decree and delivered the immovable property and recorded the delivery, there was no possibility for the complainant/judgment debtor to move any application before the executing Court. The husband of decree holder also participated in the process and committed the offences. It is for these reasons; the learned counsel seeks to set aside the order of the Court below and pass necessary directions. 9. As against it, Sri Vijaya Adithya, the learned counsel representing Sri C.Prakash Reddy, the learned counsel for respondent No.2/decree holder and respondent No.3, who is the husband of the decree holder, submits that in a duly constituted proceedings, Civil Court and its officers acted in accordance with law. The judgment debtor having no rights over the property has been prosecuting unnecessary litigation and creating these problems. That on 06.07.2019 she had completely verified the inventory and obtained all the articles intact and in writing acknowledged them. Having done that, she is estopped from complaining anything. It is also argued that instead of making any applications before the Civil Court, with a view to harass the parties, these criminal proceedings are put to process by the judgment debtor and the order of the Court below is right in accordance with law and facts and does not require any interference. 10. It is also argued that instead of making any applications before the Civil Court, with a view to harass the parties, these criminal proceedings are put to process by the judgment debtor and the order of the Court below is right in accordance with law and facts and does not require any interference. 10. Having considered the material on record and the rival submissions and the ruling cited, the following aspects are to be stated: All that were seized were enlisted and appropriate proceedings were drawn up by the Field Assistant and that was signed by two independent panch witnesses and the decree holder. All that was done in the presence of police. One among the items therein is her trunk box containing clothes and samans. That is item No.7 in the list prepared on 01.07.2019. Redelivery and the list signed by revision petitioner on 06.07.2019 shows that item No.7 as trunk box with clothes and samans. She stated that everything was intact and they tallied and she obtained delivery of it. 11. As per the complaint, gold articles worth Rs.1,00,000/-, imported valuable watches and cash worth Rs.46,000/- were kept in the trunk box and they were missing. Along with the complaint documents indicating ownership of such watches and gold articles are not attached. Description of gold articles and the number of gold articles and the names and companies of the stated imported watches are also completely missing. The exact amount of cash that was kept is also missing. Thus, all those basic details that are required and basic documents that are required to prima facie show ownership of any of them are not available from the complaint. There is no mention as to why on noticing missing of such valuables, the matter was not taken up before the executing Court. The submission of the learned counsel is that proceedings in execution were closed and therefore, they did not approach the Civil Court. It seems such submission has no legal basis. One may notice Order XXI Rules 43 and 43A C.P.C. in this regard. The failure of the Field Assistant in not keeping the seized articles in the custody of the third party is also a matter to be complained to the Civil Court. It seems such submission has no legal basis. One may notice Order XXI Rules 43 and 43A C.P.C. in this regard. The failure of the Field Assistant in not keeping the seized articles in the custody of the third party is also a matter to be complained to the Civil Court. A reading of the complaint and the context of facts among which it had arisen makes it apparently clear that this is an effort to armtwist the decree holder. It was on a complete comprehension of the facts and circumstances, the learned trial Court refused to entertain the complaint. A Criminal Court is entitled to consider the material on record and only when it finds that the facts constitute an offence, it can take cognizance and can summon any individual. From the facts on record, one would not see any dishonest removal of property by the decree holder or her husband. What took place through legal process is sought to be questioned without any basis in it. Making a mere allegation in a complaint without showing any basis does not warrant initiation of prosecution. The learned Court below appropriately refused to act upon such complaint of the revision petitioner. In these circumstances, the impugned order cannot be said to be illegal or improper. Therefore, no interference is needed. 12. In the result, this Criminal Revision Case is dismissed. The docket order dated 16.09.2019 of learned II Additional Chief Metropolitan Magistrate, Vijayawada in C.F.No.10161 of 2019 stands confirmed. As a sequel, miscellaneous applications pending, if any, shall stand closed.