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2024 DIGILAW 394 (AP)

Boya Shaik Shavali@ Shaik Shavali v. State Of Andhra Pradesh

2024-03-26

VENKATA JYOTHIRMAI PRATAPA

body2024
ORDER : Venkata Jyothirmai Pratapa, J. The instant petitions under Section 482 of Code of Criminal Procedure, 1973[for short ‘Cr.P.C’] have been filed by the Petitioners/Accused Nos.1 to 3 and 4 & 5 respectively, seeking to quash the proceedings against them in Crime No.2 of 2020 on the file of Kadapa Taluq U/G Police Station, YSR Kadapa District, which was registered for the offence punishable under Sections 420 and 506 read with 34 of Indian Penal Code, 1860[for short ‘IPC’]. 2. The facts mentioned in the complaint, in brief, are as follows: a. Accused Nos.2 and 5 are the wives of Accused No.1, Accused No.3 is the younger sister of Accused No.1 and Accused No.4 is the friend of Accused No.1. In the year 2011, one Saleem Bhaskar Naidu, Advocate, Dhone, who is his classmate introduced Accused No.1 to Respondent No.2/ Complainant. Subsequently, Accused Nos.1 to 3 approached Respondent No.2/Complainant and requested to arrange money for their business purpose by agreeing to mortgage the house properties of Accused No.1. b. Pursuant to their request, Respondent No.2 sent an amount of Rs.1,56,00,000/- on various dates from 07.04.2018 to 06.02.2019 through RTGS/NEFT from his bank accounts to the bank accounts of Accused Nos.1 to 3. He had also given an amount of Rs.1,94,00,000/- to them by way of cash on different dates. c. In December, 2018, Accused Nos.1 to 3 came to his house and executed an unregistered Mortgage Deed at his house in Kadapa mortgaging their house properties and clearly mentioned in the said Mortgage Deed about receipt of total amount of Rs.3,50,00,000/- and also mentioned that they will discharge the said amount by 28.02.2019 and get the properties redeemed and in default of payment of the said amount, they will execute regular registered sale deed of the said properties. d. Subsequently, Respondent No.2 was given to understand that Accused Nos.1 and 2 already executed an agreement of sale on 19.11.2018 in favour of one Y.B. Sreelatha @ Seelam Sreelatha, W/o.Bhaskar Naidu with regard to the mortgaged properties and they suppressed about the said agreement of sale. d. Subsequently, Respondent No.2 was given to understand that Accused Nos.1 and 2 already executed an agreement of sale on 19.11.2018 in favour of one Y.B. Sreelatha @ Seelam Sreelatha, W/o.Bhaskar Naidu with regard to the mortgaged properties and they suppressed about the said agreement of sale. e. After three months, when the Complainant demanded for repayment of the said amount, they gave evasive and aggressive reply and threatened him that they have got acquaintance with the Higher Officials, political influence and rowdy elements and are also trying to kill him to evade the payment, with the help of Accused Nos.2, 4 and 5 and thereby cheated the Complainant. f. Accused Nos.1 to 5 intentionally and knowing fully well that they had no right over the said property, mortgaged the same, inducing him to part with his money with an intention to deceive him. As such, he lodged the present complainant which was registered as a case in Crime No.2 of 2020 for the offences under Sections 420 and 506 read with 34 IPC against Accused Nos.1 to 5. Grounds Sought for quashment : 3. Aggrieved by the registration of the said Crime, Petitioners/Accused Nos.1 to 5 filed the present petitions seeking quashment of the proceedings against them on the following grounds. a. Petitioners are no way connected with the above said offences. Even as per the complaint, all the allegations are vague and civil in nature. Therefore, investigation against the Petitioners/Accused Nos.1 to 5 is not permissible in the eye of Law. b. The alleged transaction is a loan transaction and cheating does not arise in this case as the Accused did not receive the money with an intention to cheat the Complainant. The Complainant has to file a suit for recovery of money. The Complaint is silent about the specific dates and amounts alleged to have been lent by the Complainant to the Accused. c. Petitioners/Accused Nos.1 and 2 had already executed an agreement of sale with regard to the house properties in favour of Y.B.Sreelatha @ Seelam Sreelatha. d. The Complainant is highly educated person and it is unbelievable that he had given huge amount of Rs.3,50,00,000/- to the Accused without taking any promissory note. e. The Complainant is a practicing Advocate at Kadapa and also doing finance business with high interest and he is habituated to harass the borrowers by using gundas and rowdy elements. d. The Complainant is highly educated person and it is unbelievable that he had given huge amount of Rs.3,50,00,000/- to the Accused without taking any promissory note. e. The Complainant is a practicing Advocate at Kadapa and also doing finance business with high interest and he is habituated to harass the borrowers by using gundas and rowdy elements. After filing of this complaint, the Complainant along with his henchmen have come to the house of the Petitioners and abused them in filthy language and also threatened with dire consequences to recover the amount. f. Accused No.1 had received several loans on different dates from the Complainant and had cleared the same. Having received the signatures of Accused Nos.1 and 2 on empty papers, the Complainant has been harassing them by creating fabricated documents like mortgage deed and agreement of sale etc. g. Respondent No.2/Complainant converted the civil case into a criminal case to threaten the Accused. The allegations leveled against the Petitioners are all bald and omnibus. Therefore, continuation of proceedings against the Petitioners is an abuse of process of laws. Arguments Advanced at the Bar 4. Heard Sri Y.Balaji, learned counsel for the Petitioners/Accused Nos.1 to 5 and Ms.D.Prasanna Lakshmi, learned Assistant Public Prosecutor representing the State/Respondent No.1. Despite giving sufficient opportunity, Sri P. Narasimhulu, learned counsel for Respondent No.2 did not turn up to submit his arguments. 5. Learned Counsel for the Petitioners would submit that the allegations leveled against the Petitioners are bald and omnibus. It is also contended that a pure civil dispute, was converted as a criminal case. There is no prima facie case made out against the Petitioners for the offences alleged against them. The present complaint has been filed with an oblique motive and malicious intention to threaten the Petitioners for accepting the illegal demand of Respondent No.2. It is also contended that a pure civil dispute, was converted as a criminal case. There is no prima facie case made out against the Petitioners for the offences alleged against them. The present complaint has been filed with an oblique motive and malicious intention to threaten the Petitioners for accepting the illegal demand of Respondent No.2. In support of his contention, the learned counsel relied on the decisions of the Hon’ble Apex Court in Inder Mohan Goswami v. State of Uttaranchal, 2007 LawSuit (SC) 1095, Paramjeet Batra v. State of Uttarakhand & Others 2012 LawSuit (SC) 840, Prof.R.K.Vijayasarathy & Another v. Sudha Seetharam & Another, 2019 LawSuit (SC) 213 , Mitesh Kumar J.Sha v. State of Karnataka & Others, 2021 LawSuit (SC) 659, Gulam Mustafa v. State of Karnataka & Another, 2023 LawSuit (SC) 522, Daxaben v. State of Gujarat & Others, 2023 LawSuit (SC) 882 and of this Court in Rayapati venkata Siva Rama Chand v. State of A.P. 2022 LawSuit (AP) 1027. 6. Per contra, learned Assistant Public Prosecutor, would submit that, there are clear allegations against the Petitioners which would attract the alleged offences. When there are disputed facts to be revealed during enquiry, this Court cannot exercise its jurisdiction under Section 482 Cr.P.C., at this stage. Therefore, Court cannot quash the proceedings against the Petitioners. Hence, pray for dismissal of the petition. Point for Determination 7. Having heard the submissions of the learned counsel representing both the parties, now the point that would emerge for determination is: Whether there are any justifiable grounds for quashment of proceedings against the Petitioners/Accused Nos.1 to 5 in Crime No.2 of 2020 on the file of Kadapa Taluq U/G Police Station, YSR Kadapa District, registered for the offence punishable under Sections 420 and 506 read with 34 IPC? Determination by the Court 8. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 9. Specific circumstances warranting the invocation of the provision must be present. To identify these specific circumstances, it is essential to discuss some precedents. The decision rendered by the Hon’ble Apex Court in State of Haryana and others v. Bhajanlal and others, AIR 1992 SC 604 is considered as the guiding torch in the application of Section 482. At paras 102 and 103, the circumstances are spelt out as follows; “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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. (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 Section 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. 103. 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.” (emphasis supplied) 10. In the case on hand, it is alleged that, at the request of Accused Nos.1 to 3, Respondent No.2 transferred an amount of Rs.1,56,00,000/- on different dates from 07.04.2018 to 06.02.2019 through RTGS/NEFT from his bank accounts to their bank accounts and also paid an amount of Rs.1,94,00,000/- in cash on different dates by executing an unregistered Mortgage Deed in December, 2018 in his favour, by mortgaging their house properties, by suppressing the execution of an agreement of sale on 19.11.2018 in favour of one Y.B.Sreelatha @ Seelam Sreelatha, W/o.Bhaskar Naidu with regard to the mortgaged properties. 11. It is contended by the learned counsel for the Petitioners that, at the time of borrowal of the amounts, Respondent No.2 obtained the signatures of the Accused on various documents and even after discharge of the said amount, filed the present complaint with the help of those documents. However, no material has been filed to prove their contention. Further, though it is contended that the matter is of civil nature and criminal proceedings cannot be initiated against the Petitioners, it is well settled principle of law that mere availability of civil remedy does not absolve the criminal liability on the Accused. 12. It is the case of Respondent No.2 that he transferred the amount through RTGS/NEFT. As such, there is every possibility to find out the truth or otherwise of the said allegations during investigation by verifying the relevant documents pertaining to the bank transactions of the Accused as well as Respondent No.2. The Petitioners raised several contentions disputing the factual aspects of the matter. The decisions relied on by the learned counsel for the Petitioners are not helpful to the case of the Petitioners, since there are specific allegations against the Petitioners. Therefore, it is not the stage to decide the veracity of the said allegations. Truthfulness of the said contentions can be revealed during investigation only. Evaluation of the merits of the allegations made on either side cannot be resorted to at this stage. This case does not fall under any of the guidelines prescribed in Bhajanlal’s case (supra). 13. Hence, this Court concludes that the allegations prima facie made against the Petitioners, in this case, are sufficient enough for the investigation to be taken up and thereby, the proceedings against the Petitioners are not advisable to be quashed and hence, the petitions deserve dismissal 14. 13. Hence, this Court concludes that the allegations prima facie made against the Petitioners, in this case, are sufficient enough for the investigation to be taken up and thereby, the proceedings against the Petitioners are not advisable to be quashed and hence, the petitions deserve dismissal 14. In the result, the Criminal Petitions are dismissed. Pending miscellaneous petitions, if any, shall stand closed.