THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION Nos.4451 AND 4471 OF 2018
COMMON ORDER:
Criminal Petition No.4451 of 2018 is filed under Section 482
Cr.P.C., to quash the proceedings in Crime No.548 of 2014 pending
on the file of Jubilee Hills Police Station, Hyderabad. The petitioner
herein is accused No.3 in the said crime. The offences alleged against
the petitioner are under Sections 467, 471, 420, 406, 506 and 120-B
read with 34 IPC.
2. Criminal Petition No.4471 of 2018 is filed to quash the
proceedings in CC No.655 of 2016, pending on the file of XVII
Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
The petitioners are Accused Nos.1 and 2 in the said CC. The offences
alleged against the petitioners herein are under Sections 406, 420 and
506 read with 120-B and 34 IPC.
3. On the complaint lodged by the 2nd respondent - de facto
complainant in both the petitions, the Police, Jubilee Hills, have registered a case in Crime No.548 of 2014 against the petitioners in both the petitions - Accused Nos.1 to 3 and after completion of investigation, the police have laid charge sheet against the petitioners in Crl.P. No.4471 of 2018 i.e. accused Nos.1 and 2. Since the Investigating Officer in the said crime is unable to trace out the petitioner in Crl.P. No.4451 of 2018 i.e. Accused No.3, the 2 KL,J Crl.P. Nos.4451 & 4471 of 2018 Investigating Officer has not laid the charge sheet against A3. However, in the charge sheet, it is specifically mentioned that even after many efforts, the whereabouts of A-3 are not known and hence, a supplementary charge sheet will be filed as and when A3 is apprehended and arrested. In view of the same, A-3 has filed Crl.P. No.4451 of 2018 seeking to quash the very FIR itself since the charge sheet is not filed against him.
4. The crime, de facto complainant and the issues involved in both the criminal petitions are one and the same and therefore, they are being heard and disposed of together vide this common order.
5. Heard Sri Gaurav Bhatia, learned senior counsel representing Sri P. Vishnu Vardhan Reddy, learned counsel for the petitioners in Crl.P. No.4471 of 2018, Sri P. Vishnu Vardhan Reddy, learned counsel for the petitioner in Crl.P. No.4451 of 2018, Sri M. Srinivasa Ayyangar, learned counsel for the de facto complainant in both the petitions and the learned Public Prosecutor. Perused the record.
6. The allegations against the petitioners, as per the complaint dated 15.06.2014, are as follows:
The 2nd respondent is the absolute owner of flats bearing Nos.201, 202, 301 and 302 in a residential building called Moksha Apartments. The said building was built on the land, which has been bequeathed by her mother to her. She has three children including 3 KL,J Crl.P. Nos.4451 & 4471 of 2018 A-1. A-2 is her daughter in law. A-3 is nephew of her ex-husband. A-1, son of the 2nd respondent, addicted to alcohol and is unable to look after himself and his family normally. The 2nd respondent has supported him financially and emotionally. She has tried her best to look after A-1 and his family, apart from permitting him to stay in Flat No.302. She has done her best as any mother to help him get along with life. She has also paid for all his treatment for alcohol addiction. She has also explained the tragedies that she had during her lifetime.
For the last one year, A-1 and A-2 started harassing the 2nd respondent insisting that she should transfer all her properties in their favour. The 2nd respondent is having two more children and since there is no other means of subsistence, she has been refusing to accede the request of extortion of A-1 and A-2 inspite of repeated threats and harassment by them. They have been trying their level best to get the signatures of 2nd respondent on stamp papers stating that she has to gift two flats in their favour and A1 has taken signatures on some blank papers, including cheques taking advantage of the age of the 2nd respondent. She was physically threatened with violence and insults and intimidation by A1 and A2 aided and encouraged by A3. It is further alleged that A3 threatened and blackmailed the 2nd respondent that if the properties are not transferred in the name of A1 and A2, false criminal cases would be filed against her and as well as false complaints would be made to the government to take away her property received from her mother. He is well 4 KL,J Crl.P. Nos.4451 & 4471 of 2018 connected with the senior government officials. A1 has gone to the extent of denying the 2nd respondent of her right to use lift apart from threatening the servants, damaging the garden. Her life got tortured due to the said harassment meted out by A1 to A3. A1 started making false allegations against the 2nd respondent by sending mails to her second husband, who is staying in Germany. A1 has let out Flat No.301 to a tenant without any authority and without the knowledge of 2nd respondent in the month of April 2014. She has sent a notice to the tenant demanding eviction. A1 and A2 have started harassing the tenant of the 2nd respondent in respect of flat No.201. He has also send mails to them. The 2nd respondent has lodged police complaint against A1 and A2 and when the police personnel came to the said premise, A3 was present in the flat with A1 and A3 threatened the 2nd respondent and also informed the police that all the four flats belonged to A1 and produced and extract of encumbrance. They created lease deed in favour of M/s.R.S. Solutions, represented by A2, wife of A1 and the minor son of A1 and A2 for a period of 30 years at a nominal rent of Rs.10,000/- per annum. A1 to A3 in connivance with each other conspired against the 2nd respondent and created the said fake document and cheated the 2nd respondent. With the said allegations, the 2nd respondent has lodged a complaint to the Police, Banjara Hills on 15.06.2014, who inturn registered a case in Crime No.548 of 2014 for the above said offences.
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7. On completion of investigation, the police have laid charge sheet against A1 and A2. In the charge sheet, it is specifically mentioned that efforts were made to apprehend A3, but his whereabouts are not known and a supplementary charge sheet will be filed as and when they arrest A3.
8. Sri Gaurav Bhatia, learned Senior counsel, representing Sri P. Vishnu Vardhan Reddy appearing for A1 and A2 would submit that the contents of the complaint and the charge sheet lacks the ingredients of offences lodged against A1 and A2. Admittedly, a suit vide O.S. No.546 of 2014, filed by the 2nd respondent seeking eviction and damages/mesne profits is pending. The 2nd respondent has intentionally suppressed the said facts. Thus, she is trying to criminalize the civil proceedings. There is suppression of fact. He would further submit that there is no 'mens rea' or element of cheating. There is no allegation of inducement from the inception in the complaint lodged by the 2nd respondent.
9. The 2nd respondent executed a General Power of Attorney and received rents and thereafter she has lodged the present complaint. The GPA was executed on 11.04.2008 basing on which a lease was entered on 24.08.2012. The same was revoked on 09.06.2014 and the 2nd respondent has lodged the complaint on 15.06.2014. The said facts would reveal that there is abnormal delay in lodging the complaint by the 2nd respondent, which would show 6 KL,J Crl.P. Nos.4451 & 4471 of 2018 that she has implicated the accused in a false case to settle her score and claim in the above said suit i.e. O.S. No.546 of 2014. Placing reliance on the judgments of the Hon'ble Supreme Court reported in Paramjeet Batra v. State of Uttarakhand and others1; in Commissioner of Police v. Devender Anand and others2 and in B.Suresh Yadav v. Sharifa Bee and another3, learned Senior Counsel would submit that the Hon'ble Apex Court has categorically held that where the proceedings with regard to a particular issue is pending in civil court, the allegations are civil in nature, the criminal proceedings cannot go on. When there is no element of cheating in the contents of complaint and charge sheet, it has to be quashed. With the said submissions, learned senior counsel sought to quash the proceedings in CC No.655 of 2016.
10. Sri P. Vishnu Vardhan Reddy, learned counsel representing A3, while adopting the arguments of Sri Gaurav Bhatia, learned senior counsel, would submit that the 2nd respondent is mother of A1. She used to work in a star hotel and she had illicit relationship with a German citizen, who is a customer of the said star hotel. She gave divorce to her first husband i.e father of A1, and she left to Germany with the said German citizen. Thus, she has neglected A1. Due to the harassment of the 2nd respondent, her first husband, father of A1, died. The contents of the complaint lacks the ingredients of the offences 1 2013 (11) SCC 673 2 2019 SCC Online 996 3 2007 (13) SCC 107 7 KL,J Crl.P. Nos.4451 & 4471 of 2018 alleged against A3. According to him, A3 is nothing to do with the alleged allegations and the properties of the 2nd respondent. She has implicated A3 in a false case. The police have not examined the witnesses to the said lease deed and they have laid charge sheet against A1 and A2 without following due procedure. Admittedly, the suit i.e. O.S. No.546 of 2014 is pending and the 2nd respondent instead of pursuing the said suit, lodged the present complaint implicating all the accused in a false case. A3 is not absconding as alleged by the police in the charge sheet. A3 is the son of paternal aunt of A1. He is a respected member of the society, author of more than 7 books and he is author of more than 7 books. He has authored books on Mahatma Gandhi, Dr. B.R.Ambedkar, Kakatiya Dynasty, ancient Trade Routs etc. There are no allegations much less specific allegations against A3. Even then, the 2nd respondent has implicated A3 in the said crime. With the said submissions, learned counsel for A3 sought to quash crime No.548 of 2014 against A3.
11. Sri M. Srinivas Ayyangar, learned counsel for the 2nd respondent in both the criminal petitions would submit that there are specific allegations against each of the accused and the role played by them is also specifically mentioned in the complaint. A1 has created the lease deed without any authority. Two flats i.e. 301 and 302 are in possession of the said R.S. Solutions and therefore, the 2nd respondent has filed the above said suit seeking eviction and mesne profits. The contents of the complaint dated 15.06.2014 constitute the offence 8 KL,J Crl.P. Nos.4451 & 4471 of 2018 alleged against the accused. He has also placed reliance on the principle laid down by the Hon'ble Apex Court in Rajeev Kourav v. Baisahab4 in support of his contention. He would further submit that 8,000 sft., was let out @ Rs.10,000/- per annum towards rent. He has also referred to the provisions of the Registration Act. Since A3 was absconding, the police have not laid charge sheet against him. Thus, according to the learned counsel, there are specific allegations against each of the accused and A1 and A2 instead of facing the trial, and A3 instead of cooperating with the Investigating Officer filed the present criminal petitions seeking to quash the FIR and the Calendar Case. With the said submissions, learned counsel for the de facto complainant sought to dismiss the present criminal petitions.
12. Learned Public Prosecutor, on instructions, would submit that since the complaint dated 15.06.2014 lodged by the 2nd respondent constitutes cognizable offence against the accused, the police have registered the said crime. After completion of investigation, they have laid charge sheet against A1 and A2 and since A3 is not available and the police are unable to trace out him, charge sheet was not laid against him. A3 has to cooperate with the Investigating Officer. Instead of doing so, he has filed the present petition. There are several triable issues in CC No.655 of 2016 and factual aspects to be investigated into by the Investigating Officer against A3 in Crime No.548 of 2014. Due to non-cooperation of A3, 4 (2020) 3 SCC 317 9 KL,J Crl.P. Nos.4451 & 4471 of 2018 the crime of the year 2014 is pending against him. The CC is of the year 2016. Therefore, according to him, just because there is a suit pending and there are disputes between the accused No.1 and the 2nd respondent with regard to the said properties, the proceedings in the above said crime and CC cannot be quashed since there are specific allegations of threatening, harassment, forgery etc., against each of the accused and the role played by them in commission of the offence. With the above submissions, learned Public Prosecutor sought to dismiss both the criminal petitions.
13. The above said facts would reveal that A1 is the son of 2nd respondent. In the complaint itself, the 2nd respondent has stated about giving divorce to her first husband and marrying a German citizen. It is also specifically mentioned that she has shifted to Germany. In the complaint, there is specific allegation that she is the owner of Flat Nos.201, 202, 301 and 302 of a residential complex, namely, Moksha Apartments. Even the General Power of Attorney, dated 11.04.2008, said to have been executed by the 2nd respondent in favour of A1 discloses the said fact. On the strength of the said GPA, A1 has executed a lease deed dated 24.08.2012 in favour of R.S. Solutions, represented by A2, his wife, and his son. The said lease deed also reveals that 2nd respondent is the owner of Flat Nos.201, 202, 301 and 302 of Moksha Apartments. A1 is claiming that the 2nd respondent has executed the said GPA on 11.04.2008 and on the strength of the said GPA, he has executed the GPA and the 2nd 10 KL,J Crl.P. Nos.4451 & 4471 of 2018 respondent revoked the said GPA on 09.06.2014. Whereas the 2nd respondent is claiming that the accused in connivance with each other with a criminal conspiracy got the said GPA and they have forged the signature of the 2nd respondent. Thus, prima facie, there are specific allegations in the complaint dated 15.06.2014. The police, basing on the statement of the 2nd respondent, laid charge sheet against A1 and A2.
14. There are, prima facie, specific allegations against all the accused that they have harassed the 2nd respondent and they have also threatened her to transfer the above said three flats in favour of A1 and A2. There is also specific allegation against A3 saying that he will implicate the 2nd respondent in criminal cases and also lodge complaints against her with government officials. There is also specific allegation that A3 is having good relations with government officials. A1 and A2 have denied the right of the 2nd respondent to use the lift apart from threatening her servants, damaging the garden etc. There is also specific allegation that when she lodged complaint with the police about the harassment of A1 and A2, the police came to the premises and A3 was present in the flat with A1 and A3 threatened her and A3 was also informed the police that all the four flats belong to A1. He has produced letter dated 26.08.2014 and encumbrance certificates. Thus, prima facie, there are specific allegations against all the accused. There are allegations of forgery, conspiracy, cheating causing loss to the 2nd respondent by A3.
11 KL,J Crl.P. Nos.4451 & 4471 of 2018
15. There are several triable issues in CC No.655 of 2016. There are several factual aspects to be investigated into by the Investigating Officer during the course of investigation in Crime No.540 of 2014 with regard to allegations leveled against A3 and the role played by him in commission of offence. According to police, despite several efforts, they could not trace out A3 and therefore, they have not laid charge sheet against him.
16. In this regard, it is apt to refer to the decision rendered by the Hon'ble Supreme Court in Kamal Shivaji Pokarnekar v. The State of Maharashtra5, wherein the Apex Court has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash same. It was not necessary that, a meticulous analysis of case should be done before trial to find out whether case would end in conviction or acquittal. If it appeared on a reading of complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during trial, might lead to acquittal, were not grounds for 5 . AIR 2019 SC 847 12 KL,J Crl.P. Nos.4451 & 4471 of 2018 quashing complaint at threshold. At that stage, only question relevant was whether averments in complaint spell out ingredients of a criminal offence or not. The Court has to consider whether complaint discloses that prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out in complaint, criminal proceeding shall not be interdicted.
17. In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh and Ors.6, the Hon'ble Supreme Court has categorically held that the High Court has to exercise its inherent powers under Section 482 Cr.P.C., to quash the FIRs and criminal proceedings in rarest of rare cases and the said power has to be exercised very sparingly and with circumspection.
18. In M/s. Neeharika Infrastructure Private Limited v. State of Maharashtra and others7, the Three-judge Bench of Hon'ble Apex Court laid certain parameters for the purpose of exercising powers by High Courts under Section 482 of Cr.P.C and also under 6 Manu/SC/0898/2020 7 Criminal Appeal No.330 of 2021, decided on 13.04.2021 13 KL,J Crl.P. Nos.4451 & 4471 of 2018 Article 226 of Constitution of India. The relevant parameters are extracted as under:
"....
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases ( not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule'
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere'
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the 14 KL,J Crl.P. Nos.4451 & 4471 of 2018 allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;"
19. In view of the law laid down by the Hon'ble Supreme Court and also as discussed supra, there are several triable issues in CC No.655 of 2016 pending against A1 and A2 and there are several factual aspects to be investigated into by the Investigating Officer during the course of investigation against A3 in Crime No.548 of 2014. Admittedly, the suit in OS No.546 of 2014 filed by the 2nd respondent against A1 and A2 and their children seeking eviction, damages/mense profits with regard to Flat Nos.301 and 302, is pending. The said suit is posted for trial.
20. According to the learned counsel for the accused, there are contradictions with regard to version of the 2nd respondent in the complaint dated 15.06.2014 and the plant in O.S No.546 of 2014. According to this Court, the said contradictions are triable issues, the Court has considered on the petition filed under Section 482 of Cr.P.C., and therefore, on the said ground, the proceedings in Crime No.548 of 2014 and CC No.655 of 2016 cannot be quashed.
15 KL,J Crl.P. Nos.4451 & 4471 of 2018
21. In view of the above said law laid down by the Hon'ble Apex Court in Kamal Shivaji Pokarnekar's case, Skoda Auto Volkswagen India Private Limited's case and in M/s. Neeharika Infrastructure's case, the principle relied upon by the learned counsel for the accused in the above said cases is not applicable to the facts of the case. Whether the 2nd respondent has neglected A1 by staying with a German Citizen, is a triable issue and the accused can take the said defence during the course of trial in the above said CC. Whether the said GPA was obtained by forging the signature of the 2nd respondent etc., are also again triable issues. According to A1 and A2, the 2nd respondent has received rent of Rs.10,000/- per annum in respect of the above said flats and whereas according to the 2nd respondent, the said flats are situated in a prime place i.e. Banjara Hills and the extent is also huge and therefore, the said rent of Rs.10,000/- per annum is nominal. The rental period is mentioned as 30 years. The said lease deed is in favour of R.S. Solutions represented by A2, wife of A1 and their son. According to her it is a sham document. The said issues are triable issues. Accused have to face trial and have to prove their innocence. The said defence cannot be considered by this Court in the present applications under Section 482 Cr.P.C.
22. It is contended by the learned counsel for the 2nd respondent and the learned Public Prosecutor that there are specific 16 KL,J Crl.P. Nos.4451 & 4471 of 2018 allegations against each of the accused and the role played by them is also specifically mentioned in the complaint dated 05.06.2014.
23. It is relevant to mention that the crime is of the year 2014. The CC is of the year 2016. In view of the same, this Court is not inclined to quash the proceedings in Crime No.548 of 2014 and CC No.655 of 2016. The accused failed to make out any ground to quash the proceedings in the above said crime and CC. Therefore, Crl.P. Nos.4451 and 4471 of 2018 are liable to be dismissed and accordingly, they are dismissed.
Miscellaneous petitions, pending if any, shall stand dismissed.
_________________
K. LAKSHMAN, J
Date:01.06.2021
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17 KL,J
Crl.P. Nos.4451 & 4471 of 2018
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION Nos.4451 AND 4471 OF 2018
Date: .06.2021
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