THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRL.P.No.8528 OF 2015
And
CRL.R.C.Nos.721 and 266 of 2019
COMMON ORDER :
1 Heard Sri H.Sudhakar Rao, learned counsel for the petitioners and
Sri Mohd. Zafrullah, learned counsel for the unofficial respondent and Sri
Vizarath Ali, learned Assistant Public Prosecutor for the State. 2 Since the point involved in all these cases is intertwined and since the parties to all the cases are one and the same, all these matters are being disposed of by this common order.
3 Criminal Petition No.8528 of 2015 was filed to quash the proceedings against the petitioners in C.C.No.420 of 2013 on the file of the XIII Metropolitan Magistrate, Cyberabad at L.B.Nagar. 4 Petitioner Nos.2 and 3 are wife and husband and first petitioner is their younger daughter. The second respondent is the husband of the first petitioner and son-in-law of petitioner Nos.2 and 3. The second respondent lodged a complaint before the Saroornagar Police Station on 14.10.2013 against the petitioners which was registered as a case in Cr.No.1253 of 2008 for the offences punishable under Sections 420 and 406 of IPC. The case of the second respondent in the above case was 2 that his marriage with the first petitioner was performed on 29.7.2001. The second respondent was working in USA as software engineer. The first petitioner completed her BDS course. The first petitioner joined the second respondent in USA in 2001, but by afflux of time, she lost affection and love towards the second respondent and the petitioner Nos.2 and 3 added fuel to the fire as the second respondent did not heed to their advice and demand. The petitioner Nos.2 and 3 advised the first petitioner to take divorce from the second respondent and compelled the second respondent and made him to execute a divorce settlement deed under threat and fear of getting him and his family members jailed by falsely alleging cruelty and harassment upon his wife. A petition for mutual divorce was filed. Thereafter, the first petitioner and the second respondent left for USA separately and were living separately there. Subsequently, the second respondent returned to India and came to know that the mutual consent petition filed by the first petitioner was withdrawn by the second petitioner styling himself as GPA for the first petitioner. On demand, the second respondent deposited Rs.35,26,600/- in the name of his minor daughter. The second respondent was shown as guardian for the minor daughter though the first petitioner and the second respondent are alive. He also left and relinquished his right/title/interest over his flat and 2,303 sq. yards of land at Medchal, 3 subject to his wife's paying Rs.23,60,453/- within six months from 03.3.2008, yet she has not paid it under instigation and guidance of the petitioner Nos.2 and 3. Though the first petitioner was in USA since March, 2008, P.W.2 filed false complaint in Court and got registered FIR No.1073 of 2008 under Sections 498-A, 406 and 420 IPC at P.S, Saroornagar. Therefore, the second respondent lodged the above complaint which was registered as a case in Cr.No.1253 of 2008 under Sections 420 and 406 IPC. After investigating into the case, the police filed charge sheet, which was numbered as C.C.No.420 of 2013 on the file of the Court of the Court of the learned XIII Metropolitan Magistrate, Cyberabad, L.B.Nagar.
5 Aggrieved thereby, the petitioners filed Crl.P.No.14765 of 2013, which was disposed on 12.08.2014 with a direction to the trial Court to proceed with the trial of the case, but the presence of the petitioners shall not be pressed for each and every adjournment.
6 Contending that some important questions were not raised in the earlier quash proceedings, the petitioners filed the present criminal petition. The first petitioner filed a case in 61-FA-09-2069, dated 06.10.2010 before the District Court, Second Judicial District, Family Court Division, State of Minnesota, Country of Ramsey, USA, in terms of the settlement agreement dated 28.02.2008 executed between the first 4 petitioner and the second respondent wherein the USA court passed judgment dissolving the marriage between the first petitioner and the second respondent and that the second respondent herein admitted before the Family Court at USA with regard to transfer of funds to a tune of Rs.35,26,600/- to their minor daughter voluntarily and without the knowledge of the first petitioner. The said money stands in their daughter's name. The second respondent himself introduced the second petitioner as guardian for the minor girl, therefore, there is no prima facie case against the petitioners. It is the further contention of the petitioners that even as per the charge sheet filed by the police, Saroornagar, disclose that the alleged amount is pending before the Andhra Bank and it is an evidence under the Banker's Book Evidence and the record clearly disclose that no amounts were transferred in favour of the second petitioner or any other person. There is nothing on record about the role of the third petitioner in the entire charge sheet. Therefore, prayed to quash the proceedings in C.C.No.420 of 2013 on the file of the Court of the learned XIII Metropolitan Magistrate, Cyberabad at L.B.Nagar, by way of filing Crl.P.No.8528 of 2015. 7 While the things stood thus, the first petitioner filed Crl.M.P.No.482 of 2016 before the learned XIII Metropolitan Magistrate, Cyberabad at L.B.Nagar, under Section 239 Cr.P.C seeking to discharge from the 5 proceedings of the said calendar case. The learned trial Court, in its order dated 24.09.2018, in the above Crl.M.P., observed that the averments mentioned in the petition are all factual aspects and there is a strong suspicion about the involvement of the first petitioner in the alleged crime and hence a detailed trial is required and accordingly dismissed the said petition. Aggrieved thereby, the first petitioner filed Crl.R.C.No.266 of 2019.
8 Be that as it may, the learned trial Court issued Order dated 07.4.2019, authorising an attachment by the District Magistrate or Collector, as per Section 83 Cr.P.C. in Form No.8, stating that the first petitioner is suspected to have committed the offence of cheating and misappropriation of property punishable under Section 420 and 406 IPC and the warrant issued in that connection was returned and that she is avoiding service of summons / warrant. The learned trial Court further observed that it was shown to its satisfaction that the petitioner is concealing herself to avoid the service of the said warrant and thereupon a proclamation has been or is being duly issued and published requiring the fist petitioner to appear to answer the charge within thirty days and that the first petitioner is possessing certain land / property paying revenue to the Government as set out in the said order. Accordingly authorised and requested the District Magistrate / Collector to cause the 6 said land / property to be attached, in the manner specified in Clause (a) or (c) or both of sub-section (4) of Section 83 and to be held under attachment pending the further order of the Court. Aggrieved thereby, the first petitioner filed Crl.R.C.No.721 of 2019 seeking to set aside the order dated 07.4.2019 passed in C.C.No.420 of 2013 on the file of the Court of the IV Additional Metropolitan Magistrate - cum - IV Additional Junior Civil Judge, L.B.Nagar, Ranga Reddy District. 9 As seen from the material available on record, there was an agreement of settlement dated 28.02.2008 wherein both the first petitioner and the second respondent agreed to share certain money among themselves and to share some property to their daughter. The further allegation of the second respondent is that both parties agree that their daughter will be in the custody of the first petitioner till she attains majority. It is also the further allegation of the second respondent that the first petitioner will pay Rs.23,60,453-00 to the second respondent towards compensation for holding the flat at Hyderabad and vacant land admeasuring 2303 sq. yards in Medchal village and he will relinquish.
10 Taking the totality of the facts and circumstances of the case, this Court is of the prima facie opinion that all the cases filed by the petitioners fail for the reasons that in the discharge petition the learned 7 trial Court itself observed that there are sufficient grounds to proceed against the petitioner; the trial Court, in order to secure the presence of the first petitioner, issued warrant of attachment as she is concealing herself to avoid the service of the said warrant. Moreover, the specific allegation of the second respondent was that the first petitioner defaulted the agreement between the parties. All these matters are factual which require a thorough investigation as well as trial. So it is not a fit case to throttle the proceedings at the initial stage. It is only upon a detailed examination only, the truth will come to light whether the petitioners have committed the alleged offences or not. 11 Hence and for the reasons stated supra, Criminal Petition No.8528 of 2015 and Crl.R.C.Nos.721 and 266 of 2019 fail and accordingly they are dismissed.
12 As a sequel, miscellaneous petitions, if any, pending in all these cases shall also stand dismissed.
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E.V.VENUGOPAL, J.
Date: 09.11.2023 Kvsn