THE HON'BLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY
CRIMINAL PETITION Nos.7157 and 7372 of 2023
COMMON ORDER:
Since the issue involved in both the Criminal Petitions is
one and the same, they are being heard and disposed of by this
common order.
2. These two Criminal Petitions are filed under Section 482
Cr.P.C., seeking to quash the proceedings in C.C.No.110 of 2018
on the file of Hon'ble XII Additional Chief Metropolitan
Magistrate, Nampally, Hyderabad, against the petitioners -
accused Nos.1,2,3,5,7,8,9,11,12,13 and 22 and accused No.17
respectively.
3. The brief facts of the case are that on 25.02.2023, respondent
No.2 lodged a complaint before the Station House Officer, Charminar Police Station, against the petitioners herein and other accused alleging that the Registrar of Mutually Aided Cooperative Societies (MACS), Hyderabad vide proceedings No.11864/2011/HR-4 dated 22.02.2012 and 25.05.2012 has ordered an enquiry under Section 29(2) of Andhra Pradesh 2 Mutually Aided Cooperative Societies Act, 1995 (for short, 'A.P. MACS Act 1995') into the affairs of the A.P. High Court Employees Mutually Aided Cooperative Housing Society Limited, Hyderabad (for short, the 'Society') and appointed the Divisional Cooperative Officer, Secunderabad Division, Hyderabad, as an Enquiry Officer to conduct an enquiry and submit a report about the functioning and gross violation of provisions of the A.P. MACS Act, 1995 committed by the Adhoc/Managing Committee and its office bearers with special reference to the following issues/allegations commencing from the date of registration i.e., 29.07.2003.
1. The Adhoc Managing Committee failed to conduct election as per Section 23(i) of the A.P. MACS Act, 1995.
2. The Management existed up to the year 2007 failed to arrange to get its account audited as per statutory provisions under Section 27 of the A.P. MACS Act, 1955.
3. As per the A.P. MACS Act, 1955, the Society should maintain certain Accounts/Records. The Managing Committee failed to discharge their duties specified under Section 23 of the A.P. MACS Act, 1955.
4. The Managing Committee failed to file annual returns with the Registrar as per Section 34 of the A.P. MACS Act, 1955.
5. The Managing Committee violated the terms and conditions stipulated in G.O.Ms.No.633 dated 17.11.1992 at Admn (Service) Department.
6. Annual Returns U/s. 34 of the A.P. MACS Act, 1955 to be submitted every year to the Registrar are not furnished from the year 2003-07.
7. The Managing Committee existing as on 2007 failed to handover expenditure vouchers worth Rs.4,83,826.00 for the period from 2005-06 to 2009-10.
3
8. Without expenditure vouchers, proper cash book and other books of accounts the Managing Committee arranged for Audit or the accounts the Managing Committee arranged for Audit of the accounts of the society for the year 2003-2010.
9. As seen from the bank statements the society booked heavy expenditure of Rs.54.17 lakhs incurred during the year 2010-11 without observing the liabilities of the society and procedure and rules in vogue.
10. The society failed to produce the plans and Estimates Measurement Book Records bills for the civil works undertaken by the society as well as contractor and approval of the Managing committee not shown for verification.
4. The enquiry officer conducted an enquiry and submitted a report dated 20.06.2012 to the Registrar of MACS, Hyderabad. However, the learned Government Pleader for Cooperation and Agriculture addressed a letter to the Registrar, MACS, Hyderabad, informing that this Court vide order dated 18.09.2012 in W.P.No.29232 of 2012 directed the District Cooperative Officer, Hyderabad (U) to initiate steps for prosecution of delinquents on the basis of the findings in enquiry report dated 20.06.2012. Pursuant to the said order dated 18.09.2012, the office of the District Cooperative Officer filed a complaint in the Charminar Police Station. On the basis of the said complaint, the police registered a case in Crime No.286 of 2012 dated 18.10.2012. Later, the order dated 18.09.2012 passed by the learned Single Judge of this Court in W.P.No.29232 of 2012 was set aside by the Division 4 Bench of this Court vide judgment dated 06.12.2012 in W.A.No.1366 of 2012. In the said judgment dated 06.12.2012, the Division Bench of this Court held that the Court cannot pass any mandatory order directing the officials to take or initiate proceedings against the persons found responsible for commission and omissions, although under the provisions of the Act itself there are other measures provided entirely within the domain of the authority under the Act to take steps in the matter and it is their right to decide what steps they would avail concerning the allegations of commissions and omissions or any other violations on the part of the parties.
5. In view of the observations and finding of the Enquiry Officer in the enquiry report, respondent No.2 lodged a complaint before the police, Central Crime Station Police Station, Hyderabad. Based on the said complaint, a case in Crime No.232 of 2014 was registered against the petitioners and other accused, for the offences punishable under Sections 406 and 420 IPC and Section 38(2)(3)(4) of the A.P. MACS Act, 1995. The Inspector of Police, White Collar Offences Team-IV, CCS, DD., Hyderabad, 5 after conclusion of the investigation, filed a charge sheet on 25.01.2018 against the petitioners herein and other accused for the offences punishable under Sections 406, 420 and 120(B) IPC and 34 IPC and Section 38(2)(3)(4) of the A.P. MACS Act, 1995. The learned XII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, has taken cognizance of the said offences and numbered the case as C.C. No. 110 of 2018.
6. Heard Sri S. Ashok Anand Kumar, the learned Senior Counsel appearing for Sri N. Gangadhar, the learned counsel for the petitioners in Criminal Petition No.7157 of 2023, Sri M. Ramakanth, the learned counsel for the petitioner in Criminal Petition No.7372 of 2023 and Sri S. Ganesh, the learned Assistant Public Prosecutor appearing for respondent No.1 - State.
7. The learned Senior Counsel appearing for the petitioners- accused Nos.1, 2, 3, 5, 7, 8, 9, 11, 12, 13 and 22 in Criminal Petition No.7157 of 2023 contended that the petitioners - accused Nos. 1, 2, 3, 5, 7, 8, 9, 11, 12, 13 and 22 were the members of the Adhoc body appointed by the District Cooperative Officer, Hyderabad, 6 to conduct regular elections to the Society; that the Adhoc Committee continued from 29.07.2003 to 28.03.2009; the elections were conducted to the Society and the elected body consisting of the petitioners have assumed charge from 29.03.2007 and continued upto 05.02.2010 and that the allegations of mismanagement and misrepresentation are after 2010 i.e., subsequent to 25.02.2010. It is the specific contention of the learned Senior Counsel that there are no allegations against the Adhoc Committee, which worked during the period 29.07.2003 to 28.03.2007; though accused No.22 - Y.Krishna Vardhan Reddy was shown as Director for the period from 26.03.2011 to 26.03.2012, he was removed as Director on 26.11.2011 itself, which is clear from the report made to the Assistant Commissioner of Police, Detective Department, Central Crime Station, Hyderabad. It is specifically submitted that in the report dated 20.06.2012 submitted by the Enquiry Officer, it was specifically mentioned that the Society issued notice dated 18.10.2011 to Y.Krishnavardhan Reddy and V.Hanumanth Reddy for being absent to the General Body Meeting held on 04.09.2011 being the 7 Directors of the Board; the above two Directors submitted their explanation to the notice dated 18.10.2011 and the same was discussed by the Managing Committee of the Society and found that explanation submitted by them is not satisfactory and the Board of Directors in their meeting held on 26.11.2011 resolved that Y. Krishnavardhan Reddy and V. Hanumanth Reddy cease to be the Directors of the Society for a period of three years as per Bye-Law No.23(v). It is the specific contention of the learned Senior Counsel that Y.Krishnavardhan Reddy was the Director of the Society for a period of eight months from 26.03.2021 to 26.11.2021; that even during that period, he attended only two meetings dated 30.03.2011 and 15.04.2011; that the meeting held on 30.03.2011 was for electing the office bearers of the Society and the office bearers were elected and no other business was conducted in the said meeting and therefore, the question of misappropriation by the petitioners - accused Nos.1, 2, 3, 5, 7, 8, 9, 11, 12, 13 and 22 does not arise.
8. It is further contended by the learned Senior Counsel that the statements of L.Ws.1 and 2 recorded by the police are of 8 stereo type and they are nothing but replica of the complaint. It is further contended that the petitioners have even made a representation dated 22.10.2018 to the Chief Judge, City Civil Court, Hyderabad, Administrative Officer, City Civil Court, Hyderabad and Sri Vedula Srinivas, Chair Person of the Committee, stating that the Adhoc Committee functioned only from 29.07.2003 till 24.03.2007; that the Adhoc Committee was subsequently elected as office-bearers of the Society during the elections held on 24.03.2007 and the office-bearers functioned upto 24.03.2009, on which date, the elected body was orally directed by Smt. Justice T. Meena Kumar to handover all the records to Mrs. K. Satya Kumar, the then Registrar (Management), since retired; that a copy of the acknowledgment duly signed by Mrs. K. Satya Kumar along with the list of records, which were handed over to her, were also submitted to the Chief Justice, and they requested the Hon'ble Chief Justice to consider that the accounts from 2003 to 2009 have been placed before the General Body every year; that during their tenure, the membership fees etc., were directly credited to the account of 9 their Society; that the Adhoc body and the elected body during their tenure has spent only Rs.4,13,241.75 ps and they have handed over the Fixed Deposit of Rs.3.10 Crores to the Successor Committee and the entire misappropriation took place after 22.10.2009 for which the petitioners are not responsible. The learned Senior Counsel further contended that the petitioners have also made a representation to Sri Vedula Srinivas, Chair Person, Audit Team, bringing to his notice all the records which were handed over, and stating that the accounts during the years 2003-2009 have been placed before the General Body every year and also stating that Rs.4,13,214.75 was only spent towards expenditure and that the Fixed Deposit of Rs.3.10 Crores was handed over to the Successor Committee and the entire misappropriation took place after 22.10.2009. The learned Senior Counsel further contended that the entire allegations do not constitute any offence and there must be specific accusation as to the nature of the act committed by each of the petitioner and that there are absolutely no particulars about the act committed by them and therefore, prayed to quash all further proceedings 10 against petitioners - accused Nos.1, 2, 3, 5, 7, 8, 9, 11, 12, 13 and 22 in C.C.No.110 of 2018 on the file of the XII Additional Chief Metorpolitan Magistrate, Nampally, Hyderabad.
9. Learned counsel appearing for the petitioner in Criminal Petition No.7372 of 2023 contended that prior to lodging of the report by respondent No.2, the petitioner-accused No.17 has addressed a letter to the District Cooperative Officer, Hyderabad, requesting to accept his resignation to the post of Director of the Society on 11.10.2011 and the said letter was received on 14.10.2011 i.e., much prior to the registration of the crime. Learned counsel further contended that the petitioner being a responsible employee of the Society, made complaints against the misdeeds and omissions on the part of the Managing Committee prior to the filing of the report by respondent No.2. Despite the same, the petitioner is arrayed as accused No.17. He further contended that in the charge sheet itself it was mentioned that the petitioner and others were elected on 29.03.2010 and they arranged audit of account of the Society from the year 2003 to 31.03.2010 as per the Bank statements, since the previous bodies 11 have not handed over the expenditure vouchers and account books, no specific overt acts are mentioned in the charge sheet. It is further contended that accused No.23 has filed Criminal Petition No.400 of 2019 and this Court vide order dated 25.02.2019 has allowed the said Criminal Petition and quashed the proceedings against accused No.23 and observed that petitioner-accused No.23 and another submitted resignations and accused Nos.24 and 25 were appointed in their place. In view of the same, continuation of the proceedings against the petitioner in Criminal Petition No.7372 of 2023 is an abuse of process of law, and therefore, prayed to quash the proceedings against him in C.C.No.110 of 2018.
10. The Learned Assistant Public Prosecutor contended that the action initiated against the petitioners is strictly in accordance with the Rules in vogue, the Inquiry Report was submitted within the period of time and the General Body is conducted to take action based on the above report and therefore, prayed to dismiss the criminal petition.
12
11. Heard the rival submissions of both the parties and perused the entire record.
12. A perusal of the charge sheet discloses that no specific allegations are made against accused Nos.1,2,3,5,7,8,9,11,12,13 and 22. However, some allegations are made against accused No.17. Even as per the charge sheet, accused No.17 has acted as Director from 29.03.2010 to 25.03.2012. But, it is the specific contention of the learned counsel for accused No.17 that accused No.17 has given his resignation five days prior to the registration of the crime.
13. The record further discloses that misappropriation did not took place during the tenure of the petitioners. Further, the petitioners have handed over the records to their successors i.e., after 2009. Even as per the dates and the tenures mentioned in the charge sheet, the petitioners herein, except accused Nos.17 and 22, who were removed by the Board, have not worked beyond 2011.
13
14. The record further discloses that works were entrusted to accused No.28- P. Veeraiah, works contractor, for development of land and other development works on 07.01.2011, but the said Veeraiah has been registered as Civil Contractor on 03.08.2011 i.e, subsequent to the giving of works to him.
15. Admittedly, accused Nos. 1,2,3,5,7,8,9,11,12,13 and 22 handed over the records to their successors in the years 2009 itself. Further, as stated supra, accused Nos.17 and 22 have been removed by the Board in the year 2011.
16. For the foregoing reasons, this Court is of the considered opinion that the allegations made against the petitioners are not at all attracting the ingredients of the alleged offences and therefore, the petitioners cannot be held liable for the said offences. Hence, the proceedings against the petitioners - accused Nos.1, 2, 3, 5, 7, 8, 9, 11, 12, 13 and 22 and 17 in C.C.No.110 of 2018 pending on the file of XII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, are liable to be quashed.
14
17. Accordingly, the Criminal Petitions are allowed and the proceedings against the petitioners - accused Nos.1, 2, 3, 5, 7, 8, 9, 11, 12, 13 and 22 and 17 in C.C.No.110 of 2018 pending on the file of XII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, are hereby quashed.
Miscellaneous Petitions, pending if any, shall stand closed.
__________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 16.10.2023 va