Vudata Srinu, vs The State Of Andhra Pradesh
2021 Latest Caselaw 1558 AP

 

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

WEDNESDAY, THE SEVENTEENTH DAY OF MARCH
TWO THOUSAND AND TWENTY ONE

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI::

CRIMINAL PETITION NO: 1478 OF 2021 BME
Between: y
Vudata Srinu, S/o Anjaneyulu, Aged about 52 years, Occ: Business, 1/0."
D.No.5-212, Weavers Colony, 9" Municipal Ward, Mangalagiri Town & --
Mandal, Guntur District.
...Petitioner/

Accused No.14
AND

The State of Andhra Pradesh, Rep by its Police, Mangalagiri Town, Guntur

Urban, Guntur District, Through Public Prosecutor, High Court of Andhra

Pradesh at Amaravahti.

...Respondent/
Complainant
Petition under Section 438 of Cr.P.C, praying that in the circumstances
stated in the memorandum of grounds filed in Criminal Petition, the High Court
may be pleased to enlarge the petitioner on Bail in the event of his F.I.R No.71 of
2021, on the file of Mangalagiri Town Police Station, Guntur Urban, by granting

Anticipatory bail.

The petition coming on for hearing, upon perusing the Petition and the
-memorandum of grounds filed in support thereof and upon hearing the
arguments of Sri P S P Suresh Kumar, Advocate for the Petitioner and of Public
Prosecutor for the Respondent, the Court made the following.

ORDER:

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION No.1478 of 2021

ORDER:

This Criminal Petition is filed under Sections 438 of Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking pre- arrest bail to the petitioner/A-14 in the event of his arrest in connection with Crime No.71 of 2021 of Mangalagiri Town Police Station, Guntur Urban, wherein the petitioner is alleged to have committed the offences punishable under Section 420, 406 r/w 34

of Indian Penal Code, 1860 (for short "IPC").

2. A report was lodged by the Assistant Director, Handlooms & Textiles, Guntur stating that the Director of Handlooms & Textiles has directed her to submit report by conducting a detailed enquiry into the affairs of the Primary Weavers Cooperative Societies about registration of lands that took place from January, 2014 to December, 2020. A letter was addressed to Sub Registrar, Mangalagiri to furnish encumbrance certificate, who furnished the same on 25.01.2021 and as per the said encumbrance certificate lands were transferred in favour of four people during the month of December, 2020 and also certain other irregularities were found. Thus, as per the instructions of Director, Handlooms and Textiles, she gave report against the Managing Committee of the said society

from 2014 to till date.

3. In the report, details of four transactions were categorically mentioned, which took place on 30.12.2020, 28.12.2020, 10.12.2020 and 10.12.2020. Further, the complainant furnished

the names of the Managing Committee members of the Society in

whose tenure registrations were done without obtaining prior approval of the Registrar as laid down under Section 9-A of A.P. Cooperatives Societies Act, 1964 (for short "APCS Act"). The details of tenure of the committee were also furnished i.e. the committee members whose tenure is from 01.01.2014 to 11.10.2015; Committee members who worked from 21.05.2016 to 20.05.2017 and from 06.01.2018 to till date. The present petitioner is in the Managing Committee from 21.05.2016 to 20.05.2017 being the counselor of Mangalagiri Municipality, as non-official member. Hence, it is stated that action may be taken | against these persons for the alleged illegal sale or registration of Society property/land and malpractice/misappropriation of the society funds without proper permission from the Registrar /Functional Registrar as per Section 9A of APCS Act and as per the provisions of 79 of APCS Act. Basing on the said report,

the present crime was registered.

4. Heard Sri P.S.P.Suresh Kumar, learned counsel for the petitioner and Sri S.Dushyanth Reddy, learned Additional Public

Prosecutor for the respondent-State.

5, Learned counsel for the petitioner submits that the even as per the allegations in the complaint, no offence is committed by the petitioner, because he is shown as member between 01.05.2016 to 20.05.2017 and as per the details furnished in the report all the four transactions took place in the year 2020 and during the said period, the petitioner has nothing to do with the affairs of the society. He submits that as per the report, the proprieties were

sold basing on the resolution passed by the Society without

Tee,

approval of the Registrar, as mandated under Section 9A of APCS Act. He submits that even as per the complaint the accused transferred the property contrary to the provisions of APCS Act and he has drawn the attention of this Court to Section 79 (1) (f) of APCS Act, which reads thus:

79. Punishment for furnishing false return or information, disobeying summons or other lawful order, requisition, or direction, or for acting in contravention of Section 35 or Section 36 or for failure to produce books etc.:-- (1) It shall be an offence under this Act, if -

(f)} an officer, or an employee of the society including the paid Secretary dishonestly or fraudulently misappropriates or otherwise converts for his own use or intentionally causes loss to the property of the society entrusted to him or under his control as such officer or

employee or allows any other person so to do;"

6. Learned counsel for the petitioner submits that at best the offence alleged to have been committed is in violation of Section 79 (1) (f} of APCS Act. He has drawn the attention of this Court to Section 83 of APCS Act, which deals with cognizance of offences which reads thus:

83. Cognizance of offences:- (1) No court inferior to that of a Magistrate of the first class or a Metropolitan Magistrate shall try any offence under this Act.

(2) Every offence under this Act shall, for the purpose of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), be deemed to be cognizable.

(3) No prosecution shall be instituted under this Act without the

previous sanction of the Registrar.

7. Learned counsel submits that as per Section 83 of APCS Act without the previous sanction of the Registrar, no prosecution can be initiated. He further submits that basing on political reasons, the petitioner was implicated in this case. In the complaint, it is

stated that basing on the letter addressed by the Mangalgiri M.L.A

Alla Ramakrishna Reddy and on his continuous persuasion, the present report came to be lodged. It is stated that initiation of criminal proceedings against the petitioner is pure abuse of process of law and the complaint is registered without any

jurisdiction, as such the petitioner is entitled for pre-arrest bail.

8. Learned Additional Public Prosecutor Sri S.Dushyant Reddy _ Submits that basing on the transactions that took place from 2014, the present report came to be filed. He submits that. the F.I.R is not an encyclopedia, where all the details need to be mentioned. These are not only the offences under APCS Act, but also attract the offences under the penal code, as such the crime was registered against the petitioner. He further submits that since _ several complaints were received from the weavers community, the sitting M.L.A of Mangalagiri addressed a letter to the District Collector, as such the same is referred in the report. Just because the sitting M.L.A has addressed a letter, it cannot be projected asa politically motivated complaint. He relied on the judgment of this Court in E.Ramarao Vs. District Cooperative Societies!. He also does not dispute the fact that in the above referred judgment no ratio is laid down that without any sanction prosecution can be initiated under the provisions of APCS Act. He also relied on the judgment of this Court in Garimella Subbarao Vs. State of Andhra Pradesh? and submits that there is no bar for initiating simultaneous proceedings both under APCS Act as well as under the penal code. He submits that because of the acts committed by

the accused, the valuable land which belongs to the Society is in

' 2003 LawSuit (AP) 1527 * 2014 (1) ALT (Cri.) 53 = 2013 LawSuit (AP) 305

the hands of third parties and as the investigation is in progress,

at this stage, the petitioner is not entitled for pre-arrest bail.

9. In reply, learned counsel for the petitioner would submit that if at all the alleged offence took place from the year 2014, every connected record and material is in the custody of the Society, as such there cannot be any apprehension to the prosecution agency that the petitioner may tamper with the evidence. Further, they

are ready to cooperate with the investigation.

10. Heard the learned counsel on either side. The first contention of the learned Additional Public Prosecutor is that the registrations have taken place from 2014, all the persons who were in the Managing Committee were arrayed as accused, but in the complaint it is clearly stated that four transactions have taken place i.e. in 2020 and the details were also furnished, as such this

Court is unable to appreciate the said contention.

11. Secondly, as per the complaint the Managing Committee sold the property without prior permission of the Registrar as contemplated under Section 9A of APCS Act. So it is clear that the offence that took place is in violation of provisions of the Act, which requires sanction for prosecution as per Section 83 of APCS Act. Admittedly, there is no sanction from the Registrar of the

Cooperative Societies for initiating prosecution.

12. The Courts while granting bail has to take into consideration,

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before

arrest is made; .

i. The antecedents of the applicant including the fact as to

| whether the accused has previously undergone

imprisonment on conviction by a Court in respect of any cognizable offence;

ili. The Possibility of the applicant to flee from justice;

iv. The Possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her, |

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

vili. While considering the Prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable @pprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in Prosecution should always be considered and it is only the element of genuineness that Shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the Proseécution, in the normal course of events, the accused is

entitled to an order of bail." (Satlingappa Mhetre Vs. State of Maharashtra and Ors?)

13. As per the complaint the transactions have taken place in the year 2020, during which period the petitioner is not a member

nee

* AIR 2011 SC 312 = MANU/SC/1021/2010

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of the Society. No prior permission was sought for initiating the criminal proceedings as per Section 83 of APCS Act. Hence, as per the law laid down by the Hon'ble Apex Court in Satlingappa Mhetre (supra), this Court deems it appropriate to grant pre-arrest

bail to the petitioner.

14. Accordingly, this Criminal Petition is allowed and _ the petitioner/A-14 shall be enlarged on bail in the event of his arrest in connection with Crime No.71 of 2021 of Mangalagiri Town Police Station, Guntur Urban on his executing a bond for Rs.20,000/- (Rupees twenty thousand only) with two sureties each for a like sum to the satisfaction of the Station House Officer, Mangalagiri Town Police Station, Guntur Urban.

As a sequel, all the pending miscellaneous applications shall

stand closed.

Yo

Sd/-E.KameswaraR4o ASSISTANT} REGISTRAR IITRUE COPY// AC

For SECTION GFFICER

One CC to Sri. P S P Suresh Kumar, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT] One spare copy.

DRWN>

The Station House Officer, Mangalagir Town Police Station, Guntur Urban.

a

HIGH COURT

LK,J

NATED:17/03/2021

ORDER

CRLP.No.1478 of 2021

DIRECTION