Y.Ramalinga Reddy And Another vs The State Of A.P.,Rep.,Pp And ...
2022 Latest Caselaw 1448 AP

THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY

          CRIMINAL PETITION NO.9556 OF 2015

ORDER:-

     This Criminal Petition is filed to quash the proceedings

in FIR No.217 of 2015 of II Town Police Station, Kurnool

registered for the offence punishable under Section 409 IPC.


2.   Brief facts of the case are that a private complaint was

filed by 2nd respondent-defacto complainant against the

petitioners for the offence punishable under Section 409 IPC.

The said complaint was referred to police under Section

156(3) Cr.P.C. Thereupon, police registered the aforesaid

crime.

3. The allegations in the private complaint lodged by the

de facto complainant, who is member of the Kurnool United

Club, are that the petitioners are President and Secretary of

the said club; that daily income from Rummy game would be

around Rs.10,000/- to Rs.15,000/-, and the said amount is

to be deposited in the Bank next day morning; that the

petitioners/accused are entrusted with management of

income of the club and they are trustees and agents of the

club and they have to account for the amount received as

income and expenditure incurred for the club and they have

no authority to operate the bank account. It is alleged that

there is difference of amount of Rs.1,46,122/- between the

total balance and audit report. In the Audit Report, it is

stated that Rs.7,00,000/- is in the hands of the petitioners in

violation of the bye law No.8(d) of the Club. It is also stated

that earlier complaints made against the petitioners by one

Ramesh Babu and N. Sudarshan, who are members of the

Club, were not acted upon. It is also stated that both the

petitioners have opened a fresh account in Vijaya Bank with

an intention to misappropriate the funds of the club secretly.

Therefore, the petitioners misappropriated Rs.1,46,122/- and

the same is not accounted for.

4. Learned counsel for the petitioners submits that he has

taken out personal notice on 2nd respondent-de facto

complainant and the same was served on him. Though

served, none appears for 2nd respondent.

5. Learned counsel for the petitioners raised three

grounds. One is that the present complaint is a second

complaint. It is stated that earlier, a complaint was filed with

same allegations in Crime No.309 of 2011 of same police

station viz. Kurnool II Town police station, and the same was

investigated by the Police and a final report was submitted to

the effect that it is a false one and thereafter, the present

complaint has been filed. The second ground is that an

affidavit has not been filed along with the complaint, and in

this regard, he relies on the judgment of the Apex Court in

Babu Venkatesh v. State of Karnataka1 wherein it is held that

2022 Live Law (SC) 181

applications invoking jurisdiction of the Magistrate under

Section 156 (3) of Cr.P.C. are to be supported by an affidavit

duly sworn by the complainant, so as to deter the

complainant from casually invoking authority under Section

156(3) Cr.P.C. The third ground is that in the Audit report,

there is absolutely no reference with regard to the

misappropriation of Rs.1,24,000/-.

6. On the other hand, learned Additional Public Prosecutor

submits that the allegations in the private complaint make

out a prima facie case for the offence alleged and that the said

private complaint does not amount to second complaint, and

hence prayed to dismiss the Criminal Petition.

7. This Court is also conscious of the fact 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 and that the Court would not be justified in

embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the

report. On this aspect, it is pertinent to refer to the

judgment of the Hon'ble Apex court in State of Haryana Vs.

Ch.Bhajanlal and ors.2, wherein the Apex Court held,

"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

AIR 1992 SC 604

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 channelized 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 F.I.R. 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;

(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."

The above principle is well settled one and there cannot

be any dispute with regard to the said proposition of law.

8. Perused the accusations made in the complaint and the

material placed on record. It is the contention of the learned

counsel for the petitioners that the present complaint

amounts to second complaint in view of the fact that, earlier,

2nd respondent/defacto complainant filed a report before

police and the same was registered as crime No.309 of 2011,

dated 29.10.2011 of Kurnool II Town police station for the

offences punishable under Sections 408 and 420 IPC, and

after completion of investigation, police filed a final report

treating the case as civil in nature, vide proceedings

C.No.456/SDP-K/2013, dated 08.08.2013 of the Sub

Divisional Police Officer, Kurnool. It is his further submission

that thereafter, 2nd respondent/defacto complainant preferred

the present complaint and the same was referred to police for

investigation, and basing on the same, subject crime No.217

of 2015, dated 01.09.2015 of Kurnool II Town police station

was registered. On a perusal of both the complaints would go

to show that the set of facts is one and the same in both the

crimes. Both the FIRs deal with regard to same occurrence.

In any event, second complaint is not maintainable and it is

nothing but abuse of process of Court.

9. On this aspect, it is pertinent to refer to the decision of

the Hon'ble Supreme Court in T.T.Antony v. State of Kerala3

wherein it is held thus:

"... A comparison and critical examination of the FIRs in Crime Nos.353 & 354 of 1994 on one hand and FIR in Crime No.268/97 on the other, discloses that the date and place of occurrence are the same; there is alluding reference to the deaths caused due to police firing in the FIRs in Crime Nos. 353 and 354 of 1994. In any event, that fact was evident on the scene of occurrence. The narration of events, which we need not repeat here, are almost the same. The additional averments in Crime No.268/97 are based on the findings in the report of the Commission. Having regard to the test laid down by this Court in Narangs'case (supra), with which we are in

(2001) 6 SCC 181

respectful agreement, we find that in truth and substance the essence of the offence in Crime Nos. 353 and 354 of 1994 is the same as in Crime No. 268 of 1997 of Kuthuparamba Police Station. In our view, in sending information in regard to the same incident, duly enclosing a copy of the report of the commission of inquiry, to the Inspector General of Police for appropriate action, the Additional Chief Secretary adopted the right course of action. Perhaps the endorsement of the Inspector General of Police for registration of a case misled the subordinate police officers and the said letter with regard to the incident of November 25, 1994 at Kuthuparamba was registered again under Section 154 of Cr.P.C. which would be the second FIR and, in our opinion, on the facts of this case, was irregular and a fresh investigation by the investigating agency was unwarranted and illegal. On that date the investigations in the earlier cases (Crime Nos.353 and 354 of 1994) were pending. The correct course of action should have been to take note of the findings and the contents of the report, streamline the investigation to ascertain the true and correct facts, collect the evidence in support thereof, form an opinion under Sections 169 and 170 Cr.P.C., as the case may be, and forward the report/reports under Section 173(2) or Section 173(8) Cr.P.C. to the concerned Magistrate. The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Cr.P.C. as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No.353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law."

The view expressed by this Court is fortified by the

decision of the Hon'ble Supreme Court in the aforesaid

decision. Hence, this Court is of the opinion that

continuation of the impugned proceedings is nothing but

abuse of process of Court.

10. For the foregoing reasons, Criminal Petition is allowed.

The proceedings in FIR No.217 of 2015 of II Town Police

Station, Kurnool are quashed.

Miscellaneous Petitions, if any, pending in this Criminal

Petition, shall stand closed.

___________________________________ JUSTICE K. SREENIVASA REDDY 22.03.2022.

GBS/DRK