Vemuri Sambasiva Prasad vs Allu Srinivasa Rao 8 Others
2022 Latest Caselaw 6630 AP

     HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

           CRIMINAL PETITION No.5349 of 2013


ORDER:

This Criminal Petition is filed by the petitioner under Section

482 of the Code of Criminal Procedure ('for short 'Cr.P.C') to set

aside the dismissal order in Criminal Revision Petition No.38 of

2012 passed by the learned XI Addl.District & Sessions Judge,

Gudivada on 11.12.2013, confirming the order of dismissal

dt.05.06.2012 passed in C.F.R.No.1850 of 2012 by the Additional

Judicial Magistrate of First Class, Gudivada and direct the learned

Magistrate to take cognizance of the complaint by issuing process

against the respondents.

2. The facts in issue are that the petitioner had taken the land

to an extent of Ac.5.65 cents from one K.Sayamma who is the

lawful power of attorney holder of the original landlady K.Sravya

and obtained a loan eligibility card from the Revenue Authorities.

Thereafter, some misunderstandings arose between the petitioner

and the landlady, as such, the petitioner filed A.T.C.2 of 2012 on

the file of the Tenancy Tribunal, Gudivada, and obtained injunction

orders on 13.02.2012. One day prior to granting of an injunction,

R.1 to R.4 (A.1 to A.4) trespassed into the land and committed theft

of Black Gram crop. With the help of R.5 to R.7 (A.5 to A.8) by

misusing their official positions, a case was registered in

Cr.No.28/2012 against the petitioner and others. Though the

petitioner gave a police complaint against the respondents, the

Police did not register the crime against the respondents 1 to 4. As

such, the petitioner filed a private complaint under Sections 378

and 447 r/w 34 IPC against R.1 to R.4 and Section 379 , 120 (a) (b)

IPC against A.5 and A.6 and Section 167, 120 (a) (b) IPC against

A.7 and A.8 in C.F.R.No.1850 of 2012 on the file of Additional

Judicial Magistrate of First Class, Gudivada to punish them as per

law.

3. The duty of a Magistrate receiving a complaint is set out in

Section 202 Cr.P.C and there is an obligation on the Magistrate to

find out if there is any matter which calls for an investigation by a

criminal Court. The scope of enquiry under this Section is

restricted only to finding out the truth or otherwise of the

allegations made in the complaint in order to determine whether

the process has to be issued or not and the scope of enquiry under

Section 202 Cr.P.C is, therefore, limited to the ascertainment of

truth or falsehood of the allegations made in the complaint. The

learned Magistrate based on the said statutory principle conducted

enquiry, examined the complainant and two other witnesses, and

dismissed the complaint on the ground that the complainant came

to the Court with unclean hands and the complaint is frivolous and

vexatious and there is no prima facie case made out against the

accused and the statements of the witnesses do not inspire the

confidence of the learned Magistrate and no prima facie is made

out to take cognizance against A.1 to A.8 and dismissed the

petition. Aggrieved by the order of the learned Magistrate, the

petitioner filed Criminal Revision Petition No.38 of 2012 on the file

of the learned XI Additional Sessions Judge, Gudivada, and the

same was dismissed, confirming the order of the learned Magistrate

by giving cogent reasons that the petition is vexatious and is

nothing but abuse of process of law without there being any proper

and valid document to show his rights which has to be decided by

a Civil Court and the revision petition lacks merit and confirmed

the order of the learned Magistrate and the revision petition is

dismissed.

4. Heard the learned counsel for the petitioner and the learned

Assistant Public Prosecutor.

5. Learned counsel for the petitioner submitted that the learned

Magistrate committed an error while evaluating the evidence of

L.Ws.1 to 3 whose sworn statements were recorded and also failed

to evaluate the documents filed along with their evidence. Inspite

of having a prima facie case in favour of the petitioner, the learned

Magistrate dismissed the complaint.

6. Learned Assistant Public Prosecutor submitted that the

contents in the complaint disclose that the petitioner and the

original landlady and the 1st respondent were having civil disputes

and multiplicity of litigations since 2011 and the petitioner filed

A.T.C.2 of 2012 and obtained an injunction against the 1st

respondent and the original landlady which clearly shows, prima-

facie that the matter appears to be civil in nature. Therefore, the

rights of the parties should be decided by the Civil Court only.

Therefore, the continuation of proceedings against the respondents

is nothing, but, an abuse of the process of law.

7. Now the point for determination is, "Whether the impugned

order passed in Criminal Revision Petition No.38 of 2012 by the

learned XI Addl.District & Sessions Judge, Gudivada, suffers from

any illegality and infirmity and directed the learned Magistrate to

take cognizance of the complaint by issuing process against the

respondents?"

8. The facts and circumstances of the present case and the

litigations pending between the parties, clearly show, prima facie,

that the matter appears to be civil in nature.

9. A distinction must be made between a civil wrong and a

criminal wrong. When a dispute between the parties constitutes

only a civil wrong and not a criminal wrong, the Courts would not

permit a person to be harassed although no case for taking

cognizance of the offence has been made out.

10. In the light of the above circumstances, the matter appears

to be purely civil in nature and there appears to be no criminal

trespass or theft of property. The present petition filed by the

petitioner is an abuse of the process of law. The purely civil dispute

is sought to be given a colour of a criminal offence to wreak

vengeance against the respondents. It does not meet the strict

standard of proof required to sustain a criminal accusation.

11. At this juncture, it is relevant to refer the judgment of the

Hon'ble Apex Court in the case of Mohammed Ibrahim and others

Vs. State of Bihar and another1 wherein the Hon'ble Apex Court

has held as under:

"This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure of the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes."

12. In the present case, the learned Magistrate has opted to hold

such enquiry himself for taking cognizance of offence in an area

2009 (8) SCC 751

exclusively within the domain of the Magistrate. But, the learned

Magistrate has not satisfied, as there is no sufficient ground for

proceeding against them, and recorded the reasons that the

contents of the complaint and the sworn statements of the

witnesses disclose that the petitioner filed A.T.C. 2 of 2012 against

the 1st respondent and the landlady to declare the petitioner as a

cultivating tenant and to grant a permanent injunction and that

those reliefs were granted in favour of the petitioner by the Tenancy

Tribunal on 24.08.2015, prima-facie show that the mater appears

to be civil in nature. But, according to the averments of the

complaint, much prior to the granting of a temporary injunction, it

is alleged that R.1 to R.4 trespassed into the property and

committed theft of Black gram crop. But, there is no material

evidence to prove the same. On the other hand, the 7th respondent

issued a possession certificate to the 1st respondent and he was in

possession of the property, raised crop as stated by the learned XI

Additional Session Judge, Gudivada in its order dt.11.12.2013 and

rights of the parties have to be decided by the Civil Court.

13. Having regard to the principles laid down by the Hon'ble Apex

Court in the case referred above and in view of the civil litigation

between the parties with regard to the same property where the

uncontroverted allegations made in the 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 respondents, I am of

the considered view that the continuation of criminal proceedings

against the respondents would amount to an abuse of process of

law.

14. For the above reasons, the Criminal Petition is devoid of

merits, and the impugned order passed in Criminal Revision

Petition No.38 of 2012 by the learned XI Addl.District & Sessions

Judge, Gudivada on 11.12.2013, confirming the order of dismissal

dt.05.06.2012 passed in C.F.R.No.1850 of 2012 by the learned

Magistrate is perfectly sustainable under the law and there is no

illegality or irregularity in the said order and it warrants no

interference in this criminal petition.

15. Therefore, the criminal petition is dismissed.

Consequently, miscellaneous applications, pending if any,

shall stand closed.

JUSTICE DUPPALA VENKATA RAMANA

Date 09.09.2022.

Dinesh

HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

CRIMINAL PETITION No.5349 OF 2013

09.09.2022

Dinesh