In This Criminal Petition Filed ... vs Ch.Bhajanlal And Others1 The ...
2023 Latest Caselaw 3437 AP

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     HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
           CRIMINAL PETITION No. 7216 of 2013
ORDER:

In this Criminal Petition filed under Section 482 of Cr.P.C,

the petitioners/A.1 to A.4 seek to quash the proceedings against

them in Crime No.74 of 2013 of Alipiri Police Station, Tirupati

Urban, for the offence under Sections 464, 465, 467, 471 and

420 read with 34 IPC.

2. The private complaint filed by the 2nd respondent herein,

was referred to the Police by the learned IV Additional Judicial

Magistrate of First Class, Tirupati under Section 156(3) Cr.P.C

for investigation, which was registered as Crime No.74 of 2013

and investigation is reported pending.

3. The brief facts of the complaint are that the complaint

mentioned A to C schedule properties belong to the 2nd

respondent and the 1st petitioner/A.1 filed a suit for specific

performance in O.S.No.9 of 2013 under agreement of sale dated

02.07.2009 executed by the 2nd respondent for a sale

consideration of Rs.15.00 lakhs and paid a sum of Rs.10.00

lakhs on the date of agreement of sale as advance and

subsequently, paid Rs.4.00 lakhs on 25.03.2010 and made

endorsement on the rear side of the agreement of sale and the

balance sale consideration of Rs.1.00 lakh will be paid at the

time of the registration. It is further alleged that the 2nd

respondent never executed any agreement of sale in favour of

the 1st petitioner/A.1, and figured the petitioners 2 and 3/A.2

and A.3 as attestors and 4th petitioner/A.4 as scribe of the

agreement of sale and all the petitioners/A.1 to A.4 with

connivance, forged the alleged agreement of sale and with a

dishonest intention, showed the same as a genuine document,

in order to grab away the subject property. All the accused, with

a common intention, at the inception, created a forged and

fabricated document by forging the signature of the 2nd

respondent and shown the same as genuine. When the 2nd

respondent approached the Police and presented a report, they

refused to receive the same stating that it is purely a civil

dispute. Therefore, the 2nd respondent presented a private

complaint before the IV Additional Judicial Magistrate of First

Class, Tirupati and the same was forwarded to the Police. A

case in Crime No.74 of 2013 was registered by Alipiri Police

Station, Tirupati and the same is now pending for investigation.

Aggrieved by the same, the petitioners/A.1 to A.4 filed the

present criminal petition seeking to quash the proceedings in

Crime No.74 of 2013 of Alipiri Police Station, Tirupati.

4. Heard Sri Y.V.Ravi Prasad, learned counsel for the

petitioners/A.1 to A.4 and Sri P.M.Mithileswara Reddy, learned

Assistant Public Prosecutor for the 1st respondent/State. None

appeared for the 2nd respondent/Complainant.

5. Fulminating the complaint allegations as false and

motivated, the learned counsel for the petitioners would firstly

argue that the complaint allegations, even if are accepted to be

true, they would disclose the civil disputes between the parties

and in fact, the civil suit is pending between the parties in

O.S.No.9 of 2013 on the file of IV Additional District Judge,

Tirupati, which was filed by the 1st petitioner/A.1 against the 2nd

respondent for specific performance. Further, he would submit

that the allegations set out in the complaint do not constitute

any offence against the petitioners/A.1 to A.4. He would further

submit that the complaint discloses a civil dispute and a civil

suit was filed by the 1st petitioner making the similar grievance.

He would thus submit that continuation of criminal proceedings

is nothing but an abuse of process of the Court and therefore,

the F.I.R., is liable to be quashed.

6. Sri P.M.Mithileswara Reddy, learned Assistant Public

Prosecutor for the 1st respondent/State would submit that the

2nd respondent filed a complaint before the learned Magistrate

and the same was forwarded to the Station House Officer, Alipiri

Police Station and a case in Crime No.74 of 2013 was registered

against the petitioners herein. Further, he would submit that

the alleged agreement of sale was brought into existence by

forging the signatures of the 2nd respondent in order to grab

away the subject property and filed a fraudulent suit in

O.S.No.9 of 2013. Further, he would submit that the allegations

mentioned in the complaint would attract the alleged offences.

The crime has to be investigated into depth and therefore, it

cannot be quashed at its threshold and he prayed for dismissal

of the petition.

7. Now the points for determination are:

1. Whether there are any merits in the criminal petition to allow?

2. Whether the dispute is entirely civil nature and therefore, liable to be quashed?

POINT Nos.1 & 2:

8. It should be noted that in State of Haryana & Others Vs.

Ch.Bhajanlal and Others1 the Hon'ble Apex Court has laid

down the following guidelines as to when the High Court can

exercise its plenary powers under Section 482 Cr.P.C to quash

AIR 1992 SC 604

the proceedings to prevent abuse of process of the Court. They

are,

(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.

9. As can be seen, the guidelines is to the effect that even if

the complaint allegations are accepted to be true on their face

value, if they do not constitute any offence, then the F.I.R can be

quashed against the accused. On this touchstone, when the

complaint allegations are perused, the pivotal allegation is that

the petitioners/A.1 to A.4 forged the signatures of the 2nd

respondent and fabricated an agreement of sale and tried to

grab away the property of the 2nd respondent. To substantiate

their claim, the 1st petitioner/A.1 filed a suit in O.S.9 of 2013 on

the file of the Court of IV Additional District Judge, Tirupati,

against the 2nd respondent herein seeking specific performance

in respect of the complaint A to C schedule properties. Some

material papers were filed by the petitioners. In the written

statement filed by the 2nd respondent herein it was averred that,

when the alleged payment was made by the 1st petitioner, no

notice was issued to execute a registered sale deed in his favour

to perform his part of contract. Further, it was averred that the

said agreement of sale is a forged document and the same was

created in order to grab away the property and filed a false suit.

10. It is needless to emphasize that in the said suit the

fundamental issue that arises for consideration is, whether the

1st petitioner/A.1 has a right to seek the relief of specific

performance. It is a trait law that the Civil Court alone is

competent to adjudicate upon the bonafide dispute between the

parties.

11. The scope of Section 482 Cr.P.C is well defined and

inherent powers could be exercised by the High Court to give

effect to an Order under the Cr.P.C; to prevent the abuse of

process of the Court; and otherwise to secure the ends of

justice. In exercising such powers, it is not permissible for this

Court to appreciate the evidence as it can only evaluate the

material documents on record to the extent of its prima facie

satisfaction about the existence of sufficient ground for

proceedings against the petitioners/accused and the Court

cannot look into the materials, the acceptability of which is

essentially a matter of trial. Any document filed along with the

petition labeled as evidence without being tested and proved,

cannot be examined. Law does not prohibit entertaining the

petition under Section 482 Cr.P.C for quashing the F.I.R even

before the charge sheet is filed.

12. The Hon'ble Supreme Court and also this Court time and

again held that the power under Section 482 Cr.P.C has to be

exercised very sparingly in rarest of rare cases under

extraordinary circumstances. It was further held that this Court

has to examine case to case basis. In the proceedings under

Section 482 Cr.P.C only prima facie case has to be seen in the

light of the law laid down by the Hon'ble Apex Court.

13. The Hon'ble Apex Court in Bhajanlal's case (supra) gave

certain exceptions for exercise of powers under Section 482

Cr.P.C. In view of the above stated facts and that there are

several factual matrix, which involved are to be tried during the

course of trial against the petitioners/A.1 to A.4, the case on

hand is not falling in any of the exceptions given by Bhajanlal's

case (supra).

14. Though the learned counsel for the petitioners relied on

the decisions of the Hon'ble Apex Court in Mitesh Kumar J.Sha

Vs. State of Karnataka and others2 and G.Sagarsuri & others

Vs. State of U.P. & others3, having regard to the facts of the

case and material on record in the instant case, this Court is of

the opinion that the said judgments are not relevant to the

present case of nature.

15. In the instant case, the 1st petitioner/A.1 filed a suit in

O.S.No.9 of 2013 for specific performance basing on an

agreement of sale dated 02.07.2009 said to have been executed

by the 2nd respondent. The trial Court, by considering the facts

of the suit in O.S.No.9 of 2013 concluded in its judgment dated

03.12.2019 at Page No.22 that the plaintiff i.e., 1st

petitioner/A.1 failed to prove Exs.A.1 and A.2 i.e., sale

2 2021 SCC OnLine SC 976 3 (2000) 2 SCC 636

agreement dated 02.07.2009 and payment endorsement dated

25.03.2010 and that the 1st petitioner/A.1 is not entitled for

specific performance in pursuance of the agreement of sale

dated 02.07.2009 and the suit of the plaintiff (1st petitioner/A.1)

was dismissed. Therefore, this Court is of the view that the

allegations made by the 2nd respondent certainly would

constitute the offence. Added to it, the case in Crime No.74 of

2013 still requires investigation. At this stage, I do not consider

it appropriate to thwart the investigation by quashing the F.I.R.

16. Therefore, while exercising the extraordinary jurisdiction

under Section 482 Cr.P.C, this Court has to be cautious. This

power is to be used sparingly and only for the purpose of

preventing abuse of the process of any Court or otherwise to

secure ends of justice. As the allegations in the complaint are

criminal in nature and the suit filed by the 1st petitioner/A.1

was dismissed, and when the cheating, forgery and fabrication

are alleged against the accused, it is the matter, which is to be

investigated against the petitioners/A.1 to A.4 and thus, the

complaint cannot be quashed.

17. In the case on hand, the civil suit was filed by the 1st

petitioner/A.1 against the 2nd respondent for specific

performance of complaint A to C schedule properties and the

said suit was dismissed by the trial Court. Therefore, the

allegations in the complaint strengthen the case of the 2nd

respondent.

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

the Hon'ble Apex Court in Kamal Shivaji Pokarnekar Vs. State

of Maharashtra and others4 wherein, at Para No.9, it was held

as follows:

"9. ............, we are of the considered view that the High Court ought not to have set aside the order passed by the trial court issuing summons to the respondents. A perusal of the complaint discloses prima facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."

19. In the light of the above judgment, the evaluation of the

merits of allegations made on either side cannot be resorted at

this stage. In the present case, it is crystal clear that the suit

(2019) 14 SCC 350

filed by the 1st petitioner/A.1 seeking specific performance was

dismissed. Therefore, the above said judgment is aptly

applicable to the facts of the present case.

20. Considering the above judgment, this Court is of the view

that there are specific allegations against the petitioners, which

have to be investigated. Further, the F.I.R is not an encyclopedia

and need not be contained all the facts and hence, it cannot be

quashed at its threshold. This Court finds that the F.I.R

discloses the prima facie commission of the cognizable offence

and as such, this Court cannot interfere with the investigation.

The investigation machinery has to step into investigation and

unearth the crime in accordance with the procedures prescribed

in the Code.

21. In view of the foregoing discussion, I find no merit in the

contentions of the learned counsel for the petitioners/A.1 to A.4.

Consequently, the Criminal Petition is liable to be dismissed.

22. Resultantly, the Criminal Petition is dismissed. The

Station House Officer, Alipiri Police Station, Tirupati Urban is

directed to complete the investigation in connection with Crime

No.74 to 2013 and file a final report, as expeditiously as

possible, preferably within a period of three months from today.

Registry is directed to communicate the copy of this Order

to all the concerned within a period of one week from today.

As a sequel, the miscellaneous petitions, pending if any,

shall stand disposed of.

JUSTICE DUPPALA VENKATA RAMANA

14.07.2023 DNS Mjl/*

L.R.Copy to be marked

HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

CRIMINAL PETITION No.7216 OF 2013

14.07.2023 DNS Mjl/*

L.R.Copy to be marked

IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI

**** CRIMINAL PETITION No. 7216 of 2013 Between:

1. E.V.Satish @ Satish Kumar, S/o.E.V.Viswanadha Rao, aged 47 years, Business, R/o.18-3-61/2, Santhinagar, Khadi Colony, Tirupati - 518 507, Chittoor District.

2. C.Ramesh, S/o.C.Venkatamuni, Age 45 years, R/o.D.No.13-4-345/B2, Tata Nagar, Tirupati, Chittoor District.

3. V.Bhaskar, S/o.V.Venkatramaiah, Age 40 years, R/o.D.No.19-4-8E/9, S.T.V.Nagar, Tirupati, Chittoor District.

4. K.Madhava Rao, S/o.K.N.Raghupathi, Age 36 years, Document Writer, R/o.D.No.18-6-122, Sundarayya Nagar, Tirupati, Chittoor District. ... Petitioners/Accused And

1. The State of A.P., Represented by Public Prosecutor, High Court of A.P., Amaravati.

2. G.Srinivasa Murthy, S/o.late G.Shivaram Murthy, Aged 60 years, R/o.D.No.18-3-49, Khadi Colony, Tirupati - 518 507, Chittoor District. .. Respondents

DATE OF JUDGMENT PRONOUNCED: 14-07-2023

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? Yes/No

2. Whether the copies of judgment may be marked to Law Reporters / Journals? Yes/No

3. Whether His Lordship wish to see the fair copy of the Judgment? Yes/No

DUPPALA VENKATA RAMANA, J

* THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ CRIMINAL PETITION No. 7216 of 2013

% 14-07-2023

Between:

1. E.V.Satish @ Satish Kumar, S/o.E.V.Viswanadha Rao, aged 47 years, Business, R/o.18-3-61/2, Santhinagar, Khadi Colony, Tirupati - 518 507, Chittoor District.

2. C.Ramesh, S/o.C.Venkatamuni, Age 45 years, R/o.D.No.13-4-345/B2, Tata Nagar, Tirupati, Chittoor District.

3. V.Bhaskar, S/o.V.Venkatramaiah, Age 40 years, R/o.D.No.19-4-8E/9, S.T.V.Nagar, Tirupati, Chittoor District.

4. K.Madhava Rao, S/o.K.N.Raghupathi, Age 36 years, Document Writer, R/o.D.No.18-6-122, Sundarayya Nagar, Tirupati, Chittoor District. ... Petitioners/Accused And

1. The State of A.P., Represented by Public Prosecutor, High Court of A.P., Amaravati.

2. G.Srinivasa Murthy, S/o.late G.Shivaram Murthy, Aged 60 years, R/o.D.No.18-3-49, Khadi Colony, Tirupati - 518 507, Chittoor District. .. Respondents

! Counsel for Petitioners : Sri Y.V.Ravi Prasad

^ Counsel for Respondents : Asst.Public Prosecutor (State)

< Gist:

> Head Note:

? Cases referred:

1. AIR 1992 SC 604

2. 2021 SCC Online SC 976

3. (2000) 2 SCC 636

4. (2019) 14 SCC 350 This Court made the following: