Code Of Criminal Procedure vs Unknown
2023 Latest Caselaw 3607 AP

     HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
              CRIMINAL PETITION No. 9685 of 2011
ORDER:

In this Criminal Petition filed under Section 482 of the

Code of Criminal Procedure, 1973 (for short "Cr.P.C")

petitioner/accused seeks to quash the proceedings against him

in Crime No.138 of 2009 of Mandapeta Rural Police Station,

East Godavari District, registered for the offence under Sections

403, 406 and 409 IPC.

2. The 2nd respondent is the de facto complainant, who was

the-then Deputy Executive Engineer, lodged a report to the

Police alleging that the Managing Director of Andhra Pradesh

State Housing Corporation Limited (A.P.S.H.C.L.), Hyderabad,

has ordered for third party enquiry basing on the adverse news

items published in Eenadu daily newspaper and the complaint

petitions received from MPP and ZPTC, Mandapeta, through

M/s.Gayathri Rural Educational Society. Basing on the enquiry

report submitted by the Executive Engineer(Housing),

Amalapuram, it was found that certain grave irregularities were

committed by the petitioner herein and seven others in

construction of Indiramma Housing Colonies at Tapeswaram

Village, Mandapeta Mandal. It is alleged that there are lot of

lapses in implementing the procedures besides high

misappropriation involved which could only clearly be

established at the second level enquiry besides taking

appropriate action based on the first level report. The

irregularities pointed out in the report, are i) the amounts paid

without starting house or to ineligible candidates, ii) amount

paid to old houses, iii) double payments made to same houses,

and iv) amount paid to Pink Ration Card holders and the

amount involved is Rs.59,98,000/- and the Executive

Magistrate-cum-District Collector, APSHCL, East Godavari

District directed the Deputy Executive Engineer, Housing,

Rajahmundry to file a case (F.I.R) against the persons, who

committed irregularities in construction of Indiramma Housing

Colonies in Tapeswaram Village of Mandapeta Mandal for

misappropriation of funds of Rs.59,98,000/-. On the basis of

the said report, a case in Crime No.138 of 2009 was registered

by Mandapeta Rural Police Station, East Godavari District for

the offence under Sections 403, 406 and 409 IPC against eight

persons wherein the petitioner herein was shown as one of the

accused. The said crime was investigated and eventually found

prima facie evidence against the petitioner/accused herein and

others. When the investigation is at the fag end, the petitioner

herein approached this Court, seeking to quash the criminal

proceedings in the above crime against him.

3. Heard Sri G.L.Nageswara Rao, learned counsel for the

petitioner and Sri P.M.Mithileswara Reddy, learned Assistant

Public Prosecutor for the 1st respondent-State.

4. Learned counsel for the petitioner would submit that one

Saladi Venkateswara Rao (Srinu Babu), who was the husband of

the Sarpanch, Tapeswaram Village has committed the

misappropriation, but the Petitioner herein is no way concerned

with the alleged offence. Further, he would submit that the

Executive Engineer is the Supervising Authority against the

petitioner/accused and to release the funds. Further, he would

submit that the act of misappropriation of funds cannot be

attributed against the petitioner herein only since the Superiors

of the petitioner/accused are also responsible and to save their

responsibility, fixed the liability against the petitioner/accused,

though he is no way connected for misappropriation of funds.

Further, he would submit that even if the entire accusations in

the First Information Report are accepted to be true and correct,

no prima facie case for the offences alleged is made out against

the petitioner/accused and that there is no dishonest intention

on the part of the petitioner/accused to commit criminal breach

of trust right from its inception. Therefore, the criminal

complaint filed by the 2nd respondent is frivolous and vexatious.

Hence, he prays to quash the impugned proceedings.

5. On the other hand, learned Assistant Public Prosecutor

opposed the petition stating that there are specific accusations

levelled against the petitioner herein and the case is at crime

stage and it is too premature stage to quash the proceedings.

Further, he would submit that there is a large scale of

misappropriation committed by the petitioner along with other

accused in huge transactions amounting to Rs.59,98,000/- as

stated in the complaint. The modus operandi of the petitioner in

routing the amount with the connivance of the other accused

caused loss of Rs.59,98,000/- to the Exchequer. He would

further submit that since the matter is at the stage of

investigation, the truth or otherwise of the said allegations

would reveal during the course of investigation and therefore,

this Court may not interfere at this stage. Further, he would

submit that there is no merit in the contention of the petitioner

that there are no allegations against him with regard to the

commission of the offence in connection with the

misappropriation of funds. Therefore, he would pray for

dismissal of the criminal petition.

6. I have given my anxious consideration to the submissions

made by the learned counsels appearing for the respective

parties and perused the material on record.

7. It is not in dispute that the petitioner/accused was an

Assistant Engineer(Housing), Mandapeta, during the relevant

period. It is also not in dispute that the de facto complainant

i.e., the Deputy Executive Engineer during the relevant period is

the next Superior to the petitioner/accused. It is also not in

dispute that the matter is still being investigated by the Police.

The offences punishable are as afore-quoted. The entire issue

springs from the complaint, certain allegations were made in the

complaint and the enquiry reports of first and second level

committees communicated to the Collector and directed the 2nd

respondent to file a complaint with the allegations made in the

report are required to be investigated to ascertain the truth in

the allegations made therein.

8. The complaint was lodged by the 2nd respondent basing on

the enquiry report alleging that the individuals i.e., petitioner

herein and seven other accused committed irregularities and

misappropriated the funds to a tune of Rs.59,98,000/-. Such

irregularities and misappropriation of funds were narrated in

the enquiry report which was enclosed with the complaint.

Basing on the said enquiry report, the Executive Magistrate-

cum-District Collector directed the 2nd respondent to lodge a

report against the erring officials and others. Upon the said

instructions, the present report came to be lodged. Therefore,

the issue in the complaint allegations under Sections 403, 406

and 409 IPC made out against the petitioner/accused herein

and other accused is uncontraverted.

9. At this juncture, it is relevant to refer to Sections 403, 406

and 409 IPC which read as follows:

403. Dishonest misappropriation of property.--Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1*[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

10. This Court perused the record and office note dated

04.08.2009 submitted by the Superintending Engineer, Housing

to the District Collector basing on the enquiry report under 5th

reference cited. The allegations made in the complaint made out

a prima facie case for the offences alleged against the

petitioner/accused, for the reason that there is a dishonest

intention on the part of the petitioner/accused from the

beginning and as directed by APSHCL, the petitioner being

Assistant Engineer supervised to construct Indiramma Housing

Colonies at Tapeswaram, Mandapeta Mandal, East Godavari

District in Phase-I under the supervision of the Engineers of the

Corporation. Admittedly, there were lapses alleged against the

petitioner/accused during the construction of Housing Colonies.

The Superior Engineers noticed about the misappropriation of

funds through a news item published in newspapers and the

complaints received from MPP and ZPTC and ordered for

enquiry and noticed certain irregularities and misappropriation

of funds committed by them. In order to examine as to whether

the factual contents of the report disclose any cognizable offence

or not, this Court cannot act like an investigating agency nor

can exercise the powers like an Appellate Court and the

question is required to be examined by the investigating agency

keeping in view the contents of the F.I.R and prima facie

material on record. At this stage, this Court cannot appreciate

the evidence nor can draw its own inferences from the contents

of F.I.R and the material relied on as it is the job of the

Investigating Authority.

11. In Kaptan Singh Vs. State of Uttar Pradesh1 the Hon'ble

Apex Court at Para No.9.2 held as follows:

"9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87."

12. In the light of the above judgment, exercise of the powers

under Section 482 Cr.P.C to quash the proceedings is an

exception and not a rule. It is further observed that the

(2021) 9 SCC 35

appreciation of evidence is not permissible at this stage of

quashing the proceedings in exercise of powers under Section

482 Cr.P.C.

13. Having perused the entire record and considered the fact

that there are serious allegations made in the complaint which

are required to be gone into which will emerge during course of

investigation. It is to be investigated as to whether the

petitioner/accused had any role to play or not. It would not be

a fit case for this Court to exercise the powers under Section

482 Cr.P.C. Upon completion of the investigation, necessary

investigation report would be filed either as (A) charge sheet

against the petitioner and other accused or as (B) report if he is

not involved. At this stage, it cannot be stated that the petitioner

is not involved in the aforesaid misappropriation. The petitioner

being an Assistant Engineer during the relevant period, it

cannot be said that such a huge amount was misappropriated

without his knowledge or otherwise.

14. In view thereof, when the investigation is pending, I am of

the considered opinion that it is not a fit case to exercise the

extraordinary inherent power vested with this Court under

Section 482 Cr.P.C.

15. The petitioner/accused or his Superior Engineers are

permitted to place all the relevant details and the documents

before the Investigating Officer during the course of investigation

as and when required. In the light of the disputed questions of

fact and serious issues existing in the case at hand, and the

judgment of the Hon'ble Apex Court referred to supra, this Court

declined to entertain the petition, particularly at this crime stage

which is under investigation. However, it is made clear that the

observations made by this Court in the present proceedings are

to be treated to be confined to the proceedings under Section

482 Cr.P.C only and the Investigating Officer has to proceed

with the investigation in accordance with law and without being

influenced by any of the observations made by this Court

hereinabove.

16. In view of the foregoing discussion, the present criminal

petition seeking quash of the proceedings in Crime No.138 of

2009 of Mandapeta Rural Police Station, East Godavari District,

lacks merit and is liable to be dismissed.

17. Resultantly, the Criminal Petition is hereby dismissed.

(ii) The Investigating Officer is directed to complete the

investigation in the above crime within a period of three months

from the date of receipt of a copy of this Order.

(iii) The Registry is directed to communicate the copy of

this Order to the Station House Officer, Mandapeta Rural Police

Station, East Godavari District, 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

21.07.2023 Dinesh Mjl/*

HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

CRIMINAL PETITION No.9685 OF 2011

21.07.2023 Dinesh Mjl/*