K.Bala Narayana vs The State Of A.P., Rep By P.P ...
2023 Latest Caselaw 4139 AP

     HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
            CRIMINAL PETITION No.9458 of 2017
ORDER:

This Criminal Petition is filed under Section 482 of the

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

petitioner/A.1 seeking to quash the proceedings in Crime No.40

of 2017 of Savalyapuram Police Station, Guntur, registered for

the offence under Sections 181, 218, 420, 467, 468 and 471

read with 34 IPC, and Section 82 of the Registration Act.

2. The private complaint filed under Section 156(3) Cr.P.C by

the 2nd respondent herein was referred to the Police by the

learned Judicial First Class Magistrate, Vinukonda, Guntur

District, which was registered as a case in Crime No.40 of 2017

and investigation is reported pending.

3. The brief facts leading to filing of the present criminal

petition, in a nut-shell, are as under:

(i) The petitioner/A.1 and A.2 are the brother and

sister and A.3 is a public servant working as a Village Revenue

Officer, Potluru, A.5 is the brother-in-law of A.2 and A.4 and A.6

are the close associates of the petitioner/A.1. The husband of

the 2nd respondent/de facto complainant worked in Municipality

and retired from service and settled in their village. He got

landed property of Ac.1.40 cents in D.No.356 of Potluru Village.

Her husband died intestate on 30.07.2015. After his death,

petitioner/A.1 and A.2 made several illegal attempts to knock

away the aforesaid property. The Government started a scheme

of land acquisition for formation of railway track from Nadikudi

to Srikalahasti and acquired the said land to an extent of

Ac.1.10 cents out of Ac.1.40 cents belongs to the husband of the

2nd respondent and awarded compensation of Rs.22.00 lakhs to

the family of the 2nd respondent/de facto complainant. The

petitioner/A.1, A.2 and A.3 colluded together and forged the

thumb impression of the 2nd respondent/de facto complainant

and withdrew the said amount of Rs.22.00 lakhs by

manipulating the revenue records. The petitioner/A.1 and A.2

fabricated a false document on 22.07.2016 in collusion with A.4

to A.6 to an amount of Rs.2,70,000/- worth and registered in

favour of A.2 for the rest of the land by the petitioner/A.1 vide

Doc.No.4503 of 2016.

(ii) After coming to know the illegal acts, the 2nd

respondent/de facto complainant questioned the petitioner/A.1

and A.2 and they have not given proper reply and threatened

her with dire consequences and she obtained the forged

documents under Right to Information Act with the help of

L.W.2(Prabhakara Rao). All the accused colluded with each

other and caused huge loss to the 2nd respondent/de facto

complainant. As such, the 2nd respondent/de facto complainant

presented a private complaint and the same was forwarded to

the Police. The crime was investigated about the complicity of

the accused in commission of offence. Pending investigation, the

petitioner/A.1 filed the present petition seeking to quash the

criminal proceedings against him in the above crime.

4. Heard the learned counsel for the petitioner/A.1; learned

Assistant Public Prosecutor for the State and the learned

counsel for the 2nd respondent.

5. The learned counsel for the petitioner/A.1 would submit

that the allegations made in the complaint are purely civil in

nature and instead of approaching the Civil Court, the 2nd

respondent/de facto complainant initiated criminal proceedings

to pressurize the parties to settle the compensation amount. He

would further submit that initiation of criminal proceedings is

nothing but an abuse of process of law and the allegations made

in the complaint are purely civil in nature are sought to be given

the colour of a criminal offence in collusion with the

L.W.2 (Prabhakara Rao), who is the another son of the 2nd

respondent/de facto complainant, to wreak vengeance against

the petitioner/A.1. Further, he would submit that during the

life time of the husband of the 2nd respondent/de facto

complainant, he executed an unregistered Will on 25.07.2015 in

favour of petitioner/A.1, which was duly attested by the

attestors and after his death, the said Will came into force.

6. Further, he would submit that there was exchange of

notices in between the parties. It was mentioned in the reply

notice dated 28.03.2017 that the petitioner/A.1 is in exclusive

possession and enjoyment of the schedule property. He would

further submit that as per the Will the petitioner/A.1 is entitled

to receive the said amount and after making enquiry, the

Revenue Authorities paid the compensation amount to the

petitioner/A.1. Further, he would submit that there is

absolutely no material in the complaint showing the commission

of any offences much less to say that the offence under Sections

181, 218, 420, 467, 468 and 471 read with 34 IPC, and Section

82 of the Registration Act. Further, he would submit that

referring the complaint to the Police by the learned Magistrate

under Section 156(3) Cr.P.C without mentioning the reasons as

to what circumstances have weighed in the mind for referring

the complaint to the Police, which is a sine qua non to transmit

the complaint to the Police for investigation. Since no such

reasoned order was passed by the learned Magistrate, on that

ground alone the criminal proceedings are liable to be quashed

in view of the judgment of Hon'ble Apex Court in Priyanka

Srivastva Vs. State of Uttar Pradesh 1 and in the instant case,

since the complainant did not file her sworn affidavit and the

learned Magistrate without recording her sworn statement ought

not to have forwarded the complaint to the Police. Further, he

would submit that the ingredients required to constitute a

criminal offence are not made out from a bare reading of the

complaint and the continuation of criminal proceedings is an

abuse of process of law. He thus, prayed to quash the

proceedings in the above crime.

7. Per contra, the learned counsel for the 2nd respondent/de

facto complainant would argue that the complaint allegations

amply disclose the commission of the offence. Further, he would

submit that while forwarding the complaint under Section

156(3) Cr.P.C at the pre-cognizance stage, the learned

Magistrate need not give any elaborate reasons. Further, he

would submit that if the investigating agency is permitted to

investigate the case thoroughly, the truth would come out as to

whether the Will is genuine or not and whether the thumb

1 (2015) 6 SCC 287

impression of the 2nd respondent/de facto complainant in the

revenue record while making an enquiry for payment of

compensation, is that of her or not. As such, the matter requires

investigation to ascertain the truth or otherwise of the said

allegations. He would further submit that there is no merit in

the contentions of the petitioner/A.1 that there are no

allegations against the petitioner/A.1 with regard to the

commission of offence. Further, he would submit that

continuation of investigation in Crime No.40 of 2017 cannot be

said to be an abuse of process of law. Therefore, he would pray

for dismissal of the criminal petition.

8. Learned Assistant Public Prosecutor conceded to the

arguments advanced by the learned counsel for the 2nd

respondent.

9. Having perused the relevant facts and contentions raised

by the learned counsels for both the petitioner and the

respondents, in my considered opinion, the primary issue which

requires determination in the instant case is:

Whether the allegations made against the petitioner/A.1 would attract the accusation made against him and whether there are any merits in the criminal petition to allow?

POINT:

10. In a decision reported in State of Haryana & Others Vs.

Ch.Bhajanlal and Others2, the Hon'ble Apex Court held that in

exercise of extraordinary power conferred under Article 226 of

Constitution of India or the inherent powers under Section 482

Cr.P.C, the following categories of cases are given 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 guide, myriad kinds of cases wherein, such power

should be exercised. The relevant guidelines read as under:

"(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;

AIR 1992 SC 604

(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."

We also give a note of caution to the effect 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; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

11. As can be seen from the above guidelines, the 1st guideline

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 criminal proceedings against the petitioner can

be quashed. On this touchstone, when the complaint allegations

are perused, the pivotal allegation is that without having

knowledge of the 2nd respondent, the petitioner/A.1 and A.2 to

A.6 in collusion withdrew the amount of compensation by

forging the thumb impression of the 2nd respondent. The further

allegation is that an extent of Ac.1.40 cents is the self acquired

property of the husband of the 2nd respondent and he died

intestate and, therefore, all the family members are entitled to

claim their respective shares in the compensation amount.

12. Before filing of the complaint by the 2nd respondent/de

facto complainant, exchange of notices were made in between

the petitioner/A.1 and A.2 and the 2nd respondent/de facto

complainant and her another son L.W.2(K.Prabhakara Rao).

The said notices were filed along with the complaint. Admittedly,

in the reply notice dated 28.03.2017 issued by the

petitioner/A.1 and A.2 through their counsel claiming that the

compensation claimed under the property by the 2nd

respondent/de facto complainant is the self-acquired property of

the late husband of the 2nd respondent/de facto complainant.

The above said fact is not in dispute. The another plea taken by

the petitioner/A.1 is that, during the life time of his father, he

executed an unregistered Will dated 25.07.2015 duly attested by

the attestors. Under the said Will, he succeeded with the

property and the compensation amount was paid to him as per

the procedure. The above said issue is purely civil in nature,

which has to be decided by a competent Civil Court.

13. At this stage, even if the complaint allegations are taken

into consideration, one cannot conclude prima facie that the

petitioner/A.1 has committed the alleged offence. It is a cardinal

principle that when the complaint allegations essentially

disclose the civil dispute and not a criminal offence,

continuation of criminal proceedings would amount to the abuse

of process of the Court.

14. In Devendra and others Vs. State of Uttar Pradesh and

another3, the Hon'ble Apex Court at Para No.27 held as follows:

"27. ................. A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute 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."

15. In Paramjeet Batra Vs. State of Uttarakhand and

others4, the Hon'ble Apex Court held at Para No.12 held as

follows:

"12. While exercising its jurisdiction under Section 482 of the Code the High 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.

Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil

3 (2009) 7 SCC 495 4 (2013) 11 SCC 673

transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."

16. In Chandran Ratnaswami Vs. K.C.Palanisamy and

others5, the Hon'ble Apex Court held at Para 60 as follows:

"60. We are of the definite opinion that the complainant has manipulated and misused the process of court so as to deprive the appellants from their basic right to move freely anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of the alleged breach of a joint venture agreement specially when such disputes have been finally resolved by the court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No. 7 of 2007 to continue would be an abuse of the process of the court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law."

17. In the light of the above judgments, if the allegations made

in the complaint are read together, the criminal prosecution is a

serious matter, which affects the liberty of a person. No greater

damage can be done to the reputation of a person than dragging

him in a criminal case. The petitioner/A.1 claimed the amount

under an unregistered Will. When the same is disputed by the

2nd respondent, she has to approach a competent Civil Court

proving that the said Will said to have been executed by her

(2013) 6 SCC 740

deceased husband is not true. Instead, the 2nd respondent

lodged a private complaint in support of her another son

L.W.2 (Prabhakara Rao). As the civil suit takes long number of

years to settle the disputes, therefore, she approached the Police

to pressurize the parties to settle their respective shares in the

compensation amount awarded under the land acquisition.

18. In Mohammed Ibrahim and others Vs. State of Bihar

and another6, the Hon'ble Apex Court at Para No.8 held as

follows:

"8. This Court has time and again drawn attention to the growing tendency of the 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 on 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 pressurise parties to settle civil disputes...................."

19. In Joseph Salvaraja Vs. State of Gujarat and others 7, at

Para No.17, the Hon'ble Supreme Court of India held as follows:

"17. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the appellant. It does not meet the strict standard of proof required to sustain a criminal accusation............."

6 (2009) 8 SCC 751

7 (2011) 7 SCC 59

20. In V.Y.Jose and another Vs. State of Gujarat and

another8, the Hon'ble Apex Court at Para Nos.27 and 28 held as

follows:

"27. The said principle has been reiterated in All Cargo Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain [(2007) 14 SCC 776 : (2007) 12 Scale 391] stating: (SCC p. 781, para 16) "16. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice."

28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts."

21. In the light of the decisions referred to supra, there is

absolutely no material in the complaint showing the commission

of any offence much less the offences under Sections 181, 218,

420, 467, 468 and 471 read with 34 IPC, and Section 82 of the

Registration Act. The continuation of criminal proceedings is an

abuse of process of law. The criminal proceedings initiated by

8 (2009) 3 SCC 78

the 2nd respondent are nothing but an abuse of process of law

for settling their respective shares in the compensation amount

in which the petitioner/A.1 claimed the amount under a Will

said to have been executed by the husband of the 2nd

respondent in his favour, which is purely civil in nature.

Further, the allegations made in the complaint disclose civil

transactions may also have a criminal texture. But, this Court is

of the view that such dispute which is in substance of civil

nature is given a cloak of criminality with an intention to

pressurize the petitioner/A.1 to bring him to her own terms. As

observed above, the Hon'ble Apex Court in several judgments

held that where the ingredients of certain offences were not

made out in the F.I.R/complaint, such criminal proceedings are

liable to be quashed under Section 482 of Cr.P.C.

22. In the instant case, the 2nd respondent/de facto

complainant filed a private complaint before the Court of

Judicial Magistrate of First Class, Vinukonda, Guntur District

and in turn, the learned Magistrate forwarded the said

complaint to Savalyapuram Police Station, Guntur without

complying the mandatory requirements as observed by the

Hon'ble Apex Court in Priyanka Srivastava's case (supra).

Admittedly, the learned Magistrate has not followed the

mandatory requirement. Since the 2nd respondent/de facto

complainant did not file the sworn affidavit, the learned

Magistrate ought not to have forwarded the complaint to the

Police.

23. In Priyanka Srivastava's case (supra), the Hon'ble Apex

Court at Para Nos.27 & 30 held as follows:

"27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.............

30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons.........."

24. The 2nd respondent/de facto complainant is required to file

sworn affidavit in support of the complaint allegations as

observed by the Hon'ble Apex Court. But, in the instant case,

the 2nd respondent/de facto complainant did not file any sworn

affidavit and the learned Magistrate has not recorded the sworn

statement of the 2nd respondent/de facto complainant. When the

above mandatory requirement is not fulfilled, the learned

Magistrate ought not to have forwarded the complaint to the

Police. Therefore, on this ground also, the criminal proceedings

are liable to be quashed.

25. On an overall consideration of the entire material placed

on record and the law laid down by the Hon'ble Apex Court in

the judgments referred to supra, it is suffice to conclude that the

contentions raised by the learned counsel for the petitioner/A.1

and the material produced before this Court directly indicate the

malafides in prosecution of criminal proceedings against the

petitioner/A.1 so also abuse of process of the Court, as an

arm-twisting method to bring the petitioner/A.1 to the terms of

the 2nd respondent/de facto complainant and to cloak a civil

dispute with criminal nature.

26. In view of the foregoing discussion and in the facts of the

present case, this Court is fully satisfied that the present is a

case where the criminal proceedings have been initiated by the

2nd respondent with ulterior motive due to private and personal

grudge with the support of her another son L.W.2(Prabhakara

Rao), and such criminal proceedings to go on is nothing but an

abuse of process of the Court, which needs to be interfered by

this Court. As such, it is a fit case to exercise the inherent

jurisdiction of this Court under Section 482 Cr.P.C to quash the

proceedings in the above crime.

27. Resultantly, the Criminal Petition is allowed. The criminal

proceedings initiated against the petitioner/A.1 in Crime No.40

of 2017 of Savalyapuram Police Station, Guntur, are hereby

quashed.

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

shall stand disposed of.

JUSTICE DUPPALA VENKATA RAMANA

11.09.2023 DNS Mjl/* L.R.Copy to be marked

HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

CRIMINAL PETITION No.9458 OF 2017

11.09.2023 DNS Mjl/* L.R.Copy to be marked

IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI

**** CRIMINAL PETITION No. 9458 of 2017 Between:

Kuravadi Bala Narayana, S/o.China Rangaiah, Aged about 30 years, R/o.Krishnapuram Village, Savalyapuram Mandal, Guntur District. .... Petitioner/A.1 And

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

2. Kuravadi Kanthamma, W/o.China Rangaiah, aged about 68 years, R/o.Narasimhanayunipalem, Donakonda Mandal, Prakasam District, Andhra Pradesh. ... Respondents

DATE OF JUDGMENT PRONOUNCED: 11-09-2023

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.9458 of 2017

% 11-09-2023

Between:

Kuravadi Bala Narayana, S/o.China Rangaiah, Aged about 30 years, R/o.Krishnapuram Village, Savalyapuram Mandal, Guntur District. .... Petitioner/A.1 And

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

2. Kuravadi Kanthamma, W/o.China Rangaiah, aged about 68 years, R/o.Narasimhanayunipalem, Donakonda Mandal, Prakasam District, Andhra Pradesh. ... Respondents

! Counsel for Petitioner : Sri Prabhunath Vasireddy

^ Counsel for Respondents : Asst.Public Prosecutor (State) Sri Md.Saleem for R.2 < Gist:

> Head Note:

? Cases referred:

1. (2015) 6 SCC 287

2. AIR 1992 SC 604

3. (2009) 7 SCC 495

4. (2013) 11 SCC 673

5. (2013) 6 SCC 740

6. (2009) 8 SCC 751

7. (2011) 7 SCC 59

8. (2009) 3 SCC 78 This Court made the following: