Andhra Pradesh High Court - Amravati
Pannala Vishwanath vs State Of Ap on 26 June, 2024
APHC010035422016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
WEDNESDAY ,THE TWENTY SIXTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION N
Nos. 14577 OF 2016 AND 4891 of 2018
BETWEEN:
M/s Premier Tobacco Packers Pvt Ltd ...Petitioner/Accused
Petitioner/Accused
AND
The State of AP & Another ...Respondent/Complainant
Respondent/Complainant(S)
Counsel for the Petitioner/accused:
1. S SATYANARAYANA MOORTHY
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. MARELLA RADHA
BETWEEN:
Pannala Vishwanath ...PETITIONER/ACCUSED
AND
State of AP and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/accused:
1. PONNADA SREE VYAS
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. MARELLA RADHA
The Court made the following:
2
COMMON ORDER:
Since the issues involved in these two Criminal Petitions
are arising out of the same crime against different accused, as
such, this Court deems it appropriate to dispose of these two
cases by way of common order.
2. Both the Criminal petitions are filed to call for the records
pertaining to FIR No.396 of 2016 dated 03.09.2016 of Nallapadu
Police Station, Guntur urban and to quash the same. Wherein
the police has registered FIR for the offences under Sections 406,
419, 420, 463, 464, 468 r/w 120B IPC r/w 156(3) Cr.P.C.
3. The 2nd respondent/defacto-complainant filed a private
complaint under Section 200 Cr.P.C. to take cognizance for the
aforesaid offences and to punish the accused and the facts
mentioned in the complaint is that he is the title holder of the
property in Survey No.201 in an extent of 270 Sq. yards in Plot
No.12 of Adavitakkillapadu Village, Pada Palakaluru Revenue
village, Guntur Mandal. And he purchased the said property from
one Umamaheswari W/o. Narasimha, vide document No.10472 of
1987 dated 19.12.1987 of Guntur Sub Registrar Officer. While
shifting his family to Visakhapatnam, the defacto-complainant
entrusted the original sale deed referred supra to the 1st accused
to protect the complainant's interest over the above said property,
who has alienated without the consent of the defacto-
complainant. The 1st accused who sold the property to the 2nd
accused-Marri Venkata Reddy, who, in turn, sold the property in
favour of accused No.5 i.e. M/s. Premier Tobacco Packers
Private limited represented by Bommidala Bhanu Murthy, vide
document bearing No.3548 of 2008 dated 14.07.2008 of Sub-
Registrar Office, Nallapadu. And the said issue has come to his
notice when he obtained Encumbrance Certificate on
09.07.20214 from Sub-Registrar Office by impersonating him.
The defecto-complainant/2nd respondent herein has issued
notices to all the accused and Accused No.2 and Accused No.5
received the said notices, but, they did not choose to give reply.
On receipt of the complaint of the 2nd respondent, the
jurisdictional Magistrate has forwarded the complaint to the
police, Nallapadu under Section 156(3) Cr.P.C. The police has
registered the crime as FIR No.396 of 2016, dated 03.09.2016
which is assailed in the present Criminal Petitions by
petitioners/accused No.1 and 5.
4. The 1st petitioner/accused filed Criminal Petition No.4891 of
2018 and the accused No.5 filed Criminal Petition No.14577 of
2016.
5. The accused No.1 has assailed the criminal petition on the
ground that the allegation in the complaint does not disclose
dishonest inducement to deliver property or fulfill the ingredients
of Section 420 I.P.C., and relied on the judgment of the Hon'ble
Apex Court in Rekha Jain v. State of Karnataka and another1 for
the proposition to attract offences under Section 420 IPC, there
must be a dishonest inducement to deceive a person to deliver
any property to another person and there is no such allegation
against this accused for any inducement. Therefore, it is pleaded
2022 SCC OnLine SCC 585
that Section 420 IPC has no application, hence pleaded to quash
the FIR.
6. It is the contention of accused No.5 that the 2nd
respondent/defacto-complainant has filed Suit OS No.73 of 2016
on the file of II Additional Senior Civil Judge (FTC), Guntur to
cancel the Sale Deed executed by the Accused No.2 in favour of
the Accused No.5 and for declaration of title and the suit had
been dismissed by the Senior Civil Court by decree and judgment
dated 18.06.2024 which alludes that the pleadings of the 2nd
respondent/defacto-complainant is false and the 2 nd respondent
tried to convert the civil dispute into a criminal offence to apply
pressure on the accused to settle the civil dispute. Therefore, he
would pray to quash the FIR registered against Accused No.5 i.e.
Bommidala Bhanu Murthy.
7. Learned counsel appearing for the Accused No.5 also
stated that the suit is filed prior to the initiation of the Criminal
Proceedings. In order to settle this course of the civil disputes,
the 2nd respondent-defacto-complainant has initiated false
criminal case against the Accused No.5.
8. Learned counsel appearing for the 2nd respondent/defacto-
complainant would submit that even the dispute is a civil nature, if
there is any element of breach of trust, dishonest and fraudulent
intention with mens rea, it gives rise to criminal prosecution as
well and merely on the ground that there was a civil dispute
criminality involved in the matter cannot be ignored. And stated
that the 2nd respondent/defacto-complainant has entrusted the
property to the Accused No.1 while shifting his family to
Visakhapatnam with a trust to protect the property, but with
criminal intention and mens rea the Accused No.1, has sold the
property by breaching the trust and mere dismissal of the civil suit
has no ground to quash the FIR. In a criminal case, the
prosecution has to prove offence beyond all reasonable doubts
but such position is not attracted in a civil suit, where the
allegations are to be proved by preponderance of probabilities
and the real culprit should be punished to do the justice to the
victim. And as held by the Hon'ble Apex Court in catena of
decisions, the Court should not interfere when the investigation is
at a nascent stage, and also filed the deposition of D-2 who is
arrayed as Accused No.2 in the FIR and stated that as per the
deposition, it is evident that the respondents have committed the
offence. Therefore, learned counsel appearing for the 2nd
respondent pleaded to dismiss the criminal petitions.
9. The Defendant No.2 in O.S.No.73 of 2016 on the file of the
I Additional Senior Civil Judge at Guntur, who is arrayed as
accused No.2, in his cross examination in the suit has stated that
he has not paid any amount to M.V. Krishneswara Sharma
(Defacto-complainant) and he has no acquaintance with him and
he has acted at the instructions of Kota Brahmaiah (attestor-cum-
A-3).
10. The Hon'ble Supreme Court in Dr. Lakshman v. State of
Karnataka and others2 has held that it is not permissible for High
Court in application under Section 482 of Criminal Procedure
Code to record any finding, wherever there are factual disputes.
(2019) 9 SCC 677
The Court also held that even in disputes of civil nature where
there is allegation of breach of contract, if there is an element of
breach of trust with mens rea which gives rise to criminal
prosecution as well and merely on the ground that there was a
civil dispute, criminality involved in the matter cannot be ignored.
Further, where there is any mens rea on the part of the accused
or not is a matter required to be considered having regard to the
facts and circumstances and contents of complaint and evidence
etc., therefore, it cannot be said pre judged in a petition under
Section 482 of Criminal Procedure Code.
11. As seen from the deposition of the Accused No.2/D-2 in the
suit that there is mens rea is apparent on the part of the accused
to deceive the defacto-complainant/2nd respondent herein. The
Hon'ble Supreme Court in the case of Dr. Vimala v. Delhi
Administration3 explained the meaning of the expression
"defraud" thus: the 'expression' "defraud" involves two elements
namely, deceit and injury to the person deceived. Injury is
something other than economic loss, that is, deprivation of
property, whether movable or immovable or of money and it will
include any harm whatever caused to any person in body, mind,
reputation or such others. In short, it is a non economic or non-
pecuniary loss. A benefit or advantage to the deceiver will almost
always cause loss or detriment to the deceived. Even in those
rare cases where there is a benefit or advantage to the deceiver,
but no corresponding loss to the deceived, the second condition
is satisfied.
AIR 1963 SC 1572
12. In Commissioner of Customs v. Essar Oil Ltd.,(2004) 11
SCC 364 wherein the Hon'ble Supreme Court has recited that:
A "fraud" is an act of deliberate deception with the design of
securing something by taking unfair advantage of another. It is
a deception in order to gain by another's loss. It is a cheating
intended to get an advantage.
13. The Hon'ble Apex Court in Neeharika Infrastructure Private
limited v. State of Maharashtra and others4, after considering
plethora of judgments has laid down some guidelines to be
exercised the jurisdiction under Section 482 of Criminal
Procedure Code and or under Article 226 of Constitution of India
some of the guidelines are culled out which are relevant to the
present facts of the case and as per the guidelines framed by the
Hon'ble Apex Court, the High Court can exercise its jurisdiction
under Section 482 Cr.P.C (i) when there is no cognizable offence
or offence of any ground is disclosed in First Information Report.
(ii) And the Court cannot embark upon an enquiry as to the
reliability or genuineness or otherwise of allegations made in the
FIR/complaint and the criminal proceedings ought not to be
scuttled at the initial stage. (iii) And the functions of the judiciary
and the police are complementary, not overlapping. (iv) And also
held that even after investigation, if the investigating officer finds
that there is no substance in the application made by the
complainant, the investigating officer may file an appropriate
report/summary before the learned Magistrate which may be
4 2021 SC Online 315
considered by the learned Magistrate in accordance with known
procedure.
14. The Hon'ble Supreme Court in R. Kalyani v. Janak C
Mehta5 the High Court has culled out the following principles
from the other judgments of the Hon'ble Apex Court held as
under:
(1) The High Court ordinarily would not exercise its
inherent jurisdiction to quash a criminal proceeding
and, in a particular, a first information report unless
the allegations contained therein, even if face value
and taken to be correct in their entirety, disclosed no
cognizable offence.
(2) For the said purpose the Court, save and except in
very exceptional circumstances, would not look to
any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If
the allegations made in the FIR discloses
commission of an offence, the Court shall not go
beyond the same and pass an order in favour of the
accused to hold absence of any mens rea or actus
reus.
(4) If the allegation discloses a civil dispute, the same by
itself may not be a ground to hold that the criminal
proceedings should not be allowed to continue.
(2009) 1 SCC 516
15. The Hon'ble Supreme Court in Aniruddha Khanwalkar v.
Sharmila Das & others6 held that when there is a prima facie case
is made out would sufficient to proceed with the investigation,
when there is an allegation with regard to commission of
cognizable offence by the accused.
16. The judgment relied by the learned Senior Counsel in
Rekha Jain v. State of Karnataka and another (supra 1) is not
applicable to the present facts of the case. In the said case a
complaint/report was lodged to the police against Kamalesh
Mulchand Jain who is husband of the appellant (Rekha Jain) with
the allegation that by misrepresentation, inducement and with an
intention to cheat him, the said Kamalesh Mulchand Jain had
taken away gold jewellery. Initially a complaint was registered
under Section 420 IPC against Kamalesh Mulchand Jain. It was
found that the appellant (Rekha Jain) was absconded along with
Kamlesh Mulchand, therefore, the investigation was carried out
against Rekha Jain also, which led to the Rekha Jain to approach
the High Court under Section 482 IPC as the High Court has
refused to quash the proceedings, even in so far as Rekha Jain is
concerned. Thus Rekha Jain filed appeal before the Hon'ble
Apex Court. The Hon'ble Apex Court held that there is no
specific allegation against the appellant Rekha Jain that she has
misrepresented or induced to deliver the property, the entire case
is against husband of Rekha Jain. Therefore the facts therein
and the facts herein are entirely different, the judgment is not
applicable to the present facts of the case.
2024 LiveLaw (SC) 332
17. The complaint filed by the 2nd respondent/defacto-
complainant is that accused No.1 has breached the trust kept on
him in collusion with the other accused and has sold the property
by impersonation basing on the document which is kept with him
with trust. All the accused in collusion with fictional character
impersonated the complainant and the property with dishonest
and fraudulent intention. On perusal of the deposition of the 2nd
accused who is defendant No.2 in the suit supports the
accusation made by defacto-complainant against the accused.
This Court is of the view that the contentions raised by the 2nd
respondent/defacto-complainant are acceptable.
18. A civil nature, by itself, is no ground to quash the
proceedings and it is only after collection of evidence, the real
nature of the dispute could be found out. In a case of forgery and
fraud there would always be some element of civil nature. As
held by the Hon'ble Supreme Court in the aforesaid judgments
even though there is a civil dispute, the Court should not interfere
at the FIR stage.
19. In opinion of this Court it would be unsafe, at this stage, to
exercise power under Section 482 of the Code of Criminal
Procedure on the contention raised by the applicants about the
civil nature of the dispute.
20. Hence, for the above discussion, this Court is not inclined
to quash the FIR at the nascent stage and in view of the Supreme
Court judgments referred supra.
21. Accordingly, the Criminal Petitions are dismissed.
As a sequel, interlocutory applications, if any pending in
these Criminal Petitions shall stand closed.
___________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 26.06.2024
Harin
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO
CRIMINAL PETITION Nos. 14577 OF 2016
AND 4891 of 2018
Date: 26-06-2024
Harin
