Andhra Pradesh High Court - Amravati
Pedapati Vidyasagar vs The State Of Andhra Pradesh on 1 May, 2024
1
APHC010163322024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3396]
(Special Original Jurisdiction)
WEDNESDAY, THE FIRST DAY OF MAY,
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL PETITION NO: 2364/2024
Between:
1. PEDAPATI VIDYASAGAR, S/O, KOTESWARA RAO, AGE 32,OCC
BUSINESS, R/O.D.NO.31-55-16/26, FLAT. NO.LLL, VASANTHA
ENCLAVE, GALAXY CITY, AMMA CONSTRUCTIONS,
KURMANNAPALEM, V ADLAPUDI, VISAKHAPATNAM(RURAL), A. P.
2. PEDDIPATI VIJAY,, S/O. KOTESWARA RAO, AGE 37,OCC
BUSINESS, R/O.D.NO.31-55-16/26, FLAT. NO.L 11, VASANTHA
ENCLAVE, GALAXY CITY, AMMA CONSTRUCTIONS,
KURMANNAPALEM, VADLAPUDI,VISAKHAPATNAM( RURAL), A.P.
...PETITIONER/ACCUSED(S)
AND
1. THE STATE OF ANDHRA PRADESH, Rep. by its public prosecutor At
high court of Andhra Pradesh, through S.H.O I Town PS. Vizianagaram
...RESPONDENT/COMPLAINANT
Petition under Section 437/438/439/482 of Cr.P.C praying that in the
circumstances stated in the Memorandum of Grounds of Criminal Petition, the
High Court pleased to enlarge the Petitioners herein/Accused No.l and 2 on
Anticipatory Bail in the event of their arrest in Crime No. 148 of 2024 on the
file of I Town Police Station, Vizianagaram, Vizianagaram district for the
offences punishable under Sections 420, 409,509 r/w 34 of IPC and provision
of Sec.3(l) (r)(s), 3(2)(va) of SC AND ST POA Act and pass
Counsel for the Petitioner/accused(S):
1. V NITESH
Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
The Criminal Petition, under Section 438 of the Code of Criminal
Procedure, 1973, is filed on behalf of the petitioners/A1 and A2 to grant
anticipatory bail in connection with Crime No.148/2024 of I Town Police
Station, Vizianagaram District.
2. A case has been registered against the petitioners herein for the
offences punishable under Sections 420, 409, 509 read with 34 IPC and Sec.3
(1) (r) (s), 3 (2) (va) of SCs & STs (PoA) Act.
3. The case of the prosecution in nut shell is as follows:
The de-facto complainant namely Sira Durga Rao, filed the complaint
against the petitioners stating that he is working in Aurobindo Pharmaceutical
company near Vizianagaram and staying at Vizianagaram along with his wife.
Meanwhile, the petitioners introduced themselves and believing their words,
they all together set up a Good will Institution near the Secretariat. Then the
petitioners told that they will send himself and his wife to abroad and provide
job and so saying they asked to send money. De-facto complainant send
money to a tune of seven lakhs on different dates. Then the petitioners
arranged flight ticket and the de-facto complainant and his wife went to
Europe i.e. landed in Lativa Country. But they are not provided any job and
from Lativa to they went to Maltas. But there also they were not provided any
job. They came to know that the petitioners cheated them and by borrowing
amount from the sister in law of the de-facto complainant, they returned to
India and went to the petitioners. There the petitioners scolded the
complainant and his wife by touching caste name. Hence the complaint.
Apprehending arrest in the hands of the police, the petiioenrs filed the present
petition for grant of anticipatory bail.
4. Heard Sri V.Nitesh, learned counsel for the petitioners and learned
Assistant Public Prosecutor for the respondent-State.
5. Learned counsel for the petitioners would submit that the petitioners are
innocent and false case has been lodged against the petitioners as a counter
attack against the complaint presented by the petitioners against the de-facto
complainant in the present case dated 11.3.2024. The allegations made in
the complaint even take them in to consideration in to-to, the offence under
Section 409 IPC is not applicable since the petitioners here are not public
servants, or a banker, merchant or an agent. In absence of Section 409 IPC,
the remaining offences are punishable with imprisonment of below seven
years. Learned counsel further submits that there are no criminal antecedents
against the petitioners. The complainant has paid four and half lakhs to the
petitioners for getting their Visa to the United States of America and also to
Europe and it is a visiting Visa. They were not provided with proper job in
Europe. After return to India, when they questioned the petitioners, they were
abused touching the caste. Learned counsel finally submits that it is a counter
blast to their complaint which was given on 11.3.2024, the present complaint
is lodged against the petitioners on 25.3.2024. Learned counsel would finally
submit that the Court may pass appropriate orders directing the police to
follow Section 41-A of Code of Criminal Procedure, since Section 409 IPC has
no application to the facts of the present case.
6. Contrasting the same, learned Assistant Public Prosecutor would
submit that appropriate case is made out against the petitioners as per the
contents of the complaint. Investigation is in progress and prays for dismissal
of the petition and Court may pass appropriate orders.
7. Now the point that would emerge for determination is:
Whether there are any justifiable grounds to grant anticipatory bail
to the petitioners?
8. Considering the submissions made and a fair look at the material
placed on record, this Court is of the view that the petitioners are not entitled
for anticipatory bail. Be that as it may, a relevant question raised by the
learned counsel for the petitioners on the point of application of the offence
under Section 409 IPC against the petitioners is concerned, Section 405 IPC
mandate to maintain a case against an individual punishable under Section
409 IPC. The individual must be a public servant or a banker, merchant or
agent. Individual must have been entrusted in such capacity, with property
and the individual must have committed breach of trust in respect of such
property which was entrusted to them. At this juncture learned counsel for the
petitioners placed reliance on the judgment of the Hon'ble Apex Court
reported in between N.Raghavender vs. State of Andhra Pradesh, CBI 1
wherein the Hon'ble Apex Court has observed at paragraph no.45 that:
45. Accordingly, unless it is proved that the accused, a public servant or a
banker etc. was 'entrusted' with the property which he is duty bound to account
for and that such a person has committed criminal breach of trust, Section 409
IPC may not be attracted. 'Entrustment of property' is a wide and generic
expression. While the initial onus lies on the prosecution to show that the
property in question was 'entrusted' to the accused, it is not necessary to prove
further, the actual mode of entrustment of the property or misappropriation
thereof. Where the 'entrustment' is admitted by the accused or has been
established by the prosecution, the burden then shifts on the accused to prove
that the obligation vis-à-vis the entrusted property was carried out in a legally and
contractually acceptable manner.
9. Taking into consideration of the facts and circumstances of the case, and
in the backdrop of the legal position referred to supra, this Court is of the view
that the matter needs comprehensive enquiry and in addition to that the
present case is lodged as a counterblast to the complaint lodged by the
petitioners against the complainant on 11.3.2024. In such circumstances, it is
apposite to dispose of the present criminal petition directing the police to
follow Section 41-A Cr.P.C. by following the guidelines as mentioned in the
Arnesh Kumar vs. State of Bihar.
MANU/KSC/1242/2021
10. In the result, the criminal petition is disposed of, with a direction to the
Investigating Officer to follow the procedure contemplated under Section 41-A
Cr.P.C
Consequently, miscellaneous applications pending, if any, shall stand
closed.
_________________________________
VENKATA JYOTHIRMAI PRATAPA, J
Date:01.05.2024
RD
THE HONOURABLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL PETITION No.2364 of 2024
DATE:01.05.2024
RD
