Andhra Pradesh High Court - Amravati
R Sirdhar vs The State Of Ap on 4 October, 2024
APHC010705832018
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
FRIDAY ,THE FOURTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NO: 10256/2018
Between:
R Sirdhar and Others ...PETITIONER/ACCUSED(S)
AND
The State Of Ap and ...RESPONDENT/COMPLAINANT(S)
Others
Counsel for the Petitioner/accused(S):
1. K SRINIVASA RAO
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. SIVA RAMA KRISHNA KOLLURU
The Court made the following:
2
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ORDER:
This criminal petition is filed under Section 482 of Criminal
Procedure Code (for short "Cr.P.C.") to quash the proceedings in
C.C.No.336 of 2017 on the file of the III Additional Judicial First
Class Magistrate, Rajamahendravaram, registered for the offence
punishable under Sections 406, 409, 120-B, 420 read with 34 of
Indian Penal Code (for short "I.P.C.").
2) Petitioners herein are accused Nos.2 and 3. Respondent
No.2 is the complainant. Respondent No.2 herein filed a
complaint under Section 190 (1) (a) of Cr.P.C. alleging that she is
the Proprietrix of M/s Lakshminarayana Steels engaged in sale of
steel and allied products and that the firm is having Bank account
bearing No.1408223000000677 with the Karur Vysya Bank
Limited. The complainant obtained loan from the Bank towards
working capital. The complainant also conducted business
through her bank account. Petitioners herein are the Manager
and the Senior Officer of the Bank. The complainant after going
through her bank statement and account have realised that the
accused without her signatures or application, transferred an
amount of Rs.1,68,231/- on 25.09.2014, Rs.25,000/- on
30.06.2014, and Rs.4,00,000/- on 21.07.2014 to Kamakshi Roll
Firm Industries, though no amounts were due to the said
Kamakshi Roll Farm Industries, Rajaméhendravaram. In fact, the
accused Nos.2 and 3 used to obtain signatures of the
complainant on blank cheques for various purposes. Out of trust
and confidence, the complainant used to subscribe her
signatures. However, the above said amounts are sent to
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Kamakshi Roll Farm Industries, Rajamahendravaram by the
accused in collusion with the said Kamakshi Roll Farm Industries,
Rajamahendravaram in order cheat and cause wrongful loss to
the complainant. The accused are bound to protect the interests
of the complainant as she has entrusted her funds to the
accused. Contrary to the trust and confidence reposed by the
complainant in the accused having conspired with each other
committed offences of criminal breach of trust, criminal
misappropriation and cheating. The complainant issued a legal
notice dated 18.07.2016 calling upon the accused to furnish the
copies of the RTGS applications for effecting transfer of the
above said amounts. The bank issued a reply. The accused
cheated the complainant and transferred an amount of
Rs.5,93,231/- to the Kamakshi Roll Farm Industries, as such, she
lodged a complaint with III Town Police Station,
Rajamahendravaram against the accused. The S.H.O., gave an
endorsement, but did not investigate the matter further stating
that the matter is of civil nature and directed the complainant to
approach the civil court. Hence, she filed the present private
complaint and the same was numbered as C.C.No.336 of 2017
on the file of the III Additional Judicial First Class Magistrate,
Rajahmahendravaram. The present petition is filed to quash the
said C.C.No.336 of 2017.
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3) On 26.09.2018, when the present petition came up for
admission, this Court passed the following interim order.
".........
"There shall be interim stay of all further proceedings in
Calendar Case No.336 of 2017, pending on the file of the
learned III Additional Judicial Magistrate of First Class,
Rajamahendravaram, for a period of three (03) months against
the petitioners - accused Nos.2 and 3."
4) Thereafter, the said interim order has been extended from
time to time.
5) During hearing, learned counsel for the petitioners
contended that the allegations made in the complaint would not
constitute any offence and that the learned Magistrate has issued
the process mechanically. Respondent No.2 approached the
Bank- accused No.1 (not a party to the present petition), and
obtained loan, later committed default in repayment of the loan.
There is no fault on the part of the employees of the bank, but
respondent No.2 fabricated the original counterfoils. On realizing
the fraud played by respondent No.2, the Bank also lodged a
complaint against respondent No.2 and the same was registered
as a case in Crime No.328 of 2016 on the file of III Town Police
Station, Rajahmundry under Sections 464, 465, 403, 420, 423
read with 120 of I.P.C. As respondent No.2 committed default in
repayment of the loan obtained by her, the petitioners initiated
proceedings under SARFAESI Act and issued notice dated
06.10.2015 and 07.10.2015. Thereafter, respondent No.2 issued
notice dated 18.07.2016 stating that without her signatures some
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amounts were transferred from her account to some other
accounts, for which Bank issued suitable reply on 25.07.2016.
Thereafter, to wreak vengeance against the petitioners,
respondent No.2 filed the present complaint, and that there is no
iota of truth in the allegations made by the complainant and
requested to allow the present petition.
6) Learned counsel for respondent No.2 contended that the
petitioners in collusion with the Kamakshi Roll Farm Industries,
transferred an amount of Rs.1,68,231/- on 29.05.2014,
Rs.25,000/- on 30.06.2014 and Rs.4,00,000/- on 21.07.2014 to
the account of said firm from the account of the complainant
through RTGS and caused loss to her, thereby, committed the
offences of criminal breach of trust, criminal misappropriation and
cheating. The complainant issued a legal notice dated 18.07.2016
to the Bank to furnish the copies of RTGS applications, but the
Bank issued contentious reply. Therefore, the complainant filed
the private complaint and requested to dismiss the present
petition.
7) Learned Assistant Public Prosecutor reiterated the
contentions urged by the learned counsel for respondent No.2
and requested to dismiss the petition.
8) Having heard the submissions made by the learned
counsel representing both parties and on perusal of the material
available on record, the point that arises for consideration is as
follows:
"Whether the proceedings against the petitioners in
C.C.No.336 of 2017 on the file of the Additional Judicial
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First Class Magistrate, Rajamahendravaram, are liable to
be quashed by exercising jurisdiction under Section 482
of Cr.P.C.?"
P O I N T:
9) The petitioners filed the present petition under Section 482
of Cr.P.C.
10) Section 482 of Cr.P.C saves the inherent powers of the
High Court to make such orders as may be necessary to give
effect to any order under the Code or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice. It
is an obvious proposition that when a Court has authority to make
an order, it must have also power to carry that order into effect. If
an order can lawfully be made, it must be carried out; otherwise it
would be useless to make it. The authority of the Court exists for
the advancement of justice, and if any attempt is made to abuse
that authority so as to produce injustice, the Court must have
power to prevent that abuse. In the absence of such power the
administration of law would fail to serve the purpose for which
alone the Court exists, namely to promote justice and to prevent
injustice. Section 482 of Cr.P.C confers no new powers but
merely safeguards existing powers possessed by the High Court.
Such power has to be exercised sparingly in exceptional cases
and this power is external in nature to meet the ends of justice.
11) Time and again, the scope of powers of this Court under
Section 482 of Cr.P.C. was highlighted by the Apex Court in long
line of perspective pronouncements, which are as follows:
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12) Section 482 of the Code of Criminal Procedure empowers
the High Court to exercise its inherent power to prevent abuse of
the process of Court. In proceedings instituted on complaint
exercise of the inherent power to quash the proceedings is called
for only in cases where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive. If the allegations
set out in the complaint do not constitute the offence of which
cognizance is taken by the Magistrate it is open to the High Court
to quash the same in exercise of the inherent powers under
Section 482. It is not, however, necessary that there should be a
meticulous analysis of the case, before the trial to find out
whether the case would end in conviction or not. The complaint
has to be read as a whole. If it appears on a consideration of the
allegations, in the light of the statement on oath of the
complainant that ingredients of the offence/offences are
disclosed, and there is no material to show that the complaint is
mala fide, frivolous or vexatious. In that event there would be no
justification for interference by the High Court as held by the Apex
Court in "Mrs.Dhanalakshmi v. R.Prasanna Kumar1"
13) In "State of Haryana v. Bhajan Lal 2 " the Apex Court
considered in detail the powers of High Court under Section 482
and the power of the High Court to quash criminal proceedings or
FIR. The Apex Court summarized the legal position by laying
down the following guidelines to be followed by High Courts in
exercise of their inherent powers to quash a criminal complaint:
AIR 1990 SC 494
1992 Supp (1) SCC 335
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(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 FIR 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 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.
14) Keeping in view the above principles, I would like to
examine the case on hand.
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15) The main allegation of the complainant is that without any
RTGS application made by her, the petitioners in collusion with
the Kamakshi Roll Farm Industries, Rajamahendravaram,
transferred an amount of Rs.1,68,231/- on 29.05.2014,
Rs.25,000/- on 30.06.2014 and Rs.4,00,000/- on 21.07.2014 from
the account of the complainant to the said firm account.
Admittedly, the said amount was credited in the account of said
firm. However, the complainant has not lodged any compliant
against the said firm.
16) It is an admitted fact that the complainant obtained loan
from the Bank and committed default in repayment of the said
loan amount, as such the Bank initiated proceedings under
SARFAESI Act. Further, the complainant filed the present
complaint against the Bank and its officials.
17) The main offence alleged to have been committed by the
petitioners is punishable under Section 420 of I.P.C.
18) Section 420 of I.P.C. deals with punishment for the offence
of „cheating‟.
19) Cheating is defined under Section 415 of I.P.C and it is as
follows:
"415. Cheating:- Whoever by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to
any person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause damage or harm to
that person in body, mind, reputation or property, is said to "cheat".
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20) As per the above definition, the essential ingredients to
constitute the offence of cheating are:
(i) There should be fraudulent or dishonest inducement of a person
by deceiving him;
(ii) (a) The person so deceived should be induced to deliver any
property to any person, or to consent that any person shall retain any
property; or (b) The person so deceived should be intentionally induced
to do or omit to do anything which he would not do or omit if he were
not so deceived; and
(iii) In cases covered by (ii) (b), the act or omission should be one
which causes or is likely to cause damage or harm to the person
induced in body, mind, reputation or property.
21) In "V.Y.Jose Vs. State of Gujarat 3" the Apex Court laid
down following ingredients to constitute cheating.
"An offence of cheating cannot be said to have been
made out unless the following ingredients are satisfied:
(i) deception of a person either by making a false or
misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to
deliver any property; or
(iii) To consent that any person shall retain any
property and finally intentionally inducing that person to do or
omit to do anything which he would not do or omit.
(2009) 3 SCC 78
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22) For the purpose of constituting an offence of cheating, the
complainant is required to show that the accused had fraudulent
or dishonest intention at the time of making promise or
representation. Even in a case where allegations are made in
regard to failure on the part of the accused to keep his promise, in
absence of a culpable intention at the time of making initial
promise being absent, no offence under Section 420 of the Indian
Penal Code can be said to have been made out.
23) An offence of cheating may consist of two classes of
cases:
(1) where the complainant has been induced fraudulently
or dishonestly. Such is not the case here;
(2) When by reason of such deception, the complainant
has not done or omitted to do anything which he would
not do or omit to do if he was not deceived or induced by
the accused."
24) On perusal of the complaint filed by respondent No.2 -
complainant, this Court did not find any dishonest intention on the
part of the petitioners herein right from the beginning. Therefore,
the core postulate of dishonest intention in order to deceive the
complainant-respondent No. 2 was not made out even accepting
all the averments in the complaint on their face value and,
accordingly, ruled that in such a situation continuing the criminal
proceedings against the accused would be an abuse of process
of the Court.
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25) The other offences allegedly committed by the petitioners
are punishable under Sections 406 and 409 of I.P.C. Section 406
of I.P.C. deals with "punishment for criminal breach of trust".
Section 409 of I.P.C. deals with "criminal breach of trust by public
servant, or by banker, merchant or agent".
26) The petitioners herein are the Bank employees. If the
allegations made in the complaint are allowed to be investigated
in a routine manner, then, every loan defaulter would start lodging
FIR against bank officials. Even otherwise, the allegations made
in the complaint would not constitute any offence punishable
under Sections 406 and 409 of I.P.C.
27) The other offence allegedly committed by the petitioners is
punishable under Section 120-B of I.P.C. i.e. punishment for
criminal conspiracy.
28) The most important ingredient of the offence „criminal
conspiracy‟ is the agreement between two or more persons to do
an illegal act or an act not illegal by illegal means (See: Kehar
Singh and others Vs. State (Delhi Admin.)4". The offence of
conspiracy is complete when two or more conspirators have
agreed to do or cause to be done an act which is itself an offence,
in which case no overt act need be established (See: Lennart
Schussler and another Vs. Director of Enforcement and
another5).
AIR 1988 SC 1883
AIR 1970 SC 549
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29) The basic ingredients to constitute an offence punishable
under Section 120-B I.P.C. is that there must be an agreement
between the parties to do an act by illegal means or to do an act,
which is not illegal by illegal means.
30) As seen from the principle laid down by the Honourable
Apex Court in the above judgment, there must be two or more
persons to do an unlawful act by illegal means to constitute an
offence punishable under Section 120-B of I.P.C.
31) Though the offence punishable under Section 120-B of
I.P.C. is independent offence, to prove such offence there must
be an allegation that the accused conspired together to do an
illegal act. But here, as discussed above, no such act in violation
of law committed and the conspiracy alleged against the
petitioners is not substantiated by producing prima facie material
to proceed against the petitioners. In such case, permitting the
defacto complainant to proceed against the petitioners based on
the allegations made in the complaint would amount to abuse of
process of the Court.
32) In "Kapil Agarwal Vs. Sanjay Sharma6", relied on by the
petitioners, the Apex Court held as follows:
"As observed and held by this Court in a catena of
decisions, inherent jurisdiction under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution is designed to
achieve salutary purpose that criminal proceedings ought not
to be permitted to degenerate into weapon of harassment.
(2021) 5 SCC 524
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When the Court is satisfied that criminal proceedings amount
to an abuse of process of law or that it amounts to brining
pressure upon the accused, in exercise of inherent powers,
such proceedings can be quashed."
33) In the present case, as per the allegations made in the
complaint, petitioners transferred certain amounts to the account
of Kamakshi Roll Firm Industries from the account of the
complainant. If at all, those amounts were wrongly transferred to
the Kamakshi Roll Firm Industries, the complainant can request
the said firm for return of the said amount or initiate appropriate
proceedings for recovery of the same from the said firm. But, the
complainant filed the complaint against the Bank and the
petitioners herein even without arraying the said firm as accused.
Moreover, for the default committed by the complainant in
repayment of the loan obtained by her, SARFAESI proceedings
were initiated against her by the Bank. Petitioners herein are
Bank employees. They discharged their duty during the course of
SARFAESI Act proceedings. They did not act in their individual
capacity. It is also evident that the Bank has already lodged a
complaint against the complainant, which was registered as a
case in Crime No.328 of 2016 on the file of the SHO, III Town
Police Station, Rajahmundry for the offences punishable under
Sections 464, 465, 403, 420, 423 read with 120 of I.P.C.
Thereafter, the complainant filed the present complaint against
the petitioners as a counterblast to the said complaint filed by the
Bank. Earlier, the complaint lodged by the complaint was rightly
rejected by the SHO by giving an endorsement that the matter is
of civil in nature and no further investigation is necessary.
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Further, on perusal of the complaint, it appears that the
complainant lodged the private complaint against the petitioners
to wreak vengeance against them.
34) According to guideline No.7 of guidelines formulated in
"State of Haryana v. Bhajan Lal" (referred supra), 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, the Court can
exercise power under Section 482 of Cr.P.C. and quash the
proceedings. Applying the said principle to the present facts of
the case and for the other reasons mentioned above, this Court
finds that it is a fit case to quash the proceedings.
35) Accordingly, the criminal petition is allowed. The
proceedings against the petitioners herein/accused Nos.2 and 3
in C.C.No.336 of 2017 on the file of the III Additional Judicial First
Class Magistrate, Rajamahendravaram are hereby quashed.
36) The miscellaneous petitions pending, if any, shall also
stand closed.
________________________
JUSTICE V.SUJATHA
04.10.2024
Ksp
