Andhra Pradesh High Court - Amravati
G.Sudhakar Rap vs Karri Venkata Siva Prasad, on 23 September, 2024
APHC010133052019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
MONDAY ,THE TWENTY THIRD DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NOs: 2796/2019
Between:
G.sudhakara Rao ...PETITIONER/ACCUSED
AND
K V Siva Prasad and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/accused:
1. P SAI SURYA TEJA
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. O MANOHER REDDY
2
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APHC010133032019
IN THE HIGH COURT OF ANDHRA
PRADESH
[3333]
AT AMARAVATI
(Special Original Jurisdiction)
MONDAY ,THE TWENTY THIRD DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NO: 2803/2019
Between:
G.sudhakar Rap and Others ...PETITIONER/ACCUSED(S)
AND
Karri Venkata Siva ...RESPONDENT/COMPLAINANT(S)
Prasad and Others
Counsel for the Petitioner/accused(S):
1. P SAI SURYA TEJA
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. O MANOHER REDDY
The Court made the following:
3
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COMMON ORDER:
Criminal Petition No.2796 of 2019 is filed under Section 482
of Criminal Procedure Code (for short "Cr.P.C.") to quash the
proceedings in C.C.No.404 of 2018 on the file of the I Additional
Chief Metropolitan Magistrate, Visakhapatnam City, registered for
the offences punishable under Sections 420 and 473 read with 511
and 384, 509, 506 of I.P.C.
2) Criminal Petition No.2803 of 2019 is filed under Section 482
of Criminal Procedure Code (for short "Cr.P.C.") to quash the
proceedings in C.C.No.1704 of 2018 on the file of the I Additional
Chief Metropolitan Magistrate, Visakhapatnam City, registered for
the offences punishable under Sections 420 and 473 read with 511
and 384, 509, 506 read with 34 of Indian Penal Code (for short
"I.P.C.").
3) C.C.No.404 of 2018 was registered against one Gogineni
Sudhakar Rao and C.C.No.1704 of 2018 was registered against one
Gogineni Sudhakar Rao and his son Subramanya Venkata Appa
Rao. Complainant is one and the same in both the cases.
4) On 26.12.2015, defacto complainant lodged a complaint
before the Inspector of Police, Gajuwaka Police Station alleging that
the petitioner in Criminal Petition No.2796 of 2019 has been running
money lending business, have extended loan of Rs.20,00,000/- to
the defacto complainant by obtaining promissory notes of a face
value of Rs.3,00,000/- dated 27.07.2007, Rs.9,00,000/- dated
28.07.2007, Rs.8,00,000/- dated 30.07.2007. In addition to that he
obtained signatures on 2 blank Non Judicial stamp papers of the
face value of Rs.100/- in the name GSVA Rao vide No.550 dated.
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12.02.2007, stamp paper worth of Rs.100 No.4495 dated
16.08.2005 SI.No.06AAA823040 issued in the name of the accused,
5 blank bond papers with his signatures and thumb impressions,
signatures on one bond paper without Revenue stamps, signatures
and thumb impressions on 2 blank white papers, 3 blank cheques of
ING Vysya Bank vide Cheque No.407022, 407021 and 407020 of
his account as surety. Apart from that he mortgaged his property on
01.08.2007 to an extent of Ac.3.43 cents at Maduturu Village of
Atchutapuram Mandal in Sy.No.399/2 within the limits of the Sub
Registry of Yelamanchili under mortgage deed and term of
interest @ Rs.3/- per month. Accordingly, he used to collect
Rs.1,20,000/- per month towards interest @ Rs.3/- per month,
besides of which he used to take away the wine from his shop on
free of cost for his own use. The accused neither issued the receipts
nor put signatures for the amount paid towards interest by saying
that he would enter the same in his account books and no need to
issue the receipts. Accordingly, he paid the amount till February
2014, which is 4 and half times more than the borrowed amount i.e.
Rs. 90,00,000/-, after that defacto complainant expressed his
Inability to pay the remaining amount and requested him to
exonerate him. On that, the petitioner herein demanded
Rs.40,00,000/- for full and final settlement, further started
blackmailing him that he would file false cases against the
complainant. Basing the said complaint, the then Inspector of
Police, Gajuwaka Police Station has registered a case in Crime
No.560 of 2015 under Sections 420, 384, 506 of I.P.C. of Gajuwaka
Police Station, and the same was registered as a C.C.No.404 of
2018 on the file of III Additional Chief Metropolitan Magistrate,
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Gajuwaka. The petitioner filed criminal petition No.2796 of 2019
seeking to quash the C.C.No.404 of 2018.
5) On the same day i.e. on 26.12.2015, defacto complainant
lodged another report against the petitioners in Criminal Petition
No.2803 of 2019 (petitioner in Criminal Petition No.2796 of 2019
and his son) alleging that the petitioners have been doing
unauthorised interest business by lending money to General Public
and they lend a loan of Rs.15,00,000/- by obtaining 5 blank cheques
of ING Vysya Bank, blank promissory notes containing signatures of
the defacto complainant and three blank non judicial stamp papers
worth Rs.100/- as a surety. The petitioners herein further obtained
signatures on 11 bond papers without any writings. Apart from that,
the petitioners pressurized the defacto complainant to transfer his
land admeasuring 387 sq.yards located at plot Nos.5, 6 in Sy.No.31,
Meharnagar, Gajuwaka. Due to the pressure of the petitioners,
defacto complainant transferred the said land in the name of
petitioner No.2 by executing a GPA in the office of the Sub-
Registrar, Gajuwaka on the condition that the GPA should be
cancelled after repaying the amount. Subsequently, defacto
complainant paid an amount of Rs.68,40,000/- which is 4 times of
the amount obtained towards loan and requested the petitioners to
return his documents, but the petitioners demanded to pay
additional amount of Rs.30,00,000/- towards full and final settlement
and threatened him with dire consequences. Basing on the same,
the then Inspector of Police, Gajuwaka Police Station has registered
a case in Crime No.561 of 2015 under Sections 420, 384, 509, 506
read with 34 of I.P.C. of Gajuwaka Police Station, and the same was
registered as a C.C.No.1704 of 2018 on the file of I Additional Chief
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Metropolitan Magistrate, Visakhapatnam city. The petitioners filed
criminal petition No.2803 of 2019 seeking to quash the C.C.No.1704
of 2018.
6) As the complainant, petitioner, the allegations made and point
involved in both the cases is one and the same, I find that it is
expedient to decide both the petitions by common order.
7) On 25.04.2019, when Criminal Petition Nos.2796 and 2803 of
2019 came up for admission, this Court passed the following interim
order.
"....... Post on 10.06.2019.
Till then, there shall be stay of all further proceedings as
prayed for."
8) During hearing, learned counsel for the petitioners submit that
the allegations made in the charge sheet are totally false and have
been invented for the purpose of this case. On 23.09.2008, the
defacto complainant executed a registered agreement of sale-cum-
General Power of Attorney in favour of petitioner No.2 in Criminal
Petition No.2803 of 2019 in respect of the property admeasuring
387 Sq.Yards situated in Old Gajuwaka. All the transactions alleged
in the complaints are part and parcel of agreement of sale-cum-GPA
dated 23.09.2008 including cash transaction of Rs.5,48,000/-.
Petitioner No.2 in Criminal Petition No.2803 of 2019 in his capacity
as the GPA Holder of the property, sold a part of the land in the year
2013 and the same was also registered. Though the defacto
complainant was aware of the same, did not raise any objection with
regard to the same. On 30.07.2007, defacto complainant
approached M/s. Sri Subramanya Financers represented by the
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petitioners and obtained loan of Rs.20,00,000/- and executed 3
promissory notes in his own handwriting. The said company issued
3 cheques to the defacto complainant totally amounting to
Rs.20,00,000/- towards loan. As the complainant failed to repay the
same, the petitioners firm issued legal notice demanding to repay
the loan obtained by him. The petitioners never took any blank
cheques, promissory notes, stamp papers from the complainant and
requested to allow the criminal petitions.
9) Learned counsel for the defacto complainant contended that
the complainant obtained loan of Rs.15,00,000/- and Rs.20,00,000/-
respectively on two occasions from the petitioners, while extending
the said loan, the petitioners obtained blank promissory notes and
stamp papers from the complainant. The complainant repaid
Rs.68,40,000/- and Rs.90,00,000/- to the petitioners, which is more
than the borrowed amount, in spite of the same, the petitioners
demanded the complainant to pay another 70,00,000/- towards full
and final settlement of the amount borrowed by him. Apart from that,
the petitioners pressurized the complainant to transfer his land
admeasuring 387 Sq.yards situated in Sy.No.31, Meharnagar,
Gajuwaka, due to which, complainant executed GPA on the
condition that GPA shall be cancelled after repaying the amount.
Subsequently, defacto complainant paid an amount of
Rs.68,40,000/- and requested to return the documents, but the
petitioners did not return the documents. Therefore, the petitioners
are liable to be prosecuted and requested to dismiss the criminal
petitions.
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10) 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.1704 of 2018 on the file of the I Additional Chief
Metropolitan Magistrate, Visakhapatnam City and C.C.No.404
of 2018 on the file of the III Additional Chief Metropolitan
Magistrate, Gajuwaka, Visakhapatnam are liable to be
quashed by exercising jurisdiction under Section 482 of
Cr.P.C.?"
P O I N T:
11) The petitioners filed the present petitions under Section 482
of Cr.P.C.
12) 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
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exercised sparingly in exceptional cases and this power is external
in nature to meet the ends of justice.
13) Time and again, the scope of powers of this Court under
Section 482 of Cr.P.C. were highlighted by the Apex Court in long
line of perspective pronouncements, which are as follows:
14) 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"
15) In "State of Haryana v. Bhajan Lal2" 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
AIR 1990 SC 494
1992 Supp (1) SCC 335
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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:
(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.
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16) Keeping in view the above principles, I would like to examine
the case on hand.
17) As seen from the material on record, on 30.07.2007, defacto
complainant approached M/s. Sri Subramanya Financiers and
obtained loan of Rs.20,00,000/- and executed 3 promissory notes in
his own handwriting. As he failed to repay the same, the said firm
issued legal notice on 28.03.2014 demanding to repay the loan
obtained by him. During the course of same transaction, defacto
complainant entered into a registered equitable mortgage by deposit
of title deeds dated 01.08.2007 vide document No.6000/2007 in
respect of agricultural land admeasuring Ac.3.43 cents situated in
Sy.No.399/2, Muduthuru, Yelamanchili. As the defacto complainant
failed to clear the said amount, the petitioners company filed
O.S.No.450 of 2014 for recovery of the amount basing on the
Mortgage deed. After full-fledged trial, the Civil Court granted
preliminary decree dated 27.08.2015 granting six months time for
redemption of mortgage and directed the complainant herein to pay
Rs.70,43,000/- with interest at 6% p.a. from 01.08.2014 on principal
amount of Rs.20,00,000/-. While things stood thus, on 26.12.2015
the defacto complainant lodged two complaints against the
petitioner alleging that even though he repaid the borrowed amount,
the petitioners did not return the documents. As the complainant has
not chosen to pay the preliminary decree amount, final decree was
passed by the Civil Court on 09.08.2018 holding that the petitioners
are entitled to proceed against the petition schedule property which
was mortgaged and also against the complainant for realisation of
the decree amount. Further, the petitioners firm purchased the
schedule property in the public auction conducted on 05.01.2023 in
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execution of decree in E.P.No.174 of 2019 in O.S.No.450 of 2014
and the same was confirmed by the Court on 05.03.2023.
18) The complainant vehemently contended that due to the
pressure of the petitioners, he transferred the land in the name of
petitioner No.2 in Criminal Petition No.2803 of 2019 by executing
GPA on the condition that GPA shall be cancelled after repaying the
amount. Further, the defacto complainant has not filed any
document to prove the said allegation.
19) From the above facts, it appears that the complainant having
lost the battle in civil litigation, filed the present complaints. In "HMT
Watches limited Vs. M.A.Abida and another3" relied on by the
learned counsel for the petitioner, the Apex Court referred to its
earlier decision in "Suryalakshmi Cotton Mills Ltd. v. Rajvir
Industries Ltd. and Others4", wherein the Apex Court has made
following observations explaining the parameters of jurisdiction of
the High Court in exercising its jurisdiction Under Section 482 of the
Code of Criminal Procedure:
"The parameters of jurisdiction of the High Court in
exercising its jurisdiction Under Section 482 of the Code of
Criminal Procedure is now well settled. Although it is of wide
amplitude, a great deal of caution is also required in its exercise.
What is required is application of the well-known legal principles
involved in the matter.
xxx xxx xxx
(2015) 11 SCC 776
(2008) 13 SCC 678
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Ordinarily, a defence of an accused although appears to
be plausible should not be taken into consideration for exercise of
the said jurisdiction. Yet again, the High Court at that stage would
not ordinarily enter into a disputed question of fact. It, however,
does not mean that documents of unimpeachable character
should not be taken into consideration at any cost for the purpose
of finding out as to whether continuance of the criminal
proceedings would amount to an abuse of process of court or that
the complaint petition is filed for causing mere harassment to the
accused. While we are not oblivious of the fact that although a
large number of disputes should ordinarily be determined only by
the civil courts, but criminal cases are filed only for achieving the
ultimate goal, namely, to force the accused to pay the amount
due to the complainant immediately."
20) In "G.Sagar Suri Vs. State of U.P.5" relied on by the learned
counsel for the petitioner, the Apex Court held that it is the duty and
obligation of the criminal court to exercise a great deal of caution in
issuing the process particularly when matters are essentially of civil
nature.
21) In "Rajib Ranjan Vs. R.Vijaykumar6" relied on by the learned
counsel for the petitioner, the Apex Court held as follows:
"As pointed out above, the Respondent had even filed the
civil suit challenging the decision of the Electricity Board in
returning his tender documents on the ground that the same were
not as per pre-qualifying conditions of the tender. He had thus
resorted to the civil remedy. However, he failed therein as for the
reasons best known to him, he sought to withdrew the same and
accordingly the same was dismissed for non-prosecution. It is trite
(2000) 2 SCC 636
(2015) 1 SCC 513
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that once the suit is withdrawn, that acts as constructive res
judicata having regard to the provision of Order XXIII Rule 1 of
the Code of Civil Procedure. Also, when suit is dismissed under
Order IX Rule 8 Code of Civil Procedure, fresh suit under Order
IX Rule 9 is barred. The legal implication would be of that the
attempt of the Respondent in challenging the decision of the
Tender Committee in not considering his tender remained
unfaulted. Even when the Respondent himself invited order of
dismissal in the civil suit, curiously enough, he filed a writ petition
against the order passed in the civil court dismissing his suit for
non-prosecution, but the same was also dismissed by the High
Court on 25.06.2007 and even a cost of Rs. 25,000/- was
imposed on the Respondent as the said writ petition was
perceived by the High Court as 'abuse of process of the court'.
SLP preferred by the Respondent was also dismissed by this
Court on 14.09.2007. It is only thereafter the Respondent filed the
criminal complaint out of which present proceedings emanate. No
doubt, the Respondent in his complaint has right to colour his
complaint by levelling the allegations that the Appellants herein
fabricated the records. However, on the facts of this case, it
becomes difficult to eschew this allegation of the Respondent and
we get an uncanny feeling that the contents of FIR with these
allegations are a postscript of the Respondent after losing
the battle in civil proceedings which were taken out by him
challenging the action of the Department in rejecting his
tender. When he did not succeed in the said attempt, he
came out with the allegations of forgery. It is thus becomes
clear that the action of the Respondent in filing the criminal
complaint is not bonafide and amounts to misuse and abuse
of the process of law."
22) The law laid down by the Apex Court in the said judgment is
squarely applicable to the present facts of the case. In the present
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case also, petitioners filed civil suit O.S.No.450 of 2014 for recovery
of the amount borrowed by the complainant under mortgage deed;
after full-fledged trial, the Civil Court passed preliminary decree on
27.08.2015. Thereafter, the complainant filed the present complaints
on 26.12.2015 against the petitioners herein. On 09.08.2018, the
Civil Court passed the final decree holding that the petitioner therein
i.e. M/s Sri Subrahmanya Financiers, represented by Gogineni
Sudhakara Rao, who is the only petitioner in Criminal Petition
No.2796 of 2019 and petitioner No.1 in Criminal Petition No.2803 of
2019, is entitled to proceed against the petition schedule property,
which was mortgaged and also against the complainant herein
personally for realisation of the decree amount. Thereafter, the said
M/s Sri Subrahmanya Financiers purchased the schedule property
in the sale held on 05.01.2023 in public auction and the same was
confirmed by the Civil Court on 05.03.2023, which is evident from
the sale certificate dated 04.01.2024 produced by the petitioners
herein and the same was not denied by the complainant. It is
important to note that the complainant has not even preferred any
appeal against the judgment and decree passed in Civil Suit
O.S.No.450 of 2014. Therefore, it can be said that the complainant
having failed in his earlier battle in civil litigation, filed the present
complaints against the petitioners.
23) The court must ensure that criminal prosecution is not used
as an instrument of harassment or for seeking private vendetta or
with an ulterior motive to pressurise the accused. On analysis of the
aforementioned cases, this Court is of the opinion that it is neither
possible nor desirable to lay down an inflexible rule that would
govern the exercise of inherent jurisdiction. Inherent jurisdiction of
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this Court Under Section 482 of Cr.P.C. though wide has to be
exercised sparingly, carefully and with caution and only when it is
justified by the tests specifically laid down in the statute itself and in
the aforementioned cases. As the complainant, having lost the
battle in civil litigation filed the present complaints with an ulterior
motive to harass the petitioners, continuation of criminal
proceedings against the petitioners/accused would amount to abuse
of process of Court. Therefore, the criminal petitions deserve to be
allowed.
24) Accordingly, the criminal petition Nos.2796 and 2803 of 2019
are allowed by quashing the proceedings in C.C.No.404 of 2018 on
the file of the III Additional Chief Metropolitan Magistrate, Gajuwaka,
Visakhapatnam and in C.C.No.1704 of 2018 on the file of
the I Additional Chief Metropolitan Magistrate, Visakhapatnam.
25) The miscellaneous petitions pending, if any, shall also stand
closed.
________________________
JUSTICE V.SUJATHA
23.09.2024
Ksp
