Birad Yajnik vs The State Of Telangana And Another
2021 Latest Caselaw 1473 Tel

      THE HONOURABLE SRI JUSTICE K. LAKSHMAN

      CRIMINAL PETITION Nos.4451 AND 4471 OF 2018


COMMON ORDER:

      Criminal Petition No.4451 of 2018 is filed under Section 482

Cr.P.C., to quash the proceedings in Crime No.548 of 2014 pending

on the file of Jubilee Hills Police Station, Hyderabad. The petitioner

herein is accused No.3 in the said crime. The offences alleged against

the petitioner are under Sections 467, 471, 420, 406, 506 and 120-B

read with 34 IPC.


      2. Criminal Petition No.4471 of 2018 is filed to quash the

proceedings in CC No.655 of 2016, pending on the file of XVII

Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.

The petitioners are Accused Nos.1 and 2 in the said CC. The offences

alleged against the petitioners herein are under Sections 406, 420 and

506 read with 120-B and 34 IPC.


      3.   On the complaint lodged by the 2nd respondent - de facto

complainant in both the petitions, the Police, Jubilee Hills, have

registered a case in Crime No.548 of 2014 against the petitioners in

both the petitions - Accused Nos.1 to 3 and after completion of

investigation, the police have laid charge sheet against the petitioners

in Crl.P. No.4471 of 2018 i.e. accused Nos.1 and 2. Since the

Investigating Officer in the said crime is unable to trace out the

petitioner in Crl.P. No.4451 of 2018 i.e. Accused No.3, the 2 KL,J Crl.P. Nos.4451 & 4471 of 2018

Investigating Officer has not laid the charge sheet against A3.

However, in the charge sheet, it is specifically mentioned that even

after many efforts, the whereabouts of A-3 are not known and hence, a

supplementary charge sheet will be filed as and when A3 is

apprehended and arrested. In view of the same, A-3 has filed Crl.P.

No.4451 of 2018 seeking to quash the very FIR itself since the charge

sheet is not filed against him.

4. The crime, de facto complainant and the issues involved in

both the criminal petitions are one and the same and therefore, they

are being heard and disposed of together vide this common order.

5. Heard Sri Gaurav Bhatia, learned senior counsel

representing Sri P. Vishnu Vardhan Reddy, learned counsel for the

petitioners in Crl.P. No.4471 of 2018, Sri P. Vishnu Vardhan Reddy,

learned counsel for the petitioner in Crl.P. No.4451 of 2018, Sri M.

Srinivasa Ayyangar, learned counsel for the de facto complainant in

both the petitions and the learned Public Prosecutor. Perused the

record.

6. The allegations against the petitioners, as per the complaint

dated 15.06.2014, are as follows:

The 2nd respondent is the absolute owner of flats bearing

Nos.201, 202, 301 and 302 in a residential building called Moksha

Apartments. The said building was built on the land, which has been

bequeathed by her mother to her. She has three children including 3 KL,J Crl.P. Nos.4451 & 4471 of 2018

A-1. A-2 is her daughter in law. A-3 is nephew of her ex-husband.

A-1, son of the 2nd respondent, addicted to alcohol and is unable to

look after himself and his family normally. The 2nd respondent has

supported him financially and emotionally. She has tried her best to

look after A-1 and his family, apart from permitting him to stay in Flat

No.302. She has done her best as any mother to help him get along

with life. She has also paid for all his treatment for alcohol addiction.

She has also explained the tragedies that she had during her lifetime.

For the last one year, A-1 and A-2 started harassing the

2nd respondent insisting that she should transfer all her properties in

their favour. The 2nd respondent is having two more children and

since there is no other means of subsistence, she has been refusing to

accede the request of extortion of A-1 and A-2 inspite of repeated

threats and harassment by them. They have been trying their level

best to get the signatures of 2nd respondent on stamp papers stating

that she has to gift two flats in their favour and A1 has taken

signatures on some blank papers, including cheques taking advantage

of the age of the 2nd respondent. She was physically threatened with

violence and insults and intimidation by A1 and A2 aided and

encouraged by A3. It is further alleged that A3 threatened and

blackmailed the 2nd respondent that if the properties are not transferred

in the name of A1 and A2, false criminal cases would be filed against

her and as well as false complaints would be made to the government

to take away her property received from her mother. He is well 4 KL,J Crl.P. Nos.4451 & 4471 of 2018

connected with the senior government officials. A1 has gone to the

extent of denying the 2nd respondent of her right to use lift apart from

threatening the servants, damaging the garden. Her life got tortured

due to the said harassment meted out by A1 to A3. A1 started making

false allegations against the 2nd respondent by sending mails to her

second husband, who is staying in Germany. A1 has let out Flat

No.301 to a tenant without any authority and without the knowledge

of 2nd respondent in the month of April 2014. She has sent a notice to

the tenant demanding eviction. A1 and A2 have started harassing the

tenant of the 2nd respondent in respect of flat No.201. He has also

send mails to them. The 2nd respondent has lodged police complaint

against A1 and A2 and when the police personnel came to the said

premise, A3 was present in the flat with A1 and A3 threatened the 2nd

respondent and also informed the police that all the four flats belonged

to A1 and produced and extract of encumbrance. They created lease

deed in favour of M/s.R.S. Solutions, represented by A2, wife of A1

and the minor son of A1 and A2 for a period of 30 years at a nominal

rent of Rs.10,000/- per annum. A1 to A3 in connivance with each

other conspired against the 2nd respondent and created the said fake

document and cheated the 2nd respondent. With the said allegations,

the 2nd respondent has lodged a complaint to the Police, Banjara Hills

on 15.06.2014, who inturn registered a case in Crime No.548 of 2014

for the above said offences.

5 KL,J Crl.P. Nos.4451 & 4471 of 2018

7. On completion of investigation, the police have laid charge

sheet against A1 and A2. In the charge sheet, it is specifically

mentioned that efforts were made to apprehend A3, but his

whereabouts are not known and a supplementary charge sheet will be

filed as and when they arrest A3.

8. Sri Gaurav Bhatia, learned Senior counsel, representing Sri

P. Vishnu Vardhan Reddy appearing for A1 and A2 would submit that

the contents of the complaint and the charge sheet lacks the

ingredients of offences lodged against A1 and A2. Admittedly, a suit

vide O.S. No.546 of 2014, filed by the 2nd respondent seeking eviction

and damages/mesne profits is pending. The 2nd respondent has

intentionally suppressed the said facts. Thus, she is trying to

criminalize the civil proceedings. There is suppression of fact. He

would further submit that there is no 'mens rea' or element of

cheating. There is no allegation of inducement from the inception in

the complaint lodged by the 2nd respondent.

9. The 2nd respondent executed a General Power of

Attorney and received rents and thereafter she has lodged the present

complaint. The GPA was executed on 11.04.2008 basing on which a

lease was entered on 24.08.2012. The same was revoked on

09.06.2014 and the 2nd respondent has lodged the complaint on

15.06.2014. The said facts would reveal that there is abnormal delay

in lodging the complaint by the 2nd respondent, which would show 6 KL,J Crl.P. Nos.4451 & 4471 of 2018

that she has implicated the accused in a false case to settle her score

and claim in the above said suit i.e. O.S. No.546 of 2014. Placing

reliance on the judgments of the Hon'ble Supreme Court reported in

Paramjeet Batra v. State of Uttarakhand and others1; in

Commissioner of Police v. Devender Anand and others2 and in

B.Suresh Yadav v. Sharifa Bee and another3, learned Senior

Counsel would submit that the Hon'ble Apex Court has categorically

held that where the proceedings with regard to a particular issue is

pending in civil court, the allegations are civil in nature, the criminal

proceedings cannot go on. When there is no element of cheating in

the contents of complaint and charge sheet, it has to be quashed. With

the said submissions, learned senior counsel sought to quash the

proceedings in CC No.655 of 2016.

10. Sri P. Vishnu Vardhan Reddy, learned counsel representing

A3, while adopting the arguments of Sri Gaurav Bhatia, learned senior

counsel, would submit that the 2nd respondent is mother of A1. She

used to work in a star hotel and she had illicit relationship with a

German citizen, who is a customer of the said star hotel. She gave

divorce to her first husband i.e father of A1, and she left to Germany

with the said German citizen. Thus, she has neglected A1. Due to the

harassment of the 2nd respondent, her first husband, father of A1, died.

The contents of the complaint lacks the ingredients of the offences

2013 (11) SCC 673

2019 SCC Online 996

2007 (13) SCC 107 7 KL,J Crl.P. Nos.4451 & 4471 of 2018

alleged against A3. According to him, A3 is nothing to do with the

alleged allegations and the properties of the 2nd respondent. She has

implicated A3 in a false case. The police have not examined the

witnesses to the said lease deed and they have laid charge sheet

against A1 and A2 without following due procedure. Admittedly, the

suit i.e. O.S. No.546 of 2014 is pending and the 2nd respondent instead

of pursuing the said suit, lodged the present complaint implicating all

the accused in a false case. A3 is not absconding as alleged by the

police in the charge sheet. A3 is the son of paternal aunt of A1. He is

a respected member of the society, author of more than 7 books and he

is author of more than 7 books. He has authored books on Mahatma

Gandhi, Dr. B.R.Ambedkar, Kakatiya Dynasty, ancient Trade Routs

etc. There are no allegations much less specific allegations against A3.

Even then, the 2nd respondent has implicated A3 in the said crime.

With the said submissions, learned counsel for A3 sought to quash

crime No.548 of 2014 against A3.

11. Sri M. Srinivas Ayyangar, learned counsel for the 2nd

respondent in both the criminal petitions would submit that there are

specific allegations against each of the accused and the role played by

them is also specifically mentioned in the complaint. A1 has created

the lease deed without any authority. Two flats i.e. 301 and 302 are in

possession of the said R.S. Solutions and therefore, the 2nd respondent

has filed the above said suit seeking eviction and mesne profits. The

contents of the complaint dated 15.06.2014 constitute the offence 8 KL,J Crl.P. Nos.4451 & 4471 of 2018

alleged against the accused. He has also placed reliance on the

principle laid down by the Hon'ble Apex Court in Rajeev Kourav

v. Baisahab4 in support of his contention. He would further submit

that 8,000 sft., was let out @ Rs.10,000/- per annum towards rent. He

has also referred to the provisions of the Registration Act. Since A3

was absconding, the police have not laid charge sheet against him.

Thus, according to the learned counsel, there are specific allegations

against each of the accused and A1 and A2 instead of facing the trial,

and A3 instead of cooperating with the Investigating Officer filed the

present criminal petitions seeking to quash the FIR and the Calendar

Case. With the said submissions, learned counsel for the de facto

complainant sought to dismiss the present criminal petitions.

12. Learned Public Prosecutor, on instructions, would submit

that since the complaint dated 15.06.2014 lodged by the 2nd

respondent constitutes cognizable offence against the accused, the

police have registered the said crime. After completion of

investigation, they have laid charge sheet against A1 and A2 and since

A3 is not available and the police are unable to trace out him, charge

sheet was not laid against him. A3 has to cooperate with the

Investigating Officer. Instead of doing so, he has filed the present

petition. There are several triable issues in CC No.655 of 2016 and

factual aspects to be investigated into by the Investigating Officer

against A3 in Crime No.548 of 2014. Due to non-cooperation of A3,

(2020) 3 SCC 317 9 KL,J Crl.P. Nos.4451 & 4471 of 2018

the crime of the year 2014 is pending against him. The CC is of the

year 2016. Therefore, according to him, just because there is a suit

pending and there are disputes between the accused No.1 and the 2nd

respondent with regard to the said properties, the proceedings in the

above said crime and CC cannot be quashed since there are specific

allegations of threatening, harassment, forgery etc., against each of the

accused and the role played by them in commission of the offence.

With the above submissions, learned Public Prosecutor sought to

dismiss both the criminal petitions.

13. The above said facts would reveal that A1 is the son of 2nd

respondent. In the complaint itself, the 2nd respondent has stated

about giving divorce to her first husband and marrying a German

citizen. It is also specifically mentioned that she has shifted to

Germany. In the complaint, there is specific allegation that she is the

owner of Flat Nos.201, 202, 301 and 302 of a residential complex,

namely, Moksha Apartments. Even the General Power of Attorney,

dated 11.04.2008, said to have been executed by the 2nd respondent in

favour of A1 discloses the said fact. On the strength of the said GPA,

A1 has executed a lease deed dated 24.08.2012 in favour of R.S.

Solutions, represented by A2, his wife, and his son. The said lease

deed also reveals that 2nd respondent is the owner of Flat Nos.201,

202, 301 and 302 of Moksha Apartments. A1 is claiming that the 2nd

respondent has executed the said GPA on 11.04.2008 and on the

strength of the said GPA, he has executed the GPA and the 2nd 10 KL,J Crl.P. Nos.4451 & 4471 of 2018

respondent revoked the said GPA on 09.06.2014. Whereas the 2nd

respondent is claiming that the accused in connivance with each other

with a criminal conspiracy got the said GPA and they have forged the

signature of the 2nd respondent. Thus, prima facie, there are specific

allegations in the complaint dated 15.06.2014. The police, basing on

the statement of the 2nd respondent, laid charge sheet against A1 and

A2.

14. There are, prima facie, specific allegations against all the

accused that they have harassed the 2nd respondent and they have also

threatened her to transfer the above said three flats in favour of A1

and A2. There is also specific allegation against A3 saying that he

will implicate the 2nd respondent in criminal cases and also lodge

complaints against her with government officials. There is also

specific allegation that A3 is having good relations with government

officials. A1 and A2 have denied the right of the 2nd respondent to use

the lift apart from threatening her servants, damaging the garden etc.

There is also specific allegation that when she lodged complaint with

the police about the harassment of A1 and A2, the police came to the

premises and A3 was present in the flat with A1 and A3 threatened

her and A3 was also informed the police that all the four flats belong

to A1. He has produced letter dated 26.08.2014 and encumbrance

certificates. Thus, prima facie, there are specific allegations against

all the accused. There are allegations of forgery, conspiracy, cheating

causing loss to the 2nd respondent by A3.

11 KL,J Crl.P. Nos.4451 & 4471 of 2018

15. There are several triable issues in CC No.655 of 2016.

There are several factual aspects to be investigated into by the

Investigating Officer during the course of investigation in Crime

No.540 of 2014 with regard to allegations leveled against A3 and the

role played by him in commission of offence. According to police,

despite several efforts, they could not trace out A3 and therefore, they

have not laid charge sheet against him.

16. In this regard, it is apt to refer to the decision rendered by

the Hon'ble Supreme Court in Kamal Shivaji Pokarnekar v. The

State of Maharashtra5, wherein the Apex Court has categorically

held that quashing criminal proceedings was called for only in a case

where complaint did not disclose any offence, or was frivolous,

vexatious, or oppressive. If allegations set out in complaint did not

constitute offence of which cognizance had been taken by Magistrate,

it was open to High Court to quash same. It was not necessary that, a

meticulous analysis of case should be done before trial to find out

whether case would end in conviction or acquittal. If it appeared on a

reading of complaint and consideration of allegations therein, in light

of the statement made on oath that the ingredients of the offence are

disclosed, there would be no justification for High Court to interfere.

The defences that might be available, or facts/aspects which when

established during trial, might lead to acquittal, were not grounds for

. AIR 2019 SC 847 12 KL,J Crl.P. Nos.4451 & 4471 of 2018

quashing complaint at threshold. At that stage, only question relevant

was whether averments in complaint spell out ingredients of a

criminal offence or not. The Court has to consider whether complaint

discloses that prima facie, offences that were alleged against

Respondents. Correctness or otherwise of said allegations had to be

decided only in trial. At initial stage of issuance of process, it was not

open to Courts to stifle proceedings by entering into merits of the

contentions made on behalf of Accused. Criminal complaints could

not be quashed only on ground that, allegations made therein appear to

be of a civil nature. If ingredients of offence alleged against Accused

were prima facie made out in complaint, criminal proceeding shall not

be interdicted.

17. In Skoda Auto Volkswagen India Private Limited v.

The State of Uttar Pradesh and Ors.6, the Hon'ble Supreme Court

has categorically held that the High Court has to exercise its inherent

powers under Section 482 Cr.P.C., to quash the FIRs and criminal

proceedings in rarest of rare cases and the said power has to be

exercised very sparingly and with circumspection.

18. In M/s. Neeharika Infrastructure Private Limited v.

State of Maharashtra and others7, the Three-judge Bench of Hon'ble

Apex Court laid certain parameters for the purpose of exercising

powers by High Courts under Section 482 of Cr.P.C and also under

Manu/SC/0898/2020

Criminal Appeal No.330 of 2021, decided on 13.04.2021 13 KL,J Crl.P. Nos.4451 & 4471 of 2018

Article 226 of Constitution of India. The relevant parameters are

extracted as under:

"....

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases ( not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule'

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere'

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the 14 KL,J Crl.P. Nos.4451 & 4471 of 2018

allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. 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 considered by the learned Magistrate in accordance with the known procedure;"

19. In view of the law laid down by the Hon'ble Supreme

Court and also as discussed supra, there are several triable issues in

CC No.655 of 2016 pending against A1 and A2 and there are several

factual aspects to be investigated into by the Investigating Officer

during the course of investigation against A3 in Crime No.548 of

2014. Admittedly, the suit in OS No.546 of 2014 filed by the 2nd

respondent against A1 and A2 and their children seeking eviction,

damages/mense profits with regard to Flat Nos.301 and 302, is

pending. The said suit is posted for trial.

20. According to the learned counsel for the accused, there are

contradictions with regard to version of the 2nd respondent in the

complaint dated 15.06.2014 and the plant in O.S No.546 of 2014.

According to this Court, the said contradictions are triable issues, the

Court has considered on the petition filed under Section 482 of

Cr.P.C., and therefore, on the said ground, the proceedings in Crime

No.548 of 2014 and CC No.655 of 2016 cannot be quashed.

15 KL,J Crl.P. Nos.4451 & 4471 of 2018

21. In view of the above said law laid down by the Hon'ble

Apex Court in Kamal Shivaji Pokarnekar's case, Skoda Auto

Volkswagen India Private Limited's case and in M/s. Neeharika

Infrastructure's case, the principle relied upon by the learned

counsel for the accused in the above said cases is not applicable to the

facts of the case. Whether the 2nd respondent has neglected A1 by

staying with a German Citizen, is a triable issue and the accused can

take the said defence during the course of trial in the above said CC.

Whether the said GPA was obtained by forging the signature of the 2nd

respondent etc., are also again triable issues. According to A1 and

A2, the 2nd respondent has received rent of Rs.10,000/- per annum in

respect of the above said flats and whereas according to the 2nd

respondent, the said flats are situated in a prime place i.e. Banjara

Hills and the extent is also huge and therefore, the said rent of

Rs.10,000/- per annum is nominal. The rental period is mentioned as

30 years. The said lease deed is in favour of R.S. Solutions

represented by A2, wife of A1 and their son. According to her it is a

sham document. The said issues are triable issues. Accused have to

face trial and have to prove their innocence. The said defence cannot

be considered by this Court in the present applications under Section

482 Cr.P.C.

22. It is contended by the learned counsel for the 2nd

respondent and the learned Public Prosecutor that there are specific 16 KL,J Crl.P. Nos.4451 & 4471 of 2018

allegations against each of the accused and the role played by them is

also specifically mentioned in the complaint dated 05.06.2014.

23. It is relevant to mention that the crime is of the year 2014.

The CC is of the year 2016. In view of the same, this Court is not

inclined to quash the proceedings in Crime No.548 of 2014 and CC

No.655 of 2016. The accused failed to make out any ground to quash

the proceedings in the above said crime and CC. Therefore, Crl.P.

Nos.4451 and 4471 of 2018 are liable to be dismissed and

accordingly, they are dismissed.

Miscellaneous petitions, pending if any, shall stand dismissed.

                                                 _________________
                                                  K. LAKSHMAN, J
Date:01.06.2021

KTL
                       17                                        KL,J
                                      Crl.P. Nos.4451 & 4471 of 2018



THE HONOURABLE SRI JUSTICE K. LAKSHMAN




 CRIMINAL PETITION Nos.4451 AND 4471 OF 2018

                  Date:    .06.2021

KTL