Vivekanand Yadav And 3 Others vs The State Of Telangana And Another
2022 Latest Caselaw 81 Tel

              HON'BLE SRI JUSTICE K. LAKSHMAN

               CRIMINAL PETITION No.4161 OF 2020
ORDER:

Heard Mr. N. Naveen Kumar, learned counsel for the petitioner,

learned Assistant Public Prosecutor appearing on behalf of respondent

No.1 and Mr. Kasi Nageswara Rao, learned counsel appearing on behalf

of respondent No.2.

2. This petition is filed to quash the proceedings in Crime No.125

of 2020 of Trimulghery Police Station, Hyderabad City

Commissionerate.

3. The petitioners herein are accused Nos.1 to 4 in the aforesaid

crime. The offence alleged against them are under Sections - 420, 406,

467, 468, 471 and 506 read with 34 of IPC.

4. The allegations against the petitioners, as per the contents of the

complaint, are as follows:

i) Respondent No.2 is running an Indian Oil Petrol Bunk at

Agricultural Market Yard, Bowenpally, Secunderabad;

ii) petitioner No.1 used to come to the Petrol Bunk of respondent

No.2 for pouring petrol, and out of which, they had acquaintance with

each other;

iii) petitioner No.1 introduced himself that he was working as a

Collection Agent in Mallikarjuna Chit Fund Finance, Old Bowenpally

and petitioner No.2 is a big Financier;

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iv) at the request of petitioner No.1, respondent No.2 joined in the

chits of Rs.10.00 lakhs, 25.00 lakhs and 50 lakhs;

v) in the process of lifting the chits, the Chit Fund Company had

taken blank stamp papers and cheques and original documents of petrol

bunk with his signatures;

vi) petitioner No.1 used to come to the petrol bunk for collection

of chit amount till 2019 and thereafter, petitioner Nos.3 and 4 used to

come.

vii) on 20.03.2010, respondent No.2 had given Rs.25.00 lakhs

regarding final settlement to petitioner Nos.3 and 4, to which they had

also given receipt, but they had not returned the blank stamp papers,

cheques and original documents of his Petrol Bunk;

ix) from few days, petitioner No.1 has been making calls from his

mobile and threatening respondent No.2 with dire consequences and

demanding money;

x) thereafter, the petitioners had created and forged the documents

as if respondent No.2 had taken an amount of Rs.1,47,50,000/-; and

xi) with the aforesaid allegations, respondent No.2 sought to take

necessary action against the petitioners.

5. Perusal of the record would reveal that petitioner No.1 herein

had filed a suit vide O.S. No.21 of 2020 on the file of XXVII Additional

Chief Judge, City Civil Court, Secunderabad, against respondent No.2,

his wife and another for recovery of Rs.1,62,98,750/-. He had also filed

KL,J Crl.P. No.4161 of 2020

I.a. No.411 of 2020 in the said suit under Order - XXXIX, Rule 1 of

C.P.C. seeking to restrain respondent No.2 and others from creating third

party rights including alienation of the Petrol Bunk. The learned XXVII

Addl. Chief Judge passed an order dated 10.08.2020, restraining

respondent No.2 and two others from creating third party rights including

alienation of the dealership of Indian Oil Corporation Petrol Pump,

admeasuring 150 x 150 square feet, situated at Market Yard, Bowenpally,

Secunderabad. Petitioner No.1 had also filed I.A. No.601 of 2020 in I.A.

No.411 of 2020 under Section - 65-B of the Indian Evidence Act, 1872,

to receive the chat printout copies along with the CD contending that the

defendants therein were denying service of notice by WhatsApp which

were sent to them on their mobile numbers etc. and that the said notices

sent through WhatsApp have seen by respondent No.2 and others. But,

the Court below has dismissed both the said petitions vide a common

order dated 09.12.2020.

6. Aggrieved by the aforesaid order passed in I.A. No.411 of

2020, petitioner No.1 has preferred C.M.A. No.103 of 2021, while C.R.P.

No.323 of 2021 against the order in I.A. No.601 of 2020.

7. A Division Bench of this Court vide common judgment dated

28.04.2021 allowed CMA No.103 of 2021 setting aside the order dated

09.12.2020 passed in I.A. No.411 of 2020, while observing that no orders

need to be passed in CRP No.323 of 2021, wherein the order passed in

I.A. No.601 of 2020 was under challenge. In the said common judgment,

there is an observation in paragraph No.33 that in paragraph No.12 of the

counter affidavit filed by defendant No.1 in 1.A.No.411 of 2020, he

KL,J Crl.P. No.4161 of 2020

himself admitted that he had given signed documents though allegedly in

connection with a chit transaction' Therefore, signatures on the suit

promissory note Ex.P3 and the agreements Exs.Pl and P2 and guarantee

undertaking letter Ex.P4 are not denied by him. It was further observed

in the said paragraph No.34 that once his signature on these documents

and in particular Ex.P3 promissory note is admitted, presumption under

Section - 118 of the Negotiable Instruments Act, 1882 about passing of

consideration under a promissory note would arise, and the burden would

be on defendant No.1 to prove that there was no passing of consideration

as is mentioned in the promissory note Ex.P3. The said aspect seems to

have escaped the attention of the Court below.

8. Mr. Kasi Nageswara Rao, learned counsel for respondent No.2,

would submit that respondent No.2 has already taken steps to challenge

the said order by way of SLP, but he did not furnish either Diary Number

or SLP number.

9. Admittedly, the above suit for recovery of money is pending

between petitioner No.1 and respondent No.2. The common judgment

passed by the Division Bench of this Court in the above CMA and CRP

is subsisting and there is a direction to respondent No.2 not to create third

party including alienation of the dealership etc. The said suit was filed

on 03.08.2020 and the ex parte interim injunction was passed on

10.08.2020. Respondent No.2 has lodged the present complaint on

21.08.2020 making the aforesaid allegations against the petitioners

herein.

KL,J Crl.P. No.4161 of 2020

10. Thus, all the said facts would reveal that there are disputes

between the petitioners and respondent No.2 which are civil in nature.

The allegations made by respondent No.2 in the complaint dated

21.08.2020 are also the issues covered in the above suit. He had filed

counters in the I.As. and written statement in the suit contending that his

signatures were forged etc. The Court below will frame issues in the said

suit including the issue of forgery etc. Therefore, petitioner No.1 and

respondent No.2 had to wait for outcome of the said suit. Instead of

waiting till the outcome of the suit, respondent No.2 has lodged the

above complaint after receipt of summons in O.S. No.21 of 2020.

11. Mr. Kasi Nageswara Rao, learned counsel for respondent

No.2, referring to the principle laid down by the Hon'ble Supreme Court

in K. Jagadish V. G.S. Udaya Kumar1, would submit that both civil

and criminal proceedings may go on simultaneously. Criminal cases

have to be proceeded with in accordance with the procedure as prescribed

under the Code of Criminal Procedure and the pendency of a civil action

in a different Court even though higher in status and authority, cannot be

made a basis for quashing the proceedings. But, the facts of the said case

are different to the facts of the present case.

12. As stated above, the allegations made in the complaint dated

21.08.2020 in Crime No.125 of 2020, the pleadings in the above civil suit

and the parties are one and the same. Admittedly, the common judgment

passed in the above CMA and CRP is subsisting. The parties have to

necessarily wait for the outcome of the aforesaid civil suit. Respondent

. CDJ 2020 SC 243

KL,J Crl.P. No.4161 of 2020

No.2 is trying to criminalize the civil proceedings. Therefore, this Court

is of the considered view that the proceedings in Crime No.125 of 2020

cannot go on and, therefore, the same are liable to be quashed.

13. The present Criminal Petition is accordingly allowed and the

proceedings in Crime No.125 of 2020 of Trimulghery Police Station,

Hyderabad City Commissionerate, are hereby quashed against the

petitioners - accused Nos.1 to 4.

As a sequel, miscellaneous petitions, if any, pending in the

criminal petition shall stand closed.

__________________ K. LAKSHMAN, J 7th January, 2022 Mgr