Kantepudi Nageswar Rao Israil vs Thotamalla Suvarna Vijaya Kumari
2022 Latest Caselaw 2327 Tel

 THE HONOURABLE SRI JUSTICE K. LAKSHMAN

      CRIMINAL REVISION CASE No.269 OF 2021

ORDER:

This Criminal Revision Case is filed questioning the

Order dated 22-03-2021 in Crl.M.P.No.2749 of 2017 in

C.C.No.405 of 2017 passed by the learned III Additional Junior

Civil Judge, Khammam.

2. Heard Sri.C.Sharan Reddy, learned Counsel for the

petitioners, Sri.Shaik Madar, learned Counsel appearing for the

first respondent and Sri.Khaja Vizarath Ali, learned Assistant

Public Prosecutor for the second respondent/State.

3. The petitioners herein are accused No.2 and 3 in

C.C.No.405 of 2017 and the offences alleged against the

petitioners are under Sections 420, 447, 420 r/w. 34 of Indian

Penal Code.

4. The respondent No.1 is claiming that she is the

absolute owner and possessor of agricultural land admeasuring

Ac.05-00 gts., in 3 bits covered by Sy.No.14/AA of

Vepakukuntla Village, Khammam District. She is claiming that

she has purchased the said property in Open Auction

conducted by the Andhra Pradesh State Financial Corporation,

Khammam District and on receipt of entire sale consideration of

Rs.1,05,000/-, the Andhra Pradesh State Financial Corporation,

Khammam District executed a Registered Sale Deed bearing

Doc.No.4409 of 2006 dated 05-06-2006 in favour of the first

respondent.

5. She has let out the said land to one Kantepudi

Daniel, husband of the second petitioner herein/accused No.3

but the said Daniel sublet the subject property to first petitioner

herein without her knowledge. The said Daniel died.

Thereafter the accused No.1, son of the said Daniel got entered

his name in the revenue records by way of cheating and

misleading Mandal Revenue Officer and Village Revenue

Officer.

6. On coming to know the same, she has fenced the

land admeasuring Ac.03-00 gts., with stones, and for balance

land the stones are ready for fencing. On 05-07-2015 during

night, all the accused including the petitioners herein and

others criminally trespassed into her land and broken the

fencing stones and caused damage to a tune of Rs.1,50,000/-.

Therefore, she has lodged a complaint with P.S.Khanapuram

Haveli who in turn registered a case in Cr.No.300 of 2015

against the petitioners herein and accused No.1 for the above

offences.

7. During the course of investigation, the Investigating

Officer has recorded the statement of the first respondent as

LW1, circumstantial witness, her husband as LW2, three

eyewitnesses and one more circumstantial witness as LW6, who

is Branch Manager, Andhra Pradesh State Financial

Corporation, Khammam District.

8. Considering their statements, the Investigating

Officer has laid charge sheet against the petitioners herein and

accused No.1. The same was taken on file as C.C.No.405 of

2017 against the petitioners for the above offences and deleted

the name of the accused No.1.

9. During the pendency of the said Calendar Case, the

petitioners herein have filed the petition vide Crl.M.P.No.2749

of 2017 U/Sec.239 Cr.P.C to discharge them from the above said

Calendar Case, contending that the dispute is Civil in nature,

and a Civil Suit vide O.S.No.219 of 2015 filed by accused No.1

against the respondent No.1 herein and her husband Rajeshwar

Rao for perpetual injunction, is pending. There is an Injunction

Order in I.A.No.639 of 2015 in O.S.No.219 of 2015.

10. The land in Sy.No.14/AA is assigned land.

Mortgage of the subject land by the said Daniel is not valid and

it is not enforceable and not binding on the accused No.1 and

the second petitioner/accused No.3. Accused No.1 is in

possession of the subject land.

11. The said petition was opposed by the prosecution

by way of filing counter contending that the allegations leveled

against the accused are specific, and there are triable issues and

the petitioners have to face trial and the same cannot be

considered in a petition filed U/Sec.239 of Cr.P.C.

12. The Court below vide impugned Order dated 22-03-

2021 dismissed the said application observing that there are

certain specific allegations against the petitioners herein, that

the version of the complainant is corroborated with the

witnesses. There are triable issues and the petitioners have to

face trial, and that the defence taken by the petitioners cannot

be considered in a discharge application.

13. Challenging the same, the petitioners have filed the

present Criminal Revision Case.

14. Sri.C.Sharan Reddy, learned Counsel for the

petitioners would submit that the allegations are against the

accused No.1 and the Investigating Officer has deleted the

name of the accused No.1 from the Chargesheet, therefore,

there are no allegations against the petitioners herein.

Investigating Officer without conducting investigation and

without considering the fact that the suit vide O.S.No.219 of

2015 is pending, and Injunction Order was passed by the Court

below in I.A.No.639 of 2015, is subsisting. Therefore, without

considering the above facts, the Court below dismissed the

discharge petition.

15. Whereas, Sri.Shaik Madar, learned Counsel

appearing for the first respondent would submit that the

incident took place on 05-07-2015, the first respondent lodged

complaint on 06-07-2015 and the said Civil Suit vide O.S.No.219

of 2015 was filed on 08-07-2015 and Interim Injunction was

granted on 08-07-2015. The first respondent purchased the

subject land in an Auction conducted by Andhra Pradesh State

Financial Corporation, Khammam District and she obtained the

Registered Sale Deed. The petitioners and the accused have

trespassed into the said land, damaged the property and in

proof of the same, he has filed photographs. The defence taken

by the petitioners cannot be considered in a petition filed under

Section 239 of Cr.P.C seeking discharge and there are triable

issues and the petitioners have to face trial.

16. As stated above, the first respondent is claiming

that she has purchased the subject land under the Registered

Sale Deed bearing Doc.No.4409 of 2006 dated 05-06-2006. In the

said Sale Deed, it is specifically mentioned that M/s.Daniel

Enterprises, Proprietary Concern represented by its Sole

Proprietor Sri.K.Daniel, father and husband of accused No.1

and 3 respectively, has approached the Andhra Pradesh State

Financial Corporation, Khammam District for term loans and

soft loans for purchase of Compressor and Mining against the

security of hypothecation of compressor and collateral security.

The said M/s.Daniel Enterprises had committed defaults in

repayment of interest, other expenses and installments.

Therefore, the Andhra Pradesh State Financial Corporation,

Khammam District in exercise of Powers conferred under

Section 29 of State Financial Corporation Act, 1951 issued Sale

Advertisement after due procedure and conducted auction and

executed Registered Sale Deed bearing Doc.No.4409 of 2006

dated 05-06-2006.

17. It is the specific case of the first respondent that she

is working as Staff Nurse and staying at different places by way

of her posting and she has let out the same to the said Daniel.

The said Daniel died. During his lifetime, he let out the said

property to the first petitioner/accused No.2 without the

knowledge of the first respondent. The accused No.1 in

collusion with the petitioners herein have tried to grab the said

property, created revenue records, filed the above said suit and

they have also trespassed into the subject land and damaged

the fencing and also stones.

18. As stated above, the Investigating Officer has

recorded the above stated list of witnesses and on considering

their statements recorded under Sections 161 of Cr.P.C., laid

Chargesheet. Thus primafacice there are specific allegations

against the petitioners herein.

19. Learned counsel for the petitioner would submit

that the Investigating Officer deleted the name of the first

accused, therefore, the present proceedings in C.C.No.405 of

2017 are liable to be quashed against the petitioners herein. But

as rightly contended by the learned counsel appearing for the

first respondent, the Investigating Officer except saying that

'not sent for trial' he has not given any reasons for deleting the

name of the accused No.1. In the statements of the above stated

witnesses, there is specific mention about the accused No.1

involvement in commission of offences, even though the

Investigating Officer has deleted his name.

20. As rightly contended by the learned counsel for the

first respondent, the trial Court is having Power to include the

name of the accused No.1 by invoking provisions under Section

319 of Cr.P.C., during the trial and even at the Appellate stage

also.

21. In support of the same, he has also relied on

Judgment of the Hon'ble Supreme Court of India in

M/s.Suvarna Cooperative Bank Limited., Vs. State of

Karnataka and another1. In the said case, the Hon'ble Apex

Court held that:

"Merely because some other persons who might have committed the offences, but were not arrayed as accused and were not charge-sheeted cannot be a ground to quash the criminal proceedings against the accused who is charge-sheeted after a thorough investigation. During the trial, if it is found that other accused persons who committed the offence are not charge-sheeted, the Court may array those persons as accused in exercise of powers under Section 319 Cr.P.C."

Therefore, the contention of Sri.C.Sharan Reddy, learned

Counsel for the petitioners' is not sustainable.

22. It is also relevant to note that in Padal Venkata

Rama Reddy Vs. Kovvuri Satyanarayana Reddy and others2

the Hon'ble Apex Court held that:

"Inherent Powers under Section 482 Cr.P.C could be exercised to prevent abuse of process of Court where

Judgment in Crl.App.No.1535 of 2021 of Hon'ble Supreme Court of India

2011 (12) SCC 437

Court finds that ends of Justice may be met by quashing proceedings."

23. In Skoda Auto Volkswagen India Private Limited

State of Utter Pradesh3, the Hon'ble Apex Court referring to

the various judgments rendered by it categorically held that the

High Courts in exercise of its inherent powers under Section

482 of Cr.P.C has to quash the proceedings in criminal cases in

rarest of rare cases with extreme caution.

24. In Priti Saraf and others Vs. State of NCT of Delhi

and others4 the Hon'ble Supreme Court of India held that:

"The defences taken by the accused cannot be considered in a petition filed to discharge them. The said defences have to be taken by the accused during the trial and it is for the trial Court to consider the same."

25. In State of Rajasthan Vs. Ashok Kumar Kashyap5

the Hon'ble Supreme Court of India held that:

"At the stage of considering an application for discharge the court must proceed on the assumption

3 2020 Latest Case law 620 SC

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that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction."

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

Supreme Court of India, and in view of above said discussion,

primafaice, there are several allegations against the petitioners

herein. Deletion of name of the accused No.1 from the

Chargsheet cannot be a ground to discharge the

petitioners/accused No.2 and 3 from the said Calendar case.

The above said suit was filed on 08-07-2015, an exparte interim

injunction order was passed on 08-07-2015. Whereas, as per the

complaint lodged by the first respondent dated 06-07-2015, the

petitioners herein and the accused No.1 have trespassed into

subject land on 05-07-2015 night and they have damaged

fencing.

27. As discussed supra, the first respondent is claiming

that she is absolute owner and possessor of the land

admeasuring Ac.05-00 gts., in Sy.No.14/AA of Vepakukuntla

Village, Khammam District, and whereas the accused No.1 in

the Calendar case, in the above suit is claiming that he is

absolute owner of land admeasuring Ac.05-00 gts., in

Sy.No.14/3/A of Vepakukuntla Village, Khammam District.

There is no denial of mortgage of the said land admeasuring

Ac.05-00 gts., in Sy.No.14/AA of of Vepakukuntla Village,

Khammam District by the petitioners herein.

28. According to the petitioner No.1 and also according

to the accused No.1, the plaintiff in O.S.No.219 of 2015, son of

K.Daniel, the said mortgage of subject land by the said K.Daniel

is not legal and it is not binding on the accused No.1. However,

the said issues are to be decided by the trial Court in

O.S.No.219 of 2015 and the same cannot be considered by the

Court below in a petition filed under Section 239 Cr.P.C. for

discharge of petitioners from the said Calendar case, even the

same cannot be considered in this petition.

29. The Court below has considered all such aspects

and dismissed the application filed by the petitioners seeking

discharge. It is a reasoned order. There is no error in it. This

Court does not find any reason to interfere with the impugned

Order. Therefore, this Criminal Revision Case is liable to be

dismissed.

30. Accordingly, this Criminal Revision Case is

dismissed.

As a sequel, the Miscellaneous Petitions, pending if any,

shall stand closed.

_____________________ K. LAKSHMAN, J Date: 06-06-2022 KHRM

THE HONOURABLE SRI JUSTICE K. LAKSHMAN

CRIMINAL REVISION CASE No.269 OF 2021

06-06-2022 KHRM