Kiran Borkar, Hyderabad., vs The State Of Telangana, Rep Pp.,
2022 Latest Caselaw 5631 Tel

     HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

                 Crl. R.C Nos.650 & 652 of 2016
ORDER:

These petitions are filed under Sections 397 and 401 of

Cr.P.C questioning the legality, propriety and regularity of the

order in Crl.MP.No.768 of 2013 and Crl.M.P.No.770 of 2013,

respectively, in C.C.No.23 of 2010 pending on the file of the

Principal Special Judge for SPE & ACB Cases-cum-IV Additional

Chief Judge, City Civil Court, at Hyderabad.

2. The petitioners in Crl.R.C.No.650 of 2016 are the accused

Nos.1 and 2 and the petitioner in Crl.R.C.No.652 of 2016 is

accused No.5 in C.C.No.23 of 2010. They will, herein after, be

referred as petitioners for convenience.

3. The petitioners filed petitions under Section 239 of Cr.P.C

before the Court below to discharge the petitioners for the

offences punishable under Sections 408, 468, 471 & 120 (B)

I.P.C r/w Sections 13 (1) (d) clause II & III of P.C.Act, 1988.

4. The petitioners are the accused Nos.1, 2 and 5 in the

charge sheet laid by the respondents alleging that accused Nos.1

and 2 registered the park land measuring 600 yards showing it

as house bearing Nos.1-8-450/1/A/160 and 1-8-450/1/A/159

(issued by MCH to their houses admeasuring 300 sq.yards each)

in favour of R.Satya Kumar (A-6) and M.F.Peter (A-7) vide sale

deeds No.1352/96 and 1351/96 dated 12.06.1996. On

16.10.1998, the petitioners have also executed a Rectification

Sale Deed in Vallabhanagar Registration Office, Ranga Reddy

District in respect of the property which was earlier registered by

them as houses and in rectification deeds, it is described as open

plots bearing Nos.S1 & S2 by mis-using the G.O.Ms.No.522

dated 20.07.1988.

5. The petitioner in Crl.R.C.No.652 of 2016 is accused No.5

who worked as Deputy Collector, later joined in APHB as

Secretary on deputation from 1995 to 1998 and later retired from

service. He conspired with A1 & A2 and prepared a false note in

LAQ.No.6205 describing that the land is not a vacant site

reserved for park, though he was having knowledge that it was

left for park place, as disclosed by the original plan available in

APHB Office. Thus, accused No.5 committed the offences

punishable under Section 120 (B) IPC r/w Sections 13 (1) (d)

clause II & III of P.C.Act, 1988.

6. All the three petitioners raised identical grounds.

Following are the few grounds identical in both the petitions.

1. The trial Court while deciding the discharge petition filed by the accused No.1 and 2 is under obligation to appreciate the prosecution in the charge sheet and to find out whether the allegations are sufficient to bring home the guilt of accused for the offences punishable under Sections 408, 468, 471 & 120 (B) I.P.C. r/w Sections 13 (1) (d) clause II & III of the Act against A1 and A2 and A5.

2. The Court below also did not consider the material on record to find out whether those allegations would constitute any of these offences i.e., criminal breach of trust, forgery, tampering of record etc.,

3. The Court below also failed to consider the evidence set up by the petitioners as to the nature of land and contrary to principle laid down in State of Orissa vs. Debendra Nath Padhi1 dismissed the petition on wrong appreciation of facts. So also in Ajay Kumar Parmar vs. State of Rajasthan2 wherein it was held that it is permissible to consider the defense evidence, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted. Ignoring the basic principles for deciding a petition under Section 239 Cr.P.C dismissed the petition filed by the petitioners.

7. Petitioners contend that they produced lot of material

before the Court below, more particularly, averments in the writ

petitions, which was dismissed, later restored and remanded by

the Supreme Court in the appeal and if these documents have

been considered, the court would have allowed these applications

discharging the petitioners for the offences punishable under

Sections 408, 468, 471 & 120 (B) I.P.C. r/w Sections 13 (1) (d)

clause II & III of the Act.

8. The 2nd respondent filed counter affidavit alleging that the

employees of Indian Airlines formed an association "Indian

Aircraft Technicians Association" i.e., I.A.T.A which is registered.

The registered Association approached the State Government for

allotment of site for residential houses to its members. The State

Government acquired open land admeasuring Ac.12.24 gts in

Begumpet Village, Hyderabad in Sy.No.194/11part under the

(2005) 1 SCC 568

(2012 12 SCC 406

Land Acquisition Act, 1894 on 10.06.1975 for the purpose of

construction of houses for the staff of Indian Airlines. Initially

168 plots/houses were envisaged, however on technical grounds,

the HUDA sanctioned 159 plots/houses i.e., Type 'A' 50 and Type

'B' 109 respectively. The HUDA, in the year 1980 sanctioned the

layout by G.O.Rt.No.4 (H) M.A & U.D. dated 20.02.1986 and the

State Government accorded permission to A.P.H.B to take up

construction of 159 houses. Accordingly approved the layout vide

L.P.No.2/85 of LPD-1/HUDA in file No.8789/PD/HUDA/84 with

open space of 600 sq.yards for park and the A.P.H.B. vide

Lr.No.Paigah/TCH/REGARU/81-82 dated 08.09.1994 submitted

blue prints to Special Officer, MCH for permission for

construction of proposed 159 houses. The accused in the above

CC colluded and tampered the official records and without any

authority, the accused Nos. 1 and 2 fraudulently sold the land

and executed registered sale deeds in respect of the property

belonging to Government admeasuring 600 sq.yards earmarked

for children park in favour of accused Nos.6 and 7 who are not

the beneficiaries vide registered document Nos.1351 of 1996 and

1352 of 1996, each 300 sq.yards by showing fictitious House

numbers i.e., H.No.1-8-450/1/A/159 and 1-8-450/A/160 and

later rectifying them into plots S1 and S2. The accused No.1

later obtained permission from MCH for construction of

multistoried commercial complex in the land earmarked for the

park by false representation and forgery. These illegal acts of the

petitioners/A1 and A2 would constitute offences punishable

under Sections 408, 468, 471 IPC, whereas the Accused No.5

colluded with other accused and committed the breach of trust,

forgery, criminal conspiracy and abuse/misuse of powers by the

Government servants and thereby committed an offence

punishable under Section 120 (B) I.P.C. r/w Sections 13 (1) (d)

clause II & III of the Act.

9. It is also specifically contended that the averment, that plot

Nos.S1 and S2 along with two unfinished houses were handed

over to IATA by Engineering Department of APHB on 04.02.1991,

is false, as the said open plots S1 and S2 does not exist as per

the original plan and the averment of handing over open plots S1

and S2 is clear admission of the petitioner/A-5 in committing the

offence.

10. Accused No.5 is an officer who manipulated the records

and put up a note in LAQ No.6205 (document No.34 to 35), with

regard to sale of 600 sq.yards located at the entrance of IATA

colony earmarked for park, though the said land is reserved for

park and putting up such note by A-5, who is holding the post of

Secretary of APHB, is nothing but an abuse of exercise of power.

Therefore, he committed a serious offence punishable under

Section 120 (B) I.P.C. r/w Sections 13 (1) (d) clause II & III of the

Act.

11. The law laid down by Apex Court in State of A.P. v/s.

Cheemalapati Ganeswara Rao & Another3 and Vijayan v/s

State of Kerala4 holding that where offences have been

committed in pursuance of conspiracy, it is legally permissible to

charge the accused with these offence as well as with the

AIR 1963 SC 1850

(1999) 3 SCC 54

conspiracy to commit those offences. Conspiracy is entirely an

independent offence and though other offences are committed in

pursuance of conspiracy, the liability of the conspirators for the

conspiracy itself cannot disappear. It is also held that to bring

home the charge of conspiracy within the ambit of Section 120-B

I.P.C, it is necessary to establish there was an agreement

between the parties for doing unlawful act. It is no doubt true

that it is difficult to establish conspiracy by direct evidence and,

therefore, from the established facts an inference could be drawn

but there must be some material from which it would be

reasonable to establish a connection between the alleged

conspiracy and the act done in pursuant to the said conspiracy.

12. Therefore, the law of the land is clearly applicable to the

present facts of the case and thereby came to a conclusion that

there is a prima facie case to proceed against these petitioners to

constitute an offence punishable under Sections 408, 468, 471 &

120 (B) I.P.C. r/w Sections 13 (1) (d) clause II & III of the Act,

requested to dismiss the petition.

13. During hearing, learned senior counsel for the petitioners,

Sri Mahmood Ali, contended that the dispute with regard to sale

of the property is subject matter of W.P.No.25738 of 1997 and

Civil Appeal No.9583 of 2003. In fact the writ petition was

dismissed for default and was restored by this Court and now it

is pending. Further, when the dispute with regard to the

property is the subject matter of writ petition in Civil Appeal and

when W.P.Nos.12538 of 1997 and 25738 of 1997 are pending,

the trial Court ought to have discharged these petitioners for the

offences punishable under Sections 408, 468, 471 & 120 (B)

I.P.C. r/w Sections 13 (1) (d) clause II & III of the Act in

C.C.No.23 of 2010. The Enquiry Officer, IV Additional Chief

Judge-cum-Principal Session Judge for SPE and ACB cases, City

Civil Court at Hyderabad appointed by this Court in writ

petitions also filed a report observing that there is absolutely no

material on record to show that the site in dispute is retained for

park. The Hon'ble Supreme Court while disposing of Civil Appeal

Nos.9582/2003 and 9583/2003 filed by these

petitioners/accused 1 and 2 challenging the judgment dated

16.10.2001 passed by this Court in W.P.No.12538/1999 and

W.P.No.25738/1997 remanded the matter to this Court for

reconsideration of the documents brought on record before the

Court. Later, the appeals were dismissed and also restored and

as on today these writ petitions are pending before this Court.

Even otherwise allegations made in the charge sheet on its face

value would not constitute offences punishable under Sections

408, 468, 471 & 120 (B) I.P.C. r/w Sections 13 (1) (d) clause II &

III of the Act. Therefore, the petitioners are liable to be

discharged for the offences punishable under Sections 408, 468,

471 & 120 (B) I.P.C. r/w Sections 13 (1) (d) clause II & III of the

Act. The Court below instead of discharging the petitioners

based on material on record erroneously concluded that the

material filed along with the report under Section 173 Cr.P.C

alone shall be taken into consideration and thereby dismissed

the applications erroneously.

14. Per contra, the counsel for the respondents contended that

the voluminous material to establish that the properties sold by

petitioners/accused 1 and 2 in favour of accused No.6 and 7

cannot be taken into account as the site is reserved for public

purpose i.e., park, and the sale of the same by the petitioners

would constitute an offence punishable under Sections 408, 468,

471 & 120 (B) I.P.C. r/w Sections 13 (1) (d) clause II & III of the

Act. The petitioners shown the property initially as House No.1-

8-450/1/A/159 and 1-8-450/1/A/160 and later executed

rectification deeds and shown them as open plots bearing Nos.S1

and S2 and obtained permission from the Municipal Corporation

for construction of multistoried buildings in the property.

Therefore, the act of the petitioners 1 and 2 would constitute an

offence punishable under Sections 408, 468, 471 of IPC and the

act of accused No.5 would constitute an offence punishable

under Sections 120 (B) I.P.C. r/w Sections 13 (1) (d) clause II &

III of the Act, as they committed the said Act by taking advantage

of their official position, and prayed to confirm the order passed

by the Court below and dismiss these two revision petitions.

15. Perusing the material available on record, the points that

arise for consideration are as follows:

"1. Whether the petitioners/accused Nos.1, 2 and 5 in C.C.No.23 of 2010 pending on the file of Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, at Hyderabad, committed any offence, prima facie?

2. Whether the allegations made in the charge sheet would constitute the offence punishable under Sections 408, 468, 471 & 120 (B) I.P.C. r/w Sections

13 (1) (d) clause II & III of the Act. If so, are they liable to be proceeded framing charges for the various offences stated above?"

POINTS 1 & 2:

16. The petitioners, who are the accused 1, 2 and 5 in

C.C.No.23 of 2010, filed Crl.M.P.Nos.768 of 2013 and 770 of

2013 under Section 239 of Cr.P.C. to discharge them for the

offences punishable under Sections 408, 468, 471 & 120 (B)

I.P.C. r/w Sections 13 (1) (d) clause II & III of the Act by raising

various contentions. But these petitions were dismissed by the

Court below by separate orders vide order dated 29.10.2015.

17. The orders are now under challenge before this Court on

various grounds stated supra.

18. It is the contention of the prosecution that A1 and A2 sold

600 sq.yards of land reserved for public purpose i.e., park, in

favour of A6 and A7, each 300 sq.yards, for consideration of

Rs.1,80,000/-, though the market value was Rs.18 lakhs per plot

i.e., 300 sq.yards. A resolution was passed in the General Body

meeting of the Association and obtained permission from

Municipal Corporation of Hyderabad (MCH) by filing an affidavit.

The HUDA authorities inspected the site and addressed letter to

MCH, while the commercial complex is under construction. In

spite of information received from HUDA vide

Lr.No.P7/HUDA/97, dated 07.07.1997, the MCH authorities

failed to stop the illegal construction or cancel the permission

granted. The accused also rectified the sale deed describing the

property as S1 and S2 (vacant plots). On the basis of said facts,

the omissions of the petitioners/accused 1 and 2, a complaint

was lodged by P.Venkateshwarlu, who is a member of the society

and the Additional Director General of CID on the strength of the

same, completed investigation and filed charge sheet.

19. The main contention before this Court is that the Court

below did not take into consideration the material produced

before the Court and that when the writ petitions are pending

with regard to subject property of the above CC in

W.P.Nos.12538 of 1997 and 25738 of 1997, any finding recorded

in CC would cause prejudice to petitioners' case in writ petitions

and thereby petitioners are liable to be discharged.

20. Before adverting to the contentions raised before this Court

it is apposite to examine the scope of Section 397 and 401 of

Cr.P.C., with reference to Section 239 Cr.P.C.

21. The present revision is filed under Section 397 and 401 of

Cr.P.C. Jurisdiction of this Court under Section 397 and 401 of

Cr.P.C. is limited and the High Court may exercise such power

only when the Court found that there is a manifest perversity in

the order or the finding recorded by the Court is without any

evidence or material, though section 401 of Cr.P.C. confers a

kind of paternal and supervisory jurisdiction on the High Court

over all other criminal Courts established in the State in order to

correct miscarriage of justice arising from a misconception of

law, irregularity or procedure, neglect or proper precautions or

apparent harshness of treatment which has on the one hand

resulted in some injury to the due maintenance of law and order

or, on the other hand, in some underserved hardship to

individuals. The revisional power conferred on the High Court by

Section 401 of Cr.P.C. is discretionary power, has to be exercised

in the aid of justice. Whether or not the High Court will exercise

its revisional jurisdiction in a given case, must depend upon

facts and circumstances of each case? The discretion conferred

on the High Court by Section 401 of I.P.C. has to be exercised

judicially, on judicial principles and not arbitrarily. Therefore,

keeping in mind the scope of revision, I would like to decide the

present issue before this Court.

22. According to section 239 of Cr.P.C. if the Court is of the

opinion upon considering the police report and documents sent

with it under Section 173 and making such examination, if any,

of the accused as the Magistrate or Sessions Judge thinks

necessary and after giving the prosecution and the accused an

opportunity of being heard, the Magistrate or Sessions Judge

considers the charge against the accused to be groundless, he

shall discharge the accused and record his reasons for so doing.

23. The documents referred to in Section 207 of Cr.P.C. also

must relate to such documents which can be subsequently

transferred into evidence at the time of the trial. Hearing of the

prosecution and the accused under this section does not mean

the hearing of arguments only, it includes the hearing of the

evidence if needed. The word "groundless" would mean the

absence of reasonable ground to expect a conviction.

"Groundless" is equivalent to saying that there is no ground for

framing the charges, which depends on the facts and

circumstances of each case. Therefore, only when the Magistrate

or Sessions Judge comes to conclusion that there are no grounds

to frame a charge for specific offence, the Court can discharge

the accused for such offence. Even the scope of Section 238 and

239 Cr.P.C. is limited, such power has to be exercised only when

the Magistrate or Sessions Judge came to conclusion that it is

groundless, based on charge sheet and documents filed under

Section 173 of Cr.P.C.

24. Consideration of records and documents at the stage of

framing charge is for the limited purpose of ascertaining whether

or not there is sufficient ground to proceed against the accused.

Whether the material at the hands of the prosecution is sufficient

and whether the trial will end in conviction or acquittal are not

relevant considerations at the stage of framing of charge as held

by the Apex Court in "P.Vijayan v. State of Kerala5"

25. In Manakshi Bala Vs. Sudhir Kumar6 and Kanti Bhadr

Shah And Anr. Vs The State of West Bengal7, the Apex Court

while deciding an appeal in a petition filed for discharge held that

Magistrate at the stage of discharge petition filed under Section

239 Cr.P.C., Magistrate has to record his reasons for discharging

the accused, but there is no such requirement if he forms an

opinion that there is a ground for presuming the accused had

committed an offence which he is competent to try. In such

situation he is only required to frame a charge in writing against

the accused. Even in cases instituted otherwise than on police

report, the Magistrate is required to write an order showing the

reasons only if he is to discharge the accused. This is clear from

AIR 2010 SC 663

[1994] INSC 308

AIR 2000 SC 522

Section 245. As per sub-section(1) of Section 245, if a

Magistrate, after taking all the evidence considers that no case

against the accused has been made out which if unrebutted

would warrant his conviction, he shall discharge the accused. As

per sub-section (2) of Section 245, the Magistrate is empowered

to discharge the accused at any previous stage of the case if he

considers the charge to be groundless. On both sub-sections he

is obliged to record his reasons for doing so.

26. In this context, it is pertinent to point out that even in a

trial before a Court of Sessions, the Judge is required to record

reasons only if he decides to discharge the accused. But if he is

to frame the charge he may do so without recording his reasons

for showing why he framed the charge.

27. In later judgment reported in Sheoraj Singh Ahlawat &

Ors vs. State of Uttar Pradesh & Anr8 in Criminal Appeal

No.1803 of 2012, the Apex Court on elaborate consideration of

entire law regarding discharge, relying on State of M.P. v.

Mohanlal Soni9 and State of Maharashtra & Ors v. Som

Nath Thapa and Ors10 held that if on the basis of material on

record, a Court could come to the conclusion that commission of

the offence is a probable consequence, a case for framing of

charge exists. To put it differently, if the court were to think that

the accused might have committed the offence it can frame the

charge, though for conviction the conclusion is required to be

that the accused has committed the offence. It is apparent that

AIR 2013 SC 52

2000 Cri.LJ 3504

1996 Cri.LJ 2448

at the stage of framing of charge, probative value of the materials

on record cannot be gone into the materials brought on record by

the prosecution has to be accepted as true at that stage. So also

in Mohanlal's case, it is made clear that the crystallized judicial

view is that at the stage of framing charge, the court has to

prima facie consider whether there is sufficient ground for

proceeding against the accused and the court is not required to

appreciate evidence to conclude whether the materials produced

are sufficient or not for convicting the accused.

28. Similarly in State of Orissa v. Debendra Nath Pandhi(1

supra) the Apex Court held as follows:

"18.We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision

about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."

29. In earlier judgment reported in Union of India v. Prafulla

Kumar Samal and Anr11 the Apex Court laid the following

principles:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the

(1979) 3 SCC 4

matter and weigh the evidence as if he was conducting a trial.

30. Based on various principles laid down in the judgments

referred supra, Apex Court concluded that when the allegations

made against the accused are specific and having concluded that

those allegations would constitute prima facie offence, the Court

is required to evaluate the material and documents on record

with a view to finding out if the facts emerging therefrom, taken

at their face value, disclosed the existence of all the ingredients

constituting the alleged offence. At that stage, the court is not

expected to go deep into the probative value of the material on

record. What needs to be considered is whether there is a

ground for presuming that the offence has been committed and

not a ground for convicting the accused has been made out. It is

well settled that, at the stage of framing of charge, the defence of

accused cannot be put forth. The submissions of the accused

has to be confined to the material produced by the police. Clearly

the law is that at the time of framing charge or taking cognizance

the accused has no right to produce any material as held in

Onkar Nath Mishra and Ors vs. State (NCT of Delhi) and

Anr12 and State of Maharashtra & Ors v. Som Nath Thapa &

Ors13 and Mohanlal Soni's case(8 supra) and State of Orissa

v. Debendra Nath Pandhi(1 supra).

31. Learned counsel for the petitioner also relies on two

judgments of Apex Court in Debendra Nath (1 supra) which I

referred and in Ajay Kumar Parmar vs. State of Rajasthan(2

(2008) 2 SCC 561

1996 Cri.LJ 2448

supra) in paragraph 16 of the judgment, the Court held that it

was not permissible for the Judicial Magistrate to take into

consideration the evidence of defence produced by the appellant

as it has consistently been held by this Court that at the time of

framing the charge, the only documents which are required to be

considered are the documents submitted by the investigating

agency along with the charge sheet. Any document which the

accused wants to rely upon cannot be read as evidence. If such

evidence is to be considered, there would be a mini-trial at the

stage of framing of charge. That would defeat the very object of

the code. Even for hearing submission of accused as per Section

227 means hearing the submissions of the accused on the record

of the case as filed by the prosecution and documents submitted

therewith and nothing more. Even if, in a rare case it is

permissible to consider the defence evidence, if such material

convincingly establishes that the whole prosecution version is

totally absurd, preposterous or concocted.

32. In view of the law declared by the Apex Court in various

judgments referred supra as to considering an application filed

under Section 239 Cr.P.C, at the stage of framing charges, the

duty of the court is only to look into allegations made in the final

report and the documents annexed to it including statements of

witnesses recorded and examined during investigation, and

afford an opportunity to the accused to advance arguments. But

said argument must be connected to the material on record i.e.,

allegations in charge sheet and documents filed along with report

under Section 173 Cr.P.C, not more than that. The accused is

not entitled to produce any documents and adduce any evidence

at the time of framing charges or at the time of disposal of

petition filed under Section 239 Cr.P.C.

33. In view of the law declared by the Apex court in various

judgments referred supra and scope of jurisdiction of this Court

under Section 397 and 401 of Cr.P.C., it is appropriate to advert

to allegations made in the charge sheet.

34. A1 is the Secretary of India Aircraft Technicians

Association and A2 is the Chairman of Indian Aircraft

Technicians Association, who jointly sold away 600 sq. yards

earmarked for park at the entrance of the colony, after passing

resolution in general body meeting of the society and executed

sale deed in favour of A6 and A7 for Rs.1,80,000/- each, though

the value of the property allegedly is more than Rs.18 lakhs on

the date of execution, as if there were two houses in the site

mentioning Door Nos.1-8-450/1/A160 and 1-8-450/1/A/159,

but later executed rectification deeds rectifying the mistake

describing the property as plot Nos. S1 and S2 in place of house

numbers, and obtained permission of Municipality for

construction of houses. These documents would suffice to

conclude that the land reserved for public purpose i.e.,

earmarked for park as per the layout which is situated at the

entrance of the colony was sold by these two persons i.e.,

accused Nos. 1 and 2, taking the aid of A5, who is the Secretary

of APHB intentionally put up a note in LAQ No.6205 describing

the property as house though it is earmarked for park.

Therefore, A1, A2 and A5 conspired together and sold the land to

A6 and A7, though it belongs to the Government as it was

reserved for public purpose i.e., park, which is meant for

residents of colony or other public. Therefore, the sale of public

property by accused No.1 and 2 by tampering records and

execution of sale deeds and rectification deeds would amount to

an offence. The voluminous material produced before this Court

by respondent No.2 along with counter affidavit would show that

petitioners taking advantage of positions as Secretary and

Chairman of IATA i.e, India Aircraft Technicians Association and

Indian Aircraft Technicians Association converted the public site

into private site, sold to A6 and A7. The respondent -HUDA filed

an affidavit in W.P.No.12538 of 1999 and W.P.No.25738 of 1997

supporting the case of the respondents. According to the

allegations made in the affidavit filed by HUDA and the annexed

report filed by the Enquiry Officer cum I Additional Chief Judge

would disclose that no park is existing as on date of inspection

but that does not mean that the site was not reserved for public

purpose.

35. Accused No.1 and 2 on the request of Enquiry Officer

furnished a layout by Regional Housing Engineer APHB and

APHB also addressed a letter dated 07.10.1996 stating that

APHB handed over unfinished work to the Society vide its letter

dated 04.01.1989 but as per the letter of MCH bearing

Lr.No.10/TP/CCB/96/1929, dated 17.10.1996, the accused

No.1 and 2 submitted an application in the capacity of Chairman

and Secretary of India Aircraft Technicians Association and

Indian Aircraft Technicians Association for approval of plan in

Plot Nos.S1 and S2, earmarked for commercial purpose, in the

layout plan of the housing board. The accused Nos.1 and 2

submitted an affidavit stating that S1 and S2 did not form part of

open space earmarked for park and executed a bond in favour of

MCH to indemnify the loss caused due to any litigation and that

plan was sanctioned and finally concluded that as on the date of

inspection there was no site meant for park.

36. A suit in O.S.No.151 of 1999 on the file of I Additional

Chief Judge was also filed by the Vice Chairman & Housing

Commissioner of APHB who was arrayed as 1st defendant in the

suit filed by the 7th accused, where the HUDA contended that

Chairman and Secretary of the Association have no right to

execute registered sale deeds in respect of plot Nos.S1 and S2

and they are the plots earmarked as park in the approved layout.

As such the said construction by the plaintiff therein are illegal

and contrary to rules and regulations and bye-laws of Municipal

Corporation. This assertion is suffice to conclude that even

according to HUDA the property in dispute is ear marked for

park. The respondent after completion of investigation filed

charge sheet before the Court below for various offences.

37. The petitioners allegedly committed the offences

punishable under Sections 408, 468, 471 & 120 (B) I.P.C r/w

Sections 13 (1) (d) clause II & III of P.C. Act, 1988.

38. Section 408 of I.P.C deals with punishment of Criminal

breach of trust by clerk or servant.

39. Criminal breach of trust is defined as follows:

"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

40. To constitute an offence of criminal breach of trust, there

must be entrustment with the property and if there is no

allegation in the charge sheet that the property was entrusted, it

would not constitute an offence punishable under Sections 406,

407 or 408 of I.P.C.

41. The basic requirements to bring home the accusations

under Section 405 of the Code are the requirements to prove

conjointly (i) entrustment and (ii) whether the accused was

actuated by dishonest intention or not, misappropriated it or

converted it to his own use to the detriment of the persons who

entrusted it; Sadhupati Nageswara Rao v. State of Andhra

Pradesh14.

42. In the present case, according to the allegations made in

the charge sheet and material available on record, A1 and A2

being Secretary and Chairman of the Association, who is having

over all control over the affairs of the Society including the place

earmarked for public purpose, got passed a resolution for sale of

the property and sold the property for Rs.1,80,000/- each to A6

AIR 2012 SC 3242

and A7 by executing registered sale deeds, thereafter rectification

deeds. When the property was entrusted to Society which is

being managed by A1 and A2 and sale of the same at lower price

than prevailing market value, prima facie, would constitute an

offence as defined under Section 405.

43. Whether the petitioners committed breach of trust as clerk

or servant is a different question. But the allegations made in

the charge sheet may attract an offence punishable under

Section 406 at least, prima facie.

44. The other offence allegedly committed by the accused

Nos.1 and 2 is punishable under Section 406 i.e., forgery for the

purpose of cheating.

45. Forgery is defined under Section 463 of I.P.C which reads

as follows:

"Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

46. The basic elements of forgery are:--------(1) the making

of a false document or part of it and (2) such making should

be with such intention as is specified in the section, viz., (a)

to cause damage or infringe to (i) the public, or (ii) any

person; or (b) to support any claim or title; or (c) to cause

any person to part with property, or (d) to cause any person

to enter into an express or implied contract; or (e) to commit

fraud or that fraud may be committed; Sushil Suri v.

Central Bureau of Investigation15.

47. In the present case, the allegations made in the charge

sheet are that the petitioners fabricated the documents and sold

to A6 and A7 describing the property as houses bearing Nos.

No.1-8-450/1/A/160 and 1-8-450/1/A/159 though it was a

open space earmarked for public purpose i.e., for park, and later

executed rectification deeds substituting plot Nos.S1 and S2 in

two documents executed in favour of accused Nos.6 and 7 and

obtained permission to raise multistoried shopping complex in

the earmarked property at the entrance of IATA colony. The

entire case would show that with a view to cheat members of the

Association executed said documents and thereby caused

damage to the members of the Association. Consequently,

allegations made in the charge sheet would constitute an offence

punishable under Section 468 IPC, prima facie.

48. Other offences allegedly committed by the petitioners are

punishable under Section 471 I.P.C i.e., "Using as genuine a

forged [document or electronic record].

49. According to it whoever uses as genuine a forged document

or electronic record which he knows or has a reason to believe to

be a forged [document or electronic record], shall be punished in

the same manner as if he had forged such [document or

electronic record].

AIR 2011 SC 1713

50. Here the record was tampered with the help of A5 by A1

and A2 and made the accused Nos.6 and 7 to believe that the

property sold to them under two registered sale deeds is not the

earmarked property for park and used said forged document as a

genuine document and executed sale deeds thereby causing loss

to them.

51. The allegations made in the charge sheet and the

documents produced along with charge sheet under Section 173

of Cr.P.C prima facie constitute an offence punishable under

Section 471 IPC.

52. The other offences allegedly committed by the

petitioners/accused Nos.1, 2 and 5 is punishable under Section

120 (B) IPC,

53. Section 120 (B) I.P.C deals with Punishment of criminal

conspiracy. But the offence under criminal conspiracy is defined

under 120 (A) I.P.C.

54. According to Section 120 (A) when two or more persons

agree to do, or cause to be done:

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.

55. When charge sheet is filed for the offence punishable under

Section 120-B I.P.C, the prosecution must satisfy the necessary

ingredients. They are:

There must be an agreement to do or caused to be done an illegal act by illegal means. Therefore, the prime requirement is agreement to commit an offence.

Mere proof of such agreement is sufficient to establish criminal conspiracy; Sushil Suri V. Central Bureau of Investigation16.

56. The essence of criminal conspiracy is an agreement to do

an illegal act and such an agreement can be proved either by

direct evidence or by circumstantial evidence or by both. Direct

evidence to prove conspiracy is rarely available and, therefore,

the circumstances proved before, during and after the occurrence

have to be considered to decide about the complicity of the

accused. The offence of criminal conspiracy as defined under

Section 120 A can be inferred from the circumstances and it is

difficult for any one to prove such offence by direct evidence.

57. More curiously in the dispute between P. Venkateswarlu

v. Govt. of A.P. and others17, the Division Bench of this Court

had an occasion to decide the dispute between the parties with

regard to the present dispute and held that in terms of Section of

22(j) of the 1956 Act, the Housing Board notwithstanding

anything contained in any other law for the time being in force,

may make the provision of parks, play fields and open space, for

the benefit of public, of any area comprised in the scheme or any

adjoining area and the enlargement of existing parks, play-fields,

open spaces and approaches. The aforementioned provision

clearly goes to show that the Housing Board had no jurisdiction

to carry out any other activity, than the one prescribed in the

Master Plan layout earmarked as "park". The Court while

considering such a matter is not concerned with the

AIR 2011 SC 1713

2001 (6) ALD 533 (DB)

consequences particularly where it concerns ecology. A park

provides for some lung space. It is well settled that the

community requires certain lung space and may also use open

space for sports and other recreational activities. Parks or

wetlands are also necessary for the purpose of maintaining

ecological balance. The doctrine of 'public trust' applies in

relation to park where for the open space is earmarked for the

purpose of park, and it becomes the statutory duty of the local

authorities and other statutory bodies to maintain the same. The

authorities of the Board have no right to do away therewith

unless the Master Plan is modified in terms of the provisions of

Section 12 of the 1975 Act read with Rules 13 and 13-A of the

1977 Rules. The development Act, as noticed hereinbefore,

envisages preparation of a Master Plan, which consists of various

zones-the user of such zone is specified therein. Stages of

development are also specified. A planned development is

contemplated under the Master Plan and Zonal Development

Plans. While doing so, larger public interest must be kept in

view. A creature of a statute therefore cannot be permitted to

violate the provisions of the Act whereunder it was created. A

combined reading of the provisions of Sections 12 and 57 of the

Act read with Rules 13 and 13-A of the 1977 Rules leave no

manner of doubt whatsoever that even if any action is taken in

derogation of the provisions of the Master Plan and Zonal

Development Plan, the same would not be a lawful act.

58. In the above judgment, the dispute with regard to park

layout and construction of house therein came up before this

Court more particularly with regard to 600 sq.yards abutting

S.P.Raod which was earmarked for park. By G.O.Rt.No.4

(Housing) dated 20.02.1986, the Division Bench of this Court

recorded the findings in paragraphs 32, 33 and 34 as stated

above. Thus, in view of the law declared by Division Bench, the

area in question i.e., 600 sq.yards was shown as park in the

Master Plan. The layout plan can be changed or altered only in

terms of the 1975 Act. The Housing Board states that it has no

jurisdiction to change the layout plan. But it is contrary to law

and therefore W.Ps were allowed holding as follows:

"47.In the instant case, some disturbing features have come to our notice apart from the fact that the original layout plan (Master Plan) of the Municipal Corporation had been tampered with.

48. The records show existence of four different associations, of which one is registered, in whose favour orders have been passed from time to time, although the purported acquisition was made only for the benefit of the members of one association.

49. Sale-deeds have been executed by persons, who are not authorised therefor, and in contravention of the provisions of the 1956 Act, which authorises only the Vice-Chairman to execute a Deed of Sale. We fail to understand even if the said Act provides a delegation of power as to how the same can be delegated in favour of a private individual, who is not an officer of the Housing Board. Glaring mistakes occurred in the said sale-deeds and realising the same, purported deeds of Rectification had been executed. Although in terms of the provisions of the Municipal Corporation Act and the Building Bye-laws, only a holder of a title can file an application for having a building permit, in this case vendor even after execution of the Deeds of Sale filed such an application. The

authorities of the MCH for reasons best known to them proceeded to grant permission despite the same."

59. In view of the submissions on dispute with regard to 600

sq.yards of site earmarked for park and sale of the same by A1

and A2 with the help of A5 to A6 and A7 by execution of

registered sale deeds, later rectification deeds describing it as

plot Nos.S1 and S2, directly exhibits the dishonest intension.

Therefore, the acts committed by petitioners A1, A2 and A5

would prima facie constitute an offence punishable under

Sections 408, 468, 471 & 120 (B) I.P.C r/w Sections 13 (1) (d)

clause II & III of P.C.Act, 1988.

60. It is not the contention of petitioners that charge is

groundless and the allegations made in the charge sheet and

material filed along with charge sheet under Section 173 Cr.P.C

did not disclose any prima facie material.

61. This contention is without any basis, in view of the

settlement of this issue by Division Bench decided in

W.P.Nos.12538 of 1999 and 25738 of 1997. But, A1 and 2 are

agitating the same issue before this Court.

62. So long as the decision of Division Bench is not set aside or

reversed by any competent Court, it is binding and on the

strength of the judgment, the acts done by accused Nos.1, 2 and

5 would constitute an offence punishable under 408, 468, 471 &

120 (B) I.P.C r/w Sections 13 (1) (d) clause II & III of P.C.Act,

1988.

63. The Court below by applying the principles laid down in

the judgments referred in its order rightly concluded that the

Court is required to go into allegations of charge sheet and the

material produced in charge sheet under Section 173 Cr.P.C and

on basis of such material recorded a finding that there is prima

facie material to proceed against these petitioners for various

offences referred supra, without going into other material

produced by respondents.

64. Even on appreciation of contention of the counsel for the

petitioners and respondent, I find no error in the order passed by

the Court below, in view of the law laid down by the Apex Court

in various judgments which I referred in earlier paras. Therefore,

I find no error manifest interferes with the order passed by the

Court below while exercising power under Section 397 and 401

Cr.P.C.

65. In the result, both the Criminal Revision Cases are

dismissed.

___________________________________ M. SATYANARAYANA MURTHY, J

Date: 14.12.2017 dv