S.Y. Srikumar vs Sri M.Sai Eahwar Swamy
2023 Latest Caselaw 1663 Tel

         HONOURABLE SRI JUSTICE K.SURENDER

         CRIMINAL REVISION CASE No. 97 of 2020


JUDGMENT:

1. The petitioner filed written complaint before the WCO-

Team-V, CCS, Hyderabad, which was registered as Crime

No.176 of 2008 under Sections 403, 406, 418, 420, 465, 477

r/w 34 of IPC.

2. Briefly, the case of the petitioner is that he was director in

the company namely M/s.Vision Broadband Service Private

Limited during the period from 2005-2007. The company was

incorporated in the year 2005 and his share was 33%. The 1st

respondent/A1 used to look after the day to day affairs of the

company. During the year 2005-2006, the turnover of the

company was Rs.1.09 Crore and during the year 2006-2007, it

was Rs.3.00 Crores. The 3rd respondent was auditing the

accounts of the company. In 2007, APIIC allotted Acs.2.00 of

land to the company at the cost of Rs.1.20 Crores. It is alleged

that there were several irregularities regarding the finances in

the company. There was Vigilance department raid on the

company for tax evasion and all the accounts books of the

company were seized. During December 2007, complainant

came to know that the shares were allotted to respondent

Nos.4 to 20, who are A4 to A20 and his share was reduced

from 33.34% to 1%.

3. The Petitioner/complainant/Director was not informed

about any proceedings in the company. Having taken the

copies of documents from the Vigilance Department under

Right to Information Act, he found that the accounts were not

maintained properly and the company used to maintain two

sets of accounts. Accordingly, the petitioner was cheated by the

other members, who are the respondents/directors of

company.

4. Having received the complaint police investigated the case

and found that the transactions were amongst the directors in

a company. The petitioner having 3,334 shares was a whole

time director of the company for 2 years and drew salary. He

was aware of the financial and business transactions and it

was found that the complainant was wrong in pleading

ignorance about the transactions in the company. The police

further found that if there was any tax evasion, the Vigilance

and Enforcement Department had already conducted raid and

they would look into the case. Further, the

petitioner/complainant had approached the Tribunal by filing a

suit against the respondents, which was pending adjudication

at the relevant point of time. For the said reasons the police

found that no criminal offence is made out and accordingly

filed final report as 'lack of evidence' on 20.06.2009.

5. Aggrieved by the police filing final report, the petitioner

approached XII Additional Chief Metropolitan Magistrate,

Hyderabad and filed protest petition on 02.08.2010. The

learned Magistrate having examined four witnesses produced

on behalf of the complainant/petitioner herein and marking

Exs.P1 to P23 and also the defence Exs.D1 to D5 found that

there was no case made out against the respondents/accused.

The said orders were passed in the discharge application vide

Criminal Miscellaneous Petition No.4983 of 2019 in C.C.No.189

of 2010. Learned Magistrate while discharging the respondents

found that the transactions which are alleged by the petitioner

herein did not satisfy any of the ingredients of the offences

alleged under Sections 403, 406, 418, 420, 465, 477 r/w 34 of

IPC.

6. Learned Magistrate further found that the oral evidence

was contrary to the documents filed by the petitioner. The

evidence adduced by the complainant did not make out the

ingredients of any offence and was inconsistent, self-

contradictory and suffering from infirmities. Learned

Magistrate had discussed the entire evidence and documents

in detail and passed an order running into 52 pages.

7. Learned counsel appearing for the petitioner/complainant

would submit that the learned Magistrate has committed error

in discharging the accused when prima facie evidence was

made out against all the accused. He tried to draw different

conclusions from what the learned Magistrate has concluded in

respect of the transactions. Learned Magistrate ought to have

tried the accused and should not have discharged the

respondents. For the reason of the offence being made out on

the basis of evidence of P.Ws.1 to 4, learned counsel requested

to direct the learned Magistrate to try the accused by setting

aside the discharge order dated 13.09.2019.

8. This court under the powers of revision can call for

examining the record of any proceeding before any inferior

criminal court to ascertain the correctness/legality or propriety

of any finding.

9. In the present case, the procedure under Section 244 of

Cr.P.C was adopted by recording the evidence and marking the

documents and thereafter, the accused were given permission

to cross-examine the witnesses. After opportunity was given to

the complainant to adduce evidence and also to the accused to

cross-examine the witnesses, the learned Magistrate found that

no criminal offence was made out to discharge the

accused/respondents.

10. Learned counsel argues that the conclusions drawn by

the learned Magistrate in discharging the accused were

improper for the reason of a different view can be taken from

what the learned Magistrate has taken in the present case.

11. Though two different views are possible, when the view

taken by the learned Magistrate is legal and probable basing on

the evidence placed on record, the same cannot be interfered

with. All the transactions spoken to by the complainant

regarding floating of the company, loans taken by the company

for the purchase of vehicle or developing the company and all

other aspects pertain to the day to day affairs of the company.

The documents were already seized by the concerned Vigilance

Department and violations, if any would be taken care of by the

said department. In the present facts, as stated by the learned

Magistrate, there is no amount which is entrusted to the

accused by the complainant which was misappropriated. The

complainant had received amount multiple times to what his

investment was. The transactions pertaining to the banks are

in the process of obtaining loans and if any illegality

committed, it is for the Bank to question or initiate action for

any misdeeds.

12. Firstly none of the ingredients of any of the offences are

made out and secondly the time of investigating agency and the

court has been considerably consumed on account of the

frivolous complaint of the petitioner. I do not find any infirmity

in the order of the learned Magistrate in discharging the

accused.

13. Accordingly, the Criminal Revision Case is dismissed.

Consequently, miscellaneous applications, if any pending, shall

stand closed.

________________ K.SURENDER, J Date: 18.04.2023.

kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Revision Case No.97 of 2020

Date:18.04.2023

kvs