B.Chandrashekar vs P.Ashok Kumar
2023 Latest Caselaw 841 Tel

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     HIGH COURT FOR THE STATE OF TELANGANA
                 AT HYDERABAD

                              *****

           Criminal Petition No.1712 OF 2023
Between:
B.Chandrashekar
                                    ... Petitioner/Complainant
     AND
  1. P.Ashok Kumar
  2. P.Archana Devi
  3. The State of Telangana
                                    ...Respondents

DATE OF JUDGMENT PRONOUNCED:          20.02.2023
Submitted for approval.


THE HON'BLE SRI JUSTICE K.SURENDER

 1    Whether Reporters of Local
      newspapers may be allowed to see the           Yes/No
      Judgments?

 2    Whether the copies of judgment may
      be marked to Law Reporters/Journals            Yes/No

 3    Whether Their Ladyship/Lordship wish
      to see the fair copy of the Judgment?          Yes/No

                                                ____________
                                                   K.SURENDER, J
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        * THE HON'BLE SRI JUSTICE K. SURENDER
            + Criminal Petition No.1712 OF 2023


% Dated 20.02.2023

B.Chandrashekar

                                       ... Petitioner/Accused

      AND

   1. P.Ashok Kumar
   2. P.Archana Devi
   3. The State of Telangana

                                       ...Respondents


! Counsel for the Petitioner:   Sri Dharmesh D.K. Jaiswal
^ Counsel for the Respondent: Learned Additional Public
                              Prosecutor-for Respondent No.3

>HEAD NOTE:
? Cases referred
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      THE HONOURABLE SRI JUSTICE K.SURENDER

          CRIMINAL PETITION No.1712 OF 2023

ORDER:

This Criminal Petition is filed under Section 482 of the Code

of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioner -

de facto complainant to (i) quash the docket proceedings dated

07.02.2023 in C.C.No.353 of 2013 on the file of VII Additional Chief

Metropolitan Magistrate, Nampally, Hyderabad, whereby charges

were framed against the respondent Nos.1 and 2 - accused Nos.1

and 2 on 07.02.2023 under Section 239 of Cr.P.C. instead of 246 of

Cr.P.C. (ii) to direct the VII Additional Chief Metropolitan

Magistrate, Nampally, Hyderabad, to take steps in reconstructing

the copy of the chief examination of PW1 and follow procedure

under Sections 245 and 246 of Cr.P.C.

2. Heard learned counsel for the petitioner - de facto

complainant and learned Additional Public Prosecutor for the

respondent No.3 - State. Perused the record.

3. The petitioner is the complainant before the Trial Court.

A private complaint was filed by this petitioner stating that an

amount of Rs.40,00,000/- was taken by the accused for purchase

of a property and the balance amount of Rs.3,75,000/- has to be

paid at the time of registration. In spite of repeated requests,

accused Nos.1 and 2 who are respondent Nos.1 and 2 herein did

not execute the registered sale deed in favour of this petitioner -

complainant. The said complaint was taken cognizance of by the

VII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad

and after examining PW1 and PW2. Thereafter, charges were

framed under Section 239 of Cr.P.C. by the learned Magistrate for

the offence under Section 420 read with 34 of IPC against the

accused Nos.1 and 2 on 07.02.2023.

4. Learned counsel for the petitioner would submit that part of

chief examination is missing from the court file and in spite of

requests made to the Trial Court for either reconstruction of the

said chief examination or to adduce evidence of the complainant of

the missing portion of the chief examination earlier given, the court

refused and is now insisting that the complainant shall proceed with

the trial. He further submits that the Trial Court has committed an

error in framing the charge under Section 239 of Cr.P.C. since the

procedure to be followed is under Chapter XIX Part-B of Cr.P.C.,

which contemplates trial in warrant cases otherwise then on police

report. Accordingly, prayed to quash the charge framed under

Section 239 of Cr.P.C.

5. As seen from the record, the learned Magistrate has followed

due procedure prescribed under Chapter XIX Part-B of Cr.P.C. and

for the reason of mentioning that the charges are framed under

Section 239 of Cr.P.C., it would not in any manner vitiate the trial

or the proceedings. The procedure followed by the Magistrate was

to record evidence and thereafter framed charges, which is the

procedure prescribed under Chapter XIX Part-B of Cr.P.C. Wrong

mentioning of provision as Section 239 of Cr.P.C. instead of Section

246 of Cr.P.C. is of no consequence.

6. The Magistrate was of the opinion that there are grounds for

presuming that the accused has committed an offence for which

reason charges were framed and read over to the accused.

7. Since chief examination of PW1 is not found in the court

record, the Court shall either reconstruct the earlier chief

examination or examine the complainant in chief. It would be

wholly improper if the Trial Court proceeds with trial without the

deposition of complainant/PW1 and no useful purpose would be

served.

8. According to the learned counsel for the petitioner, the case

is posted on 27.02.2023 in the Trial Court.

9. On 27.02.2023, in the event of the court below finding that

the earlier chief examination cannot be reconstructed, the court

shall examine the complainant and then proceed with the trial, for

the reason of non-availability of the chief examination.

10. With the above direction, the Criminal Petition is disposed of.

Miscellaneous applications pending, if any, shall stand closed.

_____________ K.SURENDER, J Date: 20.02.2023

Note: L.R. Copy to be marked.

B/o.

rev