Section 482 Cr.P.C., is filed by the petitioners/A.1 to A.4 to quash the proceedings in Crime No.500/2011 of Vijayawada City Police Station I Town (Law and Order), Vijayawada, registered against them for the offences punishable under Sections 403 and 420 IPC. = (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." = A perusal of the allegations in the private complaint lodged by the 2nd respondent/complainant would pave way only to civil litigation and not for criminal prosecution. Therefore, considering the allegations in the complaint as civil in nature, the proceedings against the petitioners/A.1 to A.4 in Crime No.500/2011 of Vijayawada City Police Station I Town (Law and Order), Vijayawada, can be quashed, as the said allegations, even if they are taken in their entirety, do not attract the provisions under Sections 403 and 420 IPC. In the result, the Criminal Petition is allowed quashing the proceedings in Crime No.500/2011 of Vijayawada City Police Station I Town (Law and Order), Vijayawada, registered against the petitioners/A.1 to A.4 for the offences punishable under Sections 403 and 420 IPC.
THE HONOURABLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Criminal Petition No.7122 of 2011
17-04-2018
Mallavarapu Srinivasa Rao and others Petitioners
The State of A.P., rep. by its Public Prosecutor and another Respondents
Counsel for the petitioners :Sri K. Somakonda Reddy
Counsel for the respondents:Public Prosecutor (TS) (R.1)
<GIST :
>HEAD NOTE :
? CITATIONS: 1. AIR 1958 SC 56
2. AIR 2003 SC 974
3. 1992 Supp(1) SCC 335
HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
CRIMINAL PETITION No.7122 of 2011
ORDER :
This Criminal Petition, under Section 482 Cr.P.C., is
filed by the petitioners/A.1 to A.4 to quash the proceedings in
Crime No.500/2011 of Vijayawada City Police Station I Town
(Law and Order), Vijayawada, registered against them for the
offences punishable under Sections 403 and 420 IPC.
The brief facts of case are that the 2nd
respondent/complainant and his brother, K. Ravi Kumar are
doing Gold business under the name and style of SWATHI
JEWELLERY at Sivalayam Street, Vijayawada, and A.1 and
A.2 were working with the complainant and his brothers
shop. After some time, A.1 and A.2 started a new business in
Gold with the financial support and aid of the complainant
and his brother. A.1 and A.2 took two Gold Biscuits and cash
of Rs.32,00,000/- from the complainants brother. In that
connection, they issued some cheques in the name of the
complainant and his brother along with some pro-notes and
promised to repay the said amounts within a short period.
Inspite of repeated demands, A.1 and A.2 failed to repay the
said amount and it was revealed that they are not
maintaining any Bank Account since the date of transaction.
A.1 and A.2 with a malafide intention and motivation with the
aid and support of A.3 and A.4 have transferred some
amounts and property for their own business. Thus, they
have misappropriated the said amounts and failed to repay
the same to the complainant and his brother. Further, A.1
and A.2 took the signature of the brother of the complainant
as a surety to one of the chits with Margadarsi Chit and A.1,
having become the successful bidder of the said chit and
received the prize amount, did not repay the chit instalments,
due to which the Margadarsi Chit authorities issued notice to
the brother of the complainant, being one of the surety, thus
A.1 and A.2 have cheated the complainant. With these
allegations, the 2nd respondent/complainant has lodged a
private complaint against A.1 to A.4 on the file of the Chief
Metropolitan Magistrate Court, Vijayawada, and on reference,
the same was registered as Crime No.500/2011 of Vijayawada
City Police Station I Town (Law and Order), Vijayawada, for
the offences punishable under Sections 403 and 420 IPC.
Aggrieved by the same, the petitioners have filed the present
Criminal Petition seeking to quash the proceedings in the
above crime.
Heard learned counsel for the petitioners/A.1 to A.4 as
well as the learned Additional Public Prosecutor appearing for
1st respondent State of Andhra Pradesh and perused the
material on record.
Learned counsel for the petitioners submits that the
contents of the complaint are all civil in nature and they do
not attract the provisions under Sections 403 and 420 IPC
and, therefore, the petitioners are entitled for quashing of the
proceedings against them in Crime No.500/2011.
On the other hand, the learned Additional Public
Prosecutor appearing for 1st respondent State submits that
the petitioners with a dishonest and malafide intention have
misappropriated the cash and property of the complainant
and, therefore, they are liable for punishment for the offences
under Sections 403 and 420 IPC.
Section 403 of IPC reads as under:
403. Dishonest misappropriation of property:-- Whoever
dishonestly misappropriates or converts to his own use any
movable property, shall be punished with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both.
From the above provision, it is clear that the words
converts to his own use necessarily connote the use or
dealing with the property in derogation of the rights of the
owner. The said proposition was laid down in RAMASWAMI
NADAR v. STATE OF MADRAS . The word dishonestly and
misappropriate are necessary ingredients of an offence under
Section 403 IPC.
Further, any dispute being about recovery of money is
purely of civil nature and hence a criminal complaint
regarding such a transaction is not maintainable. The said
proposition is laid down in the judgment in U. DHAR v.
STATE OF JHARKHAND .
It is also pertinent to note that whether the allegations
made in the complaint prima facie constitute any offence or
not to quash the proceedings.
In the light of the judgment of the Honble Supreme
Court in C.B.I. V/s. A. RAVI SHANKER PRASAD reported in
2009 [6] SCC-351, certain guidelines rendered in Bhajanlals
case have been referred. The scope of Section 482 Cr.P.C is
limited and this Court can exercise its inherent jurisdiction
only to give effect to the orders passed under the Code to
prevent abuse of process of the Court and to secure the ends
of justice. Keeping in mind, the Apex Court in State of
Haryana v/s. Bhajanlal laid down the following seven
guidelines, which are as follows :
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose
a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose
the commission of any offence and make out a case against
the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non- cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
A perusal of the allegations in the private complaint
lodged by the 2nd respondent/complainant would pave way
only to civil litigation and not for criminal prosecution.
Therefore, considering the allegations in the complaint as civil
in nature, the proceedings against the petitioners/A.1 to A.4
in Crime No.500/2011 of Vijayawada City Police Station I
Town (Law and Order), Vijayawada, can be quashed, as the
said allegations, even if they are taken in their entirety, do not
attract the provisions under Sections 403 and 420 IPC.
In the result, the Criminal Petition is allowed quashing
the proceedings in Crime No.500/2011 of Vijayawada City
Police Station I Town (Law and Order), Vijayawada, registered
against the petitioners/A.1 to A.4 for the offences punishable
under Sections 403 and 420 IPC.
As a sequel, miscellaneous petitions if any, pending in
this Criminal Petition shall stand closed.
______________________________
GUDISEVA SHYAM PRASAD, J
17.04.2018.
Criminal Petition No.7122 of 2011
17-04-2018
Mallavarapu Srinivasa Rao and others Petitioners
The State of A.P., rep. by its Public Prosecutor and another Respondents
Counsel for the petitioners :Sri K. Somakonda Reddy
Counsel for the respondents:Public Prosecutor (TS) (R.1)
<GIST :
>HEAD NOTE :
? CITATIONS: 1. AIR 1958 SC 56
2. AIR 2003 SC 974
3. 1992 Supp(1) SCC 335
HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
CRIMINAL PETITION No.7122 of 2011
ORDER :
This Criminal Petition, under Section 482 Cr.P.C., is
filed by the petitioners/A.1 to A.4 to quash the proceedings in
Crime No.500/2011 of Vijayawada City Police Station I Town
(Law and Order), Vijayawada, registered against them for the
offences punishable under Sections 403 and 420 IPC.
The brief facts of case are that the 2nd
respondent/complainant and his brother, K. Ravi Kumar are
doing Gold business under the name and style of SWATHI
JEWELLERY at Sivalayam Street, Vijayawada, and A.1 and
A.2 were working with the complainant and his brothers
shop. After some time, A.1 and A.2 started a new business in
Gold with the financial support and aid of the complainant
and his brother. A.1 and A.2 took two Gold Biscuits and cash
of Rs.32,00,000/- from the complainants brother. In that
connection, they issued some cheques in the name of the
complainant and his brother along with some pro-notes and
promised to repay the said amounts within a short period.
Inspite of repeated demands, A.1 and A.2 failed to repay the
said amount and it was revealed that they are not
maintaining any Bank Account since the date of transaction.
A.1 and A.2 with a malafide intention and motivation with the
aid and support of A.3 and A.4 have transferred some
amounts and property for their own business. Thus, they
have misappropriated the said amounts and failed to repay
the same to the complainant and his brother. Further, A.1
and A.2 took the signature of the brother of the complainant
as a surety to one of the chits with Margadarsi Chit and A.1,
having become the successful bidder of the said chit and
received the prize amount, did not repay the chit instalments,
due to which the Margadarsi Chit authorities issued notice to
the brother of the complainant, being one of the surety, thus
A.1 and A.2 have cheated the complainant. With these
allegations, the 2nd respondent/complainant has lodged a
private complaint against A.1 to A.4 on the file of the Chief
Metropolitan Magistrate Court, Vijayawada, and on reference,
the same was registered as Crime No.500/2011 of Vijayawada
City Police Station I Town (Law and Order), Vijayawada, for
the offences punishable under Sections 403 and 420 IPC.
Aggrieved by the same, the petitioners have filed the present
Criminal Petition seeking to quash the proceedings in the
above crime.
Heard learned counsel for the petitioners/A.1 to A.4 as
well as the learned Additional Public Prosecutor appearing for
1st respondent State of Andhra Pradesh and perused the
material on record.
Learned counsel for the petitioners submits that the
contents of the complaint are all civil in nature and they do
not attract the provisions under Sections 403 and 420 IPC
and, therefore, the petitioners are entitled for quashing of the
proceedings against them in Crime No.500/2011.
On the other hand, the learned Additional Public
Prosecutor appearing for 1st respondent State submits that
the petitioners with a dishonest and malafide intention have
misappropriated the cash and property of the complainant
and, therefore, they are liable for punishment for the offences
under Sections 403 and 420 IPC.
Section 403 of IPC reads as under:
403. Dishonest misappropriation of property:-- Whoever
dishonestly misappropriates or converts to his own use any
movable property, shall be punished with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both.
From the above provision, it is clear that the words
converts to his own use necessarily connote the use or
dealing with the property in derogation of the rights of the
owner. The said proposition was laid down in RAMASWAMI
NADAR v. STATE OF MADRAS . The word dishonestly and
misappropriate are necessary ingredients of an offence under
Section 403 IPC.
Further, any dispute being about recovery of money is
purely of civil nature and hence a criminal complaint
regarding such a transaction is not maintainable. The said
proposition is laid down in the judgment in U. DHAR v.
STATE OF JHARKHAND .
It is also pertinent to note that whether the allegations
made in the complaint prima facie constitute any offence or
not to quash the proceedings.
In the light of the judgment of the Honble Supreme
Court in C.B.I. V/s. A. RAVI SHANKER PRASAD reported in
2009 [6] SCC-351, certain guidelines rendered in Bhajanlals
case have been referred. The scope of Section 482 Cr.P.C is
limited and this Court can exercise its inherent jurisdiction
only to give effect to the orders passed under the Code to
prevent abuse of process of the Court and to secure the ends
of justice. Keeping in mind, the Apex Court in State of
Haryana v/s. Bhajanlal laid down the following seven
guidelines, which are as follows :
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose
a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose
the commission of any offence and make out a case against
the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non- cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
A perusal of the allegations in the private complaint
lodged by the 2nd respondent/complainant would pave way
only to civil litigation and not for criminal prosecution.
Therefore, considering the allegations in the complaint as civil
in nature, the proceedings against the petitioners/A.1 to A.4
in Crime No.500/2011 of Vijayawada City Police Station I
Town (Law and Order), Vijayawada, can be quashed, as the
said allegations, even if they are taken in their entirety, do not
attract the provisions under Sections 403 and 420 IPC.
In the result, the Criminal Petition is allowed quashing
the proceedings in Crime No.500/2011 of Vijayawada City
Police Station I Town (Law and Order), Vijayawada, registered
against the petitioners/A.1 to A.4 for the offences punishable
under Sections 403 and 420 IPC.
As a sequel, miscellaneous petitions if any, pending in
this Criminal Petition shall stand closed.
______________________________
GUDISEVA SHYAM PRASAD, J
17.04.2018.
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