LIVING AS WIFE AND HUSBAND MAINTENANCE UNDER SEC.125

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR

Criminal Petition No.5218 of 2007

21-04-2010

Smt. Kummari Kamalamma

W/o K. Anjaneyulu

Aged about 30 years, Occ: Household

R/o Shakapur Village, Addakal Mandal,

Mahaboobnagar district.

Kummari Anjaneyulu

S/o K. Burranna

R/o. Vemula Village, Addakal Mandal,

Mahaboobnagar District and another

Counsel for petitioner: Mr. A. Narasimha Reddy

Counsel for second respondent: Public Prosecutor

:ORDER:

This Criminal Petition has been filed to quash the order, dated 22-02-2007 in R.P.No.61 of 2006 on the file of the

I Additional Sessions Judge at Mahaboobnagar.

2. The case of the petitioner herein is that she is the legally wedded wife of the first respondent herein and that she is entitled to claim maintenance. Her specific case is that her marriage was solemnized with the first respondent about 10 years back according Hindu Rights and Customs at Vemula of Addankal Mandal and an amount of Rs.75,000/- was presented to him towards dowry besides five tulas of gold and 70 grams of silver ornaments. It is also alleged that after sometime the first respondent started harassing her demanding dowry and that finally she was driven out of her house on 18-05-2005 when she could not meet his demand. It is also alleged that the first respondent threatened that he would marry another woman.

3. The first respondent filed counter and denied the relationship with the petitioner. However it is admitted that they had some acquaintance and loved each other and he intended to marry the petitioner, but on the advise of the elders and well wishers, he did not marry her.

4. On behalf of the petitioner PWs.1 to 3 were examined. On behalf of the first respondent, he himself was examined as RW-1 and also examined RW-2 in support of his case. The learned Judicial Magistrate, while appreciating the evidence, observed that according to PW-1, the marriage between the petitioner and the second respondent took place about eight years back and according to PW- 2 the petitioner and the first respondent lived happily about nine years back, and that the marriage took place about fifteen years back and according to PW-3, the petitioner and the first respondent lived happily for eight years and therefore, there are inconsistent versions. Thus the learned Magistrate held that the petitioner failed to prove her marriage with the first respondent. It is also averred that according to PWs.1 to 3 they came to know about the second marriage of the first respondent and therefore, they could not object for the same. Therefore, it appears that the first respondent had already married another lady. The evidence on behalf of the first respondent is consistent and convincing and appearing to be a reliable one. The petitioner did not establish her marriage with the first respondent and her evidence is inconsistent and not convincing and not appearing to be a reliable one.

5. When the matter was carried in Revision, the learned Sessions Judge came to the conclusion that the evidence of PWs.1 to 3 is not sufficient to prove the marriage in question and in view of the specific defence that the Revision Petitioner was married to another person of Kothakota, the petitioner ought to have lead cogent evidence to prove her marriage with the first respondent.

6. In view of the circumstances, the only point that arises for consideration is whether there was proper appreciation of evidence or not by the lower Court?

7. The learned counsel for the petitioner submits that the Courts below failed to appreciate the evidence in proper perspective and came to wrong conclusions, which resulted in manifest injustice to the petitioner.

8. It appears that the first respondent himself had made certain admissions that he had loved the petitioner and they lived together for sometime. When there is evidence to show that the petitioner and the first respondent lived together as wife and husband under one roof for a considerable period, and when the society recognized them as wife and husband, the minor contradictions in the evidence let in by the petitioner ought not have been given much importance. When the witnesses are giving evidence after a long period, there may be minor contradictions as to when the marriage had taken place between the petitioner and the first respondent whether 8 years back or 9 years back or 15 years back, but they need not be given much importance. In this case, most of the witnesses have come from village. They may be giving evidence in casual manner. If the evidence of those rustic witnesses, who are coming from villages, is appreciated without taking into consideration the factum of their rural background and their memory power, it may result in miscarriage of justice. While appreciating the evidence, the memory power, social background, intelligence and education etc., of the witnesses have to be taken into consideration. Merely on the ground that one witness has stated that the marriage took place about 8 years back and another witness stated that the marriage took place about 9 years back, it cannot be said that there are major contradictions and that their evidence proves that no marriage took place between the parties. It appears that the Court below have failed in appreciating the evidence in proper perspective, which resulted in miscarriage of justice. There is no sufficient evidence as to whether the petitioner was married earlier or not. Even for the proof of earlier marriage or subsistence of marriage, there should be proper appreciation of evidence. The pleadings of a party cannot be taken as proof. Merely because the first respondent has taken the plea that he was already married, it cannot be taken as a proved fact.

9. The learned counsel for the first respondent relied on SMT. YAMUNABAI ANANTRAO ADHAV v. ANANTRAO SHIVARAM ADHAV AND ANOTHER 1, in support of his contention that the wife means only a legally wedded wife and in this case, the petitioner had failed to prove her marriage with the first respondent.

10. In the above case the plea of the husband was that his marriage with the petitioner therein was void because he was already married and his marriage with his first wife was still subsisting. In the circumstances, it was held that the burden heavily lies on the husband to prove the said contention.

11. Anyhow, all the points raised by the petitioner in this petition have to be considered afresh by the learned Magistrate. In the circumstances, the impugned order is set aside and the matter is remanded to the learned Magistrate for considering the matter afresh. The learned Magistrate in his discretion may permit the parties to adduce further evidence.

12. Accordingly, the Criminal petition is allowed.

?1 AIR 1988 SC 644

HEAVY BURDEN LIES FOR TAKING DIVORCE

THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N.RAO NALLA Civil Miscellaneous Appeal No. 2111 of 2002

22-04-2010

Smt. Rekha

B. Susheelendra

Counsel for the Petitioner: Sri M. Papi Reddy

Counsel for the Respondent: Sri M. Sreenivas

:JUDGMENT:- (Per Hon'ble Sri Justice B.N.Rao Nalla)

This Civil Miscellaneous Appeal is directed against order dated 08.04.2002 passed in O.P. No. 273 of 1999 by the learned Judge, Family Court, Hyderabad, whereby the petition filed by the respondent-husband under Section 13(1)(ia)(ib) and (iii) of the Hindu Marriage Act, 1955 (for brevity "the Act") for dissolution of the marriage, was allowed. The wife filed this appeal. For the sake of convenience, the parties are referred to as they are arrayed in O.P. No.273 of 1999.

The marriage between the petitioner-husband and the respondent-wife was solemnized on 09.07.1989 as per Hindu customs and rites. Immediately after the marriage, the respondent joined him at matrimonial home at Ramkoti in the joint family house of the petitioner consisting of his parents and his younger brother and started insisting the petitioner on setting up separate family. While so, during pregnancy, the respondent went to her parents' house and gave birth to a baby-girl on 09.08.1990, and later she stayed hardly for four months with the petitioner at Ramkoti. In December, 1990, she abruptly left the company of the petitioner for her parents' house with the child even without informing him. When the petitioner went to the respondent to take her back, she refused to join him. In March, 1991, the petitioner was allotted Government quarters at Bhanur campus of BDL defence unit, where she joined him on 26.3.1991, but again started insulting him in the presence of his friends and superiors commenting that the quarters is situated in jungle area, and left his company within five days. Having no alternative, the petitioner vacated the quarters and came back to his house at Ramkoti and stayed with his parents waiting for his wife to turn up, but she did not come. Then, he filed O.P. No.228 of 1991 for divorce. However, on her assurance to live with him peacefully, and on the advice of the elders and in the welfare of the child, compromise effected between them, and he got dismissed the O.P. on 18.12.1992 and shifted his residence to Nallakunta, where she joined him on 05.03.1993 and lived hardly for nine months, but with no change in her attitude and with cruel treatment. She never even attended cooking, and she used to sleep separately, go out without informing him, come back home during late hours, pick up quarrels, shout loudly causing disturbance and nuisance to neighbours and hit him with chappals even before outsiders. Therefore, the owner of the house at Nallakunta asked them to vacate the house, as such, the petitioner shifted his residence to another house at Jambagh at her request, and lived together for three months, where also she continued the same ill-treatment and abruptly left his company along with the child on 05.04.1994 without informing him. Therefore, the petitioner filed O.P.No.1170 of 1994 for divorce, which was transferred to another Court and renumbered as O.P. No. 1043 of 1995, but again at the intervention of elders, the matter was compromised, as a result, it was dismissed on 25.6.1996. In spite of her assurance and mediation and withdrawal of O.P. No.1170 of 1994 by the petitioner for the second time, she did not join him nor did she talk to him nor allow him to the see the child. As she continuously deserted him since 05.04.1994 with animus deserende, the petitioner filed O.P. No.273 of 1999 seeking divorce. The respondent filed counter affidavit inter alia denying the allegations made in the O.P. and stated that the parents of the petitioner are hale and healthy. After the marriage, she stayed with the husband in the joint family consisting of the petitioner's eldest sister and her daughter, his parents, his brother's family, and his second and third sisters till 01.02.1991, on which day, when her father was going to Bombay for three days, she requested the petitioner to allow her to go to her parents' house at Jambagh to stay with her mother, who was staying alone, for which, the petitioner created a big scene though ultimately agreed to send her. In December, 1991, the petitioner visited the house of her parents, and with an intention to set up separate family, both of them searched for a house for rent and the landlord fixed rent, and the petitioner promised the landlord to come again and pay advance, but he did not turn up. She states that she is always ready and willing to join him to lead happy marital life, but he is not providing her any opportunity. The petitioner knows that she was doing M.Phil while they were living together at Nallakunta, and thereby, she was attending classes in the morning and returning home by 4.00 p.m. Again, she joined him at Jambagh and lived for four months during 01.12.1993 to 05.04.1994. She states that the petitioner was not paying the rents regularly to the landlord before the stipulated date of 10th of every month, and on 05.04.1994, during her absence, the petitioner came along with his mother and one Jayaprakash started packing all the belongings. When the respondent was at Vivek Vardhini College, where she was working, the landlords' wife sent word to her, thereupon, the respondent rushed to the house and objected the petitioner to packing the material, but he kept silent, and his mother and Jayaprakash asked the petitioner to accompany them, and the petitioner, though he said that he was unwilling to go, went with them with some luggage. Then, the respondent alone continued to stay in that premises for one more month hoping that the petitioner would join her, but he never came back. She states that she never herself deserted him nor ill-treated him during their stay nor he suffered cruelty in her hands much less during 09.07.1989 to 09.04.1999. On the premise of the aforesaid pleadings of the parties, the trial Court framed the following point for determination:

"whether the petitioner-husband is entitled to divorce or any other alternative relief against the respondent-wife?"

The petitioner-husband, who was examined as PW1, deposed that immediately after the marriage was consummated, she joined him at his joint family house at Ramkoti where they lived together for six months. Later, she picked up quarrels by demanding him to set up separate family away to his parents. When he could not concede her request, she used to go to her parents' house at Hyderabad without his knowledge. In November, 1990, after baby-girl was born to them, she started quarrelling with him to set up separate residence. In December 1990, in his absence, she left for her parents' house without intimating him. She joined him only on 26.03.1991 in Bhanur, where he was allotted Government Quarters. She stayed there for 4 to 5 days, and insulted him in front of his colleagues and superiors, stating that the quarters is situated in a jungle area and not convenient for human dwelling and left him for her parents' house. He waited for three to four months, but as she did not turn up, he filed O.P. No. 228 of 1991 seeking divorce, and on the persuasion of the elders and relatives, and on her promise to join him, he withdrew the O.P. on 18.12.1992, but she did not join him as promised. In March, 1993, he took rented premises at Nallakunta where they stayed for a period of eight months, during which, she treated him cruelly and used to beat him with chappals. Because of the nuisance, their house owner got them vacated. In November, 1993, he shifted his family to a rented house at Jambagh, which place is near her parents' house, where also she used to quarrel with him. On 05.04.1994, she left his house without his knowledge, and as she did not turn up, he filed O.P. No.1170 of 1994 which was transferred to another Court and renumbered as O.P. No.1043 of 1995. Even after the O.P. was filed, she did not join him. On 25.06.1996, he withdrew the case on her promise to live with him during reconciliation proceedings, but even after 25.06.1996, she did not join him. In cross-examination, he denied a suggestion that he vacated the house at Jambagh in the absence of the respondent and at the instance of his mother.

PW2, the father of PW1, deposed that the respondent was frequently going to her parents' house and was returning only in the nights at her choice. Even after joining the petitioner with the child, she stayed only for a few days, and left for her parents' house without the consent of either the petitioner or his father. The petitioner set up separate residence at quarters, but she lived hardly for five days, and insulted him and left for her parents' house. He further deposed that himself and his wife are aged and sick as they were hospitalised thrice, and required some assistance from his son, PW1, who asked his mother to live with him at the joint family house so that he would take care of them. In cross-examination, he deposed that he left it to the wisdom of PW1 if he wants to stay away from him despite his ill-health. RW1, the respondent-wife, deposed that after the marriage, the petitioner and the respondent lived at his parents' house at Ramkoti, and by then, their family consisted of his parents, three sisters including daughter of the eldest sister and his younger brother. She states that they treated her well initially for a few months, but later, there was hostile attitude towards her. After her marriage, she secured a job in Samata Investments as Assistant, but resigned it in March 1991, in view of the fact that her husband shifted their family to Government Quarters at Bhanur. She states that she did not insult the petitioner before his colleagues and superiors, etc. while they were at Bhanur. Later, they stayed at Nallakunta in a rented house for eight months. After vacating the house at Nallakunta, they lived for four months in a rented house at Jambagh. On 5th of April, 1993 at about 3.30 p.m., while she was at College, PW1's mother and one Jaiprakash (his friend), as per their pre-plan, they took away samans including all her belongings along with PW1 to his parents' house, without paying rent and the same was informed by her landlady. Thereafter, she stayed in the premises for one month more expecting PW1's arrival, but he did not turn up. She denied a suggestion that herself and her parents did not allow the petitioner to stay at her house or see the child for more than five minutes. On 17.12.1997, PW1 came to her and told her that he searched for a rented house near her parents' house, however he did not turn up later. She is willing to stay with PW1 provided he sets up separate family, and she cannot live jointly with his family members as she was being subjected to acute harassment by not allowing her to use telephone, bathroom, etc. or even to go to her parents' house, and further, his parents are not willing to his coming to her parents' house to see her. In cross-examination, she denied a suggestion that she hit her husband with chappals in the presence of outsiders during their stay at Nallakunta. She states that on 25.06.1996, she went to her parents' house from the Court, accompanied by her husband till Jambagh, Hyderabad by Auto who stated that he would return, but did not come again.

RW2, who is the relative of RW1, stated that though the petitioner was ready to stay with RW1 in the house at Jambagh, his mother and Jayaprakash took him to his paternal house. At that time, RW1's sister and her husband came to RW1's house and requested the petitioner to live with the respondent amicably, but of no use.

RW3, who is the owner of the house at Jambagh, deposed that when the respondent went into her portion and asked her mother-in-law to get out from the house and not enter again, she came to his house and called her sisters, brothers-in-law, and other relatives, over his telephone, and left the place taking the petitioner along with her. Thereafter, the petitioner never came to the house and the respondent stayed for one month and vacated the house by paying the rent.

On the basis of the aforesaid evidence of the parties, both oral and documentary, the Family Court allowed O.P. No.273 of 1999 by order and decree dated 08.04.2002. Challenging this order, the respondent-wife has preferred the present C.M.A.

The learned counsel for the appellant-wife has contended that the wife has no animus deserendi towards her husband, but the trial Court has erred in dissolving the marriage between the petitioner-husband and the respondent-wife on the ground of constructive desertion which is not a separate ground for divorce as contemplated under the provisions of the Act, and prays this Court to set aside the order under appeal.

Having heard the learned counsel for both the parties, the only question that arises for determination in this appeal is whether the O.P. No. 273 of 1999 filed by the petitioner-husband, which was allowed, is justified in the facts and circumstances of the case?

The petitioner filed O.P.No. 273 of 1999 seeking dissolution of the marriage between the petitioner and the respondent mainly on the grounds of desertion and cruelty on the part of the respondent.

As could be seen from the order impugned in this appeal, the ground of cruelty is not proved.

Insofar as the ground of desertion is concerned, this Court, in Kosuri (Chandana) Dhanum Kumari Vs. Kosuri Venkata Vara Prasad1 held that mere living apart by the parties is not desertion. The desertion indicates a state of mind in which a party is guilty of the act must indicate either in express words or by conduct to put an end to the relationship. The Court further held that that burden of proof of the fact of desertion lies on the person who alleged it. The essential ingredients of the offence in order that it may furnish a ground or relief are;

i) the factum of separation;

ii) the intention to bring cohabitation permanently to an end - animus deserendi;

iii) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period of two years immediately preceding presentation of the petition for divorce. Thus, though the expression "desertion" is to be widely interpreted and understood, these essential conditions have to be established. In the light of the above legal position, we have to examine the pleadings and the evidence of the parties to determine the issue.

From a careful analysis of the pleadings and the evidence on record, it is obvious that the petitioner made several allegations against the respondent-wife such as she used to leave him on several occasions for her parents' house without informing him even after the child was born to them, and in spite of his best efforts to take her back to make her lead matrimonial life, she did not agree to join him. It is further stated that even though he shifted his residence from one place to another for the sake of the respondent, she lived with him occasionally, but did not continue to stay with him. The main ground of desertion as alleged by the petitioner against the respondent is that the respondent left the petitioner on 05.04.1994 disliking the company of the members of his family with them together wherever they reside, and since then, she has not joined him, and the petitioner also made in clear terms both in the facts and in the evidence that he would not stay away from his parents even though the respondent deserts him. The evidence of PW2, the father of the petitioner, is on the same lines as that of the petitioner. Even the pleadings made both in the counter affidavit and in the evidence of the respondent-wife are to the effect that she lived with the petitioner for a certain period of time though not incessantly, and the main ground for her deserting her husband and living with her parents on several occasions is that the members of the petitioner's family are living together with them, which is not liked by her.

Whether the husband and the wife of Hindu background should or should not live together in the husband's joint family house, which may or may not cause aversion to the wife to lead matrimonial life with the husband, is a question to be decided depending on the facts and circumstances of the case, more particularly on the conduct and nature of the wife/husband, but in the instant case, the circumstances that led the petitioner and the respondent living separately since 05.04.1994 cannot be taken as tenable grounds to form an opinion of constructive desertion, as observed by the trial Court, for granting a decree for dissolution the marriage. When the grounds are not proved to their logical conclusion and both the parties are to be equally blamed, the Court cannot grant decree for divorce on the ground of constructive desertion. It is a matter of common sense that when both the parties are to be blamed, the Court should try for their reunion rather than making them live apart. In any case, constructive desertion is neither a separate ground for granting divorce nor it statutorily forms part of the ground of desertion.

In the light of the above discussion, we are of the opinion that though the factum of separation of the petitioner and the respondent was occasionally proved, there are instances when the petitioner and the respondent lived together as is clear from the evidence both oral and documentary, and at that juncture, there is not even inclination of animus deserendi on the part of the wife to permanently cease the cohabitation and marital relation, and these facts and circumstances would also probablize that there is no love lost between the spouses. Moreover, the petitioner-husband appears to have stuck to his nature not to cause hurt to the feelings of the wife, but so as to cause reasonable apprehension in the mind of the wife to live with him peacefully by adjusting with his family members.

On an appreciation of the entire evidence on record as well as the findings of the Family Court, we are satisfied that there is no evidence on the part of the husband to establish the desertion within the aforesaid three essential ingredients, and in fact, the very establishment of animus deserendi on the part of the wife is absent in the present case. The petitioner-husband also miserably failed to establish the allegation of cruelty meted out by his wife by adducing substantial legal evidence. Therefore, the finding recorded by the Family Court granting decree for divorce on the ground of constructive desertion, in our considered opinion, is not justified and the same is liable to be set aside.

Hence, the Civil Miscellaneous Appeal is allowed setting aside the order, dated 08.04.2002 passed in O.P. No. 273 of 1999 by the learned Judge, Family Court, Hyderabad. No order as to costs.

AMMONIA NITRATE IS NOT EXPLOSIVE - NO LICENCE IS NEED.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Criminal Petition No.3334 of 2010

26-04-2010

O. Sudheer Reddy and another

State, by Sub Inspector of Police, Talupula

Police Station, rep. PP

Counsel for the Petitioners : Sri O.Manohar Reddy Counsel for the 1st Respondent: Public Prosecutor :ORDER:

The petitioners 1 and 2/accused Nos.1 and 2 are accused of offence punishable under Section 9B of the Explosives Act, 1884. It is a case of possession of Ammonium Nitrate by the petitioners, as per Panchanama dated 20.03.2010. There is no dispute that the petitioners do not possess any licence for possessing the said Ammonium Nitrate, under the provisions of the Explosives Act. According to the prosecution allegations, the said Ammonium Nitrate is meant for use in blasting boulders in stone crusher. The question is whether possession of Ammonium Nitrate without licence under the Explosives Act attracts liability under Section 9B of the said Act. According to the petitioners' counsel, Ammonium Nitrate though an essential item in the explosion process along with other chemicals, Ammonium Nitrate by itself is not an explosive material and that it is not a notified material under the Explosives Act requiring licence for possession thereof. The petitioners filed copy of letter addressed by the Deputy Chief Controller of Explosives, Hyderabad working in the department of Explosives, Government of India dated 12.06.2003. The said letter was addressed to one M. Jaya Ramulu of Ananthapur. In that letter, the Deputy Chief Controller of Explosives, Hyderabad informed the addressee that storage, sale and transportation etc., of Ammonium Nitrate do not attract provisions of the Explosives Act, 1884 and the rules framed there under and that hence, no licence is obligatory for the same under the said rules.

Further, this Court in order dated 07.07.2008 in Criminal Petition No.3565 of 2008 quashed FIR relating to offence punishable under Section 9B(1)(b) of the Explosives Act on the ground that the then Public Prosecutor after obtaining instructions reported before the Court that Ammonium Nitrate is not an explosive.

Now it is contended by the Additional Public Prosecutor that though Ammonium Nitrate is not an explosive, in this case, the said Ammonium Nitrate is meant for the purpose of using the same in blasting boulders in stone crushers. End user of Ammonium Nitrate is not material in this case. The only simple question here is whether possession of Ammonium Nitrate simplicitor without licence is an offence. Having regard to above discussion of the subject, inevitable answer for the said question is in the negative. Hence, the petition is allowed quashing FIR in Crime No.17 of 2010 of Talupula Police Station, Anantapur District relating to offence under Section 9B of the Explosives Act, 1884.

____________________________________

SAMUDRALA GOVINDA RAJULU,J.

Date:26.04.2010.

Note:

L.R. Copy to be marked.

//By order//

Gk.

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRL.PETITION NO.3334 OF 2010

Date: 26.04.2010

Gk.

L.R. Copy to marked

____________________________________

SAMUDRALA GOVINDA RAJULU,J.

Date: .04.2010.

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRL.PETITION NO. OF 2010

Date: .04.2010

Gk.

Case No. 3612 of 2010

This petition is filed by the 4th accused under Section 482 Cr.P.C. for quashing proceedings in C.C.No.512 of 2009 on the file of Judicial Magistrate of the First Class, Kama Reddy, Nizamabad District relating to offence punishable under Sections 27 (d), 27( c ) and 22(3) of the Drugs and Cosmetics Act. The Drugs Inspector, Kama Reddy filed complaint before the lower court against A-1 to A-4. A-1 is M/s. Sri Mallikarjuna Medical and General Stores, B.B. Pet village, Dhoma Konda Mandal. A-2 is Managing Partner of A-1. A-3 is Partner of A-1. A-4 is Partner and Registered Pharmacist of A-1. Subject drug in this case is Primolut-N sample. When the sample drug was sent to Government Analyst, Analyst Drugs Control laboratory, Hyderabad for analysis, it was found to be of standard quality. Thereupon control sample of the drug was sent to the Manufacturer who gave report to the effect that the subject drug was spurious in nature as it was not manufactured by them. Therefore, the Drugs Inspector, Kama Reddy launched prosecution against A-1 to A-4. The only point urged by the petitioner's counsel in this case is that A-4 being a Partner and not Managing Partner of A-1 shop and since A-4 was not even present in the shop when the Drugs Inspector inspected the shop and obtained samples, A-4 cannot be impleaded as one of the accused for prosecution against A-1 firm. He placed reliance on decision of this Court in Thumu Venkateswara Reddy v. State of Andhra Pradesh1 wherein it was held by this Court as follows: "Having regard to the above reported decisions of the Supreme Court as well as this Court, the field is not left to open to the prosecution to contend otherwise. Therefore, I find that the petitioners viz., A-3, A-4 and A-6 who are mere partners of A-1 firm and who have nothing to do with manufacturing process cannot be impleaded in the complaint for punishing them". In the said reported decision, A-3, A-4 and A-6 were mere partners of A-1 firm and they had nothing to do with manufacturing process of the subject Drug therein. So this Court came to the conclusion that they cannot be impleaded in the complaint for punishing them. But, in the case on hand, A-4 is not only a partner but also a registered Pharmacist of A-1 shop. Without there being a registered pharmacist, present in the shop, no medical business can be transacted in that shop. Therefore, A-4 being registered Pharmacist cum partner of A-1 firm, A-4 is a person involved in day-to-day medical business of A-1 firm. In that view of the matter, the above reported decision cannot be applied to facts of this case. In case, a partner is also a registered Pharmacist of the firm doing medical business, then such partner is invariably liable to be prosecuted along with the firm and Managing Partner and other partners who are responsible for day-to-day running of business therein. Hence, the petition is dismissed.

?1 2010 (1) ALD (Crl.) 195 (AP)

sleeping partners of drug manufacturer firm cannot be added as accused

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

Criminal Petition No.3612 OF 2010

26-04-2010

B. Upender

The State of AP., rep. by its PP

Counsel for the Petitioner : Sri S.Bhooma Goud

Counsel for the 1st Respondent: Public Prosecutor

:ORDER:

This petition is filed by the 4th accused under Section 482 Cr.P.C. for quashing proceedings in C.C.No.512 of 2009 on the file of Judicial Magistrate of the First Class, Kamareddy, Nizamabad District relating to offence punishable under Sections 27 (d), 27( c ) and 22(3) of the Drugs and Cosmetics Act.

The Drugs Inspector, Kamareddy filed complaint before the lower court against A-1 to A-4. A-1 is M/s. Sri Mallikarjuna Medical and General Stores, Bibipet village, Domakonda Mandal. A-2 is Managing Partner of A-1. A-3 is Partner of A-1. A-4 is Partner and Registered Pharmacist of A-1. Subject drug in this case is Primolut-N sample. When the sample drug was sent to Government Analyst, Drugs Control laboratory, Hyderabad for analysis, it was found to be of standard quality. Thereupon, control sample of the drug was sent to the Manufacturer who gave report to the effect that the subject drug was spurious in nature as it was not manufactured by them. Therefore, the Drugs Inspector, Kamareddy launched prosecution against A-1 to A-4.

The only point urged by the petitioner's counsel in this petition is that A-4 being a Partner and not Managing Partner of A-1 shop and since A-4 was not even present in the shop when the Drugs Inspector inspected the shop and obtained samples, A-4 cannot be impleaded as one of the accused for prosecution against A-1 firm. He placed reliance on decision of this Court in Thumu Venkateswara Reddy v. State of Andhra Pradesh1 wherein it was held by this Court as follows:

"Having regard to the above reported decisions of the Supreme Court as well as this Court, the field is not left open to the prosecution to contend otherwise. Therefore, I find that the petitioners viz., A-3, A-4 and A-6 who are mere partners of A-1 firm and who have nothing to do with manufacturing process cannot be impleaded in the complaint for punishing them".

In the said reported decision, A-3, A-4 and A-6 were mere partners of A-1 firm and they had nothing to do with manufacturing process of the subject Drug therein. So this Court came to the conclusion that they cannot be impleaded in the complaint for punishing them. But, in the case on hand, A-4 is not only a partner but also a registered Pharmacist of A-1 shop. Without there being a registered pharmacist present in the shop, no medical business can be transacted in that shop. Therefore, A-4 being registered Pharmacist-cum-partner of A-1 firm, A-4 is a person involved in day-to-day medical business of A-1 firm. In that view of the matter, the above reported decision cannot be applied to facts of this case. In case, a partner is also a registered Pharmacist of the firm doing medical business, then such partner is invariably liable to be prosecuted along with the firm and Managing Partner and other partners who are responsible for day-to-day running of business therein.

Hence, the petition is dismissed.

?1 2010 (1) ALD (Crl.) 195 (AP)

GROUND NUT OIL DELAY OF 3 YEARS SEC.13 NOTICE

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR

Criminal Petition No. 1917 of 2008

27-04-2010

Bolisetty Satyanaga bala Raju

S/o Late Subba Rao

Aged 39 years, Occ: Business, R/o H.No.1/321,

Main Road, Pedana, Krishna District,

Tadepalli Post, Guntur District and another

The State of A.P. rep. by Food Inspector

Division-II, Krishna District through Public Prosecutor, High Court of A.P., Hyderabad.

Counsel for petitioners: Mr. Ghanta Rama Rao

Counsel for respondent: Public Prosecutor

:ORDER:

This Criminal Petition has been filed to quash the proceedings in C.C.No.203 of 2007 on the file of the Special Mobile Judicial First Class Magistrate, Machilipatnam.

2. The brief facts of the case are as follows: The Food Inspector, Division-II, Krishna District, Machilipatnam, along with his staff, visited the shop of the petitioners herein and after following the usual procedure, three samples of Priyanka Gold double filtered Grounut oil were seized and one sample was sent to the public analyst for chemical analysis. The remaining two samples were sent to the Assistant Food Controller and Local (Health) Authoirty, zone-II, Kakinada. After obtaining sanction to prosecute the petitioners, the complaint was lodged alleging that the petitioners committed the offences punishable under Sections 7 (i) and 2 (ia) (m) and 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954, for selling adulterated Priyanka Gold Double filtered Groundnut Oil.

3. The main contention of the learned counsel for the petitioners is that the samples were lifted on 29-12-2003 and they were sent for chemical analysis on 30-12-2003 and the report was received on 03-02-2004, however, the complaint was filed in the year 2007 and that the petitioners received summons on 12-03-2008 and therefore, the complaint is barred by limitation prescribed under Section 468 of Cr.P.C. His further submission is that the petitioners are deprived of an opportunity to challenge the said report by getting it re-examined by the Central Food Laboratory in view of the delay of more than three years in filing the complaint from the date of lifting the samples. It is also submitted that in similar circumstances, this Court in Crl.P.No.6566 of 2007 quashed the proceedings, through the order, dated 19-11-2007.

4. I have gone through the order in Crl.P.No.6566 of 2007 referred above and the facts of that case are almost similar to the facts of this case. Whatever may be the cause of delay, but admittedly, the samples were lifted on 30-12-2003 and the complaint was filed in the year 2007. Thus it is clear that the valuable right of the petitioners to get the sample re-examined by the Central Food Laboratory has been lost. No purpose would be served if the sample is sent for re-examination after lapse of three years. In view of the same, it appears that there are no valid grounds to continue the criminal proceedings against the petitioners.

5. Accordingly the Criminal petition is allowed. The proceedings against the petitioners in C.C.No.203 of 2007 on the file of the Special mobile Judicial First Class Magistrate, Machilipatnam, are hereby quashed.

MERE DIFFERENCE IN THE DATE OF MARRIAGE - QUASH NOT ARISE

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR

Criminal Petition No. 1153 of 2008

27-04-2010

T.V. Manohar.

The State of A.P., rep. by Public Prosecutor,

High Court of A.P., Hyderabad and another

Counsel for the Petitioner: Sri O. Manohar Reddy

Counsel for the Respondent No.1 : Public Prosecutor

Counsel for the Respondent No.2 : ----

:Order:

This Criminal Petition, under Section 482 Cr.P.C., has been filed by the petitioner to quash the proceedings in C.C. No. 10 of 2008 on the file of the III Additional Judicial Magistrate of First Class, Tirupati. The second respondent herein is the de facto complainant in the Criminal Case. The de facto complainant lodged a complaint against the petitioner herein and her case is as follows. She married one A.B. Ram Kumar in the year 1987 and that they were blessed with a male child. It is alleged that the said A.B. Ram Kumar developed illicit relationship with another woman, which led to the divorce between the second respondent and said A.B. Ram Kumar. The specific case of the second respondent is that subsequently she married the petitioner in the year 1997 and that they lived happily for about one year and subsequently the petitioner started suspecting her character. It is also alleged that the petitioner started abusing her and beating her and that he had taken away Rs.80,000/- and 30 sovereigns of gold ornaments on different occasions. It is also her case that she was doing saree business and the petitioner used to take away sarees and sell them and harass her. It is also her case that on 27.05.2006 the petitioner beat her with a stick and also on 28.12.2006 at about 8.00 AM he beat her and thrown her out of his house and that he had also abused and beat her mother. It is also alleged that the petitioner used to threaten to kill the second respondent and her son who was born through her first husband and also her mother. It is also her case that till the date of filing complaint, she had given about Rs.3,00,000/- to the petitioner. Basing on the said complaint, FIR was registered in Crime No.274 of 2006 of Alipiri Police Station, Chittoor District. The police, after completing investigation, laid charge sheet.

Initially an objection was raised by the office of the learned Magistrate that proof of marriage was not filed. Then it was represented that as per Section 50 of the Indian Evidence Act proof of marriage is not required. On such endorsement and having considered the material placed on record, the learned Magistrate has taken cognizance of the offence under Section 498-A and 323 IPC and Section 4 of the Dowry Prohibition Act and issued process against the petitioner.

The main contention of the learned counsel for the petitioner is that the second respondent is not consistent with regard to the date of marriage. He submits that the marriage dinner was arranged on 14.06.1998, which falsifies her version that her marriage was performed in 1997. It is also submitted that in the reply notice given by the counsel for the second respondent the year of the marriage has been shown as 1994. His main submission is that in the absence of any proof of valid marriage, the proceedings under Section 498-A IPC are not maintainable and therefore they are liable to be quashed.

The only point that arises for consideration is whether there are any grounds to quash the proceedings.

While exercising powers under Section 482 Cr.P.C., it is settled law that inherent powers have to be exercised carefully. The primary intention and object of a criminal trial is to find whether the accused is innocent or guilty. Undoubtedly the trial should be fair to the accused, but it also must be fair to the prosecution. Whether the proof of valid marriage is necessary or not for the trial of a case filed under Section 498-A IPC is the point to be decided by the trial Court. According to the learned counsel for the second respondent if a man and woman lived together under one roof for considerable period and if they are recognized by the society that they are wife and husband that itself is sufficient to prove the marital relationship and no other proof, or the conditions as enumerated under the Hindu Marriage Act are not strictly required to be proved while trying the offence under Section 498-A IPC. The questions whether the petitioner is the husband of the second respondent or not, whether the petitioner herein had harassed the second respondent or not and whether the acts committed by the petitioner make out an offence under Section 498-A IPC or not cannot be decided in this petition. Unless and until the evidence has been let in by both the parties, the above referred questions cannot be answered. When a fact is in dispute, without trial, particularly in quash proceedings the truth or otherwise of the allegations cannot be decided. More over, it is also settled legal position that the High Court is not expected to look into the documents filed by the petitioner/accused at this stage. Whatever it may be, the settled legal position is that the voluminous documents or evidentiary value of the documents filed by the petitioner/accused cannot be looked into at this stage. The High Court in exercise of its inherent powers cannot quash the order by weighing the correctness and sufficiency of the evidence and it cannot consider the defence documents. Therefore, the so called inconsistent versions shown by the learned counsel for the petitioner with reference to the documents filed by them and their evidentiary value cannot be discussed in this petition. Now what is to be seen is whether the allegations made in the complaint or in the charge sheet constitute any offence or not. From a reading of the complaint and the allegations made in the charge sheet it cannot be said that the allegations made therein are totally false and cannot be accepted on their face value. The jurisdiction of the High Court does not embark upon any enquiry whether the allegations in the complaint are likely to be established by evidence or not. Unless and until it is shown that the allegations set out in the complaint and the charge sheet do not constitute an offence or the ingredients of the alleged offence have not been made out, this Court, while exercising inherent powers, cannot quash the proceedings. In view of the settled legal position, I am of the view that there are no valid grounds to quash the proceedings.

Accordingly, the Criminal Petition is dismissed.

IN THE ABSENCE OF ANIMUS DESERENDI, NO CHEQUE BOUNS CASE SHOULD NOT BE TRUNED AS 420

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR

Criminal Petition No.5259 of 2007

28-04-2010

J. Vidya Sagar S/o L.J. Rajam,

Aged 43 years, Occ: Service,

R/o 12-1/1, Plot No.1, Road No.1,

Ramakrishnapuram, Dilsukhnagar,

Hyderabad.

State of A.P. through Public Prosecutor,

High Court of A.P., Hyderabad and another

Counsel for petitioner: Mr.P. Shiv Kumar

Counsel for respondent: Public Prosecutor

:ORDER:

This Criminal Petition has been filed to quash the proceedings in C.C.No.437 of 2005 on the file of the Additional Judicial First Class Magistrate, East & North, R.R. District, transferred to X Metropolitan Magistrate, Malkajgiri, R.R. District.

2. The brief facts of the case are as follows:

The second respondent herein filed a complaint alleging that he is one of the partners in M/s Sai Chakra Financers and M/s Yogeshwara Financers and that the partners were not in a position to uphold the trust of the managing partners and therefore, the firm was dissolved, accounts were settled and a memorandum of understanding was reached between the parties on 05-06-2001. Due amounts to be paid by the Firm and to be received by the Firm were distributed among the partners. In pursuance of the said memorandum of understanding, the second respondent approached the petitioner for the payment of the due amount to be paid to him and the petitioner issued a cheque bearing No.081308, dated 13-05- 2002 for Rs.3,85,000/- of Central Bank, Himayatnagar branch. When the said cheque was presented in the bank of the second respondent i.e., ICICI Bank, Vasavinagar branch, the second respondent received an intimation that the account was closed. The second respondent lodged a complaint against the petitioner alleging that the petitioner issued a false cheque and closed the account without any intimation with an intention to cheat him and to avoid the payment. Basing on the said complaint, a case was registered in Crime No.251 of 2002 on 05-06-2002 for the offences punishable under Sections 420 of IPC and 138 of the Negotiable Instruments Act, 1881 (for short 'the Act').

3. The stand of the petitioner is that he had approached M/s Sai Chakra Financers and M/s Yogeshwara Financers and availed the loan and executed the promissory note and issued a blank cheque and subsequently, he had paid the entire loan amount with interest within the stipulated time and when he requested to return the promissory note and blank cheque, the second respondent represented that the promissory note and the blank cheque were misplaced and assured that they will be returned to him as and when found.

4. The learned counsel for the petitioner submits that the police are not authorized to investigate into a case filed for the offence under Sections 138 of the Act. He further submitted that even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they did not prima facie constitute any offence or make out a case against the petitioner.

5. No representation for the second respondent, though notice was served.

6. In the light of the facts and circumstances, the only points that arise for consideration are:

1. Whether the police are empowered to file charge sheet for the offence punishable under Section 138 of the Act? and

2. Whether the ingredients of Section 420 of IPC have been made out from the contents of the charge sheet?

7. Section 138 of the Act is as follows:

"Section 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts.-

Where any cheque dr awn by a person on an account maintained by hi m with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

8. A reading of the above provision makes it clear that the payee or holder of the cheque, as the case may be, makes a demand for payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information from the bank regarding the return of the cheque as unpaid. It also provides an opportunity to the drawer and if the cheque amount is paid within 15 days of the receipt of the notice sent under Section 138 (b), the liability under Section 138 will seize. Of course it is the settled law that an offence under Section 138 of the Act is made out even if the cheque is returned on the ground of closure of the account. It is also settled law that a cheque can be presented any number of times during the time of its validity. Section 142 of the Act envisages that no Court shall take cognizance of an offence punishable under Section 138 of the Act except upon a complaint in writing made by the payee or the holder, as the case may be, in due course of the cheque and such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. For more clarity, Section 142 of the Act is extracted below: "142. Cognizance of offences - Notwithstanding anything contained in the Code of Criminal procedure, 1973-

(a) No Court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing made by the payee or , as the case maybe, the holder in due course of the cheque.

(b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. (c) No Court inferior to that of a metropolitan magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138."

9. The scheme and provisions of the Act make it very clear that it is the payee, who has to make a complaint in writing, and upon such complaint, the Court is empowered to take cognizance. In the light of the above circumstances, giving a complaint to the police and registering a case for the offence under Section 138 of the Act appears to be not contemplated under the Act. The time limit prescribed for issuing a notice, on receipt of the information by the payee from the bank regarding the return of the cheque as unpaid, and the time limit given to the drawer to enable him to make payment, and the time limit prescribed to the payee to file a complaint, makes it very clear that no police investigation is contemplated under the provision of the Act.

10. In H. MOHAN & ANR. V. STATE OF KARNATAKA 1, it was held that:

"It is clear from the language employed in Section 142 of the Act that no Court shall take cognizance of any offence punishable under Section 138 except upon a written complaint made by the payee. It means that the payee has to file a private complaint under Section 200 Cr.P.C. before the competent Magistrate and the Police are not empowered to act upon a private complaint filed for an offence under Section 138 of the Act. I do not find any force in the argument of the learned High Court Government Pleader that Sections 4 and 5 Cr.P.C. empower the Police to entertain the complaint filed in respect of an offence under Section 138 of the Act as the said provisions are not attracted in view of the above extracted provisions of Section 142 of the Act."

11. In JAGARLAMUDI SURYA PRASAD AND OTHERS v. STATE OF ANDHRA PRADESH 2, it was held that:

"In view of S. 142 of the Act, when a complaint filed by the payee or the holder in due course of the cheque which was dishonoured, the Magistrate has necessarily to take cognizance if the other ingredients are satisfied. He has no right or power to refer it for investigation to the police just like a private complaint filed in accordance with the provisions of the Criminal P.C."

12. Similar view was taken by this Court in

Y. VENKATESWARA RAO v. MAHEE HANDLOOMS (P.) LTD. 3, wherein it was held that: "As evidenced by Sec. 142(a) of the negotiable Instruments Act no Court shall take cognizance of any offence punishable under Sec.138 except upon a complaint in writing made by the payee or as the case may be, the holder in due course of the cheque. In the present case, the case was taken cognizance on a police complaint and consequently, as rightly submitted by the learned counsel for the petitioner, the complaint is not taken on file properly. In view of the provisions of Sec.142 (a) of the negotiable Instruments Act, the proceedings in C.C.184/91 on the file of the VI metropolitan magistrate are quashed on and from referring the case by the learned magistrate under Sec. 156(3) of the Code and thereafter."

13. Similar view was taken in K. MAHADEVAN v. Y. VENKATESH AND ANOTHER 4, wherein two cheques were dishonoured and a private complaint was filed by payee of cheques which was forwarded by the Magistrate to police and after a charge sheet being filed by police, magistrate took cognizance of offence. In those circumstances, it was held that adopting such a procedure is a glaring defect in procedure because under Section 12 of the Negotiable Instruments Act, cognizance of an offence is dishonour of cheque (s) should be taken on a private complaint only.

14. In CENTRAL BANK OF INDIA AND ANOTHER v. M/s. SAXONS FARMS AND OTHERS 5, it was held that:

"Under Section 142 of the Act, Court can take cognizance of an offence punishable under Section 138 only on a complaint in writing made by the payee. Therefore, the police could not have started investigation under Section 138 of the Act. But if a cheque is dishonoured drawer may expose himself to prosecution under various sections of the Indian penal Code which are cognizable and police could take up investigation. What was indicated in the notice was that in addition to the legal action by the appellant-bank under the Act, option was kept open for taking action against the respondents under the provisions of Indian penal Code by informing the police. Therefore, the contention of the learned counsel for the respondents has no force."

15. Now the other question is when it is alleged that the Accused has not only committed the offence punishable under Section 138 of the Act, but also committed the offence under Section 420 of IPC, what has to be done? In such circumstances, in NEMICHAND SWAROOPCHAND SHAHA v. M/S. T.H. RAIBHAGI FIRM 6, it was held that it is absolutely necessary for the purpose of bringing in Section 415 IPC that the complainant should have been fraudulently or dishonestly induced by the petitioners to deliver the property concerned and unless the ingredients of cheating within the meaning of Section 415 of IPC are made out, no cognizance can be taken for the said offence.

16. In S. JAYASWAMI AND ANOTHER v. STATE OF ORISSA AND ANOTHER 7, the Orissa High Court observed as follows:

"The dishonour of the cheques by the Bank due to insufficient funds is squarely covered under the scope of Section 138 of the Act. The provision of Section 420, IPC is not attracted unless mala fide intention of the person issuing the cheque is established. Here, no specific instances have been pleading about the existence of mala fide intention. As has been said in the case of G. Sagar Suri (supra), dishonest intention and mis-representation are to be specifically indicated to attract the provisions of Section 406 or 420, IPC and if such specific allegations are not there and general allegations of dishonour of cheque is there, only Section 138 of the Act will be attracted. When same cheques are involved in the complaint case and in the G.R. Case and when the only allegation is bouncing of the cheques for insufficient funds or stop payment direction, the issue will be covered only under Section 138 of the Act. In such situation, the police investigation into the issue during pendency of the complaint cases would be abuse of the process of Law and Court."

17. In VEER PRAKASH SHARMA v. ANIL KUMAR AGARWAL 8, it was observed that:

"In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Indian Penal Code."

18. In HRIDAYA RAJAN PRASAD VERMA AND OTHERS v. STATE OF BIHAR AND ANOTHER9, the Supreme Court held that:

"In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

19. Now it has to be seen whether there is an allegation in the present case that the petitioner had induced the complainant on the date of issuing the cheque i.e., whether he had any fraudulent or dishonest intention at the beginning of the transaction. Unless it is specifically alleged that at the very inception the Accused has dishonest intention to cheat, the ingredients of Section 415 punishable under Section 420 of IPC have not been made out. A reading of the complaint makes it very clear that when the second respondent approached the petitioner with regard to the due amount, he promised to settle the accounts and having verified the accounts, he requested two weeks time and subsequently issued the cheque in dispute. Though it is the case of the second respondent that the petitioner had closed the Account without any intimation to him, it is not clear as to when the account was closed.

20. Another important fact pointed out by the learned counsel for the petitioner is that the reply notice sent on behalf of the petitioner is dated 27-04-2002, which reveals that the petitioner agreed to repay the due amount in instalments and the first instalment is payable on 23-04-2002 and the balance in due course. If that is the case, the issuance of the cheque, dated 13-05-2002 for the entire amount of Rs.3,85,000/- becomes doubtful. Though the documents filed by the petitioner cannot be looked into at this stage, having regard to the facts and circumstances of the case, it appears that since there is no allegation that the petitioner had fraudulent intention on the date of issuing the cheque and closed the account by the date of issuing the cheque, it appears that the ingredients of Section 420 of IPC have not been made out. In the above circumstances, the proceedings against the petitioner are liable to be quashed.

21. Accordingly, the Criminal Petition is allowed. The proceedings against the petitioner in C.C.No.437 of 2005 on the file of the Additional Judicial First Class Magistrate, East & north, R.R. District, transferred to X Metropolitan Magistrate, Malkajgiri, R.R. District, are hereby quashed.

?1 1991 (2) CRIMES 93

2 1992 CRI.L.J. 597

3 1992 (3) ALT 73

4 1993 CRI.L.J. 2659

5 1999 CRI.L.J. 4571

6 2002 (1) CIVIL L J 417

7 2005 CRI.L.J. 2896

8 2007 (9) SCALE 502

9 (2000) 4 SCC 168

OR. 21 RULE 58. SEC.64 . SPECIFIC RELIEF ACT

THE HON'BLE SRI JUSTICE V.V.S. RAO

Second Appeal No.783 of 2009

29-04-2010

Gopisetti Venkata Lakshmi Narasimharao, S/o.Venkata Ramayya

M/s.Sri Satya Financial Services, Narsapuram, represented by its Proprietor, Sri Meka Sreedhar Chowdary, Narsapuram

And another

Counsel for appellant: Mr.A.V.Sesha Sai

Counsel for Respondents: Smt.Bobba Vijaya Lakshmi

:ORDER:

The dispute in this second appeal is regarding the validity of attachment of land admeasuring Acs.2.38 (out of Acs.4.20) in R.S.No.628/1 situated at Sarva, H/o.Lakshmaneswaram Village of Narsapuram Mandal in West Godavari District (hereafter, schedule property). Originally the second respondent herein (J.Dr) was owner of the property. She obtained a loan from M/s.Sri Satya Financial Services, Narsapuram (hereafter, D.Hr). When the D.Hr brought the schedule property for sale, in the facts and circumstances of the case narrated hereafter, appellant herein (hereafter, purchaser) filed E.A.No.387 of 2005 under Order XXI Rule 58 of Code of Civil Procedure, 1908 (CPC). The same was dismissed. Against the said order and decree, he preferred A.S.No.178 of 2007 on the file of the Court of District Judge, West Godavari, Eluru. The appeal was also dismissed on 21.2.2008, aggrieved by which the present second appeal is filed. Some more necessary factual aspects may be noticed by referring to the parties as named hereinabove.

The D.Hr advanced amounts to J.Dr. She executed promissory note on 22.2.2001. When there was a default, D.Hr filed O.S.No.134 of 2003 on the file of the Court of the Senior Civil Judge, Narsapur, for recovery of Rs.3,46,415/- (Recovery suit). D.Hr also obtained an order of attachment before judgment on 22.8.2003. Ultimately the suit was decreed on 13.10.2003. D.Hr then filed E.P.No.101 of 2004 for sale of attached property. The purchaser filed claim petition being E.A.No.387 of 2003 under Order XXI Rule 58 of CPC for raising attachment. He alleged that he entered into registered agreement of sale dated 27.3.2003 agreeing to purchase schedule property for Rs.2,46,500/-, that he paid earnest money of Rs.2,00,000/-, that he agreed to pay balance of Rs.46,500/- towards sale consideration in eight months and obtain registered sale deed. When the J.Dr failed to execute the sale deed, he filed O.S.No.124 of 2004 on the file of the Court of Senior Civil Judge, Narsapur, for specific performance of agreement of sale (specific performance suit). The same was decreed on 17.11.2006. He also alleged that the said Court executed sale deed on 17.7.2007 and the Court Amin delivered possession on 16.9.2007. He contended that agreement of sale in his favour being one executed by the J.Dr prior to attachment of property to D.Hr, registered agreement must prevail and, therefore, schedule property cannot be attached nor can be sold. In E.A.No.387 of 2005, the purchaser gave evidence as P.W.1 and marked Exs.A1 to A3. The Managing Partner of D.Hr gave evidence as R.W.1 and marked Exs.B1 to B4 besides examining R.W.2. After considering the evidence, the trial Court came to the conclusion that the purchaser failed to prove the sale transaction and payment of consideration to his vendor. Therefore the finding was recorded that sale without consideration is not binding on D.Hr. The application was dismissed. The appellate Court reconsidered the evidence and confirmed the order of trial Court.

In this appeal under Section 100 CPC, the counsel for purchaser submits that the Courts below are not justified in going to validity of the proceedings in specific performance suit. According to him, attachment before judgment of schedule property does not affect the rights of purchaser existing prior to such attachment and, therefore, schedule property cannot be sold. He placed reliance on Madhavarapu Haranadhababa v Kaligineedi Mahalakshmamma (died) per LR R31 and Adinarayana v S.Gafoor Sab2.

The counsel for D.Hr submits that transaction between appellate and second respondent under Ex.A1 is not supported by valid consideration and, therefore, Ex.A1 is fraudulent document created by them to get over the liability of J.Dr to D.Hr. She nextly contends that appellant and second respondent are known to each other, that second respondent did not come to Court and, therefore, adverse inference has to be drawn. She placed reliance on Teluguntla Venkateswara Rao v Teluguntla Sundara Satyanarayana3.

The point that arises for consideration is that whether property sold prior to attachment can be sold in execution of decree and whether in such event the executing Court can go into verdict of proceeding, in suit based on such agreement of sale?

Order XXXVIII Rule 10 of CPC reads as under.

ORDER XXXVIII:ARREST AND ATTACHMENT BEFORE JUDGMENT

10. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale

Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

On a plain reading of the above rule would show that if a person acquires right under a valid document/transaction prior to any attachment before judgment, rights of such person are not affected if such person is not a party to the suit. If the person having rights under prior transaction obtains any decree, subsequent attachment of property does not bar the execution of any decree obtained by such person. This is supported by two judgments of this Court which are relied on by the counsel for appellant. In Madhavarapu Haranadhbaba (supra) in the context of Section 53 of Transfer of Property Act, 1882 (TP Act) and Section 6 of Provincial Insolvency Act, 1920, relying on Hamda Ammal v Avadiappa Pathar4, this Court observed as under.

There is one another remedy. Section 6 of the Provincial Insolvency Act defines acts of insolvency. If a debtor makes a transfer of his property or any part thereof with intent to defeat or delay his creditors, he would be committing one of the acts of insolvency enumerated in the above provision. If an act of insolvency is committed, the remedy of the affected creditor is to present a petition against the debtor within a period of three months from the date of the debtor committing an act of insolvency to get the order of adjudication of debtor as an insolvent. These two remedies are available to the affected creditor. In a claim application filed by the purchaser the court is not entitled to consider and decide whether the transaction is a collusive, fraudulent or sham transaction and whether it is intended to defeat or delay the creditor. Such a question falls for consideration either in a proceeding launched under the provisions of Provincial Insolvency Act or in a suit field under Section 53 of Transfer of Property Act to avoid the transaction in question. It is necessary to emphasise that the proceedings invoking the provisions either in Section 53 of Transfer of Property Act or in Provincial Insolvency Act are to be instituted in a representative capacity and they are intended to benefit not a particular creditor but to benefit all the creditors of the transferor. It is thus clear that both the courts below committed a serious error in considering in a claim application the question whether the transaction covered by Ex.A.1 is a collusive transaction, etc., and on the basis of the findings recorded on that issue dismissing the claim application.

In Adinarayana (supra), this Court considered Order XXXVIII Rule 10 of CPC and Sections 40 and 64 of TP Act and referring to Hamda Ammal (supra) and other judgments, held that the agreement of sale prior to attachment before judgment would prevail over attachment and, therefore, property cannot be brought to sale.

Whether executing Court can go into validity of suit filed by agreement holder prior to attachment before judgment. This aspect of the matter has been considered by this Court in T.Nabi Saheb v V.P.Sivaiah5, wherein it was observed as under.

In the foregoing facts and circumstances, I am of the opinion, that, the Executing Court in said EP No. 41 of 1994, and in the present EA No. 449 of 1999, could not and ought not to have probed into, and much less, decided upon the validity and legality of either of the alleged agreement of sale, dated 15- 6-1990, alleged to have been executed by the J.Dr. in favour of the claim petitioner, or the Decree, that followed in pursuance thereof, in the suit OS No. 56 of 1992 etc. ... ... ... Even otherwise, I am of the opinion, that, the Executing Court, under Sub-rule (2) Rule 58 of Order XXI, CPC, cannot declare the validity and legality of a judgment and Decree, passed by a competent Court of Law, in the original suit proceedings.

The counsel for first respondent/D.Hr relies on Teluguntla Venkateswara Rao (supra) in support of her contention that the Court is not powerless to attach the property if the decree obtained is sought to be defeated by fraudulent transaction. In the said case, first defendant borrowed amounts from the plaintiff and executed promissory notes. The plaintiff issued notice. In reply suit debt was admitted but he set up an agreement to sell vacant site at Rs.250/- per Sq.yard to discharge the amount due. Since the same was not materialized, another notice was issued to honour the agreement, in vain. O.S.No.263 of 1970 was instituted before the Subordinate Court for recovery of the amount and the same was decreed. During the pendency, there was interim attachment of immovable property. In the mean while, second defendant who is wife of first defendant filed suit for recovery of Rs.20,000/- under promissory note dated 01.4.1966 allegedly executed by her husband. The same being O.S.No.108 of 1971 was filed on 20.3.1971. A consent decree was passed on 02.4.1971. Second defendant filed Execution Petition and in the Court auction purchased the property with the leave of the Court and at the same time as pauper she filed O.P.No.58 of 1972. Third defendant also filed a suit being O.S.No.1319 of 1973 before the District Munsif Court and obtained decree against second defendant. In the execution of the decree, the property was again brought to sale. Therefore plaintiff filed O.S.No.108 of 1971 for declaration that the decree obtained by second defendant is collusive, fraudulent and illegal and for a permanent injunction restraining third defendant from proceeding with E.P. before the District Munsif. The suit was opposed. The Subordinate Court after regular trial dismissed the suit holding that the suit which had been filed by plaintiff against first defendant was itself collusive and that the second defendant's suit was not collusive. Against the same, appeal was filed before this Court. A question arose as to whether second defendant's suit against first defendant is collusive and whether it amounts to playing fraud on the Court. It was held in the affirmative and this Court further observed that the subsequent decree and sale do not convey any right to second defendant. The relevant observations are as follows. I have already pointed out that the relationship between the first defendant and the second defendant is that of wife and husband and that the second defendant did not have the capacity to advance the money and that the suit was filed on 20-3-1971 and within a period of 12 days decree was passed on the consent made by the first defendant. The plaintiff was not even aware of the proceedings initiated by the second defendant. It is as a result of secret arrangement between the first and second defendants in order to segregate the property from the hands of the plaintiff. Therefore, the purpose for which the suit was filed and the decree was obtained is to defraud the plaintiff and to retain the property for themselves. The claim of the first and second defendants is fictitious, the contest over it is unreal and the decree passed therein is a mere mask having judicial determination. Hence, the decree is collusive and the first and second defendants incidentally also played fraud on the Court. Since the decree in O.S.No. 108/71 is collusive and vitiated by fraud, the subsequent sale and confirmation of sale do not convey any right in the property to the second defendant.

Reverting to the admitted position in this case, second defendant executed registered agreement of sale dated 27.3.2003 in favour of appellant 7 months prior to the filing of the suit by the D.Hr. The order of attachment before judgment was obtained on 22.8.2003. Therefore the rights of appellant are not in any way affected by the said attachment. The counsel for D.Hr however submits that legal notice was issued by first respondent on 26.2.2003 and only after coming to know about impending suit proceedings for recovery of amount, second respondent executed agreement of sale, which is sham and collusive. This cannot be accepted. Admittedly appellant filed specific performance suit. The same was decreed on 17.11.2006. The Court also executed sale deed in favour of appellant. The effect of accepting submission of counsel for first respondent would be to sit in appeal over the judgment in suit for specific performance. As held by this Court in T.Nabi Saheb (supra), the Court below could not have gone into validity of the proceedings. Both the Courts below went into the question of payment of consideration by the appellant to second respondent. When second respondent did not come forward to give evidence, it would not be safe to assume or infer that the agreement-Ex.A1, which has been accepted by the Court in specific performance suit is sham and collusive. In that view of the matter both the Courts below failed to appreciate the law correctly and also failed in applying correct law to the admitted facts.

In the result, for the above reasons, the Second Appeal is allowed. E.A.No.387 of 2005 accordingly stands allowed as prayed. The parties shall bear their own costs.

?1 2004 (1) ALD 416 : 2004(1) ALT 655

2 AIR 2004 AP 377 : 2004 (2) ALD 736 : 2004 (2) ALT 780 3 1996(3) ALT 322

4 (1991) 1 SCC 715

5 2004 (6) ALD 488 : 2004 (2) ALT 751