criminal laws - what is prohibited whether filing of two firs by one part against same accused or filing case and counter case against each other ? = if two FIRs are filed in relation to the same offence and against the same accused, whether the subsequent FIR was liable to be quashed or not. = the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 408 OF 2018
(Arising out of S.L.P.(Crl.)No.7970 of 2014)
P. Sreekumar ….Appellant(s)
VERSUS
State of Kerala & Ors. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is directed against the final
judgment and order dated 27.05.2014 passed by
the High Court of Kerala at Ernakulum in Criminal
M.C. No.2641 of 2007 whereby the High Court
allowed the petition filed by the accused-respondent
No.3 herein and quashed the FIR(Annexure II),
1
charge-sheet(Annexure III) and all consequent
proceedings arising therefrom pending as C.C.
No.2682 of 2002 on the file of the JFCM-II,
Ernakulum.
3) Facts involved in the case lie in a narrow
compass so also the issue involved in the appeal is
a short one. The facts are mentioned hereinbelow:
4) There is one public charitable Trust by name -
Vidyodaya Trust (hereinafter referred to as "the
Trust") having its office at S.N. Junction,
Palarivattom in the State of Kerala. The Trust is
engaged in the educational activities and runs
educational institutions in the State of Kerala.
5) The appellant herein is one of the Chief
Executive Trustees of the Trust whereas respondent
No.2 herein is one of the Trustees and respondent
No.3 was a Treasurer of the Trust at the relevant
time.
2
6) On 17.10.2001, respondent No.2 (Trustee) filed
a private complaint against the appellant,
respondent No.3 (Treasurer) and three Bank
officials of the Bank in the Court of Chief Judicial
Magistrate, Ernakulum (CC No.15877 of 2001)
under Section 200 of the Code of Criminal
Procedure, 1973 (Annexure-P-14).
7) In the complaint, it was inter alia alleged that
the appellant, respondent No.3 and three bank
officials conspired together to defraud the Trust and
to give effect to their conspiracy managed to siphon
off around Rs.42 lacs of the Trust from its Bank
accounts by manipulation and forging the accounts
books and several documents of the Trust.
8) Pursuant to the aforesaid complaint, an FIR in
Crime Case No.817 of 2001 for the offences
punishable under Sections 408, 409, 420, 467, 468,
473, 477 read with Section 34 of the Indian Penal
Code, 1908 (hereinafter referred to as "IPC") was
3
registered wherein the appellant, respondent No.3
and three bank officials were named as accused
persons in relation to commission of the alleged
crime.
9) The aforesaid incident also led to filing of the
FIR No.5 of 2002 by the appellant (Chief Executive
Trustee) against respondent No.3 (Treasurer of the
Trust) in North Police Station, Ernakulum under
Sections 406, 409, 465, 467 and 471 of IPC. It was
inter alia alleged therein that respondent No.3 was
the person, who indulged into the fraud and forgery
and he managed to take away the money belonging
to the Trust by misusing his post. Pursuant to this
FIR, respondent No.3 (Treasurer of the Trust) was
arrested and later enlarged on bail.
10) Thereafter, the police made investigation in
relation to FIR No.5 of 2002 and submitted
charge-sheet No.166 of 2002 (Annexure- P-17).
4
11) So far as Crime Case No.817 of 2001 arising
out of Complaint Case No.15877 of 2001 is
concerned, it was registered against the appellant,
respondent No.3 and three Bank officials for
commission of the offences punishable under
Section 408, 409, 420, 467, 468, 473, 477 read with
Section 34 of IPC. The police made investigation in
this case and filed their final report on 06.02.2003
stating therein that no case was made out against
appellant and three bank officials (described in the
report as Accused Nos.2, 3, 4 and 5). These four
accused were, therefore, discharged from Crime
Case No.817 of 2001. (Annexure-P-18).
12) Respondent No. 2, i.e., the Trustee, however,
felt aggrieved by the final report dated 06.02.2003,
filed a protest petition (CC No. 28 of 2004) before
the Chief Judicial Magistrate, Ernakulum and
prayed therein for taking cognizance of the offences
mentioned in the final report. The Chief Judicial
5
Magistrate issued summons to the appellant and
respondent No.3 to appear before the Court on
22.07.2004.
13) Respondent No.3 filed a Criminal M.C.
No.2641 of 2007 before the High Court of Kerala
seeking to quash the final report filed in Crime Case
No.5 of 2002 pending in the Court of JMFC II at the
instance of the appellant against him.
14) In his application, respondent No.3, in
substance, contended that he cannot be made to
face two trials on the same set of facts and for the
same offences in two different Courts. He,
therefore, prayed that so far as Crime Case
No.5/2002 filed by the appellant against him and
the charge-sheet filed therein are concerned, the
same are liable to be quashed.
15) In the meantime, two Criminal Misc.
Applications under Section 482 of the Code were
6
filed in the High Court of Kerala being Criminal
M.C. No. 1732 of 2004 and Criminal M.C No. 2641
of 2007.
16) So far as Criminal M.C. No.1732 of 2004 is
concerned, it was filed by the appellant herein
wherein he sought quashing of the proceedings
pending against him in the Court of Judicial First
Class Magistrate Court II, Ernakulum (Crime Case
No.5 of 2002) in relation to Complaint Case No.2682
of 2002.
17) So far as Criminal M.C. No.2641 of 2007 is
concerned, it was filed by respondent No.3 against
the appellant challenging the FIR/charge-sheet filed
against him by the appellant (C.C. No.2682 of 2002)
in the Court of JMFC-II, Ernakulum.
18) By impugned order, the Single Judge of the
High Court dismissed the Criminal M.C.
No.1732/2004, which was filed by the appellant,
and declined to quash the proceedings challenged
7
therein. It was observed by the Single Judge, “it is
not possible to quash the complaint at this stage”.
19) So far as the Criminal M.C. No.2641/2007 is
concerned, the Single Judge, by the same impugned
order, allowed the said Criminal M.C. and quashed
the FIR and the charge-sheet filed pursuant thereto.
20) The appellant, felt aggrieved by the dismissal
of his petition (Criminal M.C. No.1732/2004) by the
High Court, filed two SLPs being SLP(Crl.)
No.6319/2014 and the present SLP in this Court
against the order by which the High Court had
quashed the FIR/charge-sheet filed against
respondent No.3 and had allowed Criminal M.C.
Application 2641 of 2007.
21) This Court, on 06.03.2018, dismissed the
appellant's SLP No.6319/2014 as having become
infructuous because during its pendency, the
appellant and other three bank officials were
8
discharged by the competent Court from the case.
The appellant, therefore, did not pursue the SLP.
22) With these background facts, the question for
consideration in this appeal is as to whether the
High Court (Single Judge) was justified in allowing
the Criminal M.C. No.2641/2007 filed by
respondent No.3 and thereby was justified in
quashing the FIR/charge-sheet filed against
respondent No.3 and all consequential proceedings
arising out of the FIR/charge-sheet pending as C.C.
No.2682 of 2002 on the file of JMFC-II, Ernakulum.
23) Heard Mr. Jayant Bhushan, learned senior
counsel for the appellant, Ms. Liz Mathew, learned
counsel for respondent No.1 and respondent No.2,
who appeared in person.
24) Having heard the learned counsel for the
appellant and respondent No.2, who appeared in
person, we are inclined to allow the appeal and set
9
aside the impugned order passed in Cri. M.C.No.
2641 of 2007.
25) The question, which fell for consideration
before the High Court, was that if two FIRs are filed
in relation to the same offence and against the same
accused, whether the subsequent FIR was liable to
be quashed or not.
26) The Single Judge placed reliance on three
decisions of this Court reported in State of
Haryana & Ors. vs. Bhajanlal, (1992) Supp(1) SCC
335, Madhu Limaye vs. State of Maharashtra,
1977 (4) SCC 551 and R.P. Kapur vs. State of
Punjab, AIR 1960 SC 866 and quashed the second
FIR/charge-sheet under Section 482 of the Code.
27) In our view, the High Court had committed
jurisdictional error in quashing the subsequent
FIR/charge-sheet, which was filed at the instance of
the appellant against respondent No.3 without
adverting to the law on the subject.
10
28) In our opinion, the law on the subject which
governs the controversy involved in the appeal is no
more res integra and settled by the decision of this
Court (three-Judge Bench) in the case reported in
Upkar Singh vs. Ved Prakash & Ors., (2004) 13
SCC 292 and also by the subsequent decisions.
29) Their Lordships after examining all the
previous case laws on the subject laid down the
following proposition of law in the following words
speaking through Justice N. Santosh Hegde:
“23. Be that as it may, if the law laid down by
this Court in T.T. Antony case1 is to be
accepted as holding that a second complaint
in regard to the same incident filed as a
counter-complaint is prohibited under the
Code then, in our opinion, such conclusion
would lead to serious consequences. This will
be clear from the hypothetical example given
hereinbelow i.e. if in regard to a crime
committed by the real accused he takes the
first opportunity to lodge a false complaint
and the same is registered by the
jurisdictional police then the aggrieved
victim of such crime will be precluded from
lodging a complaint giving his version of the
incident in question, consequently he will be
deprived of his legitimated right to bring the
real accused to book. This cannot be the
purport of the Code.
11
24. We have already noticed that in T.T.
Antony case1 this Court did not consider the
legal right of an aggrieved person to file
counterclaim, on the contrary from the
observations found in the said judgment it
clearly indicates that filing a
counter-complaint is permissible.
25. In the instant case, it is seen in regard to
the incident which took place on 20-5-1995,
the appellant and the first respondent herein
have lodged separate complaints giving
different versions but while the complaint of
the respondent was registered by the police
concerned, the complaint of the appellant
was not so registered, hence on his prayer
the learned Magistrate was justified in
directing the police concerned to register a
case and investigate the same and report
back. In our opinion, both the learned
Additional Sessions Judge and the High Court
erred in coming to the conclusion that the
same is hit by Section 161 or 162 of the Code
which, in our considered opinion, has
absolutely no bearing on the question
involved. Section 161 or 162 of the Code
does not refer to registration of a case, it
only speaks of a statement to be recorded by
the police in the course of the investigation
and its evidentiary value.”
30) The aforesaid principle was reiterated by this
Court (Two Judge Bench) in Surender Kaushik &
Ors. vs. State of U.P. & Ors., (2013) 5 SCC 148 in
the following words:
“24. From the aforesaid decisions, it is quite
luminous that the lodgment of two FIRs is
not permissible in respect of one and the
12
same incident. The concept of sameness has
been given a restricted meaning. It does not
encompass filing of a counter-FIR relating to
the same or connected cognizable offence.
What is prohibited is any further complaint
by the same complainant and others against
the same accused subsequent to the
registration of the case under the Code, for
an investigation in that regard would have
already commenced and allowing registration
of further complaint would amount to an
improvement of the facts mentioned in the
original complaint. As is further made clear
by the three-Judge Bench in Upkar Singh, the
prohibition does not cover the allegations
made by the accused in the first FIR alleging
a different version of the same incident.
Thus, rival versions in respect of the same
incident do take different shapes and in that
event, lodgment of two FIRs is permissible.”
31) Keeping the aforesaid principle of law in mind
when we examine the facts of the case at hand, we
find that the second FIR filed by the appellant
against respondent No.3 though related to the same
incident for which the first FIR was filed by
respondent No.2 against the appellant, respondent
No.3 and three Bank officials, yet the second FIR
being in the nature of a counter-complaint against
13
respondent No.3 was legally maintainable and could
be entertained for being tried on its merits.
32) In other words, there is no prohibition in law
to file the second FIR and once it is filed, such FIR
is capable of being taken note of and tried on merits
in accordance with law.
33) It is for the reasons that firstly, the second
FIR was not filed by the same person, who had filed
the first FIR. Had it been so, then the situation
would have been somewhat different. Such was not
the case here; Second, it was filed by the appellant
as a counter-complaint against respondent No.3;
Third, the first FIR was against five persons based
on one set of allegations whereas the second FIR
was based on the allegations different from the
allegations made in the first FIR; and Lastly, the
High Court while quashing the second
FIR/charge-sheet did not examine the issue arising
in the case in the light of law laid down by this
14
Court in two aforementioned decisions of this Court
in the cases of Upkar Singh (supra) and Surender
Kaushik (supra) and simply referred three decisions
of this Court mentioned above wherein this Court
has laid down general principle of law relating to
exercise of inherent powers under Section 482 of
the Code.
34) In the light of the foregoing discussion and the
four reasons mentioned above, we are unable to
agree with the reasoning and the conclusion of the
High Court and are, therefore, inclined to set aside
the impugned order.
35) The Magistrate will now proceed to try and
decide the case on merits and while doing so, he will
be free to examine all the issues arising in the case
from all the angles in the light of the evidence that
will be adduced by the parties.
36) If the Magistrate finds that the material
brought on record against any person(s) including
15
the appellant herein in the evidence indicating the
involvement of any such person(s) in commission of
the alleged offences, he will be free to proceed
against any such person(s) in accordance with law
and bring the proceedings to its logical end
uninfluenced by any of our observations.
37) Let the trial before the concerned Magistrate
be over, as directed above, within a year as an outer
limit.
38) With these observations and directions, the
appeal succeeds and is accordingly allowed.
Impugned order passed in Criminal M.C No.
2641/2007 is set aside. As a result, C.C. No.2682 of
2002 on the file of the JMFC-II, Ernakulum is
restored to its file for being tried on merits in
accordance with law.
………...................................J.
[R.K. AGRAWAL]

16

…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
March 19, 2018
17

Section 482 Cr.P.C by the petitioner/A4 seeking to quash the proceedings against him - dismissed - creditor can maintain a civil and criminal proceeding at the same time. Both the proceeding, thus, can run parallely.= standard of proof in a criminal case vis-a-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt; in a civil suit `preponderance of probability' would serve the purpose for obtaining a decree. Therefore, though the order of the CESTAT attained finality on civil side, still criminal proceedings against fraud and cheating can be independently established by the prosecution.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO         

Criminal Petition No.2265 of 2015

02.03.2018

Anil Kumar Aggarwal.... Petitioner/Accused No.4

The State of Andhra Pradesh, Inspector of Police, Central Bureau of Investigation,Visakhapatnam,Rep. By its Public Prosecuto

Counsel for Petitioner  : Pillix Law Firm

Counsel for Respondent  : Sri K. Surender,
                          Special Public Prosecutor for CBI

<Gist:

>Head Note:

? Cases referred:
1)AIR 1992 SC 604 
2)AIR 2010 SC 3624 
3)AIR 2002 SC 3372 = 2002 Crl.L.J. 43l43
4)AIR 2009 SC 2195 
5)(2008) 9 SCC 677
6)(2009) 13 SCC 729

HONBLE SRI JUSTICE U.DURGA PRASAD RAO         

CRIMINAL PETITION No.2265 of 2015   

ORDER: 
     This petition is filed under Section 482 Cr.P.C by the petitioner/A4
seeking to quash the proceedings against him in C.C.No.29 of 2006 on the
file of Special Judge for CBI cases, Visakhapatnam.
2)      The Inspector of Police, CBI, SPE, Visakhapatnam filed charge
sheet against A1 to A5 for the offences under Sections 120B, 420, 468,
471 IPC and under Section 13(2) r/w 13(1)(d)(ii) of Prevention of
Corruption Act, 1988.
a)      A1 to A3 are the officials of Customs Department. A4Anil Kumar
Aggarwal is the Managing Director and A5 is the Director of M/s.Kumars
Cotex Limited (M/s.KCL). A4 and A5 were engaged in manufacture and 
clearance of cotton yarn and cotton waste having their factory at Dokiparu
in Guntur District.
b)      A4Company imported six numbers of autoconers (capital goods) 
during the year 1996 valuing Rs.5,91,84,990/- availing 100% Customs
Duty Waiver facility as per Notification No.13/81-Customs. While so,
on 05.02.2002 it made an application to the Development Commissioner,
Visakhapatnam Export Processing Zone, Visakhapatnam seeking   
permission to destroy two autoconers out of six, stating that the said two
autoconers were burnt due to short circuit and not serviceable.
Accordingly, on 27.02.2002 the Development Commissioner accorded 
permission for disposal of two autoconers subject to observance of
customs formalities. Then, A4 requested the Deputy Commissioner,
Central Excise, Guntur to pass orders for destruction, who in turn passed
orders on 24.07.2002 permitting the petitioner/A4 to destruct two
autoconers in the presence of Central Excise Officials.
c)      When the matter stood  thus, A1 to A3Excise Officials entered
into criminal conspiracy with A4 and in pursuance of the same they went
to the premises of A4Company on 25.07.2002 to supervise the 
destruction of two autoconers, but did not ensure destruction. A1 by
abusing his position as a public servant sent compliance report to Deputy
Commissioner as if two autoconers were destroyed by breaking into pieces
in their presence; the scrap was transported through lorry bearing No.AP
7T 1436 and sold the same to M.Venkateswar Raoscrap dealer for 
Rs.1,90,000/- and a sum of Rs.30,400/- was deposited in the bank towards
Central Excise Duty. However, the investigation revealed, on 09.10.2003,
A4 sold the said two autoconers to M/s.Sri Jayalakshimi spinning Mills
limited, Chebrolu (M/s.SJSML) for of Rs.50 lakhs. In fact, the said two
autoconers were found in working condition at M/s.SJSML by
Superintendent, Preventive, Central Excise, Gu`ntur by evading tax hence
they were seized. Therefore, the Central Excise Department issued show
cause notice to petitioner/A4 demanding customs duty of Rs.52.61 lakhs.
Accordingly charge sheet was filed.
        Hence, the instant Criminal Petition for quashment.
3)      Heard learned counsel for petitioner and learned Special Public
Prosecutor for CBI.
4)      Learned counsel for petitioner would challenge the proceedings in
C.C.No.29 of 2006 on the main plank of argument that against the order
passed by the Commissioner of Customs and Central Excise, Guntur 
petitioners Company preferred an appealC/270-272/2007 before the
Customs Excise and Service Tax Appellate Tribunal (CESTAT), 
Bangalore and final order was passed in order Nos. 445-447/2012 allowing
the appeal in favour of petitioner on 13.06.2012 holding that machinery
was dismantled under the supervision of the Central Excise Officers and
cleared from the factory as scrap. As such, it should be considered as
Domestic Tariff Area (DTA) clearance by the Export Oriented Unit (EOU)
attracting Central Excise duty. It was not a clearance of the capital goods
from the factory. Therefore, payment of Central Excise duty by the
assessee at the time of clearance of the scrap to M/s.SJSML cannot be
faulted. Added to it, there is no valid case to hold that there was
suppression or wilful misstatement of facts, let alone fraud, with intent to
evade payment of duty has been made out against the petitioner. Learned
counsel argued that the said order of CESTAT remained unchallenged.
In that view of the matter, the prosecution launched by CBI on the same
facts and continuation of the criminal proceedings is nothing but abuse of
process of law. Hence, the proceedings in C.C.No.29 of 2006 may be
quashed.
5a)     Opposing the petition, learned Special Public prosecutor for CBI
would argue that A1 to A3 who are the officials of Central Excise
Department, in collusion with A4 and A5 have created documents as if two
autoconers have been destructed without there being any factual
destruction. On the other hand, A4 and A5 have sold  the said two
autoconers to M/s.SJSML for Rs.50 lakhs on 09.10.2003 and those two 
autoconers were very much found in working condition with M/s.SJSML
by Superintendent, Preventive, Central Excise, Guntur, hence they were
seized. Since two autoconers were disposed of by A4 and A5 evading
customs duty with the conveyance of A1 to A3, who are deputed to
witness the physical destruction, which in fact was not done, the
prosecution is very much maintainable in view of fraudulent acts
committed by the accused.
b)      Learned Special Public Prosecutor would staunchly further argue
that the order of CESTAT dated 13.06.2012 being the order in civil
proceedings is not binding in the criminal proceedings. He submitted that
for another reason also the order passed by the CESTAT is not binding in
the criminal proceedings. Before CESTAT the department argued that in
September, 2004 the department conducted investigation and after seizing
the goods in question from the premises of M/s.SJSML, they have issued a
show cause notice to appellant and M/s.SJSML clearly stating that A4 and
A5 committed fraud, wilful misstatement, suppression of facts and
M/s.SJSML have purchased the two autoconers without payment of 
appropriate duty of customs.    In spite of said contention, CESTAT held
as if the department has not disputed the machinery was dismantled under
the supervision of Central Excise Range Officers and cleared from the
factory as scrap. The allegation of the department that two autoconers were
sold by A4 and A5 to M/s.SJSML was not clearly discussed. Therefore,
the order of CESTAT is not binding in the criminal proceedings. He thus
prayed to dismiss the petition.
6)      The point for consideration is:
     Whether there are merits in this Criminal Petition to quash the
proceedings in C.C.No.29 of 2006.
7)  POINT:   The fulcrum of prosecution case is that A4 and A5 having
obtained permission from the Deputy Commissioner, Central Excise,
Guntur for destruction of two autoconers, indeed, did not do so, but they,
with the conspiracy of A1 to A3, fabricated record of destruction in their
premises and sold the two autoconers to M/s.SJSML for Rs.50 lakhs and 
this fact was exhumed when the two autoconers were found in working
condition at M/s.SJSML by Superintendent, Preventive, Central Excise,
Guntur and thus A4 and A5 evaded tax hence, the charges against all the
accused.
8)      The Honourable Apex Court in State of Haryana and others
vs. Ch. Bhajan Lal and others  have laid down the following guidelines
relating to exercise of inherent power under Section 482 Cr.P.C. to quash
the proceedings to prevent abuse of process of Court. They are:
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 F.I.R. 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 uncontroverted 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 F.I.R. 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.
9)      When the material placed by the prosecution is tested on the anvil of
the above guidelines, the said material if uncontroverted would certainly
shed prima facie case against the accused for the offences charged against
them.  It is pertinent to note here that prosecution claims seizure of two
autoconers in working condition in the premises of M/s.SJSML against the
contention of the accused that those two autoconers were destructed in the
premises of A4Company on 25.07.2002. If this fact is convincingly
established by the prosecution in the trial, the accused will be liable for the
offences charged against them. Therefore, as the matter stands, none of the
guidelines extracted above in Bhajanlal (1 supra) would attract in this case
to quash the proceedings.
10)     Now, coming to the argument of learned counsel for petitioner
regarding the order passed by CESTAT, I have gone through the said order
dated 13.06.2012 in appeal Nos.C/270-272/2007. Those appeals are filed
by A4 against the order passed by Commissioner of Customs and Central 
Excise, Guntur in his proceedings No.CEX-15/2006 (Commissioner) dated 
14.12.2006.
a)      A perusal of said order would show that in Para-29 he gave a clear
finding thus:
Para-29: xx xx xx..  From the above facts, it is evident that the
entire operation of applying for destruction of autoconers and
transferring the same to M/s.Sri Jayalakshimi Spinning Mills
Limited M/s.Sri Jayalakshimi Spinning Mills Limited are able to
make use of them with the technical adjustments of their own staff is
a planned one. xx xx xx. Though the permission for destruction
accorded to them vide Deputy Commissioner, Central Excise,
Gunturs letter C.No.2/2002/DC/Steno dated 24.07.2002, if the
destruction was  completed,  how the obsolete machinery still
available to them for clearance on 09.10.2003 i.e. for one year after
permission is accorded. Thus the machinery was not destructed and
the same were cleared on 09.10.2003.
b)      With the above and other findings, the learned Commissioner passed
an order demanding Customs Duty of Rs.26,83,590/- from M/s.Kumar 
Cotex Limited, Dokiparru (A4) along with interest and penalty of
Rs.26,83,590/-. In the said order the Commissioner also directed
confiscation of two numbers of autoconers which were already under
seizure from M/s. Sri Jayalakshimi Spinning Mills Limited. Further, he
imposed penalty of Rs.25 lakhs on A4 and Rs.20 lakhs on M/s.Sri
Jayalakshimi Spinning Mills Limited and Rs.20 lakhs on Sri Anil Kumar
Agarwal and Abhishek Aggarwal. Against the aforesaid order appeals
were preferred by A4 and others before CESTAT, Bangalore. The
CESTAT in its order dated 13.06.2017 has set aside the order of the
Commissioner as per its findings mentioned in Paras-6 and 7 which, in my
view, are germane in this petition and hence extracted thus:
Para-6   As it is not in dispute that the machinery was
dismantled under the supervision of the Central Excise
Range Officers and cleared from the factory as scrap, in our
view, it should be considered to be a DTA clearance by the
EOU attracting Central Excise duty. It was not the
clearance of the capital goods as such from the factory.
Therefore the payment of Central Excise Duty by the
assessee at the time of clearance of the scrap to M/s.SJSML
cannot be faulted. The Department has no case that there
can be no penalty on the assessee or co-appellants under the
Customs Act in relation to clearance of goods on payment of
excise duty under the provisions of the Central Excise Act.
Para-7   Apart from the above, we have also found force in
the plea of limitation raised by the assessee. The entire
demand is beyond the normal period of limitation.  No valid
case of suppression or wilful misstatement of facts, let alone
fraud, with intend to evade payment of duty has been made
out against the assessee by the Revenue. As a matter of fact,
no such finding has been recorded in the impugned order.
Therefore, the entire demand is also barred by limitation.
11)     The petitioners contention is that since CESTAT has held that
machinery was dismantled and payment of Central Excise Duty by the 
assessee as scrap and not as a capital good cannot be faulted, the criminal
prosecution on the same accusation that the machinery was not destructed
and the accused have fabricated documents in that regard, is unsustainable.
12)     I am afraid this argument cannot be countenanced for the following
reasons.
a)      Firstly, in this case the department has initiated simultaneous civil
and criminal proceedingscivil proceedings for recovery of tax evaded
with interest and penalty before the Commissioner and criminal
proceedings for punishing the accused for their conspiratorial acts of
cheating and falsification of records etc.
b)      It is a well known principle that when the same cause of action give
rise to civil and criminal proceedings, both can be initiated simultaneously.
The emancipation of the accused in the corresponding civil proceedings
will have no binding effect on the criminal proceedings and vice-versa
because the civil and criminal proceedings operate on different spheres.
The civil proceedings proceed on the principle of preponderance of
probabilities whereas the criminal proceedings take the course of proof to
the hilt.
13)     In Kishan Singh (D) through LRs. vs. Gurpal Singh and others ,
the question that came up for consideration before the Apex Court was
whether criminal proceedings can be quashed by the High Court relying
upon the finding of civil court on an issue involved in criminal proceedings
in respect of same subject matter. The respondents/accused sought for
quashment of FIR on the ground that the appellant after losing the suit for
specific performance, lodged a false FIR stating that the signature of
Kishori Lal was forged on agreement to sell. The High Court quashed the
FIR on the ground that the finding in the civil suit to the effect that
agreement to sell was not forged or fabricated is binding in the criminal
proceedings.  The Apex Court after verifying the previous judgments on
the issue, held:
Para-19: Thus, in view of the above, the law on the issue
stands crystallized to the effect that the findings of fact
recorded by the Civil Court do not have any bearing so far
as the criminal case is concerned and vice-versa. Standard
of proof is different in civil and criminal cases. In civil cases
it is preponderance of probabilities while in criminal cases
it is proof beyond reasonable doubt. There is neither any
statutory nor any legal principle that findings recorded by
the court either in civil or criminal proceedings shall be
binding between the same parties while dealing with the
same subject matter and both the cases have to be decided
on the basis of the evidence adduced therein. However, there
may be cases where the provisions of Sections 41 to 43 of
the Indian Evidence Act, 1872 dealing with the relevance of
previous Judgments in subsequent cases may be taken into 
consideration.
However, in view of the facts peculiar to that case, the Apex Court
approved the decision of the High Court.
14)     The Apex Court in K.G.Premshanker vs. Inspector of Police and
another  happened to consider the effect of a previous judgment on the
subsequent proceedings with reference to Sections 40 to 43 of Evidence
Act. The Apex Court observed thus:
Para-30: What emerges from the aforesaid discussion is --
(1) the previous judgment which is final can be relied upon
as provided under Section 40 to 43 of the Evidence Act; (2)
in civil suits between the same parties, principle of res-
judicata may apply; (3) in a criminal case, Section 300
Cr.P.C. makes provision that once a person is convicted or
acquitted, he may not be tried again for the same offence if
the conditions mentioned therein are satisfied; (4) if the
criminal case and the civil proceedings are for the same
cause, judgment of the civil Court would be relevant if
conditions of any of the Sections 40 to 43 are satisfied, but it
cannot be said that the same would be conclusive except as
provided in Section 41. Section 41 provides which judgment
would be conclusive proof of what is stated therein.
Para-31: Further, the judgment, order or decree passed in a
previous civil proceedings, if relevant, as provided under
Sections 40 and 42 or other provisions of the Evidence Act
then in each case, Court has to decide to what extent it is
binding or conclusive with regard to the matter(s) decided
therein.
Take for illustration, in a case of alleged trespass by 'A' on
'B's property, 'B' filed a suit for declaration of its title and to
recover possession form 'A' and suit is decreed. Thereafter,
in a criminal prosecution by 'B' against 'A' for trespass,
judgment passed between the parties in civil proceedings
would be relevant and Court may hold that it conclusively
establishes the title as well as possession of 'B' over the
property. In such case, 'A' may be convicted for trespass.
The illustration to Section 42 which is quoted above makes
the position clear. Hence, in each and every case, first
question which would require consideration is--whether
judgment, order or decree is relevant?, if relevant -- its
effect. It may be relevant for a limited purpose. Such as,
motive or as a fact in issue. This would depend upon facts of
each case.
15)     In Smt. Rumi Dhar vs. State of West Bengal and another , the
Apex Court was considering the application of provision of Section 320
Cr.P.C. The factual background was that the appellant and her husband
(A4) along with others including the officers of Oriental Bank of
Commerce was facing prosecution for the offences under Sections 120B,
420, 468, 461 IPC and also Section 13(2) r/w 13(1)(d) of Prevention of
Corruption Act, 1988.  The bank for realization of the amount, initiated
parallel civil proceedings before the Debt Recovery Tribunal wherein the
appellant and bank entered into settlement, pursuant to which, a sum of
Rs.25.51 lakhs was paid. Thereafter, the appellant filed a petition under
Section 320 Cr.P.C. for discharge submitting that in view of the settlement
arrived at by the parties and payment of the amount, no criminal
proceedings can be continued. The CBI opposed the petition contending
that mere payment of the loan to the bank would not exonerate the
appellant from criminal proceedings. The Special Court dismissed the
application of the appellant. The matter was carried in revision to the High
court and it was dismissed. Then, the appellant went to the Apex Court,
which observed thus:
Para-18:  It is now a well settled principle of law that in a
given case, a civil proceeding and a criminal proceeding can
proceed simultaneously. Bank is entitled to recover the
amount of loan given to the debtor. If in connection with
obtaining the said loan, criminal offences have been
committed by the persons accused thereof including the
officers of the bank, criminal proceedings would also
indisputably be maintainable. When a settlement is arrived at
by and between the creditor and the debtor, the offence
committed as such does not come to an end. The judgment of 
a tribunal in a civil proceeding and that too when it is
rendered on the basis of settlement entered into by and
between the parties, would not be of much relevance in a
criminal proceeding having regard to the provisions
contained in Section 43 of the Indian Evidence Act.
Para-19: The judgment in the civil proceedings will be
admissible in evidence only for a limited purpose. It is not a
case where the parties have entered into a compromise in
relation to the criminal charges. In fact, the offence alleged
against the accused being an offence against the society and
the allegations contained in the first information report
having been investigated by the Central Bureau of
Investigation, the bank could not have entered into any
settlement at all. The CBI has not filed any application for
withdrawal of the case. Not only a charge sheet has been
filed, charges have also been framed. At the stage of framing
charge, the appellant filed an application for discharge. One
of the main accused is the husband of the appellant. The
complicity of the accused persons was, thus, required to be
taken into consideration for the purpose of determining the
application for discharge upon taking a realistic view of the
matter. While considering an application for discharge filed
in terms of Section 239 of the Code, it was for the learned
Judge to go into the details of the allegations made against
each of the accused persons so as to form an opinion as to
whether any case at all has been made out or not as a strong
suspicion in regard thereto shall subserve the requirements of
law.
It should be noted, attention of the Apex Court was drawn to the decision in
Nikhil Merchant vs. Central Bureau of Investigation and another
wherein the Apex Court, in similar case considering that the dispute
between the parties had overtones of a civil dispute with certain criminal
facets and also considering the compromise arrived at between the
Company and the Bank and observing that continuation of the criminal
proceedings in view of compromise arrived at by the parties would be a
futile exercise, allowed to quash the proceedings. However, in Rumi
Dhars case (4 supra) the Apex Court did not incline to follow the said
decision and observed thus:
Para-23: The jurisdiction of the Court under Article 142 of
the Constitution of India is not in dispute. Exercise of such
power would, however, depend on the facts and circumstance
of each case. The High Court, in exercise of its jurisdiction
under Section 482 of the Code of Criminal procedure, and
this Court, in terms of Article 142 of the Constitution of India,
would not direct quashing of a case involving crime against
the society particularly when both the learned Special Judge
as also the High Court have found that a prima facie case has
been made out against the appellant herein for framing
charge.
16)     In Sh.Vishnu Dutt Sharma vs. Smt. Daya Sapra  observing that
acquittal of the accused in a criminal prosecution under Section 138 of
Negotiable Instruments Act would not operate as res judicata in the civil
suit filed by the plaintiff for recovery of money, the Apex Court held thus:
Para-11: There cannot be any doubt or dispute that a
creditor can maintain a civil and criminal proceeding at the
same time. Both the proceeding, thus, can run parallely. The
fact required to be proved for obtaining a decree in the civil
suit and a judgment of conviction in the criminal
proceedings may be overlapping but the standard of proof in
a criminal case vis-a-vis a civil suit, indisputably is different.
Whereas in a criminal case the prosecution is bound to
prove the commission of the offence on the part of the
accused beyond any reasonable doubt; in a civil suit
`preponderance of probability' would serve the purpose for
obtaining a decree.
17)     So, the above precedential jurisprudence would give a clear
understanding that civil and criminal proceedings can be initiated
simultaneously and judgment in one proceeding will not have impact on the
other. In the case on hand also, merely because CESTAT held that A4 and
A5 need not pay the tax as claimed before the Commissioner, Customs and 
Central Excise, Guntur and approved by him, the criminal proceedings
cannot be quashed. The judgment in civil case will not be relevant under
Sections 40, 41, 42 or 43 of the Evidence Act. At best, the said judgment
will be relevant to consider the quantum of punishment to be imposed to
the accused in case the criminal proceedings culminate in conviction.
18)     Secondly, as extracted supra, in para-6 of its order, the CESTAT
observed as if it was not in dispute that machinery was dismantled under
the supervision of the Central Excise Range Officers and cleared from the
factory as scrap. When the foundation for case of the Department was that
two autoconers were not destructed despite obtaining permission, it is quite
astounding as to how the CESTAT observed that the destruction of two
autoconers was not in dispute. Therefore, though the order of the CESTAT
attained finality on civil side, still criminal proceedings against fraud and
cheating can be independently established by the prosecution.
19)     Thus, on a conspectus, I find no merits in the case of petitioners.
Accordingly, the Criminal Petition is dismissed.
        As a sequel, miscellaneous petitions pending, if any, shall stand
closed.
_________________________   
U. DURGA PRASAD RAO, J     
Date: 02.03.2018

Criminal trial = APPRECIATION OF EVIDENCE AND CREDIBILITY OF WITNESS = Any violation in the procedure, by the people concerned, cannot be allowed to operate to the detriment of the victims, who have no role to play in the compliance and non compliance of the prescribed procedure. The sentry book, no doubt, shows that the accused was on sentry duty from 18:00 to 20:00 hours; P.W.13 explains that no entries would be made in the sentry book, if people go out for short time. ; When something which finds place in the report, does not find place in the 161 Cr.P.C. statement, it loses significance as an omission, while appreciating the credibility of the witness.

THE HONBLE SMT JUSTICE T.RAJANI     

Criminal Appeal No.199 of 2008

01.03.2018

Punam Satyanarayana Dora..... Appellant

State of A.P. ..... Respondent

Counsel for Appellant:Mr. G.V.Shivaji

Counsel for Respondents:Public Prosecutor (AP)
                                               
<GIST   :

>HEAD NOTE : 

? Cases referred :

SMT. JUSTICE T.RAJANI   

Criminal Appeal No.199 of 2008

JUDGMENT: 

        Impugning the legality of the judgment passed by the Sessions
Judge, Mahila Court, Vijayawada in S.C. No.8 of 2005 on 06.02.2008,
this appeal is preferred by the appellant, who is the accused in Crime
No.72 of 2004 of G.R.P. Rajahmundry Police Station.

        For the benefit of better understanding of the case, the facts,
in brief, are stated as follows.

        The accused was working as a Police Constable in Godavari
Outpost Police Station, Rajahmundry.  The victim girl is resident of
Poolaa village in West Godavari District.  Her marriage was held with one
S.Subrahmanyam of Undi village.  Due to disputes with her husband,
she went to her parents house, ten days prior to the incident.  When her
parents were making attempts to send her to the house of her husband,
through the elders, she, under the thought that if she is sent to her
husbands house, without meeting his demands, she would be again 
harassed, left her parents house on 28.06.2004 and went to Godavari
Railway station, on the same day at about 7 or 7.30 pm., and was sitting
on the platform.  Then the accused came to her and enquired about her
family background, disclosing himself as Police constable and enquired
about the reasons for her coming to the Railway station.  He, then,
forcibly took her to Godavari Railway bridge on a motorcycle and
indecently behaved with her, from there he took her to a room in
Arunodaya Lodge, near Godavari Bridge and there he attempted to
commit rape on her.  Then she escaped from him and came to Godavari 
Railway station.  The accused again came and beat her with hands,
by abusing her in vulgar language and took her to Godavari Railway
Police station and confined her in that station. Another constable by
name G.David Raju, informed the same to Head Constable and on that 
the Head Constable came to the Railway Police Station and kept a
woman Police constable, to look after her safety and telephoned to her
brother.  Her brother came to the spot and on the narration of the victim,
report was given by him with regard to the alleged offences.
The accused was sent for medical examination, wherein he was found to
be in a drunken state.  The victim girl was also sent for medical
examination, wherein injuries were found on her body.  After due
investigation, charge sheet was laid against the accused for the offences
punishable under Sections 323, 342, 376 read with 511 IPC.

        The learned trial Court, on the side of the prosecution, examined
P.Ws.1 to 13 and marked Exs.P-1 to P-9.  On the side of the defence,
none were examined, but Ex.D-1, in the statement of P.W.1, was marked.
After appreciating the evidence on record, the learned trial Court found
the accused not guilty for the offence punishable under Section 376 read
with 511 IPC but found the accused guilty for the offences punishable
under Sections 323 and 342 IPC and sentenced him to undergo simple 
imprisonment for a period of three months and to pay a fine of Rs.500/-
and in default to suffer simple imprisonment for a period of one month
for each of the offences.  Against the said judgment the present appeal is
preferred on the following grounds:

        The Court below failed to appreciate the contradictions in the
evidence of P.Ws.1 and 2 to 6; failed to consider the delay in giving the
report; failed to see that the P.W.1 stated in the chief examination that
on the telephone call made by the P.W.5 to P.W.6, asking him to come,
he came to the Police Station and that she narrated the entire incident to
him and that he has taken her to the Rajahmundry Police Station,
but she did not state about the incident of beating her in the presence of
P.W.6., whereas,  P.W.6, in order to implicate the appellant gave undue
statement, as if he found the appellant beating the complainant on her
neck, with his hand; it also failed to consider the evidence of P.W.12,
who is a Civil Assistant Surgeon, who examined the complainant and
issued certificate, mentioning that the injuries are simple in nature and
as such Section 323 IPC itself is not attracted.

        Heard the learned counsel for the appellant and the learned Public
Prosecutor and perused material placed on record.
       
      The learned counsel for the appellant reiterated the grounds taken
in the appeal, while the learned Public Prosecutor contended that the
appreciation of the evidence by the learned trial Court is on proper lines
hence, the impugned judgment needs no interference.

        The points that arises for consideration before this Court are:

1.      Whether the evidence of P.W.1 and other witnesses inspires
confidence and whether it is affected by the inconsistencies that
are pointed out in their evidence.

2.      Whether the impugned judgment is sustainable under law.

3.       To what result.

      Point No.1: The learned trial Court, by considering that there was
an element of willingness on the part of the victim, in going along with
the accused, to the Godavari Railway bridge and to the places thereafter,
exonerated the accused from the offence punishable under Section 376
read with 511 IPC.  But, however, the learned trial Court believed the
version of P.W.1, which is corroborated by the medical evidence,
to the extent, sufficient for arriving at the guilt of the accused,
for the offences punishable under Sections 323 and 342 IPC.  It is the
propriety of the said evaluation done by the learned trial Court,
that is brought to question in the present appeal.

      The learned counsel for the appellant relies on the inconsistencies
in the evidence of the witnesses, to contend that the entire evidence is
unreliable. Now let us look at the facts.  The age of the victim girl is
stated to be 19 years.  The evidence of her, as P.W.1, that she came to
the Railway station as she did not want to go to her husbands house is
corroborated by the evidence of P.W.2, who is her brother.  From the
above behavior of P.W.1, who is aged 19 years, it can be understood that
she did not develop maturity, to the level, sufficient enough to take care
of herself and to face the situations with which she is confronted in life.
It also appears that she was in a helpless state.  A girl, aged 19 years,
sitting at a Railway station, without any direction as to how she should
go about in her life, can be expected to be in state of confusion and
vulnerability.  There arises, no doubt, with regard to what she stated.
But, however, a benefit of doubt was extended to the accused, by virtue
of the fact that she did not raise any cries, while she was being taken on
the motorcycle by the accused and thereafter.  Whether the said
approach of the learned trial Court was right or wrong is not for this
Court to decide in the instant appeal. But it would suffice to say that the
truth in part of the version of P.W.1 had to be upheld by the learned trial
Court, in spite of it seeing an element of consent on the part of the
P.W.1, as there was sufficient corroboration for that part of her evidence,
which the learned trial Court believed.

      The inconsistencies, with regard to the injuries, as pointed out by
the appellants counsel, is about the manner in which the injuries were
caused on her body.  In the report given by P.W.1, she stated that the
accused came to her, holding a stick and beat her, while the evidence of
P.W.6, which is that of the Head Constable (Retd.,) shows that the
accused beat her with hand.  The learned counsel contends that the
injuries as stated by the Doctor, P.W.12, cannot be sustained, when a
person is beaten with hands. The injuries are in the form of a contusion
on left shoulder about 2 x 1 red in colour and a linear abrasion on the
medial aspect of lower 1/3rd of left forearm, about  length red in
colour.  If the Court sees an element of truth in the version of the victim,
that would suffice to believe her evidence. The mental state of a woman
in a vulnerable state, stands beyond explanation.  A hyper technical
approach in evaluating her evidence may not be warranted.

      The argument that beating with hands would not cause a
contusion and abrasion, cannot be upheld.  Whether the beating has
taken place or not has to be understood from the manner in which the
witnesses deposed before the Court.  There is no animosity proved
between the appellant and P.W.6, who stated that the accused beat
P.W.1 with hand.  The case of P.W.1 has been consistent, both in the
report and in her evidence.  She states that accused approached her with
a stick and beat her.  There are two instances of beating, stated by
P.W.1. One is when she was sitting on the platform along with two other
passengers and the other instance is, when the accused took her to the
cell.  The second instance of beating is not stated to be with a stick and it
can be understood that it is the second beating that was witnessed by
P.W.12.  The contusion was found on the shoulder but not on the neck of
P.W.1, which is the place of beating, stated by P.W.6.  Hence, it is
possible that the contusion was caused by beating with a stick.  So also
the abrasion.

      The effort made by the appellants counsel to make the evidence of
P.W.13, unreliable, based on the entries made in the sentry book turns
vain. Any violation in the procedure, by the people concerned, cannot be
allowed to operate to the detriment of the victims, who have no role to
play in the compliance and non compliance of the prescribed procedure.
The sentry book, no doubt, shows that the accused was on sentry duty 
from 18:00 to 20:00 hours; P.W.13 explains that no entries would be
made in the sentry book, if people go out for short time.  The witness
examined as P.W.5, is one G.David Raju.  According to him, P.W.1 came 
and questioned the accused.  But he somehow did not support the whole
version of P.W.1. But, his evidence shows that he was told in the Police
Station, that the accused attempted to commit rape on one lady on the
previous night and then the Sub Inspector of Police handed over the
accused to him, saying that he was arrested. There may be many reasons 
for the witnesses not to come out with whole truth. But if the stated facts
get corroboration from the prime witness, it would certainly lend support
to the credulity of the version of the said witness. The presence of P.W.1
at the platform is undoubtedly proved. The presence of the accused is
also proved. The evidence of P.W.5 is almost in the form of Res gestae,
as he was informed about the acts of the accused almost immediate to
the incidents and it becomes admissible, by falling out of the hearsay
category of evidence. The injuries are proved and they are not alleged to
be self inflicted. Omission to state about beating with a stick, does not
affect the testimony of P.W.1, as she stated the same in the report, which
is earlier to the statement and the said omission, then, can, safely,
be attributed to the erroneous recording of the statement.
When something which finds place in the report, does not find place in
the 161 Cr.P.C. statement, it loses significance as an omission,
while appreciating the credibility of the witness.

      P.W.3 is a constable, speaks about the accused bringing a lady and
making her sit in the station and about his informing the matter to
P.W.6. Though he was declared hostile, the facts stated in his chief
examination, would lend support to the testimony of P.W.1, to the extent
of wrongful confinement by the accused. P.W.4, another constable,
speaks about his taking the accused to hospital, for examination of his
drunkenness. A certificate is stated to have been issued by the doctor.
As regards the delay in giving the report, very cogent explanation comes
from P.W.6, who says that P.W.1 asked him to wait till her brother
comes. It is very probable that she, in the state she was, would wait for
her brother to arrive, for taking any decision on what has happened, as,
it involved a police person and she would, probably, want her brother to
advise her on the consequence of lodging a report. Hence,
a comprehensive appreciation of the evidence, would lend credibility to
the evidence of P.W.1 and would conclusively prove the guilt of the
accused, for the offences punishable under Sections 323 and 342 IPC.

      POINT No.2: Hence, in view of the discussion, under point No. 1,
this Court does not find any reason to set aside the impugned judgment.

      POINT No. 3: In the result, this Criminal Appeal is dismissed.

      Miscellaneous petitions, if any, pending in this appeal shall stand
closed.
_____________________   
JUSTICE T.RAJANI 
Date: 01.03.2018

or.21, rule 90 CPC- claim petition by society - non production of mortgage deed - sale conducted by suppressing the mortgage - trial court and appellant court dismissed the claim petition - High court remand the case for fresh disposal giving an opportunity to the society to adduce fresh evidence as there are allegations of misappropriation of public fund by Jdr in the capacity of president of society.

HONBLE DR. JUSTICE B. SIVA SANKARA RAO       

CIVIL REVISION PETITION No.5834 of 2011   

09-03-2018

Rowthulapudi Primary Agricultural Cooperative Credit Society Petitioner

Kalla Sitaramam and 4 others .Respondents   

Counsel for the petitioner :Smt. B. Vijaya Lakshmi

Counsel for the respondents : Sri KB. Ramanna Dora

<GIST:

>HEAD NOTE:   


? Cases referred
1.2015 (4) ALD 693
2.2011 (3) ALD 626


HONBLE DR. JUSTICE B. SIVA SANKARA RAO       

CIVIL REVISION PETITION No.5834 of 2011   

ORDER: 
      The revision petitioner is the unsuccessful party in
E.A.No.89 of 2009 and CMA.No.36 of 2010 maintained the 
revision against the concurrent dismissal orders and findings of
the learned Senior Civil Judge, Peddapuram (Executing Court)
vis--vis learned III Additional District Judge, Kakinada, East
Godavari District (first appellate Court).  The revision petitioner is
a third party to the proceedings in O.S.No.21 of 2006 and
E.P.No.1 of 2008.  The plaintiff in the suit was one K.Sitaramam
(decree holder/auction purchaser) and the defendants are
B.Lakshmi, B.Chakradharudu, B.Nookaraju and B.Sudheer (wife 
and 3 children of late B.Appanna Babu).
      The suit O.S.No.21 of 2006 was filed based on the foot of
pro-note said to have been executed by said Appanna Babu by
creating the property as collateral security for the pro-note debt
in maintaining suit and the suit O.S.No.21 of 2006 was decreed
by the Senior Civil Judge, Yalamanchili, and the decree was
transmitted for execution to the Senior Civil Judge, Peddapuram,
where the property lies.  It is in the course of execution, the
decree holder on his application under Order 21 Rule 72 CPC was
permitted to bid and became the bidder of the property and the
auction held on 20.02.2009 and knocked the bid in his favour for
Rs.2,26,000/- and after adjustment of the decree amount he
deposited balance amount of Rs.48,916/- into Court and later for
grant of sale certificate for filing of Non-judicial stamp papers to
engross the sale in favour of auction purchaser/decree holder the
matter when posted, the petitioner/society states came to know of
it and approached the Sub Registrar, Tuni and obtained
encumbrance certificate and found that the said B.Appanna Babu 
created mortgage over item No.1 of E.P. schedule property on
10.06.1998 itself in favour of society and the mortgage debt is in
subsistence that was not liquidated and suppressing the facts the
property brought to sale.  Said claim petition in E.A.No.89 of
2009 contested by decree holder/auction purchaser and the
J.Drs. remained exparte and the counter of the decree
holder/auction purchaser was that the petitioner society and
J.Drs./respondent Nos.2 to 4 colluded in placing all the ended
transactions to cause inconvenience and hardship to the decree
holder/auction purchaser and it is a contested decree and based
on that in execution, property was attached and after obtaining
EC the property brought to sale and the decree holder became the
auction purchaser.  The society kept all the time silent filed the
present petition at the belated stage without any just cause and
has no bonafides and the claim petition is liable to be dismissed.
It is therefrom by formulation of points for consideration in E.A.
as to the society is entitled to the declaration that the sale held in
E.P.No.1 of 2008 is illegal and irregular and to set aside.  In
deciding the above point in the claim petition in the course of
enquiry on behalf of claim petitioner/society, the PW.1 one YSB
Dora was examined and placed reliance on Exs.P1 to P4 viz., 
registration copy of the mortgage deed executed by B.Appanna 
Babu, Photostat account copy of mortgage loan transaction, EC 
and certified copy of the order of attachment issued by Divisional
Cooperative Officer, Peddapuram.  On behalf of the decree
holder/auction purchaser contesting respondent to the claim
petition he came to witness box as RW.1 and no documentary 
evidence or further oral evidence adduced.  From the above, the
learned SCJ dismissed the said claim petition E.A.No.89 of 2009
on 24.08.2010 with the observation that PW.1 in his cross
examination stated of no personal knowledge about the Ex.P1
mortgage transaction of the mortgage created by B.Appanna Babu 
covered by Ex.P2 account copy of the loan amount due and no 
person having personal acquaintance with the mortgage
transaction on behalf of the society and marking of Ex.P1
registration copy of the mortgage deed not established the
mortgage for PW.1 has no personal knowledge of the transaction
and said B.Appanna Babu worked as President of the society
during 1992-2005 according to PW.1 however no document filed
in this regard and there is no order to say the report of Deputy
Registrar of Cooperative society as Appanna Babu and Meera
Mohiddin were directed to pay Rs.7,10,186/- to the society in
respect of the alleged misappropriation of funds by said Appanna
Babu and there is no evidence produced to consider the same
thereby even Ex.P1 there is endorsement, the same was returned
to the President of the society for not in proper way even to call it
as proper mortgage deed and the property auctioned in E.P.No.1
of 2008 and the mortgage property not correlate to the claim and
PW.1 admitted about the loans as on 31.03.2007 was waived to
say a loan of Appanna Babu to take as waived.  The claim
petitioner cannot claim of there is valid attachment of the EP
schedule property by the Deputy Registrar of Cooperative society
from said evidence of PW.1 with reference to Exs.P1 to P4
including certified copy of the order of attachment issued by
DCO.  It is observed that RW.1, decree holder/auction purchaser
deposed in his evidence about the alleged debt of Appanna Babu
even if true as it is wiped out under Debt Relief Scheme, 2008, of
the alleged debt of agriculturist due by 31.03.2007 and the mere
pendency of departmental enquiry for the so called
misappropriation cannot be a ground to say the debt not wiped
out and the sale was proclaimed in Surya Telugu daily newspaper
and there are no grounds to set aside the sale under Order 21
Rule 90 CPC that too when the claim petitioner/society failed to
prove the so called mortgage debt over the EP schedule property.
Thereby held the claim is liable to be dismissed for nothing to set
aside the sale.  The CMA.No.36 of 2010 filed by the society was
also ended in dismissal on 08.11.2010 with the observations that
evidence of PW.1 shows original defendant Appanna Babu 
committed irregularities in society while dealing with affairs as
President and departmental enquiry conducted in directing to pay
Rs.7,10,186/- along with others and for its realization Ex.P4
attachment order passed and a perusal of Ex.P4 shows Deputy 
Registrar, Peddapuram by order dated 23.03.2005 passed 
directing Assistant Registrar of DCO Office, Peddapuram, to
conditionally attach the properties of Appanna Babu for recovery
of the misappropriated amount of Rs.3,89,660/- with interest of
Rs.4,65,173/- with subsequent interest at 18% per annum.
However there is no evidence to show said attachment was
affected, as PW.1 did not file any document of said attachment
was affected pursuant to Ex.P4 proceedings, including from his
say in cross examination of no document filed of attachment
affected thereby society failed to prove properties of the original
J.Dr. were under attachment of the society.  Ex.P1 registration
extract of mortgage deed and Ex.P2-photostat account copy of the
mortgage loan transaction and the borrowal even not disputed by
filing counter by the J.Drs. or by the auction purchaser of the
E.P. as one of the respondents what is contended is debt has
been waived because of debt waiver scheme applies to the debts
outstanding by 31.03.2007.  A perusal of Ex.P1 mortgage deed
shows it is only registration extract and the recitals at the fag end
shows registration authority returned the document for
compliance of objections and nothing to show objections complied
with and if so when and which date the document was registered,
though it is a compulsory registerable document and to be proved
by examining anybody connected with and none connected with 
Ex.P1 were examined.  Thereby evidence of PW.1 is of no avail
and also he deposed in his cross examination of he cannot say
whether there are recitals in Ex.P1 to the effect that mortgage
deed returned to the President of the society due to defects and
unless he see the records he cannot say details of mortgage
property including survey numbers and even he deposed about
Ex.P1 original is in the head office, no steps taken to get the
original marked, thereby failed to prove the said mortgage
transaction and PW.1s evidence shows mortgage debt has been   
waived of what is originally borrowed of Rs.25,000/- though PW.1
stated of no waiver given to the loans in respect of which enquiry
is pending for misappropriation even according to him there is no
enquiry pending with regard to mortgage loan covered by Ex.P1,
leave apart original J.Dr. is an agriculturist and the loan was for
agricultural purpose availed to say it might have been waived and
for the foregoing discussions, the appellant-society failed to
substantiate the claim to seek set aside the sale.  Thereby, CMA
ended in dismissal.
      In the revision impugning the same the grounds urged are
that the concurrent findings of the court below are erroneous or
perverse and unsustainable and devoid of merits and it results in
failure of justice.  The Courts below should have seen that Ex.P4
attachment proceedings dated 23.03.2005 issued by Deputy  
Registrar of Cooperative Societies in exercise of power conferred
under Section 73 of the Act in issuing order of attachment and
Courts below should have seen that for the misappropriation of
funds and irregularities committed by said Appanna Babu while
dealing with the affairs of the society enquiry conducted and in
directing to pay Rs.7,10,186/- and for its realization Ex.P4
attachment was ordered and Courts below gravely erred in
holding debt contacted by said Appanna Babu is waived without
any evidence in support of it and should have seen that original
J.Drs. and the decree holder/auction purchaser colluded and
Exs.P1 to P3 establishes the subsistence of the mortgage debt of
the mortgage over the property entered on 10.06.1998.
      Whereas it is the submission of the learned counsel for the
respondents to the revision, the auction purchaser of the
impugned orders of the Courts below with concurrent findings no
way requires interference while sitting in revision.
      Learned counsel for the revision petitioner placed reliance
on the expression of this Court in NCV Subba Rao Vs. Gunda 
Anka Rao , saying as can be seen from Order 21 Rule 90 CPC  
sale of the property in execution of the decree can be set aside on
the ground of material irregularity or fraud in publishing or
conducting sale and the ground available for setting aside the
sale is material irregularity.  Once that is not shown even full
description of property not given or market value shows lesser to
actual value cannot be a ground to set aside the sale when such
plea not taken on or before proclamation of sale drawn up.  The
above decision has no application since the facts are entirely
different.  In Mamillapalli Jyothish Kumar Vs. Deputy
Registrar, DCC Bank, Eluru  it was held that any alienation after
statutory charge under Section 36 of the Act 1964 is void.
      Heard both sides and perused the material on record.
      Ex.P4 is the certified copy of the order of attachment issued
by the Divisional Cooperative Officer, Peddapuram.  The only
thing to be seen therefrom with reference to evidence of PW.1 is
the attachment effected or not for the amount of Rs.7,46,186/-
which includes amounts misappropriated as Ex-President of the
society by late Appanna Babu that comes to Rs.7,10,186/-
covered by regular departmental enquiry by the Deputy Registrar
of Cooperative Societies in passing the surcharge proceedings in
Roc.No.594/03 dated 03.12.2005.  The claim petition averments
clearly show the attachment was affected and PW.1s evidence
speaks he has no personal knowledge of the attachment is
effected or not.  The counter filed by the auction
purchaser/decree holder of the suit O.S.No.21 of 2006 it is not
shown any specific denial of attachment affected nor in the
evidence as RW.1 he did not specifically say no attachment
effected, leave about of official acts are presumed to be duly
performed unless contrary is shown and at best if at all there is
any doubt, any of the Courts below should have been asked for
production regarding attachment is effected if not by the lower
Court remand the matter to the trial Court that too when there is
a huge amount of misappropriation and what is wiped out of the
agricultural debt of the mortgage for Rs.36,000/- and odd even
that mortgage deed was returned with defects before registration
and not even registered. Once for the agricultural loan that
mortgaged is covered, the Courts below should have been
considered whether the document is contemporaneous to the 
debt or a subsequent acknowledgment of the past transaction by
the terms used therein. Once such is the case of any
acknowledgment of past transaction registration is not
compulsory as per the settled law rather than saying it is not
proved the question of proving arise for a registered mortgage for
compulsory registerable if there is a specific denial under Section
68 of the Evidence Act and not for a document nor a registered
mortgage and once that is the conclusion arrived by the Courts
below of not a complete registered mortgage then the question of
proving does not arise even the same is stated a registration
extract.  Once such is the case, it is outcome of registration and
even it is not a registered one and the document not in dispute by
specific contentions in the cross examination, but for in saying no
persona knowledge for not a case of forged or fabricated or untrue
transaction, but for in saying the debt is deemed wiped out and
that when evidence of PW.1 shows for those persons where 
departmental enquiry and irregularities pending they did not wipe
out the debt and once such is the case, the deemed wiping out
does not arise for the mortgage in subsistence and any sale by
attachment for recovery of any money decree then shall be
subject to mortgage debt that is not done in the case on hand,
leave apart even for the surcharge proceedings of the
misappropriation amount attachment proceedings issued, but for
not given clarification from lack of personal knowledge of PW.1.
Once the proceedings is to effect and deemed effected by drawing
presumption it is subject to that attachment any sale by Court
attachment shall follow and it was not down in the case on hand
and that too to say it is collusive one, the publication is in Surya
Telugu daily non circulated local newspaper and J.Drs. not even
contested being the LRs of Appanna Babu.  It is the decree
holder/auction purchaser with permission of the Court knocked
the bid and it is not even an observation by Court in considering
what is the market value of the property with reference to Sub
Registrar value and Amin value and decree holder value and J.Dr.
value.  As it is one of the primary duties of Court under Order 21
Rule 64 CPC only to sell the extent required and not the whole
property, leave apart the prior attachment if at all in subsistence
and prior mortgage of the society if at all in subsistence, the sale
in favour of the decree holder/auction purchaser of the suit debt
shall be subject to the above dismissal of the claim petition and
the dismissal of the appeal by the Court is unsustainable and
accordingly set aside.
      Having regard to the above, the Civil Revision Petition is
allowed by setting aside the dismissal order confirmed in appeal
and by restoring the E.A.No.89 of 2009 by remanding to the
Executing Court for deciding afresh by affording further
opportunity to the claimant-society and the contesting
respondents viz., decree holder/auction purchaser and J.Drs. of
the execution proceedings of the decree in O.S.No.21 of 2006, to
decide the E.A.No.89 of 2009 on own merits afresh therefrom
preferably within six months from the date of receipt of this order.
      Consequently, miscellaneous petitions, if any shall stand
closed.  No costs.
_____________________________________     
JUSTICE Dr. B.SIVA SANKARA RAO     
Date: 09.03.2018

Section 500 IPC = information given by the accused to the reports, without any intent of getting the same published.= whether the publication made, allegedly, containing imputation which would harm the complainant, is at the behest of the accused. The above discussion has already surfaced the innocence of the accused with regard to the publication made in the newspaper. It is only when the accused was enquired by the reporters, that she had to reveal the reason for her attempt to commit suicide and in that process, she revealed the reason but it is not with an intent to get the same published through P.Ws.2 and 3. It is only P.Ws.2 and 3, who decided to publish the information, which was divulged to them. Hence, the defamation, if any caused by the article, is due to the publication made by P.Ws.2 and 3 but not by the information given by the accused to them, without any intent of getting the same published.

SMT. JUSTICE T. RAJANI 

CRIMINAL APPEAL No.1094 of 2008   

22.02.2018

Dr. Tumu Venkata Ramana Chandra Prasad.... APPELLANT     

Smt. K. Varalakshmi and another.... RESPONDENTS   

Counsel for Appellant:PARTY-IN-PERSON   

Counsel for Respondents:MR. GLV RAMANA MURTHY   PUBLIC PROSECUTOR (AP)             

<GIST   :

>HEAD NOTE:   

?Cases referred:

SMT JUSTICE T. RAJANI   
CRIMINAL APPEAL No.1094 of 2008   
JUDGMENT: 

        Aggrieved by the acquittal of the accused in CC.No.133 of 2004,
by virtue of the judgment dated 05.06.2008, passed by the Munsif
Magistrate, Vinukonda, the appellant filed this appeal.

2.      Briefly, the facts of the case can be stated as under:
        The defacto complainant, who is the appellant herein, took
charge as Medical Officer, Government Hospital, Vinukonda on
22.05.2002 and he was in charge till 21.03.2003. He was awarded
best Family Planning Surgeon by the District Medical and Health
Officer, Guntur, the then Honble Health Minister and the District
Collector, Guntur, respectively. He also worked as in charge for the
Primary Health Centers, Enugupalem and Bollapalli in addition to
Government Hospital, Guntur. In the month of January 2004, one staff
nurse by name K. Vara Lakshmi, who is the accused, absconded from 
duty, after putting signature in the attendance register. In spite of
several oral instructions, she used to commit the same irregularity.
He instructed the in charge UDC to obtain leave letter from her,
but the acccused, without submitting the leave letter and any
explanation, created a drama at her residence, that she was
attempting to commit suicide by hanging. In fact, there was no such
attempt and there was no harassment. No case was registered against
her.  The husband of the said staff nurse, who is the accused in this
case, is a quack Doctor running a clinic and the accused used to attend
that clinic by absconding from duty at Government Hospital,
Vinukonda.
       The accused made people believe that she attempted suicide by
hanging. It is a pre-planed and pre-meditated act, with evil desires, so
as to bring the complainant to terms with her. There was a news item
published in Andhra Jyothi dated 07.02.2004 with baseless and false
allegations. Due the above behaviour of the accused, the complainant
suffered mental agony. The news item is defamatory, inasmuch as it
had denounced him falsely and it lowers the respect and estimation in
the hearts of the readers of the newspaper. Hence, the complaint was
filed by the defacto complainant.

3.      After following the legal formalities, the Court below tried the
case and based on the evidence, it passed the impugned judgment,
on which this appeal is preferred on the following grounds:
        The Magistrate ought to have seen that the accused absconded
from duty after putting signature in the attendance register, in spite of
several oral instructions and ought to have seen that there was no
harassment by the appellant, for an attempt to commit suicide by the
accused. The Magistrate ought to have seen that the evidence of
P.Ws.4, 5 and 6 corroborated to the extent of irregular attendance of
the accused and ought to have seen that it establishes that they went
to the residence of the accused on 06.02.2004 and noticed that there
were no signs and symptoms of attempt to commit suicide.
The Magistrate ought to have seen that the news item in the Andhra
Jyothi is without any material evidence and false and ought to have
seen that the news item is a clear imputation concerning the appellant
and intending to harm the reputation of the appellant. The Magistrate
ought to have seen that Ex.D3 disclosed that the accused absconded
from duty. The Magistrate ought to have seen that the Collector,
Guntur furnished a letter dated 15.12.2006 to the appellant stating
that as per the records available in their office, no such letter in
Rc.No.392/E1/2004 dated 08.04.2004. 

4.      Based on the grounds raised in the appeal and the arguments,
extended by the appellant in person, which are same as mentioned in
the grounds of appeal, the following points can be taken up for
consideration:
1.      Whether the alleged news paper item is published at
the instance of the accused.
2.      Whether the offence punishable under Section 500 of
the Indian Penal Code is made out against the
accused.
3.      To what relief.

POINT Nos.1 and 2:

5.      A glance at Section 499 IPC, would be profitable, to appreciate
whether the news item, if, was published, at the instance of the
accused, amounts to defamation or not.
499. Defamation.Whoever, by words either spoken or 
intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such person, is
said, except in the cases hereinafter expected, to defame that
person.

       Explanation 1.It may amount to defamation to impute
anything to a deceased person, if the imputation would harm
the reputation of that person if living, and is intended to be
hurtful to the feelings of his family or other near relatives.

       Explanation 2.It may amount to defamation to make
an imputation concerning a company or an association or
collection of persons as such.

       Explanation 3.An imputation in the form of an
alternative or expressed ironically, may amount to defamation.

       Explanation 4.No imputation is said to harm a persons
reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character
of that person, or lowers the character of that person in respect
of his caste or of his calling, or lowers the credit of that person,
or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgrace-
ful.

6.      The appellant vehemently contends that there is ample evidence
to show that the accused absconded from duty and that Ex.D3
evidences the same. The absconding nature of the accused is spoken
to, by not only by P.W.1 and P.W.4, with whom, allegedly, P.W.1 had
intimacy as per the news paper publication, but also P.W.5, who is
another staff nurse working in the same hospital.

7.      All the above three witnesses consistently spoke about the
regular absence of the accused from duties. The evidence of P.W.5
further shows that she went to the house of the accused but did not
notice any signs or symptoms of hanging by the accused. With regard
to any attempt, by the accused, to commit suicide, the evidence of
P.Ws.2 and 3, who are the reporters of the news papers in Andhra
Jyothi and Eenadu, would show that an information was passed on to
them that the accused attempted suicide. Information was not stated
to have been passed on by the accused, in which case it can be said
that, that information might have been false. When the information
comes from someone, other than the accused, it suggests that the
information was correct. P.W.5 cannot be considered as a witness, who
had expertise to examine the scene of offence and arrive at a
conclusion that there were signs or no signs of hanging. Moreover,
hanging does not leave any remarkable signs. Hence, to the extent of
the accused attempting to commit suicide, the evidence of P.Ws.2 and
3 can be relied upon and it can be said that there was an attempt of
suicide by the accused.

8.      The next question would be whether it is the accused,
who reported about her attempt to commit suicide to P.Ws.2 and 3 so
as to get it published in the news papers. In the above paragraph,
it was observed that it is not the accused, who gave the information.
The evidence of P.W.2 is that someone called him over phone and
informed that the accused was trying to commit suicide.  It is on such
information that he went to the house of the accused, where he found
her and it is only when he enquired with her as to what happened, she
informed him that due to the harassment of the complainant, she tired
to commit suicide. He also spoke about other news paper reporters,
who were present there. On the basis of the information given by the
accused, he had sent news item to their office and they got published
the news item. The evidence of P.W.3 is also on the same lines.
He spoke that on information, he went to the house of the accused,
but he did not specify that the information was given by the accused.
Hence, what comes out from the evidence of P.Ws.2 and 3 is that the
news of the attempt to commit suicide by the accused came to them
through some other source, but not through the accused and on such
information, they went to the house of the accused and it is when they
enquired with the accused, that the accused disclosed to them the
reason for her attempt to commit suicide.

9.      The material aspect that is required for assessment of the guilt
of the accused for the offence punishable under Section 500 IPC is
whether the publication made, allegedly, containing imputation
which would harm the complainant, is at the behest of the accused.
The above discussion has already surfaced the innocence of the
accused with regard to the publication made in the newspaper.
It is only when the accused was enquired by the reporters, that she
had to reveal the reason for her attempt to commit suicide and in that
process, she revealed the reason but it is not with an intent to get the
same published through P.Ws.2 and 3. It is only P.Ws.2 and 3, who 
decided to publish the information, which was divulged to them.
Hence, the defamation, if any caused by the article, is due to the
publication made by P.Ws.2 and 3 but not by the information given by
the accused to them, without any intent of getting the same published.

       When such is the conclusion on the role of the accused, in
getting the news item published, the argument that she has been
absconding and that the same is proved through the witnesses, does
not have any relevance. Hence, in view of the above, this Court opines
that there is no need for any interference with the judgment of the
Court below.

        The points are accordingly answered.

        The criminal appeal is dismissed. As a sequel,
the miscellaneous applications, if any pending, shall stand closed.
__________ 
T. RAJANI, J
February 22, 2018