Telangana High Court
Sundari Nageshwer Rao vs The State Telangana on 7 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1461 OF 2022
ORDER:
This Criminal Petition is filed under Section 482 of Cr.P.C to quash the proceedings in F.I.R.No.14 of 2022 pending on the file of the P.S.Penpahad registered for the offences under Sections 420, 406, 409 r/w.34 IPC. According to the petitioner, he is accused No.7 and according to the prosecution, he is accused No.1.
2. Heard Sri.G.L.Narsimha Rao, learned Counsel for the petitioner and learned Public Prosecutor for the State.
3. As per the complaint, the allegations levelled against the accused including the petitioner herein are:
i. Lingala PPC was run by the Injamuri Padma, President IKP group, Tallapalli Kalyani, VOA, Sri.Tallapalli Madhu, Tab Operator, Yesuraju Rajeshwari, Member, IKP and Gundu Upendra, Member, IKP group at Village level and they have procured paddy for Vanakalam (rainy season). The 2 paddy procurement ended in Suryapet District on 25-12-2021 and all the Paddy Procurement Agencies personnel were requested to submit Truck Chits, details of Paddy Procured etc., to the DM(CS), Suryapet, and payment was also made.
ii. Certain political parties have leveled allegations against Paddy procurement in Lingala Village of Penpahad Mandal and the District Collector, Suryapet, had constituted 9 teams to enquire into the allegations and submit report.
iii. Teams have enquired into the allegations and enquired all the 139 farmers and found 35 farmers as fake farmers and an amount of Rs.1,05,04,816.00 was credited into their accounts and the same truck chits were accepted by the certain Millers, including M/s.Sri Hanuman Shiva Sai Rice Industries, Gaddipalli, to which the wife of the petitioner herein i.e., Sravanthi Sundari is owner. The amount misappropriated by IKP group members and millers in collusion with M/s.MKR Rice Industries, Gaddipalli and Sri.Hanuman Shiva Sai Rice Industries, Gaddipalli.3
4. Sri.G.L.Narsimha Rao, learned Counsel for the petitioner would submit that petitioner has nothing to do with the said M/s.MKR Rice Industries, Gaddipalli and Sri.Hanuman Shiva Sai Rice Industries, Gaddipalli, and his wife is partner. The petitioner is the Surpanch of the said Village and belongs to the Congress party and therefore, the Police have implicated the petitioner herein in the present case at the instance of ruling party leaders.
5. He would further submit that the proceedings under Custom Milling Order, 2015 were already initiated against the said Rice Mill and Showcause Notice dated 11-02- 2022 was issued to the said Mill and the said Mill had already submitted its reply to the said Showcause Notice dated 11-02- 2022. He would further submit that the said Rice Mill has obtained all permissions from the concerned authorities, even though the Police have implicated the petitioner in the present crime.
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6. Whereas the learned Public Prosecutor, on instructions, would submit that though Sravanthi Sundari, wife of the petitioner is partner of the above said Rice Mill, the petitioner himself is conducting the business and he is responsible for the day-to-day affairs of the said Rice Mill. The said Mill was allotted by the DRDA to IKP Center Lingala for milling of purchased/procured paddy. In the month of November, 2021 in Lingala Village IKP Center, started procuring paddy from the farmers and transported the same to the said Rice Mill by transport vehicles. The petitioner herein colluded with accused No.3 Thallapally Madhu, Tab Operator of IKP Center Lingala Village, and in the month of December, 2021, the accused/petitioner herein gave Xerox copies of bank accounts of his followers and also gave Xerox copies of pattedar passbooks, aadhar cards to the accused No.3. Accordingly, the accused No.3 prepared truck chits by mentioning fake farmers, paddy bags and quintals and made online entries in the software (OPMS) through his mobile by mentioning bank accounts given by the petitioner herein. Accordingly, the 5 amount was credited in the accounts of farmers. The petitioner gave an amount of Rs.30,000/- to the accused No.3. After crediting the amount the petitioner got drawn said amount through his followers and through different ways such as drawing through vouchers, transferring amount through Phonepay, Googlepay, through cheques etc.,.
7. Thus the petitioner has misappropriated the public money by creating fake truck chits in the name of fake farmers with the help of accused No.2, thereby, the petitioner herein committed offence of cheating and has cheated the Government of Telangana State.
8. The learned Public Prosecutor would submit that the petitioner herein is absconding and not cooperating with the Investigating Officer. The Investigating Officer has recorded the statements of the several witnesses including farmers. Proceedings initiated under Custom Milling Order, 2015, are altogether different to the present proceedings. 6
9. As stated above, a perusal of the complaint, remand report of other accused, would reveal that primafacie there are several allegations even against the petitioner herein and though his wife Smt.Sravanthi Sundari is the Proprietor / Partner of the said Rice Mill, the petitioner herein has been conducting the business, and he is looking after the affairs of the said Rice Mill.
10. Primafaice, there are allegations against the petitioner that the petitioner herein gave Xerox copies of bank accounts and also gave Xerox copies of pattedar passbooks, aadhar cards to accused No.3 and accused No.3 prepared truck chits by mentioning fake farmers and details of fake paddy bags and had made online entries in the software (OPMS) through his mobile and petitioner gave an amount of Rs.30,000/- to the accused No.3. As per Inquiry Report, the petitioner herein has misappropriated an amount of Rs.1,05,04,816/- against the said Rice Mill and other Rice Mill i.e., M/s.MKR Rice Industries, Gaddipalli.
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11. However, the petitioner is claiming that he is not responsible and he is not looking after the day-to-day affairs of the said Rice Mill. It is a factual aspect. This Court cannot consider the same in a petition filed under Section 428 Cr.P.C. Several allegations against the petitioner herein including the allegations made by the second respondent in the complaint dated 09-02-2022 requires investigation by the Investigating Officer. The matter is at crime stage.
12. In Neeharika Infrastructure Private Limited v. State of Maharashtra1, the Hon'ble Supreme Court relying on its previous decisions has laid down the following factors to be considered while exercising the powers under Section 482 of the Cr.P.C.:
"....iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the 1 . AIR 2021 SC 1918 8 context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;9
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law.
During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and 10
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
13. Similarly, in Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh2, the Apex Court referring to the earlier Judgments rendered by it has categorically held that the High Courts in exercise of its inherent powers under Section 482 of Cr.P.C has to quash the proceedings in criminal cases in rarest of rare cases with extreme caution.
14. Therefore, in view of the said authorities and law laid down by the Hon'ble Supreme Court of India, and considering the facts on hand as discussed supra, primafaice 2 . AIR 2021 SC 931 11 there are serious allegations against the petitioner herein. The Investigation is pending. According to the learned Public Prosecutor, the petitioner is not cooperating with the Investigating Officer.
15. It is relevant to note that the learned counsel for the petitioner referring to the contents of the complaint dated 09- 02-2022 and statements of the witnesses recorded under Section 161 Cr.P.C., would submit that the same lack the ingredients for the offence under Section 409 of Indian Penal Code.
16. In view of the same, it is relevant note Section 409 of Indian Penal Code:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, mer- chant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property."12
17. Admittedly, the petitioner herein is a Public Servant, and he is not a partner, merchant, factor, broker, attorney or agent. The word 'Merchant' and 'Agent' are used in Section 409 of Indian Penal Code.
18. According to the learned counsel, the petitioner herein is neither merchant nor agent of M/s.Sri Hanuman Shiva Sai Rice Industries, Gaddipalli. According to the learned Public Prosecutor, the petitioner herein being husband of the Proprietor and partner of the said Rice Mill, has been conducting the affairs of the said Rice Mill. However, it is factual aspect. The Investigating Officer has to consider the said aspect during the course of investigation.
19. The Police have already arrested the accused No.2 and 3. The District Collector has already imitated proceedings under Custom Milling Order, 2015 by framing four charges and Showcause notice was already issued and already submitted explanation. The said factual aspects needs to be investigated by the Investigating Officer, during the course of investigation 13 and in a matter like this, custodial investigation is not required. Perusal of record would reveal that statements of the witnesses including several farmers, were already recorded.
20. In view of the above discussion, this Criminal Petition is disposed off directing the Investigating Officer in F.I.R.No.14 of 2022 pending on the file of the P.S. Penpahad registered for the offences under Sections 420, 406, 409 r/w.34 IPC, to proceed with investigation and the petitioner shall cooperate with the Investigating Officer by furnishing information and documents as sought by him in concluding the investigation.
21. With the above directions, this Criminal Petition is disposed off.
As a sequel, Miscellaneous Petitions, if any, pending in the Criminal Petition shall stand closed.
_____________________ K. LAKSHMAN, J Date: 07-June-2022 KHRM 14 15 THE HONOURABLE SRI JUSTICE K. LAKSHMAN CRIMINAL PETITION No.1461 OF 2022 07-June-2022 KHRM