Telangana High Court
M. Ramakrishna vs A. Sumanth Kumar Reddy on 28 April, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.9047 of 2018
ORDER:
This petition is filed by the petitioners/accused Nos.1 to 13 under Section 482 Cr.P.C. to quash the proceedings in C.C.No.170 of 2018 on the file of the XII Additional Chief Metropolitan Magistrate at Nampally, Hyderabad.
The facts, as per the record, would go to show that on 18.10.2016 one A. Sumanth Kumar Reddy, who is respondent No.1 herein, has filed a complaint before the police, the contents of which are summarized as under:
The Indo American Chambers of Commerce (IACC) a non- profitable organization, which was formed in 1983, registered under the Indian Companies Act has got a branch office at Hyderabad. The said society comprises of 12 nominated members and 3 co-opted members. The de facto complainants/ respondent Nos.1 and 2 are the Members of the Managing Committee of IACC, A.P. and T.S. branch. Petitioner No.1 is an elected Chairman, petitioner No.2 is the elected Vice-Chairman, petitioner No.3 is also the elected Vice-Chairman, petitioner No.4 is the Past Chairman, petitioner No.5 is the Branch Secretary, petitioner No.6 is the National President, petitioner 2 No.7 is the National Executive Vice President, petitioner No.8 is the Secretary General, petitioner No.9 is the President of the Regional South India Council (SIC), petitioner No.10 is the Regional Secretary, petitioner No.11 is the Vice President of the Regional South India Council, petitioner No.12 is the Member of the Regional South India Council and petitioner No.13 is the Member of the National Executive Council.
A seminar titled as "IACC-National Conclave" was conducted by the Indo-American Chambers of Commerce, A.P. and T.S. branch on 3rd and 4th June, 2016 at Hyderabad. An amount of Rs.47 lakhs was collected by the IACC through sponsorships of various companies and organizations for conducting the said program. The income and expenditure statement in respect of the event has to be submitted to the Managing Committee within a week. However, even after 3 ½ months of the program, accounts have not been submitted to the Managing Committee by the petitioners. The de-facto complainants have made lot of efforts for persuading the petitioners to file the statements of account in respect of the programme. More than Rs.47 lakhs were raised through sponsorships for the programme and an amount of Rs.68 lakhs was also raised towards mandated building funds by accused 3 Nos.1 to 5 in collusion with accused Nos.6 to 13 and the said money was misappropriated.
Central Crime Station (CCS) has taken up the investigation after registering the said complaint as FIR in Crime No.218 of 2016 for the offences under Sections 403, 406, 408, 420, 120(b) IPC and 156(3) Cr.P.C. The police have examined and recorded the statements of concerned persons connected with National Conclave, 2016 held at ITC Kakatiya Hotel and found that an amount of Rs.47 lakhs was collected. During the course of thorough investigation, the police have also found that an amount of Rs.85,75,226/- is intact in fixed deposit as per the statements furnished by the bank. After completion of the entire investigation, police have closed the case by way of filing of final report on the ground of lack of evidence.
While submitting the final report, notices were sent to the de facto complainants/respondent Nos.1 and 2 and both of them have filed their protest petition before the learned Magistrate and the learned Magistrate without assigning any reason, has taken cognizance of the offence under Sections 403, 406, 408, 420, 120(b) IPC and 156(3) Cr.P.C. against the petitioners.4
The petitioners have challenged the said cognizance taken by the learned Magistrate mainly on the following grounds:
a) The learned XII Additional Chief Metropolitan Magistrate erred in taking cognizance of the case without applying his mind and a highly mechanical way and without passing a reasoned order.
b) The learned XII Additional Chief Metropolitan Magistrate failed to see that before taking cognizance and before issuing process he has to give reasons whether prima facie case is made out or not and the cryptic order passed by him is liable to be set aside on this ground alone.
c) The learned Magistrate failed to see that police after conducting detailed investigation came to the conclusion that no case is made out against the petitioners and filed final report.
Learned counsel for the petitioners submitted that the trial Court has committed error in taking cognizance of the case against the petitioners for the offences alleged against them, as the learned Magistrate has taken cognizance of the offence without there being any material on record and that the learned Magistrate has not followed the procedure for taking cognizance. 5
None appeared for respondent Nos.1 and 2, whereas, learned Assistant Public Prosecutor opposed the petition on behalf of the State.
Now the point for determination is:
Whether the proceedings of the trial Court in C.C.No.170 of 2018 can be quashed under Section 482 Cr.P.C.?
Section 482 Cr.P.C. can be invoked whenever it is demonstrated before the Court that continuation of proceedings under challenge amounts to abuse of process of law.
In State of Haryana and others vs. Ch. Bhajan Lal and others1, the Hon'ble Supreme Court has issued the following guidelines.
"(a) 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;
(b) 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;
(c) 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;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
1 1992 AIR 604 6
(e) 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;
(f) 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;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
A perusal of the above guidelines go to show that if there is an express legal bar under the Code of Criminal Procedure, 1973, in continuation of the criminal proceedings, the said proceedings cannot be permitted and the same can be terminated.
Basing on the complaint filed by the complainants on 16.09.2016, the trial Court has referred the said complaint to the police on which the police have registered a case in Crime No.218 of 2016 against all the petitioners. After completion of investigation, the Central Crime Station police have filed the final report by closing the case as lack of evidence. After receiving of notices from the Court, the de facto complainants have filed a protest petition dated 09.10.2017. During the pendency of the protest petition, additional protest petition was 7 also filed on 24.03.2018. On considering the additional protest petition, the trial Court by way of an order dated 16.04.2018 taken cognizance of the offence against the petitioners/accused Nos.1 to 13. The docket order passed by the learned Magistrate dated 16.04.2018 in Crl.M.P.No.5747 of 2017 in C.C.No.170 of 2018 is extracted hereunder:
"Complainant present. Complaint is taken on file u/s. 406, 403, 420, 408 and Section 120-B IPC against A-1 to A-14 issue SS to A-1 to A-14 on process. Call on 21.05.2018."
Aggrieved by the above said order, the present petition is filed.
The petitioners have filed protest petition originally on 09.10.2017. Once protest petition is filed, the trial Court should have conducted an enquiry and basing on the material, the Court should have passed some orders, but strangely the trial Court has permitted the respondents/de-facto complainants to file additional protest petition. In code of Criminal Procedure though there is no provision for filing protest petition, law evolved as per the decisions of the Apex Court and other Courts permit filing of protest petition. However, there is no procedure at all for filing additional protest petition. There is no record to show as to under what provision or under what authority the additional protest petition was 8 allowed to be filed. There is also no record whether any permission was granted by the Court for filing such additional protest petition.
The docket order dated 16.04.2018 speaks that the complainant was present. In fact, there are two complainants. It is not clear that which of the complainant was present. The docket order further goes to show that complaint is taken on file for the offences alleged against the accused. It is settled legal proposition that before taking cognizance the trial Court is expected to apply its mind and give reasons for taking cognizance of the case. Prior to taking cognizance, the Court is expected to take into consideration the material available before it in the form of complaint originally filed by the complainants in the year 2016, FIR issued by the police, report of the police filed under Section 173 Cr.P.C. and protest petitions. After taking them into consideration, the trial Court should come to a conclusion whether there is any prima facie material to take cognizance of the offence against the accused. Further, the Courts are supposed to be more cautious in specifically recording reasons prior to taking cognizance in a case where the police after investigation filed report under Section 173 Cr.P.C., concluding that there is no evidence to proceed against the 9 petitioners. The Court must record cogent reasons as to what is the material that it has gone through to find that there is material against the petitioners. The Court is expected to record the reasons as to how the conclusion of the police that there is no evidence is incorrect. The Court also can consider the additional material, if any, filed by the de facto complainants along with the protest petition along with material filed by the petitioners under Section 173 Cr.P.C. The docket endorsement of the Court dated 16.04.2018 did not speak that the investigation of the police is incorrect and there is also no finding by the Court that the de facto complainants have filed material along with the protest petition or additional protest petition, which prima facie go to show that the petitioners have committed the offence.
Apart from that, it is surprising to note that the trial Court did not choose to examine the complainant, who has filed the protest petition. The trial Court was expected to examine the complainant and also examine additional witnesses, if any, and to consider the documents filed by them before arriving at the conclusion that there is material against the petitioners to proceed. The trial Court was also expected to verify if there is any material to show the income and expenditure in respect of 10 the event to come to a conclusion whether there is prima facie material against the petitioners. The trial Court unfortunately has not resorted to any of the things observed above and has simply taken the case on file.
In view of the above reasons, the proceedings before the trial Court against the petitioners cannot be proceeded with and the same are liable to be quashed.
In the result, the criminal petition is allowed and the proceedings in C.C.No.170 of 2018 on the file of XII Additional Chief Metropolitan Magistrate at Nampally, Hyderabad are hereby quashed.
Pending miscellaneous applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 28.04.2022 ES