Andhra Pradesh High Court - Amravati
C.K.Jaipuria, Visakhapatnam 3 Otrs., vs State Of Ap., Rep Pp And Anr., on 1 September, 2022
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL REVISION CASE No.1658 OF 2015
ORDER:-
This criminal revision case is filed under Sections 397 & 401 of Criminal Procedure Code, 1973 (for short "Cr.P.C") challenging the order dated 13.07.2015 passed in Crl.M.P.No.8770 of 2012 in C.C.No.125 of 2011 on the file of the Judicial First Class Magistrate, Salur.
2. The brief facts of the case are that the 2nd respondent/complainant filed a complaint before the learned Judicial First Class Magistrate, Salur against the petitioners/accused for the offences punishable under Sections 405, 406, 415 and 420 read with Section 34 of the Indian Penal Code and the same was taken into cognizance by the learned Magistrate vide C.C.No.125 of 2011, without therebeing any offence committed by the petitioners, much less the alleged offences. As such, the petitioners filed Crl.M.P.No.8770 of 2015 under Section 245(2) of the Cr.P.C., seeking their discharge. The case of the complaint/2nd respondent is that he was never appointed as the sole Distributor at Salur for selling soft drinks (Pepsi Brand) and one Bell Marketing Corporation was initially appointed the complainant/2nd respondent as the sole 2 Distributor covering the territorial jurisdiction from Srikakulam District to West Godavari District thereafter the said Bell Marketing Corporation company stopped its distribution agency through the complainant/2nd respondent and thereby the complainant/2nd respondent started its soft drinks (Pepsi Brand) distribution activity directly through the then existing network. It is the specific case that the 1st petitioner never appointed by the complainant/2nd respondent herein as its distributor as alleged by him and there are no amounts due to him from 1st petitioner but the complainant/2nd respondent instituted O.S.No.53 of 2005 on the file of the learned Senior Civil Judge, Bobbili, with all false and untenable contentions. The 1st petitioner entrusted the entire distribution activity of soft drinks (Pepsi Brand) at Salur to third party much prior to institution of the above suit, after affording sufficient opportunity to the complainant/2nd respondent and as the complainant/2nd respondent did not mend his ways, in order to protect the interests of the business of the petitioners.
3. It is further contended that instead of protecting the interests of the petitioners, the complainant/2nd respondent instituted the aforementioned suit with all false allegations and obtained an ex parte status quo order in I.A.No.536 of 2005 in 3 O.S.No.53 of 2005, and thereafter interim injunction was granted on merits by order, dated 27.04.2006. Aggrieved by the same, the petitioners preferred C.M.A.No.16 of 2006 and the said CMA was allowed by the learned II Additional District Court, Parvathipuram vide its order, dated 27.11.2007. Along with the said CMA, the petitioners also sought stay of order, dated 27.04.2006 passed in I.A.No.536 of 2005 by the learned Senior Civil Judge, Bobbili, wherein the complainant/2nd respondent and the petitioners filed a joint memo stating that the complainant/2nd respondent agreed to do business with the petitioners/accused by placing necessary stock order by way of making advance demand drafts and in excess of the said business, the petitioners are entitled to do its business through a third party and despite the agreement, the complainant failed to follow the same.
4. While CMA was pending, the complainant/2nd respondent also filed petitions in I.A.Nos.403 of 2006, 404 of 2006 and 409 of 2006 in O.S.No.53 of 2005 pending on the file of the learned Senior Civil Judge, Bobbili for the alleged violation of injunction order sought for appointment of commissioner and also to put the petitioners into civil prison or to attach the properties of the 1st petitioner and the petitions came to be dismissed on 4 16.10.2006 on merits. Aggrieved by the same, the 2 nd respondent/complainant preferred CMA No.2 of 2008 which was also ended in dismissal. Suppressing all these facts, the 2 nd respondent/complainant filed the present complaint with all false and untenable allegations and that there was no previty of contract between the petitioners and the 2nd respondent/complainant and there were no dues of any amount payable to the complainant/2nd respondent by the accused/petitioners. No ingredients for the alleged offences are made out by the complainant/2nd respondent and the present complaint is nothing but sheer abuse of process of law. The grievance of the 2nd respondent is purely a civil matter in nature and the complaint does not reflect the alleged time and date of offences and that complaint is barred by time and that the allegations against the petitioners are groundless, thus, prayed for discharge of the petitioners from C.C.No.125 of 2011.
5. The complainant/2nd respondent filed his counter in Crl.M.P.No.8770 of 2015 in C.C.No.125 of 2011 denying all the averments made in the discharge petition on the ground that they are all not true, valid and binding on him and contended that he was appointed as a sole selling distributor by Bell Marketing Corporation, Visakhapatnam, in the year 1992 for 5 Salur area and therefore, he has absolute title as the sole Distributor in Salur area till the year 2005 without any interruption and further averred that the petitioners committed the breach of trust having conspired together and thereby cheated the 2nd respondent/complainant and prayed for dismissal of the petition.
6. The Court below after perusal of the record and considering the said averments made by both the parties, gave a finding that no defence evidence can be looked into at the time of framing of charges and therefore, taking a cue therefrom, equally, no defence evidence can be looked into at the stage of consideration of the present petition filed under Section 245(2) of Cr.P.C. except the material available on record and also stated that having already taken cognizance by this Court, the contention of the petitioners that as a civil case is filed by complainant/2nd respondent, the accused/petitioners are liable to be discharged, cannot be put forth before the self-same Court, therefore, the said contention raised by the petitioners are not tenable before this Court in this petition.
7. Heard learned counsel for the petitioners, learned Additional Public Prosecutor for 1st respondent and learned counsel for 2nd respondent.
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8. Learned counsel for the petitioners/accused in elaboration to what has been raised in the grounds contended that during the pendency of civil suit, which was instituted by the 2nd respondent herein, in O.S.No.53 of 2005 on the file of the Senior Civil Judge, Bobbili, 2nd respondent/complainant filed a private complaint, which was referred to the police under Section 156 (3) Cr.P.C. and after investigation, the police filed final report, dated 05.06.2007. Learned counsel for the petitioners/accused contended that O.S.No.53 of 2005 on the file of the Senior Civil Judge, Bobbili was dismissed and further submitted that again after four years, the 2nd respondent/complainant has been filed present private complaint before the Judicial First Class Magistrate, Salur and the same was taken into cognizance, without enquiring into the same, on 23.06.2011. Learned counsel for the petitioner further contended that pursuant to taking cognizance in C.C.No.125 of 2011, the petitioners herein filed an application under Section 245 (2) Cr.P.C for discharging the petitioners from the said C.C but the same was dismissed. Being aggrieved, the present revision is filed.
9. Learned counsel for the petitioner further contended that once a complaint was dismissed and another complaint for the same incident is filed and the Court below taken cognizance 7 after four years, is contrary to the settled principles of law. Without taking into consideration of the previous complaint and civil suits, the trial Court has taken the cognizance. The 2nd respondent has put criminal colour to a civil case. Inspite of filing various judgments, which are applicable to the facts of the case, the trial Court dismissed the discharge petition.
10. On the other hand, learned counsel for the 2nd respondent/complainant contended that the order passed by the trial Court is well reasoned order as such warranting interference of this Court does not arise. As the petitioners violated the terms of the agreement, the criminal case is maintainable against the petitioners and prayed for dismissal of the revision.
11. On perusal of the record, it is clear that earlier the 2 nd respondent filed complaint which was referred to the police under Section 156(3) Cr.P.C whereas the police filed final report, dated 05.06.2007, in which the relevant portion reads as follows:
"Finally, during the month of May, 2006, both sides have filed an agreement memo before Honourable Court, wherein the complainant has admitted that he would place the indent and send the demand drafts before 10th of every month and he has 8 also agreed to permit the company to do the marketing through third person in season keeping in view of marketability subject to the first preference must be given to the complainant.
After filing the above joint agreement memo, the complainant has only once send demand drafts for Rs.50,000/-dt.14.05.2006 and placed indent and taken the company has supplied him the stocks of worth Rs.46,000/- after deducting the old dues of Rs.4,000/- from him. Later, the complainant did not placed any indent or send any demand drafts to the firm. As such, the Pearl Bottling company has marketed their soft drinks and water bottles through Harika Agencies in the Salur Area, as per the joint agreement executed by the complainant and firm to keep their business hold in the area. The complainant himself failed to fulfill the conditions of the joint agreement accorded with the firm and do the business on regular basis.
Till today, the company is stating that there is no objection from them to supply stocks to the complainant if he withstands to the conditions of the joint agreement filed before the Honourable Court.
In the light of above findings, it is crystal clear that the complainant has resorted to file this complainant due to prevailing civil disputes with an ulterior motive to get the stock supplies to Harika Agencies, Salur stopped. As such, this is a fit case to be referred as N.C. 9 In the above circumstances, I have obtained refer proceedings from the Sub-Divisional Police Officer, Parvathipuram vide C.No.103/REF/SDPO/PVP/ 2007, Dated 4-6-07 and permitted to drop further action in this case.
Hence I am dropping the further action in this case and submitted the final case diary along with the connected documents in the Honourable court of JFCM Saluru for issue of refer proceedings."
12. Pursuant to the same, the 2nd respondent did not choose to move any application either filing protest application or so but after four years the present complaint has been filed before the Judicial First Class Magistrate, Salur and the learned Magistrate without assigning any reasons, the complaint has been taken into cognizance on 23.06.2011. The 2nd respondent herein also filed a suit vide O.S.No.53 of 2015 on the file of the Senior Civil Judge, Bobbili and the same was dismissed.
13. To the said submission, the 2nd respondent's counsel did not dispute about the dismissal of the said suit.
14. Inspite of all these facts, continuing criminal case against the petitioners amounts to abuse of process of law. The judgment of the Hon'ble Apex Court in the case of Sanjay 10 Kumar Rai vs. State of Uttar Pradesh1, wherein it is held that "16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. (Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4). Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be."
15. The trial Court, while dismissing the application for discharge filed by the petitioners, was not properly dealt with and did not give proper reasons as to why the said crime has to be tried. When once a complaint was dismissed and on the very same grounds filing second complaint is clear abuse of process of law by virtue of the judgment of the Hon'ble Supreme Court in the case of T.T.Antony vs. State of Kerala2, wherein it is held that "In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same 1 (2021) SCC online SC 367 2 (2001) 6 SCC 181 11 or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution."
16. In view of the facts and circumstances of the case and submissions made by both the learned counsel and with the above said findings, the Criminal Revision Petition is allowed setting aside the order, dated 13.07.2015, passed in Crl.M.P.No.8770 of 2012 in C.C.No.125 of 2011 on the file of the Judicial First Class Magistrate, Salur and the petitioners herein who are accused Nos.1 to 4 in C.C.No.125 of 2011 on the file of the Judicial First Class Magistrate, Salur, are discharged from the said C.C. As a sequel, all the pending miscellaneous applications are closed.
___________________________ JUSTICE RAVI CHEEMALAPATI Date : 01.09.2022 SPP 12 THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI CRIMINAL REVISION CASE No.1658 OF 2015 Date : 01.09.2022 SPP