Telangana High Court
Ram Prasad vs State Of Telangana on 6 June, 2022
Author: K.Lakshman
Bench: K.Lakshman
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
CRIMINAL PETITION No.7184 of 2021
With
WRIT PETITION No.33933 of 2021
COMMON ORDER:
Criminal Petition No.7184 of 2021 is filed under Section 482 of Code of Criminal Procedure (for short 'Cr.P.C.'), to quash the FIR in Crime No.850 of 2021 pending on the file of P.S.Mailardevpally, Cyberabad dated 07.09.2021. The petitioners herein are the accused Nos.1, 2 and 3. The offence alleged against them is under Section 420 of IPC.
2. Heard Smt.Pushpinder Kaur, learned counsel for the petitioners and learned Public Prosecutor for the State as well as Sri C.Buchi Reddy, learned counsel for the de-facto complainant. There was no representation on behalf of Sri K.Ashok Chakravarthy and Sri Md.Gulam Rasool. Perused the record.
3. As per the complaint dated 07.09.2021, the allegations levelled against the petitioners herein are as follows :
Telangana Housing Board (successor of erstwhile AP Housing Board), represented by its Executive Engineer (Hg) is the KL,J WP_33933_2021 & CRL.P_7184_2021 :2: complainant. A news article was published in Eenadu Daily Newspaper on 27.01.2021 stating that illegal registrations have taken place in respect of certain houses in Housing Board Colonies at Laxmiguda and Raviryala. Basing on the said news item, Vice-Chairman and Housing Commissioner, Telangana Housing Board has ordered enquiry and requested the Chief Engineer, Telangana Housing Board to enquire into the said allegations and submit a report and accordingly, an enquiry was conducted and a report was submitted. In the said report, the Enquiry Officer has stated that a scam, fraud and cheating has been committed by certain persons including the petitioners herein in respect of House Nos.126/HIG-II/Phase-IV, Laxmiguda, 82/HIG-II/Phase-IV, Laxmiguda and 42/HIG-II/Phase-IV, Laxmiguda. Komal Yadav, Smt.Suman Prasad and Upender Prasad have obtained valuable Housing Board property, which is a public property as the Housing Board is a Government body, without paying its consideration, in collusion with some employees of the Housing Board, who mis-lead the higher authorities as if the sale consideration and other dues were paid. The modus operandi adopted by the petitioners herein / accused KL,J WP_33933_2021 & CRL.P_7184_2021 :3: in committing the said fraud is also specifically mentioned in the report as well as in the complaint dated 07.09.2021.
4. On the strength of the said complaint dated 07.09.2021 of the 2nd respondent, the police of Mailardevpally have registered a case in Crime No.850 of 2021 against the petitioners herein for the offence under Section 420 of IPC.
5. Smt.Pushpinder Kaur, learned counsel for the petitioners would submit that the petitioners herein have purchased the said subject property under registered sale deeds bearing Nos.2630 of 2020, dt.17.12.2019, 7111 of 2019, dt.11.07.2019, 3576 of 2018, dt.27.03.2018 and 3486 of 2019, dt.01.04.2019 respectively. They have also paid sale consideration. Referring to sale deed bearing document No.3486 of 2019, dated 01.04.2019, she would submit that 3rd petitioner herein had sold the above said property in favour of Baban Rai. He is in peaceful possession of the property. They have also obtained electricity connection. Even then, without considering the said facts, the 2nd respondent has implicated the petitioners herein in the above said crime. The 2nd respondent is trying to convert the civil proceedings into criminal proceedings. With the KL,J WP_33933_2021 & CRL.P_7184_2021 :4: said submissions, learned counsel for the petitioners sought to quash the proceedings in Crime No.850 of 2021, pending on the file of the P.S. Mailardevpally against the petitioners herein.
6. Whereas, Sri C.Buchi Reddy, learned counsel for the de-facto complainant, basing on the counter filed by the 2nd respondent would submit that the Investigating Officer has submitted his report dated 19.02.2021 reporting that clear fraud, cheating, illegalities and irregularities have taken place with respect to registration of the above said three sale deeds, which is specifically mentioned in the counter.
7. In respect of the house No.126/HIG-II/Phase-IV, Laxmiguda, it is specifically mentioned that the same was allotted to S.Vijay Kumar, which was cancelled as he opted out and thereafter the said house was not re-allotted to anybody. Hence, the said house is continuous to be the property of Telangana Housing Board and should have been vacant under the lock and key of Telangana Housing Board and it is to be re-allotted/sold in a public auction. However, during enquiry, it was found that the said house was registered in favour of 1st petitioner herein illegally, who is not an allottee of the said house. He is no way KL,J WP_33933_2021 & CRL.P_7184_2021 :5: entitled for registration. The said sale deed bearing No.2630 of 2020 was obtained orally by making false statement. Thus, the first petitioner is not an allottee and he has not paid consideration to Telangana Housing Board, as recited in the said sale deed. The alleged sale consideration of Rs.29,47,000/- is at lower side and it is not based on the actual cost. Thus, he has cheated Telangana Housing Board, a Government body, in collusion with some of its employees.
8. In respect of House No.82/HIG-II/Phase-IV, Laxmiguda, it is stated that the same was originally allotted to one P.Koteswara Rao vide allotment letter dated 12.04.2010. The said allotment was cancelled vide letter dated 01.03.2012 for default in payment of amount and it was not allotted to anybody. It is continuous to be the property of Telangana Housing Board, it is vacant and under lock and key of Telangana Housing Board. During enquiry, it was found that the second petitioner herein, who is not the allottee, has obtained registered sale deed bearing document No.7111 of 2019, dated 11.07.2019 in collusion with employees of Telangana Housing Board. They have made wrong statement. The sale consideration of Rs.29,47,000/- is on very KL,J WP_33933_2021 & CRL.P_7184_2021 :6: lower side and they have not paid the said sale consideration to the Telangana Housing Board. Thus, she has obtained the said sale deed illegally.
9. In respect of house No.42/HIG-II/Phase-IV, Laxmiguda, during enquiry, it was found that the third petitioner, allottee has obtained registered sale deed bearing document No.3576 of 2018, dated 27.03.2018 without its sale price being paid to the Housing Board. A false statement was made that he has paid Rs.4,72,569/-, which is actually not correct and the Telangana Housing Board has not received the said amount. The third petitioner in turn sold the said property to Baban Rai under registered sale deed bearing document No.3486 of 2019, dated 01.04.2019 for Rs.36,00,000/-. Therefore, the 3rd petitioner has committed fraud and cheating on Telangana Housing Board. It is further mentioned that Telangana Housing Board has filed three suits vide O.S.Nos.981 of 2021, 982 of 2021 and 983 of 2021 against the petitioners herein and subsequent purchaser to declare that the Telangana Housing Board is the owner of the schedule property and for perpetual injunction. The said suits are pending. The learned counsel for the de-facto complainant KL,J WP_33933_2021 & CRL.P_7184_2021 :7: would further submit that the matter is at crime stage and several factual aspects have to be considered by the Investigating Officer during investigation. In a matter like this scuttling of investigation at the threshold is not warranted. Stating thus, he sought to dismiss this petition.
10. Learned Public Prosecutor has adopted the said arguments of the learned counsel for the de-facto complainant/2nd respondent.
11. Writ Petition No.33933 of 2021 is filed to quash the proceedings in Crime No.870 of 2021 pending on the file of P.S.Mailardevpally, Cyberabad and for consequential direction to put the petitioners back in possession of their respective properties as the same has been done by the procedure not contemplated under law.
12. Learned Government Pleader for Home appearing for respondent Nos.1 to 4 have filed counter stating that the Investigating Officer in Crime No.870 of 2021 has already completed investigation and laid charge-sheet against the petitioners herein. The same was taken on file vide C.C.No.3873 KL,J WP_33933_2021 & CRL.P_7184_2021 :8: of 2021. Therefore, the petitioners herein have filed I.A.No.2 of 2021 seeking amendment of the said prayer. The same was allowed on 25.02.2022. Therefore, the petitioners herein are not entitled to seek quashment of proceedings in CC No.3873 of 2021 and also put them back in possession of their respective properties.
13. The petitioners herein are accused in the said case. The offences alleged against them are under Sections 448, 427, 188 read with 34 of IPC. As per the charge-sheet, the allegations levelled against the petitioners herein are as follows :
Ankamma Rao, complainant herein, LW1 is working as Executive Engineer (Housing), South Division of Telangana Housing Board and is in-charge of Housing Board, Laxmiguda, Mailardevpally. The petitioners herein/accused have violated the orders of Government servants and criminally trespassed into house No.HIG-II 82 and HIG-II 126 illegally, broke opened / removed the Government seals and damaged the gate locks which are in the custody of Housing Board Society and the said information was received by LW1 from the LWs.2 and 3 who are the security guards of the Housing Board. Thus, the accused KL,J WP_33933_2021 & CRL.P_7184_2021 :9: have committed the offences punishable under Sections 448, 427, 188 r/w. 34 of IPC. In the writ petition the petitioners have contended that they are the owners of their respective properties and they have purchased the same under the above said sale deeds by paying valuable sale consideration. If at all any fraud is committed, it was committed by the employees of the Telangana Housing Board and not by the petitioners herein. Telangana Housing Board instead of taking action against its employees, implicated the petitioners herein in the above said criminal case.
They have sealed the premises without following due procedure laid down under law and they have dispossessed the petitioners herein from their respective properties. The said action of the respondents is illegal and also in violation of Article 300-A of the Constitution of India. With the said submissions, the petitioners have sought to quash the proceedings in CC No.3873 of 2021 and for a direction to the respondents to put the petitioners back in possession of their respective properties.
14. Whereas, the 5th respondent i.e. the Executive Engineer of Telangana Housing Board has filed counter contending about the publication of above said news item, order KL,J WP_33933_2021 & CRL.P_7184_2021 : 10 : of enquiry and conducting enquiry and submission of report. The findings of the enquiry report including fraud played by the petitioners herein is also mentioned in the counter. The modus operandi adopted by the petitioners in commission of offence has also specifically stated in the counter. Telangana Housing Board has not received any consideration from the petitioners herein. The said sale deeds were obtained illegally and therefore, Telangana Housing Board has filed the above said three suits, seeking above said reliefs, which are pending.
15. In paragraph Nos.7 and 8 of the counter, the 5th respondent has specifically mentioned that some of the employees of Telangana Housing Board have mislead the higher authorities by tampering with the records and therefore, Telangana Housing Board is also initiated disciplinary proceedings for taking disciplinary action against its employees, found to be involved. Hence investigation by the police is required for finding out, who are all involved in the said scam and for taking action, disciplinary action against them including the prosecution, departmental action etc. It is further contended that Telangana Housing Board shall also take steps for initiating disciplinary KL,J WP_33933_2021 & CRL.P_7184_2021 : 11 : proceedings and taking departmental action apart from criminal prosecution against its employees, who may found to be involved in the said fraud, cheating and scam in collusion with the petitioners in the enquiry.
16. However, the petitioners herein have also filed their re- joinders to the said counter.
17. The above said facts in writ petition and criminal petition would reveal that the disputes are with regard to the above said three houses situated at Laxmiguda. According to Telangana Housing Board, the petitioner Nos.1 and 2 in Crl.P.No.7184 of 2021 are not the allotties of the said properties. However, they have obtained the above said sale deeds fraudulently in collusion with some of the employees of Telangana Housing Board. It has not received the sale consideration. They have also made false statements in the said sale deeds that they have paid sale consideration. On verification of the account of Telangana Housing Board, it was found that it has not received the said sale consideration. However, the third petitioner though is an allotee of the said property, he has also obtained the sale deed without following due procedure laid down under law. He KL,J WP_33933_2021 & CRL.P_7184_2021 : 12 : has not paid sale consideration as mentioned in the said sale deed to the Telangana Housing Board. Thus, he has made false statement and had obtained the said sale deed by cheating and committing fraud by making false statement. He has sold the said property in favour of Baban Rai for a sale consideration of Rs.36,00,000/-.
18. The petitioners in W.P.No.33933 of 2021 have trespassed into the said properties breaking open the lock and by removing the seals put by Telangana Housing Board.
19. In Criminal Petition No.7184 of 2021 this Court vide orders dated 27.09.2021 directed the Investigating Officer not to take any coercive steps against the petitioners/A1 to A3 until further orders. However, the Investigating Officer has proceeded with the investigation and after completion of the same, filed charge-sheet/final report, as the case may be.
20. The above stated facts would reveal that there are several factual aspects including the allegations made by the 2nd respondent in the complaint dated 07.09.2021 needs to be investigated into by the Investigating Officer during the course of KL,J WP_33933_2021 & CRL.P_7184_2021 : 13 : investigation. Prima-facie, there are specific allegations against the petitioners herein that they have obtained the above said sale deeds in collusion with the employees of Telangana Housing Board by making wrong statements, without paying sale consideration to Telangana Housing Board. The said aspects are factual aspects to be considered by the Investigating Officer during investigation. The contentions raised by the petitioners herein with regard to the payment of sale consideration in cash in spite of cheques and return of cheques by the Telangana Housing Board are also the factual aspects, which needs to be looked into by the Investigating Officer during the course of investigation. Learned Public Prosecutor, on instructions would submit that considering the punishment prescribed for the offence alleged, the Investigating Officer has already invoked the procedure laid down under Section 41-A of Cr.P.C. by way of service of notice dated 31.10.2021 and 15.11.2021 respectively on the petitioners. Investigation conducted so far in Crime No.850 of 2021 revealed that the accused have committed offences and are liable to be punished. On completion of investigation, the Investigating Officer will file charge-sheet. In a matter like this where there are serious allegations against the petitioners herein, the contents of KL,J WP_33933_2021 & CRL.P_7184_2021 : 14 : complaint prima-facie constitute the offences alleged against the petitioners herein, scuttling investigation at the threshold is not warranted. The said principle was also laid down by the Hon'ble Apex court in M/s. Neeharika Infrastructure Private Limited v. State of Maharashtra1. In Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh2, Apex Court held that the High Court has to exercise its inherent powers under Section 482 of Cr.P.C. in rarest of rare cases with extreme caution. In view of the above said discussion, more particularly in view of the serious allegations leveled against the petitioner herein Criminal Petition No.7184 of 2021 is not a rarest of rare case to exercise inherent powers of this Court under Section 482 of Cr.P.C., and scuttling the investigation at the threshold is not warranted.
21. In view of the above stated discussion, the Criminal Petition No.7184 of 2021 is disposed of directing the Investigating Officer in Crime No.850 of 2021, pending on the file of Mailradevpally Police Station to strictly follow the procedure laid 1 . AIR 2021 SC 1918 2 2020 SCC OnLine SC 958 KL,J WP_33933_2021 & CRL.P_7184_2021 : 15 : under Section 41-A of Cr.P.C. and the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar v. State of Bihar3. However, the petitioners shall co-operate with the Investigating Officer by furnishing information and documents, as sought by him in concluding the investigation. The Investigating Officer is further directed not to harass the petitioners under the guise of investigation.
22. Perusal of charge-sheet in CC No.3873 of 2021 would reveal that the Investigating Officer has recorded the statement of Executive Engineer, South Division, Telangana Housing Board viz. Sri K.Ankamma Rao as LW1, statement of Sri Murari Laxmi Narayana, Security Guard as LW2 and Begari Laxman as LW3. He has also recorded the statements of two punch witnesses. On consideration of their statements, recorded under Section 161 of Cr.P.C., the Investigating Officer has laid charge-sheet against the petitioners in W.P.No.33933 of 2021.
23. As per the charge-sheet, the allegations levelled against the petitioners are as follows :
3
. (2014) 8 SCC 273 KL,J WP_33933_2021 & CRL.P_7184_2021 : 16 : The petitioners have violated the orders of the Government servants, criminally trespassed into two houses Nos. HIG-II-82 and HIG-II-126 illegally, broke opened / removed the Government seals. They have also damaged the gate locks, which are under the custody of Telangana Housing Board. Therefore, the petitioners herein have committed the aforesaid offences.
24. Perusal of the above stated facts would reveal that prima-facie, there are serious allegations against the petitioners herein. They have obtained the above said sale deeds by playing fraud in collusion with some of the employees of Telangana Housing Board. They have not paid sale consideration to the Telangana Housing Board. Basing on the enquiry report, the de- facto complainant has lodged a complaint dated 07.09.2021 with Mailardevpally Police, who in turn registered the above said Crime No.850 of 2021 against the petitioners in Criminal Petition No.7184 of 2021 for the aforesaid offences. The petitioners herein have also filed Criminal Petition No.7184 of 2021 under Section 482 of Cr.P.C., seeking to quash the proceedings in Crime No.850 of 2021. Considering the punishment prescribed for the offences alleged against the petitioners therein, the said Criminal KL,J WP_33933_2021 & CRL.P_7184_2021 : 17 : Petition was disposed of by directing the Investigating Officer to follow the procedure laid down under Section 41-A of Cr.P.C. and the guidelines issued by the Hon'ble Apex court in Arnesh Kumar's supra.
25. In the present case i.e. Crime No.870 of 2021 the Investigating Officer has already completed the investigation and laid the charge-sheet. The same was taken on file vide CC No.3873 of 2021. According to Telangana Housing Board, it is in possession of the subject properties and according to the petitioners, they are in possession of the property and Telangana Housing Board employees have dispossessed them from the said property on 12.09.2021.
26. It is also relevant to note that Telangana Housing Board has filed the above said three suits against the petitioners herein seeking the above said reliefs. The said suits are pending.
27. The defences taken by the petitioners herein cannot be considered in a petition filed under Section 482 of Cr.P.C. The said principle was also held by the Apex Court in Kamal Shivaji KL,J WP_33933_2021 & CRL.P_7184_2021 : 18 : Pokarnekar v. The State of Maharashtra4. In Skoda Auto Volkswagen India Private Limited supra, the Hon'ble Apex Court held that the High Court has to exercise its inherent powers under Section 482 of Cr.P.C. in rarest of rare cases with extreme caution.
28. It is also relevant to note that Telangana Housing Board in its counter has specifically mentioned that they are also going to initiate disciplinary action/departmental action against its employees, on coming to conclusion regarding the persons/employees who played fraud apart from the present prosecution initiated against them. In view of the above said discussion and considering the fact that, prima-facie, there are specific and serious allegations against all the petitioners herein in the charge-sheet filed in CC No.3873 of 2021, and also the punishment prescribed for the said offences, this Court is not inclined to quash the proceedings in Crime No.850 of 2021 against the petitioners herein. The defences taken by the 4 . AIR 2019 SC 847 KL,J WP_33933_2021 & CRL.P_7184_2021 : 19 : petitioners herein are triable issues and the petitioners have to take the said defences during trial. It is for the trial Court to consider the same in accordance with law.
29. However, with regard to the offence U/Sec.188 of Indian Penal Code are concerned, Section 188 of Indian Penal Code reads as follows:
188. Disobedience to order duly promulgated by public servant.--Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
30. In Thota Chandra Sekhar v. The State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari KL,J WP_33933_2021 & CRL.P_7184_2021 : 20 : District5 relying on various Judgments including the Judgment in N.T.Rama Rao's case and also guidelines of the Hon'ble Apex Court in State of Haryana vs. Bhajan Lal6, more particularly, guideline No.6, which says that 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 remedy to redress the grievance of the party, the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh held that the proceedings in the said C.C. No.13 of 2016 were quashed by exercising power under Section 482 of Cr.P.C. It was also further held that the proceedings shall not be continued due to technical defect of obtaining prior permission under Section 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section 195 (1) (a) of Cr.P.C. 5
. Criminal Petition No.15248 of 2016, dated 26.10.2016 6 1992 Supp (1) SCC 335 KL,J WP_33933_2021 & CRL.P_7184_2021 : 21 :
31. Therefore, this writ petition is allowed in part quashing the proceedings against the petitioners here in C.C.No.3873 of 2021 in so far as the offence under Section 188 of IPC is concerned. With regard to the other offences, the proceedings in CC No.3873 of 2021 may go on.
32. In view of the above said discussion, more particularly in view of the pendency of the above said suits, this Court is also not inclined to direct the respondents to put the petitioners back in possession of the respective properties. According to the petitioners, they were put in possession of the subject properties and according to Telangana Housing Board, the petitioner were never delivered possession of the said properties. In-fact, the said properties are in lock and key of Telangana Housing Board. The petitioners herein have trespassed into the said land and broke open / removed the locks and seals put by Telangana Housing Board. It is a disputed fact. Though this Court is having power to consider the disputed facts in a petition filed under Article 226 of the Constitution of India, as held in ABL International Ltd., and another v. Export Credit Guarantee Corporation of India KL,J WP_33933_2021 & CRL.P_7184_2021 : 22 : Ltd., and others7 but certainly not complicated question of facts. As stated above, the above said factual aspect is a complicated question of fact, which this Court cannot consider under Article 226 of the Constitution of India. The parties have to take recourse under civil law by initiating appropriate proceedings. In view of the said discussion, the consequential relief sought by the petitioners for issuance of a direction to Telangana Housing Board to put them back in possession of their respective properties cannot be considered. With regard to the said relief, this writ petition is dismissed.
As a sequel, miscellaneous petitions, if any pending, shall stand closed.
___________________ K. LAKSHMAN, J June 06th, 2022 abb 7 (2004) 3 SCC 553