Telangana High Court
Kantepudi Nageswar Rao Israil vs Thotamalla Suvarna Vijaya Kumari on 6 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL REVISION CASE No.269 OF 2021
ORDER:
This Criminal Revision Case is filed questioning the Order dated 22-03-2021 in Crl.M.P.No.2749 of 2017 in C.C.No.405 of 2017 passed by the learned III Additional Junior Civil Judge, Khammam.
2. Heard Sri.C.Sharan Reddy, learned Counsel for the petitioners, Sri.Shaik Madar, learned Counsel appearing for the first respondent and Sri.Khaja Vizarath Ali, learned Assistant Public Prosecutor for the second respondent/State.
3. The petitioners herein are accused No.2 and 3 in C.C.No.405 of 2017 and the offences alleged against the petitioners are under Sections 420, 447, 420 r/w. 34 of Indian Penal Code.
4. The respondent No.1 is claiming that she is the absolute owner and possessor of agricultural land admeasuring 2 Ac.05-00 gts., in 3 bits covered by Sy.No.14/AA of Vepakukuntla Village, Khammam District. She is claiming that she has purchased the said property in Open Auction conducted by the Andhra Pradesh State Financial Corporation, Khammam District and on receipt of entire sale consideration of Rs.1,05,000/-, the Andhra Pradesh State Financial Corporation, Khammam District executed a Registered Sale Deed bearing Doc.No.4409 of 2006 dated 05-06-2006 in favour of the first respondent.
5. She has let out the said land to one Kantepudi Daniel, husband of the second petitioner herein/accused No.3 but the said Daniel sublet the subject property to first petitioner herein without her knowledge. The said Daniel died. Thereafter the accused No.1, son of the said Daniel got entered his name in the revenue records by way of cheating and misleading Mandal Revenue Officer and Village Revenue Officer.
3
6. On coming to know the same, she has fenced the land admeasuring Ac.03-00 gts., with stones, and for balance land the stones are ready for fencing. On 05-07-2015 during night, all the accused including the petitioners herein and others criminally trespassed into her land and broken the fencing stones and caused damage to a tune of Rs.1,50,000/-. Therefore, she has lodged a complaint with P.S.Khanapuram Haveli who in turn registered a case in Cr.No.300 of 2015 against the petitioners herein and accused No.1 for the above offences.
7. During the course of investigation, the Investigating Officer has recorded the statement of the first respondent as LW1, circumstantial witness, her husband as LW2, three eyewitnesses and one more circumstantial witness as LW6, who is Branch Manager, Andhra Pradesh State Financial Corporation, Khammam District.
4
8. Considering their statements, the Investigating Officer has laid charge sheet against the petitioners herein and accused No.1. The same was taken on file as C.C.No.405 of 2017 against the petitioners for the above offences and deleted the name of the accused No.1.
9. During the pendency of the said Calendar Case, the petitioners herein have filed the petition vide Crl.M.P.No.2749 of 2017 U/Sec.239 Cr.P.C to discharge them from the above said Calendar Case, contending that the dispute is Civil in nature, and a Civil Suit vide O.S.No.219 of 2015 filed by accused No.1 against the respondent No.1 herein and her husband Rajeshwar Rao for perpetual injunction, is pending. There is an Injunction Order in I.A.No.639 of 2015 in O.S.No.219 of 2015.
10. The land in Sy.No.14/AA is assigned land. Mortgage of the subject land by the said Daniel is not valid and it is not enforceable and not binding on the accused No.1 and the second petitioner/accused No.3. Accused No.1 is in possession of the subject land.
5
11. The said petition was opposed by the prosecution by way of filing counter contending that the allegations leveled against the accused are specific, and there are triable issues and the petitioners have to face trial and the same cannot be considered in a petition filed U/Sec.239 of Cr.P.C.
12. The Court below vide impugned Order dated 22-03- 2021 dismissed the said application observing that there are certain specific allegations against the petitioners herein, that the version of the complainant is corroborated with the witnesses. There are triable issues and the petitioners have to face trial, and that the defence taken by the petitioners cannot be considered in a discharge application.
13. Challenging the same, the petitioners have filed the present Criminal Revision Case.
14. Sri.C.Sharan Reddy, learned Counsel for the petitioners would submit that the allegations are against the accused No.1 and the Investigating Officer has deleted the 6 name of the accused No.1 from the Chargesheet, therefore, there are no allegations against the petitioners herein. Investigating Officer without conducting investigation and without considering the fact that the suit vide O.S.No.219 of 2015 is pending, and Injunction Order was passed by the Court below in I.A.No.639 of 2015, is subsisting. Therefore, without considering the above facts, the Court below dismissed the discharge petition.
15. Whereas, Sri.Shaik Madar, learned Counsel appearing for the first respondent would submit that the incident took place on 05-07-2015, the first respondent lodged complaint on 06-07-2015 and the said Civil Suit vide O.S.No.219 of 2015 was filed on 08-07-2015 and Interim Injunction was granted on 08-07-2015. The first respondent purchased the subject land in an Auction conducted by Andhra Pradesh State Financial Corporation, Khammam District and she obtained the Registered Sale Deed. The petitioners and the accused have trespassed into the said land, damaged the property and in 7 proof of the same, he has filed photographs. The defence taken by the petitioners cannot be considered in a petition filed under Section 239 of Cr.P.C seeking discharge and there are triable issues and the petitioners have to face trial.
16. As stated above, the first respondent is claiming that she has purchased the subject land under the Registered Sale Deed bearing Doc.No.4409 of 2006 dated 05-06-2006. In the said Sale Deed, it is specifically mentioned that M/s.Daniel Enterprises, Proprietary Concern represented by its Sole Proprietor Sri.K.Daniel, father and husband of accused No.1 and 3 respectively, has approached the Andhra Pradesh State Financial Corporation, Khammam District for term loans and soft loans for purchase of Compressor and Mining against the security of hypothecation of compressor and collateral security. The said M/s.Daniel Enterprises had committed defaults in repayment of interest, other expenses and installments. Therefore, the Andhra Pradesh State Financial Corporation, Khammam District in exercise of Powers conferred under 8 Section 29 of State Financial Corporation Act, 1951 issued Sale Advertisement after due procedure and conducted auction and executed Registered Sale Deed bearing Doc.No.4409 of 2006 dated 05-06-2006.
17. It is the specific case of the first respondent that she is working as Staff Nurse and staying at different places by way of her posting and she has let out the same to the said Daniel. The said Daniel died. During his lifetime, he let out the said property to the first petitioner/accused No.2 without the knowledge of the first respondent. The accused No.1 in collusion with the petitioners herein have tried to grab the said property, created revenue records, filed the above said suit and they have also trespassed into the subject land and damaged the fencing and also stones.
18. As stated above, the Investigating Officer has recorded the above stated list of witnesses and on considering their statements recorded under Sections 161 of Cr.P.C., laid 9 Chargesheet. Thus primafacice there are specific allegations against the petitioners herein.
19. Learned counsel for the petitioner would submit that the Investigating Officer deleted the name of the first accused, therefore, the present proceedings in C.C.No.405 of 2017 are liable to be quashed against the petitioners herein. But as rightly contended by the learned counsel appearing for the first respondent, the Investigating Officer except saying that 'not sent for trial' he has not given any reasons for deleting the name of the accused No.1. In the statements of the above stated witnesses, there is specific mention about the accused No.1 involvement in commission of offences, even though the Investigating Officer has deleted his name.
20. As rightly contended by the learned counsel for the first respondent, the trial Court is having Power to include the name of the accused No.1 by invoking provisions under Section 319 of Cr.P.C., during the trial and even at the Appellate stage also.
10
21. In support of the same, he has also relied on Judgment of the Hon'ble Supreme Court of India in M/s.Suvarna Cooperative Bank Limited., Vs. State of Karnataka and another1. In the said case, the Hon'ble Apex Court held that:
"Merely because some other persons who might have committed the offences, but were not arrayed as accused and were not charge-sheeted cannot be a ground to quash the criminal proceedings against the accused who is charge-sheeted after a thorough investigation. During the trial, if it is found that other accused persons who committed the offence are not charge-sheeted, the Court may array those persons as accused in exercise of powers under Section 319 Cr.P.C."
Therefore, the contention of Sri.C.Sharan Reddy, learned Counsel for the petitioners' is not sustainable.
22. It is also relevant to note that in Padal Venkata Rama Reddy Vs. Kovvuri Satyanarayana Reddy and others2 the Hon'ble Apex Court held that:
"Inherent Powers under Section 482 Cr.P.C could be exercised to prevent abuse of process of Court where 1 Judgment in Crl.App.No.1535 of 2021 of Hon'ble Supreme Court of India 2 2011 (12) SCC 437 11 Court finds that ends of Justice may be met by quashing proceedings."
23. In Skoda Auto Volkswagen India Private Limited State of Utter Pradesh3, the Hon'ble Apex Court referring to the various judgments rendered by it 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.
24. In Priti Saraf and others Vs. State of NCT of Delhi and others4 the Hon'ble Supreme Court of India held that:
"The defences taken by the accused cannot be considered in a petition filed to discharge them. The said defences have to be taken by the accused during the trial and it is for the trial Court to consider the same."
25. In State of Rajasthan Vs. Ashok Kumar Kashyap5 the Hon'ble Supreme Court of India held that:
"At the stage of considering an application for discharge the court must proceed on the assumption 3 2020 Latest Case law 620 SC 4 AIR (2021) SC 1531 5 MANU/SC/0275/2021 12 that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction."
26. In view of the law laid down by the Hon'ble Supreme Court of India, and in view of above said discussion, primafaice, there are several allegations against the petitioners herein. Deletion of name of the accused No.1 from the Chargsheet cannot be a ground to discharge the petitioners/accused No.2 and 3 from the said Calendar case. The above said suit was filed on 08-07-2015, an exparte interim injunction order was passed on 08-07-2015. Whereas, as per the complaint lodged by the first respondent dated 06-07-2015, the petitioners herein and the accused No.1 have trespassed into subject land on 05-07-2015 night and they have damaged fencing.
13
27. As discussed supra, the first respondent is claiming that she is absolute owner and possessor of the land admeasuring Ac.05-00 gts., in Sy.No.14/AA of Vepakukuntla Village, Khammam District, and whereas the accused No.1 in the Calendar case, in the above suit is claiming that he is absolute owner of land admeasuring Ac.05-00 gts., in Sy.No.14/3/A of Vepakukuntla Village, Khammam District. There is no denial of mortgage of the said land admeasuring Ac.05-00 gts., in Sy.No.14/AA of of Vepakukuntla Village, Khammam District by the petitioners herein.
28. According to the petitioner No.1 and also according to the accused No.1, the plaintiff in O.S.No.219 of 2015, son of K.Daniel, the said mortgage of subject land by the said K.Daniel is not legal and it is not binding on the accused No.1. However, the said issues are to be decided by the trial Court in O.S.No.219 of 2015 and the same cannot be considered by the Court below in a petition filed under Section 239 Cr.P.C. for 14 discharge of petitioners from the said Calendar case, even the same cannot be considered in this petition.
29. The Court below has considered all such aspects and dismissed the application filed by the petitioners seeking discharge. It is a reasoned order. There is no error in it. This Court does not find any reason to interfere with the impugned Order. Therefore, this Criminal Revision Case is liable to be dismissed.
30. Accordingly, this Criminal Revision Case is dismissed.
As a sequel, the Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ K. LAKSHMAN, J Date: 06-06-2022 KHRM 15 16 THE HONOURABLE SRI JUSTICE K. LAKSHMAN CRIMINAL REVISION CASE No.269 OF 2021 06-06-2022 KHRM