Andhra Pradesh High Court - Amravati
Botla Koteswara Rao, 2 Others, vs The State Of Ap Rep By Its Pp Hyd., ... on 16 October, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Petition No.6725 of 2011
ORDER:
This petition under Section 482 of Criminal Procedure Code (for short 'CR.P.C') is filed by the petitioners/A1 to A3 to quash the proceedings in Cr.No.50 of 2011 of Addanki Police Station, registered for the offences punishable under Sections 506, 423, 109 IPC and Section 156 (3) IPC.
2. The 2nd respondent herein filed a private complaint before the Judicial Magistrate of First Class, Addanki under Section 190 (1) Cr.P.C alleging that the third petitioner borrowed an amount of Rs.90,000/- from the complainant on 09-06-2007 and executed a demand promissory note in his favour on the same date, undertaking to repay the same with interest at the rate of 24% p.a either to the complainant or to his order on demand. Thereafter the complainant also requested him, many a time, both personally and also through mediators, for payment of the said debt, but he was postponing the same on one pretext or the other, while admitting his obligation there under.
3. While the matter stood thus, the third petitioner tried to leave the jurisdiction limits of the Court by alienating his property i.e. an extent of Ac.0.08 cents of site out of Ac.0.54 cents in Sy.No.319/4 of Darsi town to evade the payment of his debt, including the debt due to the 2nd respondent. The 2nd respondent filed O.S.No.51 of 2010 for recovery of Rs.1,51,800/-, subsequent interest, costs etc., and also obtained an order under Order 38 Rule 5 of Civil Procedure Code in I.A.No.290 of 2010, attached the property in Sy.No.319/3 of Darsi village and the attachment was effected on 26-04-2010 and it is subsisting.
4. As the matter stood thus, the petitioners 1 and 2/Accused Nos.1 and 2 herein made an attempt to purchase the attached property from Accused No.3. Immediately, the petitioner personally met them and informed that it is under the attachment. However, the petitioners 1 and 2 purchased the property from the 3rd petitioner for Rs.3,92,000/- on 17-05-2010 by registered sale deed bearing document No.3144 of 2010 registered with Sub-Registrar's Office, Darsi. Thus, the purchase of property nominally by the petitioners 1 and 2 from the 3rd petitioner at the behest of this complainant would constitute the offences punishable under Sections 206 and 423 IPC and requested to try the accused for the offences committed by them and punish them in accordance with law. But, the Magistrate after perusing the record, referred to the police exercising the power under Section 156 (3) Cr.P.C and in turn on receipt of records the Station House Officer, Addanki, Prakasam District registered the same as a case in Cr.No.50 of 2011 for the offences punishable under Sections 206, 423 and 109 IPC and issued F.I.R.
5. The petitioners who are the accused arrayed as Accused Nos.1 to 3 filed the present petition on the ground that the alleged purchase of the property by the petitioners 1 and 2 during subsistence of attachment do not constitute any offence punishable under Section 423 IPC and the allegations made in the complaint referred to the police by the Magistrate by exercising power under Section 156 (3) Cr.P.C do not constitute any offence, the purchase is always subject to attachment subsisting on the property and consequently the proceedings against the petitioners do not constitute any offence, since filing of private complaint and reference to the police by the Magistrate is nothing but abuse of process of Court and it is only the wreck vengeance against the petitionerers who purchased the property under a registered sale deed.
6. During hearing the learned counsel for petitioners/A1 to A3 while reiterating the contentions placed reliance on the judgment of this Court in the case of Manne Venkata Subbamma vs. Mannepalli Mallikharjunudu reported in 1974 AndhWR (1) Page 124. On the strength of the principle laid down in the above judgment the alleged act of purchase under the registered sale deed by the petitioners 1 and 2 from the 3rd petitioner during subsistence of attachment is not an offence punishable under the provisions of Penal Code and requested to quash the proceedings.
7. Notice was served on the respondents and proof of service is filed, but none appeared for the respondents. It is an undisputed fact that the respondents 1 and 2 purchased the property under the registered sale deed from the 3rd petitioner on 17-05-2010 for valuable consideration of Rs.3,92,000/-, and at the same time an extent of Ac.0.08 cents site out of Ac.0.54 cents in Sy.No.319/4 of Darsi town was attached vide Orders in I.A.No.290 of 2010 in O.S.No.51/2010 is not in dispute.
8. In view of the undisputed facts it is necessary to see whether such purchase by petitioners 1 and 2 from the 3rd petitioner would constitute any offence much less the offences punishable under Sections 206, 423 and 109 IPC. Section 206 IPC deals with Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution - Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both, and it is non-cognizable offence, to attract the offence there must be seizure and it has to be forfeited in the file etc.,
9. In the present case the property was attached on 26-04-2010 in I.A.No.290 of 2010 in O.S.No.51 of 2010 and purchase of the property by the petitioners 1 and 2 from the 3rd petitioner is always subject to the attachment subsisting on the property and the question of forfeiture does not arise, even otherwise the suit is at the stage of trial. Therefore, mere purchase of property during pendency of the suit, while attachment before judgment was subsisting would not constitute an offence punishable under Section 206 IPC, prima facie, as there is no possibility of seizing the property or forfeiture of the property in lieu of fine etc., Hence, the allegations in the complaint do not constitute the offence punishable under Section 206 IPC, prima facie.
10. The other allegation made is for the offence punishable under Section 423 IPC. Section 423 IPC deals with "Dishonest or fraudulent execution of deed of transfer containing false statement of consideration". In fact, the petitioners 1 and 2 are the persons aggrieved, if any deed was executed transferring any property containing of statement of consideration to any party i.e., the 2nd respondent herein, and none of the allegations made in the complaint do not disclose that the sale deed of transfer was executed containing false statement of consideration. In the absence of any such allegation in the complaint, it would not constitute the offence punishable under Section 423 IPC, prima facie.
11. On the other hand, the petitioners allegedly committed an offence punishable under Section 109 IPC and absolutely there is nothing to accept the contention of these petitioners to constitute an offence punishable under Section 109 IPC, as there was no instigation of any person to do anything or engages with one person or more persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to doing of that thing. Therefore, there is absolutely nothing to constitute an offence of abetment as defined under Section 107 IPC punishable under Section 109 IPC.
12. The learned counsel for the petitioners would draw the attention of this Court to the judgment in Manne Venkata Subbamma vs. Mannapelli Mallikharjunudu it was held that the agreement of sale would not create any interest in the property and sale of the property is not an offence, in Para 21 of the judgment, the single judge of this High Court held as follows:-
Para 21: We are only concerned in this case with an attachment over the property agreed to be sold under the suit contract, effected on an application filed nearly four months after the date of the contract. According to Section 64 of the Code of Civil Procedure, the effect of an attachment is that any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment- debtor of any debt, dividend or other moneys contrary to such attachment, would be void as against all claims enforceable under the attachment. The effect of an attachment is not to annihilate the interest of the debtor in the property. It does not transmit his interest in the property to the attaching creditor. His title to the property is not displaced nor even kept in abeyance by the attachment. If there is a contract entered into by the debtor prior to the attachment, any conveyance made in pursuance of such a contract is not really effected by such attachment. But the only right of the attaching creditor would fasten to the purchase-money paid after such attachment. The attachment does not take away the competence of the vendor to transfer the property. This position is well established (See the decisions in Veeraraghavayya v. Kamala Devi, Veerappa Thevar v. Venkatarama Ayyar, Dirayyam v. Veeranan Ambalam and Basavaiak v. K.Venkata Subbareddy).
13. In view of the above referred judgment the learned counsel for the petitioners argued that the sale would not constitute an offence under any provision of Penal Code.
14. On overall perusal of the material available on record I find there is nothing to constitute any offence much less the offences punishable under Sections 206, 423, 109 IPC, prima facie, and filing of private complaint is nothing but abuse of process of law and it is only a wreck vengeance against the petitioners/A1 to A3 in view of the pending civil litigation between the petitioners. Hence, I find it is a fit case to allow this petition and to quash the proceedings in Crime No.50 of 2011 of Addanki Police Station, Prakasam District, against the petitioners/A1 to A3.
15. Accordingly, this Criminal Petition is allowed.
As a sequel, miscellaneous petitions pending, if any, in this case shall stand closed.
___________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 16.10.2019.
IS THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CRIMINAL PETITION NO.6725 of 2011 Date: 16-10-2019 IS.