Andhra HC (Pre-Telangana)
N.Gurucharanam, S/O.Veeraiah vs The State Of Andhra Pradesh, Through ... on 12 October, 2012
Author: G.Krishna Mohan Reddy
Bench: G.Krishna Mohan Reddy
THE HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL PETITION No.1618 of 2009 12.10.2012 N.Gurucharanam, S/o.Veeraiah The State of Andhra Pradesh, through Public Prosecutor, High Court of A.P., Hyderabad and another Counsel for the Petitioners: Mr. P.Kesava Rao Counsel for the Respondent No.1: The Public Prosecutor Counsel for the Respondent No.2: Mr.A.Prabhakar Rao <Gist : >Head Note: ?Cases referred: 1) (2010) 10 SCC 361 2) (2010) 7 SCC 667 3) (2010) 9 SCC 171 4) (2011) 7 SCC 59 5) AIR 2010 SC 3624 6) AIR 1971 SC 1244 7) AIR 1996 SC 339 8) AIR 2002 SC 3372 9) AIR 2002 SC 3372 10) AIR 2009 SC 3232 11) AIR 1954 SC 397 12) (2005) 4 SCC 370 13) (2009) 13 SCC 729 ORDER:
This Criminal Petition has been preferred by the petitioner- sole accused under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C) to quash proceedings in Crime No.100 of 2008 on the file of the Court of XII Metropolitan Magistrate, Nampally, Hyderabad registered for offence punishable under Sections 406, 409, 417, 418, 419, 420, 465, 467, 468, 477-A of the Indian Penal Code, 1860 (IPC).
Whereas the petitioner herein is the sole accused, the second respondent herein is the defacto complainant in the Criminal Case. For convenience, I refer the parties as arrayed in the Criminal Case.
The defacto complainant filed complaint dated 04.4.2008 before the learned Chief Metropolitan Magistrate at Hyderabad which was referred to under Section 156(3) Cr.P.C for conducting investigation following which the CCS PS, Hyderabad registered the Crime.
The case of the prosecution is as follows.
The defacto complainant and others started partnership business i.e., transporting and handling of food grains for Food Corporation of India (FCI) by virtue of their partnership deed dated 28.10.1976 in the name and style of M/s.Bajjuri Sammaiah and Company, Warangal, which was registered with the Registrar of Firms on 09.9.1977 vide Registration No.1090 of 1977. Two of the partners, namely, D.Linga Murthy and B.Janardhan were looking after the business of the firm on behalf of all the partners, but D.Linga Murthy died in 1983, whereas some other partners of it, namely, B.Sammaiah, B.Govardhan, B.Janardhan and Nuka Kamalamba died in 1994, 1989, 1996 and 2009 respectively. It is claimed that O.S.No.125 of 1981 was filed for appointment of arbitrator, which was decreed by the II Additional Senior Civil Judge, Warangal on 31.9.1991 directing to appoint Mr.L.R.Kohli as arbitrator to adjudicate a claim of Rs.9,58,468/- payable to the firm by the FCI following which he passed award dated 09.3.1993 allowing the claim. Having aggrieved, the FCI filed O.S.No.364 of 1993 to set aside the arbitration award, but the suit was dismissed on 07.6.1994 whereby the FCI filed appeal in C.M.A.No.3506 of 1999 before this Court along with C.M.P. No.18733 of 2001 in which sought for granting stay of the payment of the amount to the firm, which was allowed giving a direction to the FCI to deposit 50% of the amount awarded observing that the partnership was at liberty to withdraw the amount subject to the result of the appeal. But as the amount was not deposited by the FCI as directed, E.P. No.77 of 2001 was filed on behalf of the firm on the file of the Court of V Additional Senior Civil Judge, City Civil Court, Hyderabad in which Rs.15,50,500/- was deposited by the FCI as the amount to be deposited.
It is alleged that knowing fully well about the death of some of the partners and the dissolution of the firm, the accused without authority and fraudulently and dishonestly withdrew the amount of Rs.15,50,500/- with the intention of causing wrongful loss to the defacto complainant and other partners of the firm apart from which by impersonation, the accused opened an account in a bank in Hyderabad in the name of the firm and encashed the amount through that and swallowed the amount.
Learned counsel for the accused submits that the accused and seven others formed the partnership firm with a condition that its dissolution should be at Will and registered it whereas its business commenced from 03.3.1976. He claims that as some of the partners died and one of the partners i.e., A.Sampath Rao (the defacto complainant) had not contributed his share and he also expressed to retire from the firm, another partnership deed dated 01.4.1989 was executed deleting his name in the deed and placing B.Janardhan, another partner, to operate the bank account of the firm, but as B.Janardhan expired on 27.5.1996, the firm was reconstituted on 03.10.1996 whereby B.Prasad, S/o.Janardhan was brought as a partner of the firm in the place of his father, whereas the accused being the Managing Partner of the firm was given the authority to sign, submit bills, and receive cheques, drafts and cash on behalf of the firm. He claims as one important circumstance that in O.S.No.125 of 1981 filed to appoint arbitrator, the defacto complainant filed I.A.No.776 of 1993 (I.A) to implead him as one of the defendants, but it was dismissed, in consequence of which the defacto complainant filed C.R.P.No.892 of 1994 which was also dismissed by this Court on 17.8.1995. Thereby he vehemently contends that the defacto complainant got no locus to file the complaint. He has emphasised that the accused acted as a partner of the firm as per law whereas the matter is purely civil in nature to prosecute the accused in the case asserting that the ingredients of the alleged offences are not made out. He has placed reliance upon the decisions in V.P. Shrivastava v Indian Explosives Ltd.1, Preeti Gupta v State of Jharkhand2, Virender Prasad Singh v Rajesh Bhardwaj3, Joseph Salvaraj v State of Gujarat4 in support of his pleas.
Learned Additional Public Prosecutor has opposed the petition. Learned counsel for the defacto complainant has reiterated the submissions made in the complaint.
Thereby in fact it is to be seen as to whether sufficient information was given to the Police for the registration of the case or whether there are any grounds to quash the proceedings on the ground that contrary to that the case was registered.
Chapter XII Cr.P.C. deals with the questions relating to registration of criminal cases on receiving necessary information and powers of the Police to investigate the cases consequently. At the outset Section 154 Cr.P.C. actually deals with the question of registration of criminal cases. Sub-section (1) thereunder mandates that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, Sub-section (2) thereunder deals with giving a copy of the information as recorded to the defacto complainant, and Sub-section (3) thereunder deals with the question of omission to comply with what is mandated in Sub-section (1). Under Section 156 Cr.P.C. prescribed the power of a police officer to investigate a cognizable case. Sub-section (1) thereof enjoins "Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII". Sub-section (2) enjoins "No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate". Sub-section (3) enjoins "Any Magistrate empowered under section 190 may order such an investigation as above-mentioned". Section 157 Cr.P.C deals with the procedure to be followed while conducting investigation. Section 158 Cr.P.C deals with the procedure to report to the jurisdictional Magistrate. Under Section 161 Cr.P.C the police officer got authority to examine and record statements of witnesses with reference to relevant charges. Section 162 Cr.P.C deals with how far the statements recorded under Section 161 Cr.P.C can be made use of by the defence with reference to any particular charge or charges. By virtue of Sections 165 and 166 Cr.P.C the police officer got authority to conduct necessary searches taking necessary measures for the purpose of collecting necessary material which is relevant in the corresponding criminal case. Sections 166A and 166B deal with the power of police officer for conducting necessary investigation in the case outside India. Section 167 Cr.P.C deals with taking necessary steps with regards to the detention of accused when the investigation cannot be completed within prescribed period. Under Section 170 Cr.P.C if, upon the investigation under the Chapter, it appears to the officer in charge of police station that there is sufficient evidence or reasonable ground as aforesaid, he shall forward the accused under his custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial and so on. Under Section 172 Cr.P.C every police officer who makes investigation under this Chapter shall day by day enter his proceedings in a diary, setting forth with regards to conducting the investigation. Section 173 Cr.P.C deals with filing the consequential final report in detail.
By virtue of Section 154 Cr.P.C unless necessary information is given to the police officer with regards to the commission of a cognizable offence he should not register the case. Similarly unless necessary material is collected while investigating any criminal case the question of prosecution of anybody consequentially also does not arise at all. Registering a criminal case against anybody and also prosecuting him for any criminal charge without collecting sufficient material to do so are nothing but abuse of the process of law and curtailing his life and liberty guaranteed under the Constitution. Viewed from the other angle, the authority of the police officer to register a cognizable offence and also conducting necessary investigation therein cannot be questioned or interfered with unless that has been done against law. The statutory authorities should be allowed to carry out their statutory duties whereas their unfettered authority to do so cannot be interfered with and infringed by any other authority without lawful reason. In view of that the Investigating Officer in the case should be allowed to examine the relevant documents to be put forth before him and also the contentions of the accused which might be raised before the final report could be filed ultimately. Just on the apparent consideration of the documents or material available the genuineness or otherwise of the claim of the defacto complainant may not be determined, hence such an attempt should not be made now.
With reference to the question of giving necessary information for the registration of the case for various cognizable offences it is clearly alleged that knowing fully about the death of several partners and with a fraudulent and dishonest intention of cheating the defacto complainant and other partners the accused approached as a representative of the firm and obtained the order to withdraw the amount of Rs.15,50,500/- from the Court of Senior Civil Judge, Hyderabad in E.P.No.77 of 2001 in O.S. No.364 of 1993 to have wrongful gain for himself and wrongful loss to all the partners by deception in consequence of which he got opened an account in a bank in Hyderabad in the name of the firm, and got deposited, and encashed the amount and eventually misappropriated the amount creating false documents which cannot be termed to be a matter purely civil in nature to exonerate him straight away.
With regards to the locus standi of the defacto complainant to file the case, in fact no document is available. On the other hand copies of partnership deeds dated 28.10.1976; 01.4.1989 and 03.10.1996 are filed before this Court. Only in the partnership deed dated 28.10.1976 the defacto complainant was shown as a partner of the firm. In other words, in the other two subsequent partnership deeds dated 01.4.1989 and 03.10.1996 he was not shown as a partner of the firm. Curiously in these subsequent partnership deeds, it was mentioned that the defacto complainant should have contributed 20 paise share in a rupee unit towards his share on investments, but he failed to do so, and thus he was not considered to be a partner of the firm. This, in fact, makes it clear prima facie that the defacto complainant was not a partner of the firm by 01.4.1989 and 03.10.1996 respectively but that alone does not mean by itself that by the date of filing the complaint in this case he got no interest in the partnership firm, which aspect is to be determined by the Investigating Officer. It is also debatable here the question of any body giving a report to set criminal law into motion for any criminal charge or charges which is a question to be determined on the basis of necessary material to be collected.
As seen from the complaint no specific dates with regards to various alleged incidents were given. It is represented by the learned counsel for the defacto complainant that the alleged cheating, creation of false documents, impersonation and swallowing the amount took place during the year 2008. The defacto complainant should have given specific dates in that context for comprehension. However when the question of genuineness of the allegations made by the defacto complainant is to be considered on the basis of necessary investigation to be done this Court cannot, on the apparent consideration of the material available, come to the conclusion as to whether the allegations made in the complaint are true or not.
In V.P.Shrivastava's case (1 supra) it is held by the Supreme Court with reference to relevant circumstances that to hold a person guilty of cheating, it is necessary to show that at the time of making promise he had fraudulent or dishonest intention to deceive or to induce person so deceived to do something which he would not otherwise do and such a culpable intention to right at the time of entering into an agreement cannot be presumed merely from his failure to keep up the promise subsequently. There is no dispute about this concept. At the same time, it is also to be considered that just on the basis of what has taken place at the inception of transaction it is always not possible to ascertain whether the ingredients of cheating are satisfied or not for which subsequent conduct of the party concerned may also be necessarily taken into consideration. In other words the totality of the circumstances of the case is to be taken into consideration for properly appreciating the matter. Subject to the ascertainment of the authority of the accused withdrawing the amount by misrepresentation and deceit definitely attracts the ingredients of cheating.
In Joseph Salvaraja's case (4 supra) to commence telecasting of GOD TV in certain areas in Ahmedabad, a deal was settled among three cable operators following which the agreement was put into enforcement. Thereafter there was proper telecasting of the TV for about five months without any disruption but later the reception signals of the said channel developed some technical snag in consequence of which a dispute was raised accordingly for which the opposite party alleged that it occurred as the operators failed to pay Rs.10,00,000/- for complying with the requirement. With regards to the question of application of Section 420 IPC the Supreme Court held that the matter was purely civil in nature to attract the ingredients of cheating. When the TV telecast was done as per the contract for five months properly and it was claimed that as certain amount payable was not paid the connection was disrupted rightly it was found that there was no inducement at the outset in that context which analogy is not applicable to the facts and circumstances on hand.
When there is clear material to the effect that knowing fully about the death of several partners and with a fraudulent and dishonest intention of cheating the defacto complainant and other partners, the accused approached as a representative of the firm and got the order to withdraw the amount of Rs.15,50,500/- from the Court in the E.P. proceedings to have wrongful gain for himself and wrongful loss to all the partners apart from which it is further alleged that he got opened an account in a bank at Hyderabad in the name of the firm in which he deposited the amount, and got it encashed by impersonation making and using false documents with a fraudulent and dishonest intention and consequently misappropriated the amount, by which definitely the ingredients of the alleged offences are made out apparently the case cannot be discarded on the ground that the matter is purely civil in nature. The Investigating Officer has to examine concerned witnesses and relevant documents to come to a definite conclusion about the complicity of the accused in the matter. When it is found that sufficient information was given to register the case for the alleged offences quashing the proceedings on different considerations is nothing but indictment of the unfettered powers of the Investigating Officer to do so and against law. If it were to be the position those who involve in such criminal activities go caught free which helps recurrence of such activities further and further leaving the genuine people in chaos.
When there are both civil and criminal liabilities in respect of an issue against a person, he is liable to be prosecuted both on the criminal side and on the civil side. This aspect was clearly dealt with by the Supreme Court in Kishan Singh v. Gurpal Singh5 under similar circumstance, while considering decisions in M/s.Karamchand Ganga Pershad v Union of India6, V.M. Shah v State of Maharashtra7, K.G. Premshankar v Inspector of Police8, P.Swaroopa Rani v M. Hari Narayana @ Hari Babu9, Syed Askari Hadi Ali Augustine Imam v State (Delhi Admn.)10, M. S. Sheriff v State of Madras11, Iqbal Singh Marwah v Meenakshi Marwah12 and Iqbal Singh Marwah v Meenakshi Marwah13, the Supreme Court observed and held as under:
"Thus in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal case it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration."
Thus, for the discussion made above, the investigation of the case should be allowed to be done or continued. As it is premature to come to any conclusion now about the actual criminal liability of the accused in the case, the petition is liable to be dismissed.
In the result, for the aforementioned reasons, the Criminal Petition is dismissed as devoid of merits. The miscellaneous petitions pending if any shall stand closed.
__________________________________ (G. KRISHNA MOHAN REDDY, J) 12th October 2012