Telangana High Court
Sunil Kumar Ahuja vs The State Of Telangana on 8 September, 2022
Author: D. Nagarjun
Bench: D. Nagarjun
THE HONOURABLE DR. JUSTICE D. NAGARJUN
CRIMINAL PETITION No.13901 OF 2018
ORDER:
This petition is filed seeking quashment of orders dated 01.07.2018 in Crl.M.P.No.2223 of 2017 in C.C.No.821 of 2015 by the learned XXIII Metropolitan Magistrate, Cyberabad at Rajendernagar, which was filed under Section 239 Cr.P.C., seeking discharge of the petitioner for the offences under Section 406 and 420 IPC, which the trial Court has declined to consider.
2. The facts in brief as per the records before the Court are that the 2nd respondent has filed a private complaint under Section 200 Cr.P.C., before the concerned Magistrate, who, in turn, has referred the same to the concerned police under Section 156(3) Cr.P.C. The concerned police have registered the same as FIR in Crime No.217 of 2014 for the offences under Sections 420 and 406 IPC and after completion of investigation, filed charge sheet.
3. The sum and substance of the investigation of the police is that there is an acquaintance between the de-facto 2 complainant and the petitioner in respect of purchase of certain immovable properties, wherein the 2nd respondent had handed over certain blank cheques and pro-notes belonging to him and his wife to the petitioner and subsequently, disputes arose between the de-facto complainant and the petitioner and after due deliberations both of them have agreed that the petitioner has to pay an amount of Rs.29,52,100/- to the de-facto complainant and accordingly, he has given an undertaking on 31.03.2012, wherein there is also a mention about certain cheques belonging to the de-facto complainant and his wife were with the petitioner. However, they were misplaced and will be handed over as and when they are traced.
4. The petitioner has filed C.C.No.66 of 2014 on the file of the learned III Additional Chief Metropolitan Magistrate, Nampally against the de-facto complainant alleging that he has committed the offence punishable under Section 138 of the Negotiable Instruments Act.
5. According to the de-facto complainant, the cheques, which were left with the petitioner which the petitioner has undertakn on 31.03.2012 that they were misplaced, were used 3 by the petitioner illegally and a false case has been filed. Questioning the same alleging that the petitioner has committed the offence under Sections 420 and 406 IPC, the de- facto complainant has filed the private complaint on which the police have completed investigation and field charge sheet.
6. When the matter has come to the stage of framing of charges, the petitioner has filed Crl.M.P.No.2223 of 2017 seeking his discharge for the offences under Sections 420 and 406 IPC mainly alleging that the undertaking alleged to have been given by him on 31.03.2012 is a forged one and he has not executed any such document.
7. In support of his contention in the discharge petition, he has enclosed copy of the deposition of the de-facto complainant in C.C.No.66 of 2014 filed by the petitioner under Section 138 of the Negotiable Instruments Act, wherein the de-facto complainant has deposed that at the time of execution of undertaking dated 31.03.2012, he was not present in the house of the petitioner, however, one Ramesh and Dasharath, who are known to the petitioner and the de-facto complainant, are present and after execution of the said undertaking, the said 4 Ramesh and Dasharath brought the said undertaking and handed over in the house of the de-facto complainant in his absence.
8. By enclosing the said deposition of the 2nd respondent, the petitioner sought for discharging him stating that since the 2nd respondent himself was not admittedly available when the alleged undertaking dated 31.03.2012 was executed by the petitioner, the contention of the 2nd respondent that the petitioner has executed the undertaking cannot be accepted.
9. Learned Assistant Public Prosecutor appearing for the 2nd respondent has filed a counter in the trial Court and after considering the rival contentions of both the parties, the trial Court found that there is no substance in the submissions made by the petitioner and dismissed the petition filed by the petitioner in C.C.No.821 of 2015 for his discharge for the offences under Sections 420 and 406 IPC.
10. The petitioner has reiterated the averments raised by him in the trial Court, so also the counsel representing the 2nd respondent.
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11. Learned counsel for respondent No.2 has filed a counter affidavit, wherein it is stated that though the petitioner has given an undertaking dated 31.03.2012 stating that the cheques and pro-notes were misplaced and as and when they were traced out, he will return the same, but on one pretext or the other, he delayed the same. The petitioner in order to defraud the 2nd respondent and his wife, has filed C.C.Nos.66 of 2014 and 67 of 2014 against them by using the said cheques and that the said cases were dismissed. It is further stated that the trial Court after considering the issues and after detailed examination, dismissed the petition filed by the petitioner for his discharge and therefore, prayed this Court to dismiss the petition.
12. Heard both sides and perused the entire record closely, including C.C.No.66 of 2014, judgment passed by the learned Magistrate in C.C.No.66 of 2014 dated 27.01.2016, copy of the deposition of the 2nd respondent and cross examination and other connected record.
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13. Now, the point for determination is whether the orders dated 11.07.2018 in Crl.M.P.No.2223 of 2017 in C.C.No.821 of 2015 can be set aside and the petitioner can be discharged?
14. In order to discharge the petitioner for the offences under Sections 420 and 406 IPC, the petitioner is expected to place before the Court that the entire material submitted by the prosecution in the form of charge sheet even if it is accepted to be correct, there shall not be any substance for the Court to frame a charge. In case, if the Court finds that there is any prima facie material, which requires a regular trial to be conducted, then the trial Court is required to decline the request for discharge.
15. Normally, while considering the application for discharge, the Courts are not expected to take into consideration the documents or any other material filed by the accused, which are not part and parcel of the charge sheet. The Courts are not expected to conduct trial at the time of considering the application for discharge of the accused.
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16. The main ground on which the petitioner is seeking discharge is that the 2nd respondent has filed a complaint in the police station basing on the alleged document dated 31.03.2012 alleged to have been executed by the petitioner, wherein there is also a mention to the effect that the cheques and pro-notes belonging to the 2nd respondent and also his wife are with the petitioner and they are misplaced. The petitioner has been disputing execution of this document.
17. According to the petitioner, the document dated 31.03.2012 is a forged one. In the evidence as DW.1 in C.C.No.66 of 2014 filed by the petitioner against respondent No.2 under Section 138 of the Act, respondent No.2 has taken plea that the cheques filed in C.c.No.66 of 2014 were not actually given by respondent No.2 in discharge of debt. However, the petitioner has used the cheques, which were with him, which the petitioner stated to have been misplaced as mentioned in document dated 31.03.2012. In respect of that while deposing as DW.1, respondent No.2 has deposed that he was not personally present when the document dated 31.03.2012 was executed, but one Ramesh and Dasharath 8 have collected the document after two or three days. Basing on that statement of respondent No.2, the petitioner has submitted that the said Ramesh and Dasharath are circumstantial evidence and the statement that Ramesh and Dasharath have brought the document dated 31.03.2012 would disclose that there was no mutual discussion between the petitioner and respondent No.2 in respect of execution of such document and the said document is created only to evade the liability in C.C.No.66 of 2014.
18. This Court has gone through the evidence of respondent No.2 in C.C.No.66 of 2014 as DW.1. On 25.06.2015 in further cross-examination of DW.1, respondent No.2 has deposed as under:
"Except the transaction under Ex.D9, I have no other transactions with the complainant. It is not mentioned in Ex.D9 about transaction pertaining to Jallpalle lands. Ex.D9 was executed by the complainant in his house at Jubilee Hills. I do not remember the time of execution of Ex.D9 on 31.03.2012. I was not personally present when Ex.D9 was executed by the complainant. Witness adds to say that he has sent his men to collect Ex.D9. The persons deputed by me are Dhasarath and Ramesh commonly known to both of us. It is incorrect to say that Dhasarath and Ramesh are not known to the complainant and they are my friends. On second or third April, 2012, I deputed Dhasarath and Ramesh to meet the complainant and after a period of one week they delivered Ex.D9 at my house when I was absent. It is incorrect to say that I have not deputed 9 Dhasarath and Ramesh to meet the complainant and after a period of one week they delivered Ex.D9 at my house when I was absent. It is incorrect to say that the signature appearing on Ex.D9 is not of the complainant. I do not know whether the complainant was not available at Hyderabad on 1, 2 and 3 of April, 2012. the amount of Rs.29,52,100/- covered under Ex.D9 is unpaid to me till date."
19. On considering the part of the cross examination of respondent No.2 as DW.1 in C.C.No.66 of 2014, as extracted above, it is clear that respondent No.2 has categorically mentioned that he was not present at the time of execution of the document dated 31.03.2012 by the petitioner and that he has sent one Ramesh and Dasharath to collect the document.
20. Therefore, as rightly submitted by the learned counsel for the petitioner, respondent No.2 was not present when Ex.D9 was executed. However, the question is not whether respondent No.2 was present at the time of execution of Ex.D9 dated 31.03.2012, but the question is whether the document dated 31.03.2012 was executed by the petitioner. Respondent No.2 has not stated in the evidence that the document dated 31.03.2012 was not executed by the petitioner. 10
21. Therefore, the question before the trial Court would be whether the document dated 31.03.2012 was executed by the petitioner or not. Therefore, basing on the evidence of respondent No.2, it cannot be concluded that the petitioner has not executed the document dated 31.03.2012. Since the petitioner has denied to have executed the document dated 31.03.2012, the trial Court will frame the appropriate charges and the prosecution will have to produce the evidence and prove that the document dated 31.03.2012 is executed by the petitioner. In case, if the prosecution fails, the petitioner will get a clean acquittal. Therefore, since there is no admission by respondent No.2 that document dated 31.03.2012 is not executed by the petitioner, the contention that basing on the admission of respondent No.2 the petitioner has to be discharged from the allegations cannot be appreciated.
22. In addition to that the contention of the petitioner that the document dated 31.03.2012 was created by respondent No.2 in order to evade the payment under the dishnoured cheques, which are the subject matter of C.C.No.66 of 2014. 11
23. Learned counsel for respondent No.2 has filed judgment in C.C.No.66 of 2014, wherein the trial Court on going through the signatures of the petitioner on the document dated 31.03.2012, the signatures on the Vakalath and other documents available in the Court has concluded that the signatures on the document dated 31.03.2012 belong to the petitioner and the Court has held that the document dated 31.03.2012 is not forged one.
24. Therefore, once the trial Court in C.C.No.66 of 2014 has given a clear finding that the document dated 31.03.2012 is not forged, the petitioner has no case. Therefore, basing on the said observation of the learned Magistrate in C.C.No.66 of 2014, the contention of the petitioner that since the document dated 31.03.2012 is a forged one and therefore, he has to be discharged for the offences under Sections 420 and 406 IPC cannot be considered.
25. In view of the discussion made above, the trial Court has properly appreciated the evidence and material placed before it and came to the right conclusion that the petitioner cannot be discharged for the offences under Sections 420 and 406 IPC. 12 Therefore, there are no grounds to interfere with the orders dated 01.07.2018 passed in Crl.M.P.No.2223 of 2017 in C.C.No.821 of 2015 by the learned XXIII Metropolitan Magistrate, Cyberabad at Rajendernagar.
26. In the result, the criminal petition is dismissed.
Miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. D. NAGARJUN, J Date: 07.09.2022 ES