Telangana High Court
Narendra Chowdary Tummala vs The State Of Telangana on 28 February, 2023
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos.439 & 545 of 2023
COMMON ORDER:
1. Criminal Petition No.439 of 2023 is filed by A9 and Criminal Petition No.545 of 2023 is filed by A1 to A3 questioning the proceedings in C.C.No.6229 of 2022 on the file of XVII Additional Chief Metropolitan Magistrate, Hyderabad. Since the petitioners in both the petitions are accused in the same CC, Common Order is being passed.
2. The 2nd respondent-Jubilee Hills Welfare Society Limited represented by its Secretary B.Ravinderanath filed a complaint on 25.02.2021 addressed to the Station House Officer, Jubilee Hills Police Station. It is stated in the complaint that the members of the Jubilee Hills Cooperative House Building Society Limited intend to bring to the notice of the police regarding unlawful actions of the committee members and Jubilee Hills Cooperative House Building Society in respect of sale deed No.2675 of 2020 and Gift deed No.2688 of 2020.
3. It is alleged in the complaint that on 25.03.1988, Plot No.853- F was allotted to Ms.Ch.Sirisha and the plot was lying vacant since then. If the plot is not registered within three years of allotment, as 2 per the bye-laws of the Society, the allotment would lapse automatically. The said Ch.Sirisha migrated to USA and the plot cannot be registered in her name. The Society with the assistance of A1 to A6 entered into the property in the year 2017 and started construction activity and also causing nuisance to the neighbor in plot No.853-C. During the Covid pandemic period in 2019, A1 to A6 with the support of A9-Sub-Registrar registered the plot vide document No.2675 of 2020 in the name of Ch.Sirisha @ Rs.126/- per sq.yard for a total consideration of Rs.1,91,000/- even though the market value is around Rs.45.00 Crores. In the process, the Registration Department has been cheated. In the event of the property being sold in the open market, it would have garnered money in the form of taxes to the State Government. However, the accused had transferred the property in the name of A7, thereby committed offences of cheating, breach of trust, impersonation and also evading income tax.
4. The said transaction is benami transaction and it was found that A7 namely Ch.Sirisha was not the Sirisha in whose name the plot was allotted. The said complaint was signed on behalf of Jubilee Hills Society and signed by B.Ravindranath, Secretary and registered on 24.04.2021 and after investigation, the Police filed 3 Final Report under Section 173 of Cr.P.C stating that the dispute/transaction is civil in nature.
5. Aggrieved by the police investigation referring the case as civil in nature, protest petition was filed before the XVII Additional Chief Metropolitan Magistrate vide Crl.M.P.No.553 of 2021. The learned Magistrate examined two witnesses namely B.Ravindranath (S.W.1, Secretary of Jubilee Hills Welfare Society) and K.Nagendra Prasad (S.W.2, who is member in Jubilee Hills Cooperative House Building Society). Briefly, both the witnesses stated that the accused in collusion, registered the plot in the name of A7 Ch.Sirisha, who was not the Sirisha, in whose name the plot was earlier allotted. Learned Magistrate having recorded the statements of the two witnesses ordered as follows:
"Dated: 05.08.2022 Complainant is absent. Heard and perused the entire record including Sworn Statements of witnesses. Prima facie accusation is well found against A1 to A9 for the offences under Sections 120-B, 406, 408, 409, 419, 420, 467, 468, 471, 477A IPC. Hence this court has taken cognizance of the offence punishable under sections 120- B, 406, 408, 409, 419, 420, 467, 468, 471, 477A IPC against A1 to A9. Register as C.C.No.6229/2022. Issue summons to A1 to A9 through court and R.P on payment of process. Call on 17.10.2022."
6. Aggrieved by the order of the learned Magistrate issuing summons to accused, A1 to A3 and A9 filed the present petitions to quash the proceedings.
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7. The Secretary of Jubilee Hills Welfare Society Limited is made as 2nd respondent/defacto complainant in both the petitions. The Jubilee Hills Welfare Society filed counter stating that the Society did not authorize B.Ravindranath to file any criminal case representing the Society. In view of the earlier Secretary B.Ravindranath acting without authorization, the members have requested not to continue the criminal prosecution of the case. It was also resolved by the Society as follows:
" Mr. M.Satya Savarkar, President has raised that subject that the earlier Secretary Sri B.Ravindranath filed a criminal case in C.C.No.6229 of 2022 before XVII Additional Chief Metropolitan Magistrate, Hyderabad against Sri T.Narendra Chowdary, Hanumantha Rao, A.Suresh Reddy, Ch.Krishna Murthy, D.Srinivas Reddy, M.T.Javeeduddin, Ch.Sirisha, P.Srihari and Sri D.Srinivas (Sub-registrar), Banjara Hills), alleging offences under Sections 406, 408, 418, 420, 468, 471 and 477-A IPC read with Section 120-B IPC. He also brought to the notice of the Committee that the society had not authorized Sri B.Ravindranath to file such criminal case representing the Society in view of the earlier Secretary B.Ravindranath acting without authorization, the members requested to take a decision whether or not to continue prosecution of such criminal case. He was also informed that Bye-laws of the Society do not permit such action as it is beyond the scope of the Byelaws.
Resolution:
The Committee unanimously resolved that the prosecution initiated by Sri B.Ravindranath, the earlier Secretary allegedly on behalf of the Jubilee Hills Welfare Society Limited is without authority of the Society and therefore, it is resolved to withdraw that complaint. In this regard the committee hereby authorized Secretary Sri K.Rajeswar Rao to take legal steps and initiate steps to immediately withdraw the prosecution of complaint in C.C.No.6229 of 2022 pending before the Hon'ble XVII Additional Chief Metropolitan Magistrate, Hyderabad."5
8. In the said circumstances, it was argued on behalf of Jubilee Hills Welfare Society that the transactions are interse Society disputes and the Society does not intend to prosecute the petitioners before the criminal Court.
9. The earlier Secretary of Jubilee Hills Welfare Society namely B.Ravindranath, who filed the complaint on behalf of the Society filed I.A.No.3 of 2023 requesting this Court to implead him in his personal capacity as respondent No.3.
10. Sri T.Niranjan Reddy, learned Senior Counsel appearing on behalf of Sri B.Ravindranath, earlier Secretary would submit that since the complaint was filed by B.Ravindranath, he has the locus to contest and question the present proceedings. He submitted that serious fraud was committed by the accused causing huge loss to the society. The plot was earlier allotted in the name of Ch.Sirisha, if the plot could not be registered within three years in the name of said Ch.Sirisha, the plot would then be the property of the Society. The plot was sold for sum of Rs.1,91,394/- whereas the plot costs around Rs.45.00 Crores in the open market. In a hurried manner, the said property was transferred by way of gift immediately after registration in favor of A7. He further argued that in view of the criminal acts being committed by the accused, he should be 6 impleaded. He further submitted that the police investigation is perfunctory and the concerned Magistrate has exercised his jurisdiction by taking cognizance of the offences of cheating and criminal misappropriation against the accused. It was further argued that though the Magistrate has not stated facts nor given reasons in the cognizance order, the same cannot be set aside as the proceedings are not vitiated by virtue Sections 460 and 461 of IPC.
11. Sri T.Pradyumna Kumar Reddy, learned Senior Counsel appearing for T.Anirudhreddy, learned counsel for the petitioners and Sri K.Venumadav, learned counsel for the 2nd respondent- Society would submit that the earlier Secretary B.Ravinderanath has no locus standi to argue in the present case and he cannot be impleaded. However, the Senior Counsel representing B.Ravindranath was heard.
12. Before adjudicating upon the rival contentions, it is necessary to give the details on the basis of which the police referred the compliant as civil in nature;
"i) Ch. Sirisha was allotted the property by the society on 30.11.1991. She paid fee and development charges. The Society did not register the property in view of the restrictions imposed by the Registrar for Coop Societies, Hyderabad vide Rc.No.35170/2005-H1, dated 19.12.2005 wherein he directed the Society not to transfer or issue NOCs to its members without approval of the Government. The 7 same was intimated to Ch.Sirisha vide Lr.No.JCS/263/2007, dt.4.7.2007;
ii) Ch.Sirisha approached the Hon'ble High Court and filed W.P.No.160872007 for relief. The Hon.ble High Court allowed petition sating that the said proceedings of the Registrar of Coop Societies was challenged by batch of WPs and proceedings of the Registrar were found as cannot be sustained and interim directions were given to get the registration as well as to proceed with the 'construction' vide order dt.27.7.2007 of the Hon.ble High Court. The above petition was disposed off further through order dt.17.11.2011 by quashing the above proceedings of the Registrar of Coop Societies and allowed the petition filed by Ch.Sirisha and others. The Society also responded favourably, issuing further demand notices to her;
iii) However, when the site was inspected by the Society employees and Ch.Sirisha, it is found illegally encroached by neighboring plot owner No.853/C. Hence, complaint was filed with the P.S. Jubilee Hills vide Cr.No.91/2020 (not 19/2020 as mentioned in the Affidavit) dt.14.2.2020. as follow up on 21.5.2020 the society resolved to register the property in favour of Ch.Sirisha keeping in view of the High Court's order to avoid contempt proceedings likely to be initiated if the Society does not register the property;
iv) Therefore, on 26.6.2020 the plot was registered in her name vide Doc.No.2675/2020 registered by the Sub-
Registrar, Banjara Hills, Hyderabad."
13. The learned Magistrate had entertained the Protest Petition filed by the Society represented by Sri B.Ravindranath. Having examined him and another passed an order taking cognizance against accused. The order is bereft of any facts or the basis on which cognizance was taken for this Court to infer that the order taking cognizance was passed with due application of mind. The 8 Hon'ble Supreme Court in Sunil Bharti Mittal v. Central Bureau of Investigation ((2015) 4 Supreme Court Cases 609) held that Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. Further, it is imperative that the Magistrate shall consider whether the compliant/protest application discloses commission of an offence and has to form an opinion judiciously to prosecute the accused on the basis of prima facie case, if made out.
14. Similar view was taken by the Hon'ble Supreme Court in the case of Fakhruddin Ahmad v. State of Uttaranchal and another ((2008) 17 Supreme Court Cases 157 and also in the case of Deepak Gaba and others v. State of Uttar Pradesh ((2023 LiveLaw(SC) 3).
15. The Hon'ble Supreme Court in Deepak Gaba's case (supra) has observed that when the pre-summoning evidence is lead by the complainant, liability of the penal provisions alleged should be established. In several cases, it is noticed that the jurisdiction of the Criminal Court is invoked by filing vexatious criminal complaints, which were purely civil claims and such attempts to file 9 vexatious criminal complaints should not be entertained and dismissed at the threshold.
16. The Hon'ble Supreme Court further held that mere assertion "that having perused the record and statements of witnesses prima facie accusation is well founded" as recorded by the learned Magistrate will not meet the requirements of summoning the accused by application of judicious mind.
Time and again, this Court and the Hon'ble Supreme Court has found that summoning a person as accused to face criminal trial is a serious step taken by the criminal Court and such summoning can only be done when the Magistrate finds on the basis of facts that the ingredients of the offence alleged are prima facie made out. For the said reason, cognizance order bereft of proper reasoning is liable to be set aside and accordingly set aside.
17. The police, during the course of investigation has found that after allotment of the property in her name on 30.11.1991, the Registrar of Cooperative Societies vide Rc.No.35170/2005-H1 dated 19.12.2005 directed the Society not to transfer or issue NOCs to its members. Aggrieved by the same, Ch.Sirisha approached this Court and filed W.P.No.16087 of 2007 and this Court by order dated 10 17.11.2011 quashed the proceedings of the Registrar of Cooperative Societies. The Society employees and said Sirisha inspected the site and it was found that owner of plot No.853/C illegally encroached the plot allotted to Sirisha, for which reason, Crime No.91/2020 was registered by the Jubilee Hills Police on 14.02.2020. The Society as a follow up measure resolved to register the property in favour of Sirisha on 25.01.2020 to avoid any contempt proceedings in the High Court if the plot is not registered in the name of the said Ch.Sirisha. Accordingly, the plot was registered on 26.06.2020.
18. The findings of the police during the course of investigation reflect the role of Ch.Sirisha in filing W.P.No.16087 of 2007 aggrieved by the direction of Registrar of Cooperative Societies not to transfer the property and succeeded. Further, the inspection of site by the Society employees and Ch.Sirisha for illegal encroachments was subject matter of Crime No.91 of 2020. The said cases were suppressed and not stated either in the complaint or the protest petition or in the statement made by Sri B.Ravindranath before the Court. There is a clear suppression of facts in the proceedings at the time of filing both criminal complaint and also the subsequent Protest petition filed by 11 B.Ravindranath on behalf of the Society. Suppression of material facts is a ground for disallowing criminal prosecution. Parties cannot come to Criminal Courts with unclean hands and prosecute a person criminally by suppressing material facts. In such an event, this Court under the inherent powers will not hesitate to quash the criminal proceedings.
19. It is the case of the petitioners who are erstwhile members of the society that plot was registered in accordance with the directions of this Court fearing contempt. The police in its investigation did not find that the plot was registered to someone else and not to Ch.Sirisha to whom it was allotted. Except making bald allegations that the plot was sold to someone else and not to original allottee, no proof is provided either in the complaint or during the course of investigation or in the protest petition filed upon which cognizance was taken against these petitioners.
20. The complaint was in fact made by the society and the earlier Secretary B.Ravindranath has filed both the complaint and also the protest petition on behalf of the society. The society has now new committee members and it was unanimously resolved that there was no authorization to B.Ravindranath to file the criminal case representing the Society. As such, it was resolved unanimously by 12 the Committee that the launching of prosecution against the petitioners was without any authority and steps have to be taken by the society for withdrawal of the prosecution against these petitioners and appointed the present General Secretary K.Rajeshwar Rao to act on behalf of the society, which is Jubilee Hills Society Limited.
21. The property is that of the society and the society itself represented by its members are not inclined to prosecute the case stating that the Society is not aggrieved. Further no authority was given by the society to B.Ravindranath to lodge the compliant. Criminal Courts are not arenas to fight out personal disputes and wreak vengeance. The Society is having no grievance of the transaction in registering the plot to Ch.Sirisha and when it is found during investigation that the allegations made by B.Ravindranath of impersonation and cheating were found to be false, the proceedings before the trial Court, both on facts and law, cannot be permitted to continue.
22. In the result, the proceedings against petitioners/A1 to A3 in Criminal Petition No.545 of 2023 and petitioner/A9 in Criminal Petition No.439 of 2023 in C.C.No.6229 of 2022 on the file of XVII 13 Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed.
23. Accordingly, both the Criminal Petitions are allowed. Consequently, miscellaneous applications pending, if any, shall stand disposed.` __________________ K.SURENDER, J Date: 28.02.2023 kvs 14 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.439 and 545 of 2023 Dated: 28.02.2023 kvs