Andhra Pradesh High Court - Amravati
P V Viju vs The State Of Andhra Pradesh on 7 October, 2020
THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION No.1277 of 2020
ORDER:-
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking to quash the charge sheet dated 25.10.2015 in Crime No.25 of 2015 of Narsapuram Rural Police Station and consequently the entire proceedings in C.C.No.17 of 2019 (Old C.C.No.346 of 2016) on the file of learned Additional Judicial Magistrate of First Class Narsapuram against the petitioners registered for the offences punishable under Section 420 of the Indian Penal Code, 1860.
2. The petitioners before this Court are A3 and A4, who are alleged to have committed offence under Section 420 read with 34 of the Indian Penal Code, 1860.
3. Heard learned counsel for the petitioner and learned Public Prosecutor appearing for respondent No.1.
4. The petitioner has filed proof of service of respondent No.2/complainant vide U.S.R.No.25498 of 2020 whereby notice was served on respondent No.2 on 12.08.2020. But none appears on behalf of respondent No.2.
5. The facts of the case are that a private complaint was given on 27.01.2015 wherein it is mentioned that the offence has taken place on 10.03.2012. As per the complaint, the complainant used to purchase prawns from the villagers and after grading the prawns, he used to sell the same to the accused company i.e. Ocean Foods Pvt. Ltd., which belongs to A1 and A2. In turn A1 and A2 used to sell the same to A3 and A4, which is Bell Company. It is 2 stated in the complaint that on 10.03.2012 all the accused came to the grading company and took prawns worth Rs.1,00,00,000/- (Rupees One Crore Only) in the presence of some witnesses and promised that they will pay the amount within seven days and that they will arrange money within seven days. On 30.03.2012, accused No.4 came to the complainant and gave part of the amount but failed to make the remaining payment. Then on enquiry respondent No.2 came to know that all the accused are in the habit of cheating and accordingly he gave a complaint on 27.01.2015.
6. Learned counsel for the petitioners submits that there is no business relation between the petitioners/A3 and A4 and the respondent No.2/complainant. Even as per the averments of the complaint all the transactions took place between A1, A2 and the complainant. Learned counsel points out that in the complaint, A3 is shown as son of Vikraman, aged 40 years, whereas he is aged about 70 years. Learned counsel tries to point out that allegations made in the complaint also show that the complainant has no acquaintance with the petitioners and further she points out that on 08.03.2012 A-3 who is petitioner No.1 herein left from Cochin airport and he returned to Cochin on 19.03.2012. Along with the quash petition, copy of passport of A3 is filed and she further submits that if at all there is any default in paying the amount, it is purely a civil dispute. Only with an intention to recover the money which is alleged to be paid by A1 and A2 the petitioners are falsely implicated in the case. Even as per the complaint there are no averments that there was dishonest intention on the part of the accused right from the inception to deceive the complainant and 3 nothing has been explained for the delay in filing the complaint when the transaction has taken place on 10.03.2012 and the complaint was filed after three years on 27.01.2015.
7. Per contra learned Public Prosecutor submits that in the complaint there are allegations of cheating. When there are clear allegations and disputed questions of fact are involved, at this stage the Court may not interfere and interdict the proceedings.
8. As rightly pointed out by the learned Public Prosecutor, this Court cannot interfere and interdict the proceedings when disputed questions of fact are involved. But, at the same time this Court can exercise jurisdiction under Section 482 of Cr.P.C. in proper cases to do substantial justice, where the Court is convinced that continuation of the criminal proceedings is a pure abuse of process of law and further to meet the ends of justice, quashing of the complaint is necessary. The admitted facts are A1 and A2 are the Managing Partners of the Ocean Foods Exporters, Visakhapatnam and A3 and A4 are Managing Partners of Bell Company and they used to purchase prawns on credit and after receipt of prawns they will send amounts through bank. It is stated in the complaint that all the accused have come to Rajulanka village, Darbharevu Gram Panchayat at the grading company of respondent No.2 with an intention to cheat the complainant and instigated him to sell the prawns to their company. Admittedly it is the case of respondent No.2 that he has been doing business with the company of A1 and A2. It is stated in the complaint that on 10.03.2012 all the accused came to the grading company of respondent No.2. Whereas as per the passport filed by learned counsel for the petitioner, A3 was not in India. He 4 left from Cochin and returned to Cochin airport on 19.03.2012. Petitioner No.2/A4 was aged about 70 years, but in the complaint it is shown that he is person aged 40 years. This shows that respondent No.2 has no acquaintance with the accused as rightly pointed out by learned counsel for the petitioners.
9. Even if all the allegations in the complaint are taken on its face value they do not constitute an offence punishable under Section 420 read with 34 I.P.C. To constitute offence under Section 420 of I.P.C., the offence should have been committed as defined under Section 415 I.P.C. with an intention to cheat respondent No.2 and that intention should be present from the inception, whereas in this case there are no specific allegations in this regard. The only allegation is non-payment of the amount, which is due to respondent No.2, which at best can be a civil litigation. Respondent No.2 can approach competent Civil Court for recovery of the amounts. No one can be permitted to put the criminal law into motion to settle their civil disputes, which is nothing but a pure abuse of process of law and has to be interdicted at the threshold. Above all as per the complaint itself the business transactions are between respondent No.2 and accused Nos.1 and 2-company.
10. In State of Haryana and Ors. vs Ch.Bhajan Lal and Ors1, the Hon'ble Supreme Court held thus:
"8.1 In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise 1 AIR 1992 SC 604 5 to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide - ï7 myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
[305D-H; 306A-E] 6 8.2. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justiï7 on and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself.
11. In view of the law laid down by the Hon'ble Apex Court, in catena of cases as the averments in the complaint do not attract the offence under Section 420 I.P.C., the criminal petition is allowed by quashing the charge sheet dated 25.10.2015 in crime No.25 of 2015 of Narsapuram Rural Police Station as far as the petitioners are concerned and consequently the proceedings in C.C.No.17 of 2019 on the file of Principal Junior Civil Judge, Narsapuram are quashed against the petitioners.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
___________________________________ JUSTICE LALITHA KANNEGANTI Date: 07.10.2020 IKN 7 THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION No.1277 of 2020 Date: 07.10.2020 IKN