Andhra Pradesh High Court - Amravati
Sri. Talacheeru Aruna Prasad Rao vs The State Of Andhra Pradesh on 14 February, 2024
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
[3330]
WEDNESDAY ,THE FOURTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
APHC010306072019
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION NO: 5767 OF 2019
Between:
1. Sri. Talacheeru Aruna Prasad Rao, S/o. Raghavaiah, aged about
60 years.
2. Smt. Talacheeru Prameelamma, W/o. T.Aruna Prasad Rao, aged
about 55 years.
3. Sri. Talacheeru Raghavendra Rao, S/o. Aruna Prasad Rao, aged
about 42 years. (All are R/o. Balaji Nagar, Upstairs of Axis Bank
ATM, Nellore District.)
...PETITIONER/ACCUSED(S)
AND
1. THE STATE OF ANDHRA PRADESH, Represented by its Public
Prosecutor, High Court of Andhra Pradesh at Amaravathi.
2. Nemmallapudi Raghurami Reddy, S/o. Gopal Reddy, aged about
42 years, Agriculturist, R/o. Narasingaraopet, Gudur, SPSR
Nellore District.
...RESPONDENT/COMPLAINANTS
Petition under Section 437/438/439/482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court pleased to quash the proceedings in C.C.No.891/2017 on the file of the Hon'ble V Addl. Judicial Magistrate of I Class, Nellore as against the petitioners herein and pass I.A. NO: 1 OF 2019 Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to Stay all further proceedings in C.C.No.891/2017 on the file of the Hon'ble V Addl. 2 judicial Magistrate of I Class, Nellore including appearance of the petitioners pending disposal of the present criminal petition and pass This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri VENKAT RAO RAVULAPALLI ,Advocate for the Petitioner and the Public Prosecutor (TG/AP) on behalf of the Respondent No. and of Sri_Advocate for the Respondent No. The Court made the following:
The present criminal petition is filed by petitioners/accused Nos.1 to 3, seeking to call for the records pertaining to C.C.No.891 of 2017 on the file of learned V Additional Judicial Magistrate of First Class, Nellore and to quash the same. Wherein, the police laid a charge sheet for the offences punishable under Sections 418, 420 and 423 r/w 120(b) of the Indian Penal Code, 1860 (for short "I.P.C.") in Crime No.61 of 2017 of Balajinagar Police Station, Nellore.
2. Shorn of all facts, succinctly the allegations made in the charge sheet is that, the petitioners/accused having been mortgaged the property to State Bank of India, Podalakur branch and being defaulters, the bank authorities were proceeded under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "SARFAESI Act") for recovery of the dues, and the accused Nos.1 and 2 have also executed an agreement of sale in favour of accused No.4 vide 3 document No.2634 of 2013 dated 20.06.2013, which property mortgaged in order to defeat the interest of the 2nd respondent/complainant.
3. The said charge sheet was implored in the present criminal petition on the ground that the 2nd respondent/complainant filed a suit for specific performance vide O.S.No.153 of 2014 on the file of learned V Additional District Judge, Nellore and when the suit is pending, a criminal case is filed in order to convert the civil dispute into criminal dispute and in the written statement filed by the petitioners/accused, it has been categorically denied that no agreement of sale was executed by the petitioners/accused and also denied the signature of the petitioners/accused and also relied on the order dated 23.11.2018 passed in Crl.P.No.24801 of 2017. Wherein, the Court has quashed the proceedings against accused No.4, on the ground that there are no such assertions or allegations against accused No.4 and the dispute is civil in nature and pending in the civil Court. Basing on the aforesaid grounds, the learned counsel for the petitioners sought to quash the proceedings.
4. Per contra, refuting the contentions raised by the learned counsel for the petitioners, learned counsel for the 2nd respondent would submit that in order to cheat the 2nd 4 respondent/complainant, the petitioners/accused knowing that the property was mortgaged to the bank and SARFAESI proceedings were initiated, intentionally entered into agreement of sale along with the 2nd respondent/complainant. Learned counsel for the 2nd respondent/complainant also taken this Court to the written statement filed in O.S.No.153 of 2014, which states that accused No.1 executed agreement of sale in favour of the complainant and accused No.3 is the attestor of the agreement of sale and it is also admitted that one Arun Kumar forged the signature of accused No.2 and accused No.2 is the wife of accused No.1 and mother of accused No.3 and also contends that the judgment relied by the learned counsel for the petitioners is not applicable to the present facts of the case. Hence, he urged to dismiss the criminal petition.
5. Heard learned counsel for the petitioners and learned counsel appearing on behalf of the 2nd respondent/complainant.
6. As seen from the order in Crl.P.No.24801 of 2017 it is clear that, his lordships has quashed the proceedings against accused No.4 in C.C.No.891 of 2017 on the ground that there is no allegation against accused No.4 to attract the ingredients of the quoted Sections in the charge sheet.
7. The police forwarded the charge sheet on the ground that the petitioners knowing that they are defaulters and the bank 5 authorities proceeded under SARFAESI Act, for recovery of dues and they have entered agreement of sale in favour of the 2nd respondent/complainant.
8. Learned counsel for the petitioners would submit that the said SARFAESI proceedings were initiated subsequent to the agreement of sale and the allegations made in the charge sheet are false.
9. The petitioners have not filed any documents to establish that the SARFAESI proceedings are subsequent to agreement of sale. Therefore, it shall presumed that knowing very well about the SARFAESI proceedings, the petitioners/accused have executed an agreement of sale in favour of the 2nd respondent/complainant and the fact of denying the signature of accused on the agreement of sale is also established in the written statement filed by the accused and they are admitted that the signature on the agreement of sale belongs to accused No.1 and the same was attested by the accused No.3.
10. Learned counsel for the petitioners relied on the judgment of the Hon'ble Apex Court titled as R.Nagender Yadav v. The State of Telangana and another1 for the proposition that civil transaction may also have a criminal texture, but the High Court 1 2022 LiveLaw (SC) 1030 6 must see, whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. The Hon'ble Supreme Court at paragraph Nos.17 and 18 held as follows:
17. While exercising its jurisdiction under Section 482 of the Cr.P.C, the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure the ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. Whether the essential ingredients of a criminal offence are present or not, has to be judged by the High Court. A complaint disclosing civil transaction may also have a criminal texture.
But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, as has happened in the case on hand, the High Court should have quashed the criminal proceeding to prevent abuse of process of court.
He also relied on Usha Chakraborty and another v. State of West Bengal and another2 for the very same proposition.
11. The said facts are not applicable to the present facts of the case. As in the present case, the petitioners herein have knowing very well about the SARFAESI proceedings, executed the agreement of sale in favour of the 2nd respondent/complainant, that itself shows that there is a dishonest intention on the part of the petitioners/accused.
2 2023 LiveLaw(SC) 67 7
12. As seen from the facts of the case, the contentions raised by the petitioners herein is not a ground to quash the proceedings, it does give any cloak of civil dispute. When the facts emerging from charge sheet, the charge taken at the face value discloses the existence of all the ingredients constitute the alleged offence and this Court cannot conduct a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting trial. Whether the petitioners have forged the signature is a question of fact, has to be established in the trial. It is apparent from the charge sheet, that knowing very well the petitioners have sold the property, which was mortgaged to bank and subsequent to SARFAESI proceedings.
13. This Court relies on the judgment of the Hon'ble Apex Court reported in K.Jagadish v. Uday Kumar G.S3, for the proposition that even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law. Even assuming that civil proceedings are pending by way of suit for specific performance of contract, still the ingredients of Section 420 of I.P.C are applicable and not precluded from setting criminal proceeding into motion.
3 (2020) 4 SCC 552 8
14. In view of K.Jagadish case (referred supra) this Court is declined to interdict with the proceedings in C.C.No.891 of 2017 on the file of learned V Additional Judicial Magistrate of First Class, Nellore.
15. Accordingly, the Criminal Petition is dismissed.
16. The learned counsel for the petitioners stated that the 1st petitioner died during the pendency of the present criminal petition. It is not denied by the learned counsel for the 2nd respondent/complainant. Therefore, the Criminal Petition against petitioner No.1/accused No.1 is dismissed as abated. Learned Magistrate is hereby directed to proceed with trial against accused Nos.2 and 3.
17. The learned counsel for the petitioners also requested this Court to dispense with the presence of the petitioners/accused before the trial Court, during the course of trial. Acceding the request made by the learned counsel for the petitioners, the presence of the 2nd petitioner/accused No.2 is hereby dispensed with, before the trial Court, during the course of trial. However, it is made clear that the 2nd petitioner/accused No.2 shall present before the trial Court, as and when her presence is necessary or as directed by the learned Magistrate.
9
As a sequel, miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date:14.02.2024 KBN 10 140 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO CRIMINAL PETITION No.5767 OF 2019 Date:14-02-2024 KBN