Telangana High Court
Shri. T Suresh vs State Of Telangana on 7 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
Crl.Petition No.7118 of 2021
1
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.7118 OF 2021
O R D E R:
This Criminal Petition is filed U/Sec.482 of Cr.P.C to quash the proceedings in P.R.C.No.52 of 2021 pending on the file of the learned XII Additional Metropolitan Magistrate, Cyberabad at Kukatpally. Petitioners herein are Accused Nos.1 and 2. The offences alleged against the petitioners herein are under Sections 420, 307, 326, 328, 387, 417 and 506 of Indian Penal Code.
2. Heard Sri.T.Niranjan Reddy, learned senior counsel representing Sri.Rahul Sarella, learned counsel for the petitioners, learned Public Prosecutor for the 1st respondent/State and Sri.Jalluri Balaji, learned party-in- person.
3. Perusal of the record would reveal that the 2nd respondent herein had filed a complaint under Section 200 of Cr.P.C. and the learned magistrate has referred the said complaint to police Gachibowli under Section 156(3) of Cr.P.C. who inturn registered a case in Crime No.629 of 2019 Crl.Petition No.7118 of 2021 2 against the petitioners herein for the aforesaid offences. On completion of investigation, the Investigating Officer had filed final report on 16.12.2019 stating that there is lack of evidence. Thereafter, the petitioners herein had filed a Protest Petition vide PRC No.52 of 2021. Learned IV Additional Junior Civil Judge-cum-XII Additional Metropolitan Magistrate, Cyberabad at Kukatpally vide order dated 01.04.2021 taken cognizance for the aforesaid offences against the petitioners herein. Challenging the same, the petitioners herein filed the present petition.
4. Sri.T.Niranjan Reddy, learned senior counsel for the petitioners would submit that the Investigating Officer had filed final report under Section 173 Cr.P.C. dated 16.12.2019 referring the complaint as lack of evidence. In the said final report, the Investigating Officer has specifically mentioned that he had examined the 2nd respondent and recorded his statement in detail. Thereafter, he has requested the 2nd respondent to produce the witnesses and also to furnish the documentary evidence relating to the case for the purpose of investigation. The 2nd respondent had assured that he will produce the same shortly. On 27.11.2019 and Crl.Petition No.7118 of 2021 3 07.12.2019, the Investigating Officer has sent notices under Section 91/160 Cr.P.C. to the 2nd respondent/complainant with a request to appear before him along with witnesses and also with documentary evidence within three days. Despite receiving and acknowledging the said notices, the 2nd respondent failed to appear and produce any witnesses or documents. In view of the same, all the efforts made by the Investigating Officer to conduct and conclude the investigation in a fair and transparent manner went in vain. Therefore, he has stated that the complaint lacks evidence.
5. He would further submit that the 2nd respondent in the Protest Petition came up with new allegations and he has added two more persons. There is no answer from the 2nd respondent with regard to his non-appearance before the Investigating Officer and his non cooperation with the Investigating Officer by furnishing the information and documents as sought by him in concluding the investigation. Without considering the said aspects, without there being any finding with regard to disagreement with the findings of the final report under Section 173 Cr.P.C., the learned Magistrate Crl.Petition No.7118 of 2021 4 has taken cognizance against the petitioners herein for the aforesaid offences.
6. Learned senior counsel would further submit that the said order dated 01.04.2021, the learned Magistrate is in violation of the entire procedure laid down under Cr.P.C. The 2nd respondent, an ex-employee of NXP India Private Limited, resigned on his own and due to disputes has implicated the petitioners herein in the present false case. The contents of complaint filed under Section 200 Cr.P.C., Protest Petition and sworn statement filed by the 2nd respondent lacks the ingredients of the offences alleged against the petitioners herein. In fact there is no allegation with regard to the offence under Section 326 IPC. Even then without considering the same, the learned Magistrate has taken cognizance against the petitioners herein. Therefore, with the said submissions he sought to quash the proceedings in PRC No.52 of 2021.
7. Whereas learned party-in-person would submit that there are specific allegations against the petitioners herein. On referring the matter to the police Gachibowli, the above said crime was registered on 20.11.2019. He has Crl.Petition No.7118 of 2021 5 waited for some time. He has not received any notice or call from the Investigating Officer in the said crime. Therefore, he spoke to Gachibowli SHO and enquired about status of the said crime. The SHO inturn has informed the 2nd respondent that it is a Court referred matter and they will submit their report to the Court and they have requested the 2nd respondent not to come to the Police Station. Even then after some time he went to Gachibowli Police Station and again asked the status of the case and he has received the very same reply. He has not received any notice or call from the Investigating Officer in the said crime. On the other hand, the illegal actions of the petitioners herein were continued and they have tried to spoil his vital body parts to eliminate/kill him by using sophisticated methods. On 03.01.2020 when he was waiting near SR Nagar TSRTC counter, two TSRTC Counter Staff men intentionally started argument and injured him. The accused have committed huge financial fraud under his name and diverted huge money. Mr.Sanjay Gupta, Vice President, Country Manager of NXP Semiconductors India Pvt. Ltd., and the company itself is involved in the matter and they have committed a Crl.Petition No.7118 of 2021 6 huge financial fraud, intentionally outsourced development work to one of the persons mentioned therein. It was quid pro quo. He would further submit that though there are specific allegations in the complaint, the Investigating Officer without giving opportunity to the 2nd respondent and without conducting the investigation in a fair and transparent manner filed final report under Section 173 Cr.P.C. only to help the petitioners herein.
8. With the said contentions, he has filed a Protest Petition. In the said Protest Petition, the learned Magistrate has recorded the sworn statement of the 2nd respondent. Thereafter, vide order dated 01.04.2021 learned Magistrate has taken cognizance for the aforesaid offences against the petitioners herein.
9. Learned Public Prosecutor on instructions would submit that there are specific allegations against the petitioners herein and they have to face trial. The defences taken by the petitioners herein cannot be considered in a petition filed under Section 482 Cr.P.C. It is for the petitioners to take the said defences before the trial Court and Crl.Petition No.7118 of 2021 7 it is for the trial court to consider the same, instead of doing so, they have approached this Court by way of filing the present petition. With the said submissions, sought to dismiss the petition.
10. The above said facts and also perusal of record would reveal that the petitioner herein was an employee of the NXP India Pvt.Ltd. According to the petitioners, the 2nd respondent was an employee of said company from 06.07.2016 to 19.11.2018, and he has left the said company by submitting resignation voluntarily.
11. It is also relevant to note that the 1st petitioner is Senior Manager and 2nd petitioner is Software Engineer of said company. They are not part of the management. They are not even directors and share holders of the said company.
12. In the complaint filed under Section 200 Cr.P.C., the 2nd respondent has specifically alleged that the petitioners herein and others have committed financial fraud by using their influence and by creating some fake profile on his name and see that some irregularities happened in his name. Thus they have harassed the 2nd respondent. Despite lodging Crl.Petition No.7118 of 2021 8 complaint with the police, there was no response. Vexed with the action of the petitioners herein, he has submitted his resignation in the month of November, 2018. In the said complaint it is also specifically contended by the 2nd respondent that the petitioners have used to threaten him saying that they will hack the mail accounts and PF accounts and misuse them. He has lodged a complaint with Cyber Crimes on 13.08.2019. According to him, they have not taken any action. Ultimately He has submitted resignation in November, 2018. He left to his native place i.e. Vuyyuru.
13. In the sworn statement recorded by the learned Magistrate in the Protest Petition, the petitioners herein have reiterated the above stated facts and prayed the learned Magistrate to pass appropriate orders to refer the matter to the Ministry of Corporate Affairs, Income Tax Department, Enforcement Directory, Reserve Bank of India and to the Central Government and also requested the learned Magistrate to collect his blood and food samples and conduct forensic analysis to check any harmful chemicals were used by the accused. The said facts would reveal that there are disputes between the petitioners and the 2nd respondent. As Crl.Petition No.7118 of 2021 9 stated supra, the 1st petitioner was Senior Manager and the 2nd petitioner was Software Engineer and the 2nd respondent has worked as Software Senior Technical Lead of the above said company. It appears there were disputes between them and 2nd respondent while the 2nd respondent working in the said company. The petitioners herein have clubbed two aspects i.e. financial fraud of the said company and also his personal grievances. The same are evident from the complaint filed by the 2nd respondent under Section 200 Cr.P.C., Protest Petition and also sworn statement recorded by the learned Magistrate.
14. Perusal of the record also would reveal that the Investigating Officer after recording of the statement of the 2nd respondent under Section 161 Cr.P.C. requested him to produce further witnesses and also documentary evidences if any in support of his allegations against the petitioners herein. The Investigating Officer has also served two notices dated 27.11.2019 and 07.12.2019 under Sections 91/160 of Cr.P.C. on the 2nd respondent herein with a request to appear before him along with witnesses and documents within three days. As per the said final report, despite receipt of the said Crl.Petition No.7118 of 2021 10 notices, the 2nd respondent has not appeared before the Investigating Officer. Therefore, he has filed the above said final report under Section 173 of Cr.P.C. referring that there is lack of evidence. There is no explanation much less plausible explanation by the 2nd respondent with regard to his absence before the Investigating Officer and his non cooperation to the Investigating Officer by furnishing the information and documents as sought by him in concluding the investigation. In the Protest Petition except saying that Investigating Officer informed him that he will file report, he has not mentioned anything about the above said notices under Section 91/160 of Cr.P.C.
15. On the other hand, in the Protest Petition, he has made new allegations for the first time i.e. standing near SR Nagar TSRTC Counter on 03.01.2020, argument picked up by two staff of TSRTC. He has also made certain allegations against Sanjay Gupta, Vice President of the said company and also financial fraud and existence of some quid pro quo deal etc., which were not mentioned in the complaint filed under Section 200 Cr.P.C. Thus, the 2nd respondent herein tried to improve his versions in the Protest Petition. It is also relevant Crl.Petition No.7118 of 2021 11 to note that learned Magistrate while taking cognizance failed to consider the said aspects including the contents of the complaint filed under Section 200 Cr.P.C., Protest Petition and sworn statement recorded by him of the 2nd respondent. In fact the contents of the same lack the ingredients of offences alleged against the petitioners herein. There is no allegation of inducement of 2nd respondent at the inception or later by the petitioners herein. Thus, the contents are lacking the ingredients of offence under Section 420 of IPC.
16. It is also relevant to note that Section 326 of IPC deals with - Voluntarily causing grievous hurt by dangerous weapons or means, there are no such allegations either in the complaint filed under Section 200 Cr.P.C., Protest Petition or sworn statement. Therefore, the said fact was not even considered by the learned Magistrate while taking cognizance.
17. It is also relevant to note that Section 307 of IPC deals with - "Attempt to murder - whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment". In the present Crl.Petition No.7118 of 2021 12 case, there is no such allegation against the petitioners herein. Even then, the learned Magistrate has taken cognizance against the petitioners herein for the offence under Section 307 of IPC.
18. As per Section 387 of IPC, "whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment" - The facts alleged do not indicate that the petitioners herein extorted the 2nd respondent.
19. The contents of the complaint under Section 200 Cr.P.C., the Protest Petition and sworn statement of the 2nd respondent lacks the said ingredients. The said facts were also not considered by the learned Magistrate. Thus, learned Magistrate without considering the said aspects and without following the procedure laid down under Cr.P.C, has taken cognizance against the petitioners herein vide order dated 01.04.2021. The said allegations are highly improbable and the present case squarely falls within the parameters laid down by the Hon'ble Apex Court in State of Haryana vs. Crl.Petition No.7118 of 2021 13 Bhajan Lal1, the Hon'ble Apex Court has also laid down certain guidelines/parameters for exercise of Power of this Court under Section 482 Cr.P.C. and the same are extracted herein:
"(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.
(3) 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.
(4) 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 1 1992 Supp (1) SCC 335 Crl.Petition No.7118 of 2021 14 contemplated under Section 155(2) of the Code.
(5) 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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) 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."
20. In view of the above said discussion, continuation of present proceedings in PRC No.52 of 2021 pending on the file of learned XII Additional Metropolitan Magistrate, Cyberabad at Kukatpally against the petitioners herein is an Crl.Petition No.7118 of 2021 15 abuse of process of law. The said proceedings are liable to be quashed.
21. Accordingly, the Criminal Petition is allowed and the proceedings in PRC No.52 of 2021 pending on the file of learned XII Additional Metropolitan Magistrate, Cyberabad at Kukatpally, are hereby quashed.
22. As a sequel, the Miscellaneous Petitions, pending if any, shall stand closed.
___________________ K. LAKSHMAN, J Date: 07-06-2022 ns