Telangana High Court
Vivekanand Yadav And 3 Others vs The State Of Telangana And Another on 7 January, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.4161 OF 2020
ORDER:
Heard Mr. N. Naveen Kumar, learned counsel for the petitioner, learned Assistant Public Prosecutor appearing on behalf of respondent No.1 and Mr. Kasi Nageswara Rao, learned counsel appearing on behalf of respondent No.2.
2. This petition is filed to quash the proceedings in Crime No.125 of 2020 of Trimulghery Police Station, Hyderabad City Commissionerate.
3. The petitioners herein are accused Nos.1 to 4 in the aforesaid crime. The offence alleged against them are under Sections - 420, 406, 467, 468, 471 and 506 read with 34 of IPC.
4. The allegations against the petitioners, as per the contents of the complaint, are as follows:
i) Respondent No.2 is running an Indian Oil Petrol Bunk at Agricultural Market Yard, Bowenpally, Secunderabad;
ii) petitioner No.1 used to come to the Petrol Bunk of respondent No.2 for pouring petrol, and out of which, they had acquaintance with each other;
iii) petitioner No.1 introduced himself that he was working as a Collection Agent in Mallikarjuna Chit Fund Finance, Old Bowenpally and petitioner No.2 is a big Financier;2
KL,J Crl.P. No.4161 of 2020
iv) at the request of petitioner No.1, respondent No.2 joined in the chits of Rs.10.00 lakhs, 25.00 lakhs and 50 lakhs;
v) in the process of lifting the chits, the Chit Fund Company had taken blank stamp papers and cheques and original documents of petrol bunk with his signatures;
vi) petitioner No.1 used to come to the petrol bunk for collection of chit amount till 2019 and thereafter, petitioner Nos.3 and 4 used to come.
vii) on 20.03.2010, respondent No.2 had given Rs.25.00 lakhs regarding final settlement to petitioner Nos.3 and 4, to which they had also given receipt, but they had not returned the blank stamp papers, cheques and original documents of his Petrol Bunk;
ix) from few days, petitioner No.1 has been making calls from his mobile and threatening respondent No.2 with dire consequences and demanding money;
x) thereafter, the petitioners had created and forged the documents as if respondent No.2 had taken an amount of Rs.1,47,50,000/-; and
xi) with the aforesaid allegations, respondent No.2 sought to take necessary action against the petitioners.
5. Perusal of the record would reveal that petitioner No.1 herein had filed a suit vide O.S. No.21 of 2020 on the file of XXVII Additional Chief Judge, City Civil Court, Secunderabad, against respondent No.2, his wife and another for recovery of Rs.1,62,98,750/-. He had also filed 3 KL,J Crl.P. No.4161 of 2020 I.a. No.411 of 2020 in the said suit under Order - XXXIX, Rule 1 of C.P.C. seeking to restrain respondent No.2 and others from creating third party rights including alienation of the Petrol Bunk. The learned XXVII Addl. Chief Judge passed an order dated 10.08.2020, restraining respondent No.2 and two others from creating third party rights including alienation of the dealership of Indian Oil Corporation Petrol Pump, admeasuring 150 x 150 square feet, situated at Market Yard, Bowenpally, Secunderabad. Petitioner No.1 had also filed I.A. No.601 of 2020 in I.A. No.411 of 2020 under Section - 65-B of the Indian Evidence Act, 1872, to receive the chat printout copies along with the CD contending that the defendants therein were denying service of notice by WhatsApp which were sent to them on their mobile numbers etc. and that the said notices sent through WhatsApp have seen by respondent No.2 and others. But, the Court below has dismissed both the said petitions vide a common order dated 09.12.2020.
6. Aggrieved by the aforesaid order passed in I.A. No.411 of 2020, petitioner No.1 has preferred C.M.A. No.103 of 2021, while C.R.P. No.323 of 2021 against the order in I.A. No.601 of 2020.
7. A Division Bench of this Court vide common judgment dated 28.04.2021 allowed CMA No.103 of 2021 setting aside the order dated 09.12.2020 passed in I.A. No.411 of 2020, while observing that no orders need to be passed in CRP No.323 of 2021, wherein the order passed in I.A. No.601 of 2020 was under challenge. In the said common judgment, there is an observation in paragraph No.33 that in paragraph No.12 of the counter affidavit filed by defendant No.1 in 1.A.No.411 of 2020, he 4 KL,J Crl.P. No.4161 of 2020 himself admitted that he had given signed documents though allegedly in connection with a chit transaction' Therefore, signatures on the suit promissory note Ex.P3 and the agreements Exs.Pl and P2 and guarantee undertaking letter Ex.P4 are not denied by him. It was further observed in the said paragraph No.34 that once his signature on these documents and in particular Ex.P3 promissory note is admitted, presumption under Section - 118 of the Negotiable Instruments Act, 1882 about passing of consideration under a promissory note would arise, and the burden would be on defendant No.1 to prove that there was no passing of consideration as is mentioned in the promissory note Ex.P3. The said aspect seems to have escaped the attention of the Court below.
8. Mr. Kasi Nageswara Rao, learned counsel for respondent No.2, would submit that respondent No.2 has already taken steps to challenge the said order by way of SLP, but he did not furnish either Diary Number or SLP number.
9. Admittedly, the above suit for recovery of money is pending between petitioner No.1 and respondent No.2. The common judgment passed by the Division Bench of this Court in the above CMA and CRP is subsisting and there is a direction to respondent No.2 not to create third party including alienation of the dealership etc. The said suit was filed on 03.08.2020 and the ex parte interim injunction was passed on 10.08.2020. Respondent No.2 has lodged the present complaint on 21.08.2020 making the aforesaid allegations against the petitioners herein.
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10. Thus, all the said facts would reveal that there are disputes between the petitioners and respondent No.2 which are civil in nature. The allegations made by respondent No.2 in the complaint dated 21.08.2020 are also the issues covered in the above suit. He had filed counters in the I.As. and written statement in the suit contending that his signatures were forged etc. The Court below will frame issues in the said suit including the issue of forgery etc. Therefore, petitioner No.1 and respondent No.2 had to wait for outcome of the said suit. Instead of waiting till the outcome of the suit, respondent No.2 has lodged the above complaint after receipt of summons in O.S. No.21 of 2020.
11. Mr. Kasi Nageswara Rao, learned counsel for respondent No.2, referring to the principle laid down by the Hon'ble Supreme Court in K. Jagadish V. G.S. Udaya Kumar1, would submit that both civil and criminal proceedings may go on simultaneously. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing the proceedings. But, the facts of the said case are different to the facts of the present case.
12. As stated above, the allegations made in the complaint dated 21.08.2020 in Crime No.125 of 2020, the pleadings in the above civil suit and the parties are one and the same. Admittedly, the common judgment passed in the above CMA and CRP is subsisting. The parties have to necessarily wait for the outcome of the aforesaid civil suit. Respondent 1 . CDJ 2020 SC 243 6 KL,J Crl.P. No.4161 of 2020 No.2 is trying to criminalize the civil proceedings. Therefore, this Court is of the considered view that the proceedings in Crime No.125 of 2020 cannot go on and, therefore, the same are liable to be quashed.
13. The present Criminal Petition is accordingly allowed and the proceedings in Crime No.125 of 2020 of Trimulghery Police Station, Hyderabad City Commissionerate, are hereby quashed against the petitioners - accused Nos.1 to 4.
As a sequel, miscellaneous petitions, if any, pending in the criminal petition shall stand closed.
__________________ K. LAKSHMAN, J 7th January, 2022 Mgr