Andhra HC (Pre-Telangana)
Gullampudi Veera Nagamani vs State Of A.P. Rep. By Public Prosecutor ... on 24 September, 2014
Author: T. Sunil Chowdary
Bench: T. Sunil Chowdary
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRL.P.No.8472 OF 2011
24-09-2014
Gullampudi Veera Nagamani...Petitioner
State of A.P. rep. by Public Prosecutor And another. Respondents
Counsel for Petitioner : Sri Venkateswara Rao Gudapati
Counsel for the 1st respondent : Public Prosecutor
Counsel for the 2nd respondent: Sri Ch.Dhanamjaya
<GIST:
>HEAD NOTE:
? Cases referred
(2009) 11 SCC 89
2 (2010) 2 SCC 631
3 (2012) 1 SCC 130
4 AIR 1960 SC 866
5 AIR 1992 SC 604
THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY
CRIMINAL PETITION No.8472 of 2011
ORDER:
1 This Criminal Petition is filed under Section 482 of Cr.P.C., to quash the proceedings against the petitioner/accused in Cr.No.307 of 2011 on the file of III Town Police Station, Rajahmundry, registered for the offences punishable under sections 463, 464, 465, 468, 471 and 420 IPC.
2 The facts leading to the filing of the present petition, briefly, are as follows:
The 2nd respondent, Malla Maridabbai and Malla Veera Eswara Rao, who are owners of an extent of Ac.2-50 cents in different survey numbers of Peddanapalli village, Eleswaram Mandal, have entered into an agreement of sale on 03.05.2007, with the petitioner, agreeing to sell the entire extent of land at the rate of Rs.12.00 lakhs per acre. The petitioner paid an amount of Rs.90,000/- to the second respondent on the same day towards advance sale consideration. As per the terms and conditions of the agreement, the petitioner has to pay the balance sale consideration on or before 02.09.2007 and obtain a regular sale deed. For one reason or the other, no sale deed was executed in favour of the petitioner. Thereupon, the petitioner has filed O.S.No.89 of 2010 on the file of the Principal District Judge, Rajahmundry against the 2nd respondent and others for specific performance of the agreement of sale, dated 03.05.2007.
3 The 2nd respondent along with Malla Maridabbai, Malla Veera Eswara Rao filed CCSR No.635 of 2011 on the file of Judicial Magistrate of First Class, Prathiapadu against the petitioner and her husband for the offences punishable under Sections 463, 464, 465 and 468 read with 34 IPC alleging that the petitioner and her husband, by forging the thumb impression of Malla Maridabbai, have created an endorsement dated 02.09.2007 as if the petitioner and her husband paid an amount of Rs.4.00 lakhs to Malla Maridabbai and obtained the thumb impression on the sale agreement.
4 The sworn statement of the 2nd respondent was recorded as contemplated under section 200 Cr.P.C and after considering the material available on record, the learned Magistrate arrived at a conclusion that the 2nd respondent and others failed to make out a prima facie case against the petitioner and her husband and that the dispute between the parties is of civil in nature and accordingly dismissed the complaint.
5 While the thing stood thus, the 2nd respondent alone filed a complaint against the petitioner on the file of the III Additional Judicial Magistrate of First Class, Rajahmundry for the offences punishable under sections 463, 464, 465, 468, 471 and 420 IPC. The learned Magistrate referred the complaint to the concerned police under Section 156(3) Cr.P.C. for investigation and report. On receipt of the complaint, the Station House Officer, III Town Police Station, Rajahmundry registered a case in Cr.No.307 of 2011 for the offences punishable under sections 463, 464, 465, 468, 471 and 420 IPC. Feeling aggrieved by the registration of the second crime, the petitioner filed the present petition. 6 The learned counsel for the petitioner submitted that registration of second crime for the same offences on the same set of facts against the same person is not maintainable under law. 7 Per contra, the learned counsel for the 2nd respondent submitted that there is no bar under Cr.P.C to file a second complaint.
8 On the other hand, the learned Public Prosecutor submitted that a second complaint is maintainable only in exceptional cases. 9 To substantiate his argument, the learned counsel for the petitioner has drawn my attention to the following decisions. i. Hira Lal and others Vs. State of Uttar Pradesh . The relevant portion in para No.18 of the judgment is extracted hereunder:
18. The order of learned ACJM in his order dated 2.4.2003 is not a cryptic one. Reasons have been assigned in support thereof. In a situation of this nature, in our opinion, a second complaint petition could not have been filed. Strong reliance has been placed by Mr. Singh on a decision of this Court in Mahesh Chand v. B. Janardhan Reddy & Anr. [(2003) 1 SCC 734], wherein it was opined that second complaint was not completely barred in law. This Court, however, in that decision itself held that the second complaint can lie only on fresh facts and/or if a special case is made out therefor.
ii. Poonam Chand Jain Vs. Fazru wherein the Honble apex Court held as under:
15. Almost similar questions came up for consideration before this Court in the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar - (AIR 1962 SC 876). The majority judgment in Pramatha Nath (supra) was delivered by Justice Kapur. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short `the Code') is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances.
This Court explained the exceptional circumstances as
(a) where the previous order was passed on incomplete record
(b) or on a misunderstanding of the nature of the complaint
(c) or the order which was passed was manifestly absurd, unjust or foolish or
(d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
iii. Shivshankar Singh Vs. State of Bihar wherein the Honble apex Court held as under:
16. After considering the aforesaid judgment along with various other judgments of this Court, in Mahesh Chand v. B. Janardhan Reddy & Anr., AIR 2003 SC 702, this Court held as under:
"..It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding...."
In Poonam Chand Jain & Anr v. Fazru, AIR 2005 SC 38, a similar view has been re-iterated by this Court.
18. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.
10 As per the principle enunciated in the cases cited supra, there is no bar under Cr.P.C. to file a second complaint in exceptional cases. But a second complaint is not maintainable basing on the same set of facts.
11 Let me consider the facts of the case in the light of the legal principle.
12 There is no dispute between the parties with regard to the agreement of sale dated 03.05.2007. The previous complaint in CCSR No.635 of 2011 was dismissed on 01.07.2011. If really the 2nd respondent and others were aggrieved by the orders of the learned Judicial Magistrate of First Class, Prathipadu, what prevented them from challenging the said order before appropriate forum. Unless and until the orders in CCSR No.635 of 2011, dated 01.07.2011 are set aside by the competent Court, the same is binding on the 2nd respondent and others. The 2nd respondent has not assigned reasons, much less cogent and convincing reasons for not challenging the orders passed by the learned Judicial Magistrate of First Class, Prathipadu.
13 The 2nd respondent filed the present complaint on the file of the Judicial Magistrate of First Class, Rajahmundry on 31.07.2011 by showing the complainant Nos.1 and 2 in the previous complaint as list of witness Nos.1 and 2. I have carefully scanned the entire complaint in order to ascertain whether the 2nd respondent has mentioned anything about the filing of the previous complaint and dismissal of the same. The person who approaches the Court has to place the material facts before the Court. For the reasons best known to him, the 2nd respondent did not disclose the filing and the result of the previous complaint. Non-disclosure of the material facts would certainly amount to suppression of the material facts. It is a settled principle of law that a person who has suppressed the material facts is not entitled to the relief sought by him either in civil or criminal proceedings. Having regard to the facts and circumstances of the case, I have no hesitation to hold that the 2nd respondent intentionally and willfully had suppressed filing and dismissal of the previous complaint. 14 The crucial question that falls for consideration is whether both the complaints were filed basing on the same set of facts or not. It is not out of place to extract hereunder the relevant portion in para No.3 of the previous complaint, which reads as under:
That both the named accused with a common intention by colluding together, fabricated the sale agreement and forged the thumb impression of the first complainant on the back of the first page of the sale agreement and got filed O.S.No.89 of 2010 on the file of Honble Family Court, Rajahmundry to get away their property. But the first complainant did not put his thumb mark on the backside of the sale deed, showing that he has received Rs.4.00 lakhs on 02.09.2007.
15 For better appreciation of facts of the case, it is apposite to extract hereunder the relevant portion in para No.2 of the second complaint, which reads as under:
But, however, with an illegal oblique motive to make unlawful gain and in order to prove that she was not at fault and that she was ready with balance sale consideration, she forged thumb impression of L.W.2 on the reverse of the first page of agreement of sale dated 3.5.2007 as if L.W.2 received Rs.4.00 lakhs from the accused and made an endorsement to that effect.
16 A perusal of the above two paras clearly demonstrate that the gist of the allegations made in both the complaints is one and the same i.e. the petitioner and her husband created the endorsement dated 02.09.2007 by forging the thumb impression of Maridabbai as if they paid Rs.4.00 lakhs to him. 17 As observed earlier, the learned Judicial Magistrate of First Class, Prathipadu disbelieved the version put forth by the 2nd respondent and others and dismissed the complaint. The specific allegation made against the petitioner in the previous complaint and the present complaint is one and the same. No new facts are pleaded in the second complaint at least to justify that the second complaint is filed on coming to know about the new facts. Basing on the allegations set out or urged in both the complaints, the irresistible conclusion that can be drawn is that the 2nd respondent has filed the second complaint on the same set of facts. To put it in a different way, the alleged cause of action for filing of both the complaints is one and the same.
18 The property is situated within the revenue limits of Peddanapalli village of Eleswaram Mandal. The 2nd respondent and other executants of the agreement of sale are residents of Peddanapalli village, whereas, the petitioner is resident of Yerravaram village. The petitioner and the 2nd respondent have been residing within the limits of Eleswaram Mandal. The previous complaint was filed on the file of Judicial Magistrate of First Class, Prathipadu alleging that the offence has taken place within the territorial jurisdiction of Prathipadu Court. As per the allegations made in the complaint, the petitioner forged the thumb impression of Maridabbai and created the endorsement dated 02.09.2007 and filed the suit O.S.No.89 of 2010 on the file of District Court, Rajahmundry with an ulterior motive to knock away the property covered under the agreement of sale. The allegations made in the complaint would clearly indicate that the 2nd respondent for the first time came to know the factum of forging of the thumb mark of Maridabbai after filing of the civil suit by the petitioner. But in CCSR No.635 of 2011 itself the 2nd respondent categorically admitted the filing of the civil suit by the petitioner. Whatever pleaded in the second complaint to justify the filing of the second complaint on the file of III Additional Judicial Magistrate of I Class Court at Rajahmundry is within the knowledge of the 2nd respondent even as on the date of filing of the previous complaint on the file of Judicial Magistrate of I Class Court, Prathipadu. No explanation, much less cogent and convincing explanation was offered by the 2nd respondent for filing of two complaints. If the alleged offence is committed within the territorial jurisdiction of Judicial Magistrate of I Class, Prathipadu, that Court alone has jurisdiction to entertain the complaint. If that is so, filing of the second complaint in another Court is not maintainable viewed from factual or jurisdictional aspect. Mere filing of the civil suit by the petitioner on the file of District Court, Rajahmundry by itself would not enable the 2nd respondent to file the complaint on the file of the III Additional Judicial Magistrate of I Class Court, Rajahmundry, which has no territorial jurisdiction to entertain the complaint. A perusal of the record reveals that in order to circumvent the procedure contemplated under Cr.P.C, the 2nd respondent has taken a plausible plea that the III Additional Judicial Magistrate of I Class, Rajahmundry has jurisdiction to entertain the complaint. This aspect also clearly indicates that the 2nd respondent filed the present complaint with an ulterior motive. 19 The 2nd respondent failed to satisfy the tests laid down in the cases (i) to (iii) cited supra. Having regard to the facts and circumstances of the case and also the principle enunciated in the cases cited supra, I have no hesitation to hold that the present complaint is not maintainable either on facts or on law. 20 The crucial question that falls for consideration is whether this Court can quash the proceedings in the set of facts and circumstances as narrated supra. It is apposite to refer to the following decisions of the apex Court:
A. R.P.Kapoor v. State of Punjab , wherein the Honble apex Court held as hereunder:
"Cases may also arise where the allegations in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged. In such cases, no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In this case it would be legitimate to the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person."
B. State of Haryana v. Bhajan Lal wherein the Honble apex Court held as under:
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 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.
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 F.I.R. 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.
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 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.
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.
21 As per the principle laid down in these two cases, the Court can quash the proceedings in order to prevent abuse of process of the law as well as to secure the ends of justice. In the instant case, continuation of the criminal proceedings and entrustment of investigation to the police would certainly lead to abuse of process of law.
22 Having regard to the facts and circumstances of the case, I am of the considered view that this is a fit case to quash the proceedings against the petitioner.
23 In the result, this Criminal Petition is allowed and the proceedings in Cr.No.307 of 2011 on the file of III Town Police Station, Rajahmundry are hereby quashed against the petitioner herein. As a sequel, the miscellaneous petitions, pending in this Criminal Petition, if any, shall stand closed. __________________________ T.SUNIL CHOWDARY, J.
Date: 24th September, 2014