Dismissed

K.B.Janakirama Rao, v. Y. Venkateswara Rao

Telangana HC15 Feb 2011CRLRC/370/2010

Case brief

AI extract

What is this about?

The High Court dismissed criminal revisions and petitions challenging the lower Court's taking of cognizance in a fraud case. The Court upheld the Magistrate's power to take cognizance despite an inconclusive police final report, relying on the complainant's sworn statement and established precedent.

What did the court decide?

Criminal Petition No.10609 of 2009 and Criminal Revision Case No.370 of 2010 were dismissed and proceedings in C.C. No.423 of 2009 were allowed to continue.

K.B.Janakirama Rao, Vs Y. Venkateswara Rao — Contract and Commercial Disputes | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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CRIMINAL REVISION CASE No.370 of 2010 & CRIMINAL PETITION No.10609 of 2009

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DATE: .02.2011

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Crl.R.C.No.370 of 2010

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Between: K.B.Janakirama Rao and another …… Petitioners And Y.Venkateswara Rao and another …..Respondents Crl.P.No.10609 of 2009 Between: K.B.Janakirama Rao and another …… Petitioners And Y.Venkateswara Rao and another …..Respondents

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HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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CRIMINAL REVISION CASE No.370 of 2010 & CRIMINAL PETITION No.10609 of 2009 COMMON ORDER :

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This Criminal Revision Petition as well as this Criminal Petition are filed by the accused 1 and 2 (A-1 and A-2) questioning the proceedings in C.C. No.423 of 2009 on the file of IV Additional Chief Metropolitan Magistrate, Hyderabad relating to offences punishable under Sections 420, 406 and 506 I.P.C.

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The Criminal Revision Petition is filed under Section 397 Cr.P.C against the order dated 02.07.209 passed by the Magistrate taking cognizance of the said offences. The Criminal Petition is filed under Section 482 Cr.P.C for quashing proceedings in that criminal case. The contentions raised by the petitioners are overlapping in these two matters and therefore they are being disposed of together. When once the petitioners questioned the entire proceedings in C.C. No.423 of 2009 of the lower Court under Section 482 Cr.P.C, the question of filing Criminal Revision Petition again questioning taking cognizance of the offences becomes superfluous and unwarranted. Since the petitioners could not get any say order in Crl.P.M.P.No.10353 of 2009 in Crl.P.No.10609 of 2009, the petitioners in a dubious manner filed Criminal Revision Petition subsequently along with a petition to condone the delay in filing thereof and were successful in obtaining suspension/stay orders in Crl.R.C.M.P.No.33 of 2010 and Crl.R.C.M.P.No.2747 of 2010. This conduct of the petitioners indicate that the petitioners were not bonafide and indulged in ‘bench hunting’ to secure stay orders.

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2) Be that as it may, coming to merits of the case, the petitioners not only question mode of taking cognizance of the offences by the lower Court as well as allegations in the complaint filed by the 1^st respondent/defacto-complainant. There is no dispute about relationship between the parties. A-2 is wife of A-1. Archana is their daughter. The defactocomplainant/1^st respondent is father of Y.Aravind. There is no

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dispute about marriage of Y.Aravind with Archana on 02.06.2004. According to the petitioners, there was no consummation of the marriage even though nuptials were arranged on 03.06.2004 as Archana was suffering from chronic disease and was on total medication as there was heavy bleeding as well as discharge of mucous through rectum due to her disease. It is alleged that Archana was suffering from Ulcerative Colitis which is a dreadful disease of large intestine. It is alleged that Archana was suffering from the said disease since prior to her marriage with Y.Aravind and that A-1 and A-2 who knew fully well about Archana’s disease, suppressed the same and performed her marriage with Aravind in a fraudulent manner. It is further alleged that after Archana and Aravind went to U.S.A on 13.06.2004, Aravind came to know that Archana was having unpaid bills of 12,000/- U.S. dollars which included medical bills pertaining to the period prior to the marriage and that Aravind had cleared all the said bills apart from incurring further expenditure for her subsequent treatment. According to the 1^st respondent, surgery was performed on Archana for removal of her large intestine and arranging external J-pouch (excrement bag for life). It appears that ultimately there was separation between the couple resulting in exchange of notices between the parties and filing of petition for annulment of their marriage. At the instance of Archana, case in Crime No.4 of 2006 was booked by C.I.D Police Station, Hyderabad against Aravind, his parents and another (including the 1^st respondent herein). After investigation, C.I.D. Police, Hyderabad filed C.C.

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No.251 of 2007 against Aravind, 1^st respondent herein, his wife and another on the file of XIII Additional Chief Metropolitan Magistrate, Hyderabad alleging offences punishable under Sections 498-A, 420, 406, 506/109 I.P.C and Sections 3, 4 and 6 of the Dowry Prohibition Act. Thereafter, Aravind filed O.P. No.79 of 2008 against Archana in the Family Court, Rangareddy District at Lal Bahadur Nagar under Section 12 of the Hindu Marriage Act for declaration that marriage of Aravind with Archana null and void.

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3) The 1^st respondent herein filed private complaint against the petitioners 1 and 2/A-1 and A-2 in the lower Court alleging offences under Sections 420, 406 and 506 I.P.C on 07.11.2006 and it was referred by the lower Court to Osmania University Police Station, Hyderabad, where it was registered as case in Crime No.275/2006. Apart from the above allegations mentioned supra, the 1^st respondent alleged that gold jewellery given by the 1^st respondent to Archana is with A-1 and A-2 who misappropriated the same for their use and gain. It is further alleged by the 1^st respondent in the complaint that A-1 and A-2 apart from suppressing serious ill-health of Archana since prior to marriage, further represented as if Archana was having good health and that the said false representations were made by A-1 and A-2 in the presence of three witnesses also. It is further alleged that A-1 has been threatening the 1^st respondent to implicate him and his family members in false cases.

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4) After investigation, Inspector of police, Osmania

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University Police Station, Hyderabad filed final report under Section 173 Cr.P.C in Crime No.275 of 2006 in the lower Court requesting the Court to refer the case as ‘lack of evidence’ and to issue proceedings accordingly. After notice thereof, the 1^st respondent filed protest petition before the lower Court and it was registered as Crl.M.P.No.1574 of 2008. During further enquiry made by the lower Court, the 1^st respondent examined himself as P.W-1 and gave sworn statement before the Magistrate. Thereupon, the lower Court/Magistrate took cognizance of the case for the offences punishable under Sections 420, 406 and 506 I.P.C against A-1 and A-2 and ordered issuance of summonses to them. Narration of the facts as per the case of the 1^st respondent/defacto-complainant in the preceding paragraphs and which are culled out from the private complaint/F.I.R filed by the 1^st respondent and sworn statement of the 1^st respondent as P.W-1 in the lower Court, do reveal the ingredients for offences punishable under Sections 420, 406 and 506 I.P.C against A-1 and A-2, for which offences the case was taken cognizance by the lower Court. Sufficiency or otherwise of evidence and also truth or otherwise of the allegations, cannot be subject matter of these Criminal Petition and Criminal Revision Case filed under Sections 482 and 397 Cr.P.C respectively. They are matters to be decided by the lower Court after full trial wherein both the parties are given liberty to lead their respective evidence. Suffice it to say that the allegations made by the 1^st respondent/defacto-complainant in his

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complaint/F.I.R as well as sworn statement prima facie disclose the ingredients of the offences which the lower Court take cognizance.

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5) It cannot be said that the present case filed by the 1^st respondent against A-1 and A-2 in C.C. No.423 of 2009 in the lower Court is a counter blast for C.C. No.251 of 2007 filed by C.I.D police on the report of Archana in the Court of XIII Additional Chief Metropolitan Magistrate, Hyderabad. Simply because Archana’s case is earlier in point of time by few months, one cannot jump to the conclusion from that fact alone that the present case filed by the 1^st respondent is a counter blast filed with a view to wreck vengeance against A-1 and A-2. It is not as if the Inspector of Police, University Police Station wanted to refer the case as ‘false’; and he filed final report in the lower Court requesting for referring the case as ‘lack of evidence’. When P.W-1 narrated all these facts before the Inspector of Police and gave statement and when the 1^st respondent/defacto-complainant gave names and addresses of witnesses including their door numbers, the Inspector of Police should have gone to them and made investigation by recording statements of those witnesses. Instead, the Inspector of Police stated in the final report that the complainant has failed to produce witness before him. The Inspector of Police was not holding a Court in his Police Station for the complainant to produce witnesses before him. The Inspector of Police is expected to do field investigation and not table investigation. He cannot expect witness No.8 viz., Dr.G.Nageswar Reddy, Gastro

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Enterologist, Hyderabad to go to the Police Station for giving statement to be recorded by the Inspector of Police under Section 161(3) Cr.P.C. He is an reputed Gastro Enterologist at Hyderabad. The Inspector of Police should have gone to the witnesses including to the above doctor and should have collected evidence and finalised the case. Instead, the Inspector of Police evaded to perform his duties to make field investigation by expecting the 1^st respondent/defacto-complainant to bring all the cited witnesses to his table in the Police Station. Final report of the Inspector of Police, Osmania University Police Station is wholly unsustainable. It was for that reason, the lower Court after conducting enquiry and recording sworn statement of P.W1 took the case on file in respect of the offences alleged in the complaint.

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6) It is well settled law that filing of final report by the investigating officer before the Magistrate for referring the case, is not conclusive. It is open to the Magistrate either to accept the final report or not to accept the same by taking cognizance of the offences for which the report/complaint was given by the complainant after making brief enquiry by the Magistrate. Protest petition filed by the complainant against final report of the police, is only intended to register protest against final report filed by the police for referring the case and for not charging the case.

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7) In Umashankar Singh V. State of Biha r^[1] the Supreme Court held as follows:

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“16. That is precisely what has happened in the present case. In the instant case the investigation

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had been handed over to the C.I.D and both the C.I.D and the local police had submitted their reports in final form exonerating the petitioner of the allegations made against him in the F.I.R. However, the Chief Judicial Magistrate, Siwan, took cognizance of the offence under Section 302/379 I.P.C and Section 27 ot he Arms Act against the petitioner. This is not a case where the Magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do under Section 190(1)(b) Cr.P.C”

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8) This Court in Ch.Venkata Ramana Reddy V. The State

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of A.P^[2] upheld the procedure of filing protest petition by the aggrieved complainant against final report of the investigating officer referring the case (exonerating the accused) and taking cognizance of the offences by the Magistrate after recording sworn statement(s) of the complainant and his witnesses, if any, by observing as follows:

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“In the State of Andhra Pradesh, different procedures are being followed in different parts of the State. They are 1) by filing a protest petition against the referred Charge Sheet/Final Report filed by the police, 2) by way of filing objections to the referred Charge Sheet/Final Report filed by the police and 3) by filing a second complaint before the Magistrate disputing correctness of Final Report filed by the Police. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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6. In my opinion, all the above three procedures are proper and legal. As pointed out earlier, under Section 190 (1) (a) Cr.P.C., the Magistrate can take cognizance of any offence upon receiving a complaint which constitutes such offence. It is contended by petitioners' counsel that when once the complaint is referred to the police for investigation under Section 156 (3) Cr.P.C., it ceases to be a private complaint and becomes a

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First Information Report under Section 154 Cr.P.C. It is correct. But, the question now is whether the procedure adopted by the lower Court in taking cognizance of the offences after Protest Petition filed by the complainant is correct or not. Further, clause (c) of 190 (1) Cr.P.C. empowers a Magistrate to take cognizance of offences upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed. In a case when the police filed referred Charge Sheet and the complainant filed protest petition, then the Magistrate records Sworn Statement of the complainant before taking cognizance of the offences. The said Sworn Statement forms part of information received by the Magistrate from any person as contemplated under Section 190 (1) (c) Cr.P.C. In this case, it is stated that after the police filed referred Charge Sheet under Section 173 (2) Cr.P.C., the 2nd respondent filed protest petition before the Magistrate and thereupon the Magistrate recorded Sworn Statement of the complainant and took cognizance of the offences against the petitioners. This Court finds that the procedure adopted by the lower Court is in accordance with Section 190 Cr.P.C.”

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9) Further order passed by the lower Court taking cognizance of the offences against the petitioners/A-1 and A-2 is only after application of his mind as contemplated by the Supreme Court in M/s.Pepsi Foods Limited V. Special Judicial Magistrate^[3] . Thus, there are no legal or valid reasons to quash the proceedings in the lower Court before trial. 10) In the result, the Criminal Petition and Criminal Revision Petition are dismissed.

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_______________________________ SAMUDRALA GOVINDARAJULU, J

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February 10, 2011 ksh

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[1] (2010)9 Supreme Court Cases 479

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[2] 2011(1) ALD (Crl.) 124

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[3] 1998 Crl.L.J 1

K.B.Janakirama Rao, v. Y. Venkateswara Rao

Case brief

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What did the court decide?

K.B.Janakirama Rao, v. Y. Venkateswara Rao

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