Allowed

Mrs. a.Vijayalakshmi, v. The State of Andhra Pradesh

Telangana HC4 Jan 2012CRLP/5513/2008

Case brief

AI extract

What is this about?

In a criminal petition under Section 482 CrPC, the High Court quashed proceedings for alleged defamation (IPC 500) filed by an accused acquitted of cheating. The court held the complaints were made in good faith to protect property rights under Exception 9 to IPC 499 and proceeding further was an abuse of process.

What did the court decide?

The criminal petition was allowed and the proceedings in C.C.No.722 of 2008 pending before the Additional Chief Metropolitan Magistrate, Secunderabad, were quashed.

Mrs. a.Vijayalakshmi, Vs The State of Andhra Pradesh — Cheating and Forgery | Telangana HC (2012)

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HON'BLE SRI JUSTICE R. SUBHASH REDDY

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CRIMINAL PETITION No.5513 of 2008

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Date : 04.01.2012

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Between :

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Mrs. A.Vijayalakshmi & another.

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…..Petitioners

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And

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The State of A.P., rep. by Public Prosecutor & another.

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…..Respondents

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HON'BLE SRI JUSTICE R. SUBHASH REDDY CRIMINAL PETITION No.5513 of 2008 ORDER :

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This criminal petition is filed by the accused in C.C.No.722 of 2008 on the file of the learned X Additional Chief Metropolitan Magistrate Court at Secunderabad, for quashing of the said proceedings.

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The aforesaid case was taken cognizance against the petitioner for the alleged offence under Section 500 of IPC, based on the private complaint filed by the 2^nd respondent herein.

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At the instance of the 1^st petitioner herein, earlier, proceedings were initiated against the 2^nd respondent herein and others, in C.C.No.1722 of 2003 on the file of the learned X Additional Chief Metropolitan Magistrate, Secunderabad, for the offences under Sections 420, 465, 467 and 471 of IPC. The 2^nd respondent herein was accused No.3 in the said C.C. In the complaint lodged by the 1^st petitioner, it is stated that her sons are residing in USA and she and her husband went to see their sons in USA between 17.04.1998 and 16.03.1999 and they returned to India on 16.05.1999. After their return, two officers from the State Bank of India, Padmaraonagar Branch, came to their house and started inspecting it, and when inquired, the said officers stated that their house is under mortgage with the bank and as a report had to be

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sent to their superior officials, they were inspecting the premises. It is stated that at that point of time, she has informed to the said officers that they are the owners of the house and that the said house was never mortgaged nor was it given as security to any third party. It is stated that on their inquiry, the bank officials have informed her that accused No.3 had sought bank guarantee for a sum of Rs.20 lakhs in favour of the National Small Scale Industries Corporation, for which, the house of the complainant was mortgaged with State Bank of India, Padmaraonagar Branch, to facilitate the bank guarantee and the said transaction took place on 13.06.1998. It is stated that the complainant and her husband informed the bank officers that the entire transaction is fraud and they do not know accused No.3. It was the case of the petitioners that they are the real owners of the property and documents of title pertaining to the said house are in the custody of the 1^st petitioner, but the 2^nd respondent herein and others had forged the signatures of the 1^st petitioner and committed fraud in collusion with the Chief Manager of the bank, as such, they are liable for punishment.

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On the basis of the aforesaid complaint, a case was registered in Crime No.17 of 2001 for the offences under Sections 420, 465, 467 and 471 of IPC, and after completion of investigation, Police have filed final report against the 2^nd respondent herein and three others. For

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the aforesaid offences, they were tried in C.C.No.1722 of 2003 on the file of the learned X Additional Chief Metropolitan Magistrate, Secunderabad and were acquitted by a judgment, dated 25^th of April 2008. It is stated that the appeal filed by the State and the criminal revision filed by the complainant/1^st petitioner herein, against the aforesaid judgment, are pending before this Court.

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After acquittal of the 2^nd respondent in the aforesaid C.C.No.1722 of 2003, he filed a private complaint before the learned X Additional Chief Metropolitan Magistrate Court at Secunderabad, against the petitioners herein, for the alleged offence under Section 500 Cr.P.C. The complaint filed by the 2^nd respondent was taken cognizance by the learned X Additional Chief Metropolitan Magistrate, Secunderabad, in C.C.No.722 of 2008, against the petitioners herein, by order dated 17^th June 2008, for the offence under Section 500 of IPC.

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In the complaint filed by the 2^nd respondent in C.C.No.722 of 2008, it is his case that as the petitioners herein have filed a false and frivolous complaint against him, making libelous imputations by projecting him as a forger and a cheater, he lost his reputation and all the image, which he got by his deeds for decades, in his relatives, business circles, colleagues, well wishers, banks and financial institutions, etc. It is alleged that he is

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highly educated and is a respectful citizen and also started a magazine by name ‘Udbhava’, which exclusively covers violations against women and children and he also worked earlier in ECE Birla Group Meter Factory and Voltas India Limited, etc. It is also stated that ultimately, he has set up an industry which is being run in the name, ‘Laxmi Metal Works’. In the private complaint, it is alleged that the 1^st petitioner has filed a false, concocted and illusory complaint with a malicious intention and the 2^nd petitioner, being the husband of the 1^st petitioner, supported the false case of the 1^st petitioner and both have deposed in support of their false complaint and finally same has ended in acquittal by the learned X Additional Chief Metropolitan Magistrate, by a judgment, dated 25^th April 2008. In the complaint, certain portions of the depositions of petitioners herein were extracted by alleging that same are contrary to the contents of the complaint filed by the 1^st petitioner. It is stated that such evidence of petitioners will prove that the allegations made by them are not correct and they are made only to defame the 2^nd respondent.

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This criminal petition is filed, seeking to quash the proceedings mainly on the ground that, questioning the acquittal of 2^nd respondent and others, an appeal is filed by the State and also a criminal revision is filed by the

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complainant, as such, it is not open for the 2^nd respondent to proceed against the petitioners for the alleged offence under Section 500 of IPC. Further, it is submitted that the depositions made before the competent Magistrate cannot be said to be malicious publication of any defamatory matter with a view to defame, so as to take cognizance for the offence under Section 500 of IPC. The learned counsel has submitted that in view of the 9^th exception to Section 499 IPC, it cannot be said that the petitioners have committed any offence under Section 500 IPC.

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It is the contention of the learned counsel for petitioners Sri T.Sudhakar Reddy that allowing the proceedings to go on against the petitioners, is gross abuse of the process and even if the contents of the complaint are taken on their face value, no case is made out against the petitioners for the offence under Section 500 IPC. It is stated that in the absence of publication of any defamatory article with an intention to defame, the Court below has committed serious error in taking cognizance of the case against the petitioners. In support of his argument, the learned counsel has placed reliance on the judgments of this Court in the case of G.Janardhana Reddy Vs. A.Narayana Reddy and anothe r^[1] , in Gundi Vishnu Prasad and another Vs. State of A.P. and anothe r^[2] and in the case of

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S.Mohana Rao Vs. Sri Hanumanthu Rajagopala Rao and anothe r^[3] .

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On the other hand, it is submitted by the learned Additional Public Prosecutor appearing for the State and also the learned counsel appearing for the 2^nd respondent Sri M.Kalyana Rama Krishna, that in view of the allegations made against the petitioners by the 2^nd respondent, it is a matter for trial and there are no grounds to quash the proceedings in this criminal petition filed under Section 482 Cr.P.C.

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Having heard the learned counsel for the parties, I have also perused the material placed on record, including the judgment in C.C.No.1722 of 2003, passed by the learned X Additional Chief Metropolitan Magistrate, Secunderabad, in which, the 2^nd respondent herein, along with others, was tried for the offences under Sections 420, 465, 467 and 471 of IPC, and were acquitted by the aforesaid judgment, dated 25^th of April 2008, and also perused the private complaint filed by the 2^nd respondent in C.C.No.722 of 2008.

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From a perusal of the complaint filed by the 2^nd respondent, it is clear that the entire case for prosecution against the petitioners herein for the offence under Section 500 of IPC, is only with reference to the statements recorded before the Police and the depositions in C.C.No.1722 of 2003. In C.C.No.1722 of

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2003, there is a complaint by the 1^st petitioner herein, alleging that she is the owner of the property and that her property was mortgaged to the bank by the 2^nd respondent herein, by forging her signature and also impersonating her, and thus, the 2^nd respondent has also cheated the bank. It is the allegation of the 1^st petitioner in the aforesaid C.C. that her property was shown as security when she was out of the country along with her husband i.e. the 2^nd petitioner, and the 2^nd respondent herein has obtained loan by giving bank guarantee for a sum of Rs.20 lakhs by mortgaging her property. It is true that after recording evidence, the learned Magistrate has recorded a finding that the offence alleged against the 2^nd respondent is not established. It is also stated that against the acquittal of the 2^nd respondent in the aforesaid C.C.No.1722 of 2003, a criminal appeal is filed by the State and a criminal revision is filed by the petitioners herein. Merely because the 2^nd respondent is acquitted from the charges, it cannot be said that the petitioners herein have committed an offence punishable under Section 500 IPC. Except referring to the statements made before the Police and the deposition before the learned Magistrate, there is no other allegation against the petitioners herein, attracting any offence under Section 500 IPC. To attract the offence under Section 500 IPC, the defamatory comments must refer to the complainant

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and they must be maliciously published. In the absence of publication of defamatory matter with a view to defame, it cannot be said that the petitioners have committed any offence punishable under Section 500 IPC. The whole basis for the complaint filed by the 2^nd respondent appears to be the contents of the complaint filed before the Police, statements recorded by the Police during the course of investigation, and also the statements made by the petitioners before the Court, as witnesses. In that view of the matter, it cannot be said that the petitioners have committed any offence punishable under Section 500 IPC, so as to prosecute them for the said offence.

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In the judgment relied on by the learned counsel for petitioners in the case of G.Janardhana Reddy (1 supra), a learned Single Judge of this Court has held that if imputations are made in the pleadings in a civil suit to the effect that the revenue records filed by the respondents therein were false, fabricated and forged, in which the plea of the petitioner that such imputations were made in good faith for protecting the temple’s interest in property as its trustee and not to harm the reputation of the complainant, held to be covered by exception 9 under Section 499 of IPC. Even in the present case, this Court is also of the view that the allegations made in the criminal complaint filed by the petitioners against the 2^nd respondent and others, were also similar in nature and are covered by

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exception 9 to Section 499 of IPC. In the present case also, it is clear that the imputations made against the 2^nd respondent by the petitioners herein in the earlier complaint, are predominantly to protect their right in the property held by them, alleging that it was mortgaged to the bank by the 2^nd respondent herein, by forging their signatures and also by impersonation. Such a statement made in the complaint cannot be taken as defamatory in nature as defined under Section 499 of IPC. Therefore, the judgment referred above in the case of G.Janardhana Reddy (1 supra), supports the case of petitioners.

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In the case of Gundi Vishnu Prasad and another (2 supra), a learned Single Judge of this Court has held that when there is no pleading that the words or representations made by the petitioners were published and the words said to have been stated by them will defame complainant in the eye of general public, initiating proceedings against such accused under Section 500 IPC and taking cognizance for the alleged offence is nothing but abuse of the process of law. Even in the present complaint filed by the 2^nd respondent, there are no such specific allegations which attract the ingredients under Sections 499 or 500 of IPC.

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In the further judgment in the case of S.Mohana Rao (3 supra), in identical circumstances, a learned Single Judge of this Court has held that basing on mere acquittal in the earlier proceedings, it cannot be said that

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the allegations made against the accused are defamatory so as to proceed for the offence under Section 500 of IPC against the complainant. All the aforesaid judgments support the case of petitioners in this case.

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For the reasons stated above, this Court is of the view that even taking the contents of the complaint on their face value, they do not constitute any offence punishable under Section 500 IPC, so as to allow prosecution against the petitioners. In any event, even if the contents are taken in entirety, the petitioners are saved by exception 9 under Section 499 IPC. In that view of the matter, allowing of prosecution against the petitioners herein for the alleged offence under Section 500 of IPC will be nothing but gross abuse of the process, which will result in mis-carriage of justice. As such, this Court is of the view that it is a fit case to quash the proceedings by allowing this petition.

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For the aforesaid reasons, this criminal petition is allowed and the proceedings pending in C.C.No.722 of 2008 on the file of the learned X Additional Chief Metropolitan Magistrate, Secunderabad, are quashed.

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R. SUBHASH REDDY, J

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4^th January 2012 ajr

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[1] 2010 (1) ALD (Crl.) 198

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[2] 2006(2) ALD (Crl.) 757

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[3] 2006 (2) ALT (Crl.) 497

Mrs. a.Vijayalakshmi, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Mrs. a.Vijayalakshmi, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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