1 APHC010510192022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] TUESDAY ,THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL PETITION NO: 7637/2022 Between: Smt. EediKalevathi and Others ...PETITIONER/ACCUSED(S) AND The State Of Andhra Pradesh and Others ...RESPONDENT/COMPLAINANT(S) Counsel for the Petitioner/accused(S): 1. K RAMACHANDRA Counsel for the Respondent/complainant(S): 1. K V BHANU PRASAD 2. PUBLIC PROSECUTOR (AP) The Court made the following: 2 THE HONOURABLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL PETITION NO: 7637/2022 ORDER: The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) has been filed by the Petitioners/ Accused Nos. 1 to 3, seeking quashment of the proceedings pending against them in C.C.No.46 of 2021 on the file of XVI Additional Metropolitan Magistrate, Bheemunipatnam, Viskhapatnam. 2. Heard Sri K. Ramachandra, learned counsel for the petitioners, Sri K.V.Bhanu Prasad, learned Counsel for the respondent No.2 and Ms. K. Priyanka Lakshmi, learned Assistant Public Prosecutor on behalf of the State. 3. Learned counsel for the petitioners would submit that the petitioners herein are Accused Nos., 1 to 3, who are facing allegations for the offence punishable under Sections 447, 427 r/w 34 of I.P.C. Learned counsel would further submit that the matter is purely civil in nature. Several civil suits are pending between the parties. While so, only as an arm-twist to settle their scores in the civil matter, the present case has been lodged against the petitioners. Learned counsel would further submit that Accused No.1 herein filed civil suit in O.S.No.171 of 2022 against the respondent No.2 herein seeking temporary injunction wherein she has obtained ad-interim injunction which is extended from time to time. Even on this date, the injunction is in force in favour of the petitioner No.1 (A1). Petitioner Nos.2 and 3 i.e., A2 and A3 are the sons of A1. Learned counsel would further submit that the A1 has 3 filed a civil suit for partition in O.S.No.53 of 2002, it is decreed in her favour against which A.S.No. 224 of 2009 was preferred. It was dismissed. Later it was restored to file. Learned counsel would further submit that according to the respondent No.2, they have purchased a property from the mother of A1. The respondent No.2 further contended that his friend Lakshmana Swamy also purchased some property from the mother of A1 and they have arranged common fencing of these properties. Learned counsel would further submit that petitioner No.1 who is A1 also filed O.S.No. 43 of 2011 seeking partition wherein Respondent No.2 is not a party. The said suit is also decreed in her favour. Learned counsel would further submit that the matter is purely of civil nature and continuing criminal proceedings against the petitioners is mere abuse of process of law. 4. Per contra, learned counsel for the respondent No.2 would submit that the A1 has obtained ad-interim injunction against the respondent No.2 in O.S.No. 171 of 2022 on 13.04.2022 but the present case has been lodged against the petitioners on 08.09.2020. Learned counsel for the respondent No.2 also would submit that after due investigation, the Police filed charge sheet, the Court has taken cognizance for the offence punishable under Sections 447, 427 r/w 34 of I.P.C. Learned counsel finally submits that the respondent No.2 and his friend Lakshmana Swamy purchased the said property vide registered GPA cum agreement of Sale with possession dated 06.08.1999 and they have been in possession and enjoyment of the land. While so, the petitioners trespassed the land and damaged the fencing. This 4 Court cannot decide the truth or otherwise of such allegations. Learned counsel finally prays for dismissal of the petition. 5. Learned Assistant Public Prosecutor supported the version of the respondent No.2 and would submit that the Court may pass appropriate Orders. 6. Considering the submissions made and on a fair look at the material placed on record, it is alleged against the petitioners that on 04.09.2020 at about 10:00 AM, the petitioners/A1 to A3 trespassed the land of the respondent No.2 with the help of JCB, got damaged the trees over there. On receiving the information from their watchman cum caretaker, the respondent No.2 rushed to the land and observed the damage at about 13:00 hrs., on that day. It is further alleged that they have destroyed the common fencing of the property of respondent No.2 and his friend Sri. B. Lakshmana Swamy. In that regard, as instructed by his friend Sri. B. Lakshmana Swamy, on his behalf and also on behalf of the respondent No.2, the case has been lodged against the petitioners on 07.09.2020. On perusal of the information, which was submitted to the Police by the respondent No.2 would disclose that the respondent No.2 purchased Ac.1.48 cents of land in Sy.Nos. 105/1, 105/2, 105/3 and Ac.0.40 cents of land in Sy.No.106/8 on 06.08.1999 from one Sri Saripalli Venkata Ramana and his other heirs. His friend Sri B. Lakshmana Swamy, also purchased Ac.1.76 cents of land in Sy.No. 106/3 from Smt. Saripalli Sanyasamma and her legal heirs on 17.04.2000. Both have purchased the land vide registered GPA cum agreement of sale. It is further 5 stated that they have been enjoying the said land by constructing the common fencing by engaging a watchman by name Sri Saripalli Sanyasi. It is further stated that A1 who is the daughter of Smt. Saripalli Sanyasamma obtained decree in O.S.No. 53 of 2002 relating to the property in Sy.No. 106/3 which is a preliminary decree, she has not obtained the final decree. It is further stated that his friend Sri B. Lakshmana Swamy preferred an appeal against the said decree in A.S.No. 224 of 2009. While so, on the given day, A1 along with her sons trespassed their land and damaged the common fencing and removed the trees worth Rs.50,000/-. It is further stated that when respondent No.2 requested them to stop their unlawful activity, A1 to A3 tried to assault him. With these allegations, he has presented information to the Police and they have registered the case. Be that as it may, a careful scrutiny of the record placed before this Court, would show that the respondent No.2 is claiming Ac.1.48 cents of land in Sy.No. 105/1, 105/2, 105/3. The material on record would show that A1 herein filed O.S.No. 43 of 2011 claiming her right over the property in Sy.No. 105/1, 105/2, 105/3. By virtue of the Judgment dated 03.02.2022, A1 got her right over the property i.e., the very same property the respondent No.2 is claiming vide GPA cum agreement of sale dated 06.08.1999. 7. While so, A1 herein also filed civil suit after lodging the present criminal case in O.S.No.171 of 2022. A cursory look at the plaint in the said suit would show that there is reference of the present criminal case lodged against her. The suit schedule property in O.S.No. 171 of 2022 is property which is 6 situated in Sy.No.105/1, 105/2, 105/3 i.e., Ac.1.48 cents. Over the said property she has obtained ad-interim injunction vide I.A.No. 183 of 2022 dated 13.04.2022. Admittedly, that order is extended from time to time and even as on this day, the said injunction is in force. That apart, A1 herein filed O.S.No. 53 of 2002 seeking partition of four items in the plaint schedule. Item No. 1 is property Ac.1.76 cents of land in Sy.No. 106/3 & 106/6. According to this complaint, his friend Sri B. Lakshmana Swamy purchased the Ac.1.76 cents of land in Sy.No. 106/3. The very same land is item No.1 in O.S.No. 53 of 2002. A cursory look at the decree passed in O.S.No. 53 of 2002, in item No.1, A1 herein is entitled for 7/36th share. In O.S.No. 53 of 2002, the respondent No.2’s friend Sri B. Lakshmana Swamy was shown as Defendant No.4. The right of Defendant No.4 over item No.1 is to the extent of the shares of Defendant Nos., 1 and 2. Defendant Nos., 1 and 2 are none other than the mother and brother of A1 herein. D-1 who is the mother of A1 herein is entitled for 1/36th share. While so, D2 in the said suit who is the brother of A1 herein and three other daughters of Sri Saripalli Apparao are entitled for 7/36th share. So as on the face of it, Sri B. Lakshmana Swamy may get a share in Ac.1.76 cents of land to the extent of shares which were allotted to Defendant Nos., 1 and 2 in the said suit. While so, the claim of the respondent No.2 in the present case is that they have constructed a common fencing for the entire land. 8. The appeal preferred against the judgment in O.S.No. 53 of 2002 by Sri B. Lakshmana Swamy in A.S.No. 224 of 2009 is pending. As on this day, the 7 Judgment in O.S.No. 53 of 2002 holds the field. That apart, A1 herein filed another O.S.No.171 of 2022 referred supra and obtained injunction against the respondent No.2 relating to Ac.1.48 cents as claimed have been purchased by him under GPA dated 06.08.1999, her rights are preliminary decreed in O.S.No. 53 of 2002. That apart, Flat Owners Association filed O.S.No.11 of 2011 and obtained decree against which the respondent No.2 preferred Civil Revision Petition against the temporary injunction obtained in the said suit which was dismissed on 17.08.2022. Be that as it may, the respondent No.2 herein filed O.S.No.446 of 2010 against the petitioner/A1 herein and the said suit was dismissed for default on 18.08.2017. 9. In the light of the discussion referred to supra, the very rights of the respondent No.2 and his friend Sri B. Lakshmana Swamy are limited to the extent of the shares of Defendant Nos., 1 and 2 in O.S.No. 53 of 2002. While so, their claim over the entire property of Ac.1.48 cents and Ac.1.76 cents is pending for consideration before the High Court in A.S.No.224 of 2009. That apart, the rights of A1 herein are determined vide preliminary decree dated 30.10.2008 in O.S.No.53 of 2002 over the item No.1 of the said property which is the subject property in the present case. The claiming of common fencing in the entire property is itself not in correct lines. Admittedly, final decree has not been passed regarding the subject property. 10. In view of the determination of the right of Accused No.1 over the subject property by way of a preliminary decree in O.S.No.53 of 2002, the alleged criminal trespass by the Petitioners which is punishable under Section 8 447 IPC does not attract against the Petitioners. In the absence of the ingredients under Section 447 IPC, the consequential offence under Section 427 IPC also does not attract against the Petitioners. 11. In Mitesh Kumar J.Sha Vs. State of Karnataka and others 1 the Hon’ble Apex Court has held as under: “41. Having considered the relevant arguments of the parties and decisions of this court we are of the considered view that existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has been rightly emphasised upon by this court, by way of an observation rendered in the case of M/s Indian Oil Corporation Vs. M/s. NEPC India Ltd & Ors.7, as under :- “14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law.” 42. It was also observed:- “13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors….There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort 1 2021 SCC Online SC 976 9 to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.” 12. In Paramjeet Batra Vs. State of Uttarakhand and others2 the Hon’ble Apex Court at Para No.12 held as follows: “12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” 12. In view of the above discussion and the judgment referred to supra, the allegations made in the complaint appear to be directly relating to a civil dispute and Respondent No.2 resorted to criminal prosecution against the Petitioners by inviting the Police to be interfered with the civil litigation. Further, even if the allegations mentioned in the complaint are taken at their face value and accepted in their entirety, they do not prima facie constitute any offence or make out a case against the Petitioners. In that view, continuing criminal proceedings against the petitioners herein is a mere abuse of process of law. Therefore, this Court is of the view that it is a fit case to 2 (2013) 11 SCC 673 10 exercise the powers under Section 482 Cr.P.C., for quashing the proceedings against the Petitioners. 13. In the result, the Criminal Petition is allowed. The Case pending against the petitioners/A1 to A3 in C.C.No.46 of 2021 on the file of XVI Additional Metropolitan Magistrate, Bheemunipatnam, Viskhapatnam is hereby quashed. As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed. __________________________________________ DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA Date: 25.02.2025 UPS 11 131 THE HONOURABLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA Crl.P.No.7637 of 2022 Dt.25.02.2025 UPS