HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.5037 of 2014 Date: 11-7-2014 Between D.Vijaya Lakshmi and another … Petitioners/ Accused 2 and 3 and State of A.P., Rep. by its P.P., High Court of A.P., Hyderabad … Respondent B.Parameshwar Reddy … Respondent/
De facto Complainant
HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.5037 of 2014 Order:
The petitioners, who are accused 2 and 3 in Crime No.916 of 2013 on the file of Banjara Hills Police Station, Hyderabad sought for the quashment of the First Information Report (FIR). The 2nd respondent is said to be the General Power of Attorney of Ruth Mary.
2. One S.Amarnath was a member of Film Nagar Co-operative Housing Society Limited, Hyderabad (the Society, for short). Ruth Mary is his wife. S.Amarnath was allotted 400 square yards of house plot by the Society in 1992. The Society also executed a sale deed in favour of Amarnath on 26-3-1992.
3. It is the case of the petitioners that Amarnath entered into an agreement of sale with accused No.2 on 26-7-1992 in respect of the 400 sq. yards of site which was allotted to Amarnath by the Society. The petitioners further claim that the possession was also given to accused No.2 since she paid the entire sale consideration.
4. On 11-3-1993, Amarnath died in a road accident. Accused No.2 and her husband accused No.3 constructed a house in the site purchased by them. House number was assigned to the same. Accused No.1 was claiming to be the wife of S.Amarnath. The Society addressed accused No.1 on 05-3-2001 asking her to submit a legal heir certificate. Simultaneously, accused No.2 also received a similar letter. On 17-11-2005, accused No.1 submitted a Legal Heir Certificate.
On 08-4-2007, accused No.1 executed a registered Agreement of Sale cum General Power of Attorney in favour of accused No.2 in respect of the 400 sq. yards of site. The membership was transferred in the name of accused No.1 by the Society on 02-11-2007. Later, the membership was transferred in the name of accused No.2. Accused No.2 applied to Greater Hyderabad Municipal Corporation (GHMC, for short) for permission to make construction of a house. On 12-11-2008, the Society addressed a letter to GHMC to accord permission to accused No.2. Permission was granted on 17-8-2009 by GHMC. The permission was renewed on 07-3-2013 for a period of three years which would expire on 07-3-2016.
5. While so, the 2nd respondent, who is the General Power of Attorney Holder of Ruth Mary, filed a private complaint stating that Ruth Mary is the wife of S.Amarnath and that accused No.1 is not the wife of Amarnath. The 2nd respondent filed O.S.No.421 of 2014 on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad on behalf of Ruth Mary for declaration and recovery of possession and also for declaration that the documents executed by accused No.1 were null and void. In the meanwhile, accused No.2 handed over the premises to builder for construction of Ground Floor + 3 Floors. The building is under construction as on today.
6. The 2nd respondent sought for injunction not to alienate the property. Sri P.Prabhakar Reddy, learned counsel for the petitioners-accused 2 and 3, contended that the dispute is a civil dispute and that the criminal complaint is not maintainable. He submitted that the question who is the wife of S.Amarnath between accused No.1 and the complainant is to be decided. He further submitted that the petitioners have been in possession of the property since 1992. The learned counsel for the petitioners consequently submitted that the FIR may be quashed as it is a civil dispute.
7. The learned counsel for the petitioners placed
[1]
reliance upon MD. IBRAHIM v. STATE OF BIHAR .
In that case, the 1st accused allegedly created false documents in collusion with the other accused.
The Supreme Court held that if the accused made or executed any document claiming to be someone else or authorized by someone else or the claimant altered or tampered a document or the accused obtained a document by practising deception, the accused would be guilty under Section 464 IPC and not in other cases. The learned counsel for the petitioners submitted that the offences under Sections 419, 420, 468 and 471 IPC have not been made out.
8. Sri T.Pradyumna Kumar Reddy, learned counsel for the 2nd respondent, submitted that the Police commenced investigation and that accused No.3 is presently Member of the Managing Committee of the Society. He also submitted that Ruth Mary obtained a Legal Heir Certificate that she is the legal heir of the deceased S.Amarnath. He submitted that if S.Amarnath executed sale deed in favour of accused No.2, it would be revealed in the course of the investigation.
9. I consider that it is a fit case to permit prosecution to proceed with the investigation where the investigation more or less is at the threshold. At the same time, where the petitioners contended that they have no complicity in the cheating and forgery, it would be appropriate to direct Police not to arrest the petitioners.
10. Consequently, this criminal petition is disposed of granting liberty to Police to proceed with the investigation of Crime No.916 of 2013 on the file of Banjara Hills Police Station, Hyderabad. In view of the defence set up by the petitioners, Police shall not arrest the petitioners-accused 2 and 3 during the pendency of investigation. The miscellaneous petitions, if any, pending in this petition shall stand closed.
Dr. K.G.SHANKAR, J.
11th July, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.5037 of 2014 11th July, 2014. (Ak)
[1] 2010 (1) ALT (Crl.) 291 (SC)