HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISON CASE Nos.1809 OF 2012 & 1848 OF 2012 Dated 20-1-2014.
Crl.R.C.No.1809 OF 2012 Between:
Hongkong and Sanghai Banking Corporation, represented by its Chief Executive Officer, Sri Staurt A.Davis and another.
And:
Juveria Mohiuddin Fatima and others.
…Petitioners.
…Respondents.
Crl.R.C.No.1848 OF 2012 Between:
P.Nirmal Kumar and another.
…Petitioners.
And:
Juveria Mohiuddin Fatima and others.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISON CASE Nos.1809 OF 2012 & 1848 OF 2012 COMMON ORDER:
These two revisions are preferred against order dated 4- 9-2012 in S.R.No.4498 of 2012 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad which is registered as C.C.No.1263 of 2012.
2. Revision petitioners in Crl.R.C.No.1809 of 2012 are A.1 and A.3 in the above referred C.C.No.1263 of 2012 and revision petitioners in Crl.R.C.No.1848 of 2012 are A.2 and A.4 in the above referred C.C.
3. The brief facts leading to these two revisions are as follows:
Respondents 1 and 2 filed a private complaint against the revision petitioners in both the cases and three other persons for the offences under Sections 448, 323 and 418 I.P.C. and the learned trial judge after recording the Sworn Statement of first respondent herein took cognizance against the revision petitioners in these two cases and dismissed the complaint against the other persons for want of sanction under Section 197 Cr.P.C. Aggrieved by taking of cognizance, A.1 to A.4 preferred these two revisions.
4. Heard both sides.
5. Advocate for revision petitioners contended that to attract offences under Sections 448 and 418 I.P.C., there must be intention. He contended that only when the alleged acts are committed intentionally, then only those offences would be attracted but in this case, from the record, it is clear that due to mistake, instead of entering into flat No.4, the revision petitioners entered into flat No.2 and after realising the mistake, the same was immediately reported to the court concerned and therefore, it was not intentional. He further contended that first respondent who gave sworn statement was not present at the time of alleged incident and her entire statement has to be treated as an hear say on the basis of which cognizance cannot be taken.
6. On the other hand, advocate for respondents contended that the revision petitioners with full knowledge entered into flat No.2 and it was done intentionally and therefore, the court below has taken cognizance and that there are no grounds to interfere with the order of the trial court.
7. Now the point that would arise for my consideration in this revision is whether the order of the court below is legal, correct and proper?
8. POINT:
First respondent herein is the owner of flat No.4 and flat No.2 situated at house bearing No.8-3-168/E/2/31 situated at Rajiv Nagar, Yousufguda, Hyderabad. She availed house loan from Hongkong and Sanghai Banking Corporation, Somajiguda branch, Hyderabad by creating equitable mortgage with the bank against flat No.4. When the first respondent committed default in payment of instalments, the Bank approached court for delivery of mortgaged property and the court ordered the same by appointing advocate commissioner and also granting police help. It appears that the advocate commissioner instead of delivering flat No.4 wrongly delivered flat No.2 and subsequently, the same was realised and mistake is also rectified.
9. As seen from the order of the Chief Metropolitan Magistrate dated 6-7-2012 in Crl.M.P.No.2063 of 2012, the advocate commission instead of delivering B. Schedule property delivered possession of A schedule property to the bank which was held as illegal and it was due to inadvertence of the advocate commissioner and the learned Magistrate directed the advocate commissioner to re-deliver A schedule property to the first respondent herein before 9-7-2012. It is undisputed that property was redelivered to the first respondent and mistake committed by the officials is rectified.
10. Now the contention of the first respondent is that it is not a mistake but it is only with knowledge and intention. There is no material on record to support the allegation of first respondent complained against the petitioners. Admittedly, first respondent was not present at the time of alleged incident. As rightly pointed out by advocate for revision petitioners that the entire sworn statement of the first respondent is based on hear say information from the second respondent herein. Though complaint is also signed by second respondent, she did not come forward to give any sworn statement. She is the direct witness and in fact, she is the victim due to wrong act committed by the officials. When she did not give any sworn statement and taking cognizance on the basis of hear say information is definitely incorrect and the same cannot be sustained.
11. So considering facts of the case and the sworn statement of the first respondent, I am of the view that the learned trial judge erred in taking cognizance of the offence without any material for the knowledge and intention of the revision petitioners and therefore, the impugned order is liable to be set aside.
12. Learned trial judge instead of dismissing the complaint under Section 203 Cr.P.C., took cognizance. Therefore, impugned order is set aside and consequently, cognizance taken by the court below is set aside and the complaint is to be treated as dismissed under Section 203 Cr.P.C.
13. Accordingly, these two Criminal Revision Cases are allowed at the admission stage.
14. As a sequel to the disposal of these revisions, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
Dated 20-1-2014.
Dvs KUMAR JUSTICE S.RAVI HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISON CASE Nos.1809 OF 2012 & 1848 OF 2012 Dated 20-1-2014.