WP/29036/2010 of Madupu Harinarayana , Haribabu Vs The learned Judicial Magistrate of First Class, on 30 December 2010

ORDER:

WRIT PETITION No.29036 of 2010

This writ petition is filed, seeking a Writ of Certiorari,calling for the records relating to C.C.No.88 of 2010 on the file ofthe 1[st] responent-Judicial Magistrate of First Class (Prohibitionand Excise), Kadapa, and to quash the same.

2. The petitioner herein is the accused in C.C.No.88 of 2010pending trial on the file of the learned Judicial Magistrate of FirstClass (Prohibition and Excise), Kadapa. He was charge-sheetedin Crime No.79 of 2006 for the offences under Sections 447, 427,464, 465, 468, 471 read with 34 of I.P.C., by the I-Town PoliceStation, Kadapa. The 5[th] respondent herein is the owner of acinema theatre by name “Venkateswara Picture Palace”, which ispresently renamed as “Sandhya Theatre”, located at R.S.road,Kadapa. She intended to sell the same to accused No.1 forRs.64,00,000/-, and entered into an agreement of sale on 28[th] ofMarch 2001, to that effect. As per the terms of agreement, afterreceiving the advance, the balance amount of Rs.38,88,000/- wasto be paid in 3 instalments with an intervening period of 3 monthsfor each instalment. The 5[th] respondent in her complaint lodgedbefore the Police, stated that as the balance amount was not paid,she has not executed the sale deed in favour of the petitioner, anda legal notice was issued on behalf of petitioner herein, on28.07.2002, and the same was replied to by reply notice, dated 06.08.2002. It is alleged that the accused No.1, in collusion withaccused Nos.2 and 3, prepared a false document on Rs.500/-stamp paper by forging the signature of respondent No.5, as if anamount of Rs.4,03,000/- was paid on 18.09.2002 and possessionwas handed over to the petitioner. It is stated that based on thealleged plea of possession, the petitioner filed a suit for specificperformance in O.S.No.44 of 2002 and obtained interim injunctionorders in I.A.No.3948 of 2002 on the file of the learned I-AdditionalDistrict Judge, Kadapa, and trespassed into the premises bybreak-opening the locks and forcibly occupied the theatre bydamaging the furniture. It is alleged that the suit was contested byrespondent No.5 herein and the disputed document was sent forforensic expert, who opined that the document was fabricated. Subsequently, the suit was dismissed and in view of the finding ofthe Civil Court that the disputed document was not executed byrespondent No.5, alleging forgery, she has filed a complaint beforethe Superintendent of Police, who in turn, endorsed to the PoliceStation, based upon which, a case is registered in Crime No.79 of2006 and after making investigation, a final report was filed,charging the petitioner and two others that they have forged thesignature of respondent No.5 and thus cheated her, and alsocriminally trespassed into the theatre, as such, they are liable forpunishment for the offences referred above.

3. When the investigation was in progress in Crime No.79 of2006, the petitioner and other accused Nos.2 and 3 have filed acriminal petition under Section 482 Cr.P.C., for quashing of theproceedings, and the same was also ended in dismissal.

4. In this writ petition, the petitioner pleads that he has paid atotal amount of Rs.91,49,210/-, which is in excess of the agreedamount of Rs.64,00,000/-, by Rs.27,49,210/-, but inspite of thesame, the suit in O.S.No.44 of 2002 was fraudulently dismissed by

the 3[rd] respondent by discrediting the evidence of PW-2, due tocasteism, as the 5[th] respondent and the 3[rd] respondent belong tothe same caste. It is stated that the 5[th] respondent has submitteda false complaint on 11.05.2006 to the 4[th] respondent formerSuperintendent of Police, Kadapa, alleging forgery of her signatureand trespass, who has fraudulently directed the Sub-Inspector ofPolice, I-Town Police Station, to register a case of forgery andcriminal trespass. It is pleaded that such a complaint is taken onfile in C.C.No.167 of 2008 initially by the I-Additional JudicialMagistrate of First Class, Kadapa, which is transferred and re-numbered as C.C.No.88 of 2010 on the file of Judicial Magistrateof First Class (Prohibition and Excise), due to the undue influenceof the 4[th] respondent former Superintendent of Police, Kadapa. Onthe aforesaid grounds, the petitioner pleads for quashing of thecriminal proceedings initiated against him.

5. In this case, it is to be seen that based on the agreementof sale, seeking specific performance, the petitioner has alreadyapproached the Civil Court. In the Civil Court, his claim forspecific performance is rejected, basing on the oral anddocumentary evidence on record and also taking into account theopinion of the forensic expert on the disputed signatures on thedocument which is stated to have been created by the petitioner inproof of payment of Rs.4,03,000/- and also with a recital fordelivery of possession of the theatre in question to the petitioner. If the petitioner is of the view that any evidence in the said suit isnot properly considered, it is for him to pursue his appeal, butmerely because he lost in the suit, he is not expected to make wildand untenable allegations against the Judicial officers and theformer Superintendent of Police, Kadapa. The allegation of thepetitioner that the judgment went against him only on caste lines, appears to be a baseless and wild allegation made for the purposeof maintaining the writ petition. Based on the opinion of theforensic expert and other evidence on record, the suit wasdismissed. Merely because the suit went against him, thepetitioner seems to have made wild and reckless allegationsagainst the respondents. Moreover, a perusal of the final reportfiled under Section 173 Cr.P.C., which is filed in the materialpapers by the petitioner, indicate that the preliminary investigationrevealed forgery of the signature of respondent No.5 and trespass,as alleged. In that view of the matter, whether an offence iscommitted or not, is to be decided only after trial, but when thepetition filed under Section 482 Cr.P.C. is dismissed and thematter is pending trial, the petitioner is not entitled for the relief asprayed for in the present writ petition. It has become the order ofthe day, when a claim is decided against by a Civil Court or anyother Forum, to make such persons as parties in person and makewild allegations. Such an attitude is nothing short of gross abuseof the process and this writ petition is one such petition, which isto be rejected by imposing exemplary costs.

6. For the aforesaid reasons, I do not find any merit in thiswrit petition, to admit the same. The writ petition is dismissed withcosts of Rs.25,000/-.

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R.SUBHASH REDDY, J

30[th] December 2010ajr