High Court · 2012

Order

1. Since the subject matter of all these petitions is one and the same, they are being disposed of by this Common Order. Crl.P.Nos. 285 and 286 of 2011

2. Criminal Petition No.285 of 2011 is filed for quashing the proceedings in C.C.No.1025 of 2010 on the file of X- Addl. Chief Metropolitan Magistrate, Secunderabad. The allegations in the charge sheet are that the accused and the 1st respondent are own brothers and they have disputes with regard to their house property in Sikh Village. On 28.02.2005, the accused purchased two non-

judicial stamp papers for Rs.10/- each from one Smt. M. Ramadevi in the name of the 1st respondent. Out of the two papers, one non-judicial stamp paper was used for preparing an affidavit for the purpose of transfer of electricity service meter in the name of the accused. The said affidavit was attested by one Ch. Yadagiri, Notary on

06.03.2005, and the application along with the affidavit was submitted to LW4 – I. Srinath, and that the other non- judicial stamp paper could not be recovered due to non- cooperation of the accused.

3. Criminal Petition No.286 of 2011 is filed for quashing the proceedings in C.C.No.800 of 2010 on the file of XI- Addl. Chief Metropolitan Magistrate, Secunderabad. The allegations in the charge sheet are that the 1st accused is the younger brother of the 1st respondent. Their father Sardar Maha Gopal Singh, during his life time, purchased a house plot bearing No.6, admeasuring 242 Sq.Yds., in Jaya Nagar Colony, Sikh Village, in the name of the 1st accused. As per the oral settlement of their family members during the life time of their father, it was decided that the ground floor was for the 1st accused and the 1st floor for the 1st respondent. After the oral settlement, a house was built through a builder M/s Sai Ram Associates. A total amount of Rs.11,35,000/- was spent for the construction of the 1st floor and out of that amount their father paid Rs.4,85,000/- and the remaining amount of Rs.6,50,000/- was spent by the 1st respondent. After the construction of the 1st floor, physical possession was delivered to the 1st respondent on 20.10.2001 through separate receipt-cum-delivery and since respondent was in peaceful possession and enjoyment of the 1st floor. The respondent got the electricity service connection in his name and he was paying the electricity bills. Their father died on 31.03.2005 and after his death, there was tussle between the 1st petitioner and the 1st respondent. The elders who were asked to mediate advised the 1st respondent to vacate the first floor and not to make use of the house till the dispute was settled. Accordingly, the premises (the first floor) was locked and key was kept in the custody of one Sri Ranjith Singh. The first respondent shifted his residence to Shanthinagar Police lines, leaving his valuables including TV, fridge etc., in the house. It is alleged that A1 created fake affidavit by impersonation, the 1st respondent and forging his name, got the electricity service connection of the first floor transferred in the name of the 1st accused. It is further alleged that A1 to A4 trespassed into the first floor by breaking open the lock and committed theft of valuables belonging to the 1st respondent.

4. Learned counsel for the petitioners contended that the house in question was purchased by the petitioners and that the allegations in the second complaint relating to C.C.No.800 of 2010 on file of XI-Addl. Chief Metropolitan Magistrate, Secunderabad, are also alleged in the complaint in Crime No.99 of 2007 relating to C.C.No.1025 of 2010 on file of X-Addl. Chief Metropolitan Magistrate, Secunderabad, and therefore, the petitioners cannot be prosecuted twice for the same offence and hence prays to quash the proceedings in the aforementioned C.Cs.

5. On the other hand, learned counsel for the 1st respondent contended that the 1st respondent spent an amount of Rs.11,35,000/- for the construction of first floor and the said floor was allotted to him and physical possession was delivered to him on 20.10.2001, and since then he is in physical possession and enjoyment of the property, that their father expired on 31.03.2005, and after the death of their father, the accused started harassing the 1st respondent to register the house in his name as the plot was purchased by their father and the matter was referred to elders. The elders advised the 1st respondent to vacate the first floor and not to vacate the house till the dispute is settled and, accordingly, the first floor was allotted and the key was kept in the custody of PW2 as agreed by the defacto complainant, and the accused and the defacto complaint shifted the residence to Shanti Nagar Police Lines, keeping the valuables which were seized by the police in the house, and taking advantage in the absence of the de facto complainant, the petitioners created fake affidavit by impersonating first respondent and forged his signatures on the affidavit and got electricity service connection for the first floor of the building and criminally trespassed into the first floor which belonged to first respondent by breaking the lock and committed theft of the valuables belonging to him. Same allegations were levelled against the petitioners C.C.No.1025 of 2010, and for the same allegations, the petitioners cannot be prosecuted in two different parallel criminal proceedings as the offence involved in both the cases appear to be one and the same. On that ground, the proceedings in C.C.No.1025 of 2010 on the file of X- Addl. Chief Metropolitan Magistrate, Secunderabad, cannot be quashed in the interests of justice, and till the police completes the investigation and files charge sheet, the C.C.No.1025 of 2010 cannot be quashed. After filing of charge sheet, petitioners can make a request to club both the cases so that one trial can be proceeded with.

6. The allegation is that the accused fabricated documents for the purpose of transferring the house in his name, by impersonation and thereby created forged documents for using the same as genuine to enable him to transfer the house in the electricity bills etc. Therefore, if uncontroverted allegations in both the charge sheets are taken together as correct, at this stage, they make out a facie case of cheating, forgery and also impersonation and hence there are no grounds to quash the impugned proceedings in these criminal petitions. Crl.P.No.12945 of 2010

8. This criminal petition is filed seeking to direct the XI- Addl. Chief Metropolitan Magistrate, Secunderabad, to grant interim custody of the articles mentioned in the panchanama prepared on 20.04.2010 in Crime No.149 of 2007 of Bowenpally Police Station, Hyderabad.

9. In pursuance of the case registered in Crime No.149 of 2007 for the offences punishable under Sections 448, 380, 468, 471 and 420 IPC, the police seized the items as mentioned in the list of property particulars and kept in their custody. For grant of interim custody of the seized items, the petitioner filed a petition under Section 451 Cr.P.C.,, and the same was dismissed on the ground that there was a rival claim between the parties and that claim can be resolved after adducing necessary evidence during the trial of the case. Challenging the same, the present petition is filed.

10. Learned counsel for the petitioner contended that since all the articles belong to the petitioner, the trial Court ought to have granted interim custody of the articles seized by the police and that the 1st petitioner was also examined as PW1 in the trial Court to show that he is the owner of the property. But, on the other hand, the defacto complainant lodged a complaint with the police stating that, on the advice of the elders, he vacated the first floor portion of the building in question keeping all his articles and locked the same as per the agreement between the de facto complainant and A1, and the articles that were seized by the police are also claimed by the de facto complainant. Therefore, in this circumstance, unless it is established as to who is the owner of the property, the articles seized by the police cannot be given for interim custody during the pendency of the case. Precisely for that reason, the trial Court rightly dismissed the application filed under Section 451 Cr.P.C., directing the parties to establish their rights during the trial of the case, and that order needs no interference of this Court.

7. Accordingly, Crl.P.Nos.285 and 286 of 2011 are dismissed. Uninfluenced by any of the findings in these petitions, the trial Court is directed to dispose of the cases in accordance with law, as per the evidence that may be adduced by the parties. Crl.P.No.12945 of 2010 is also dismissed. Miscellaneous petitions, if any pending in these criminal petitions, shall stand closed. Interim stay, if any granted in these petitions, also stands vacated. ____________________ JUSTICE K.C. BHANU 27th December, 2012 KSM