GOONDLA VENKATESWARLU Vs. STATE OF A P

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal is to the judgment of a learned Single Judge of the Andhra Pradesh High Court dismissing the petition filed by the appellant under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.). The prayer was to quash the proceedings before learned Additional Judicial Magistrate, First Class, Karimnagar in CC No. 356/96.

(3.) Background facts as projected by the appellant are as follows: The appellant, at the relevant time in 1994, i.e. 24.10.1994, was working as Assistant Commissioner of Commercial Taxes. He along with his subordinate staff went to the business premises belonging to the respondent No. 2 for carrying out an inspection during business hours. The premises were registered business premises of M/s. Rajani Fireworks whose proprietor is the son of the respondent No. 2. The officials went to the premises at 5 p.m. on 24.10.1994. In the same business pre mises, the documents and business stocks relating to Kasanagottu Srisailam and Bros, were also noticed. During the inspection, the son of the respondent No. 2 along with one Sri. Kasanagottu Satyanarayana said to be one of the partners of Sri Kasanagottu Srisailam and Bros. were available. A statement of inspection was recorded. The statement was recorded by the ap pellant on a request of the son of the respondent No. 2 on his business letter pad. The statement was written by the son of the respondent No. 2 on his own, wherein he duly declared that the shop has been inspected that day at 5.30 p.m. and that till the date of such inspection i.e. 24.10.1994, he had not written any of the books of accounts relating to his business and that he did not even give the returns for the year 1993-94 and also that he did not issue any sale bills. As far as the stocks and documents relating to M/s. Kasanagottu Srisailam and Bros., Mr. Kasanagottu Satyanarayana stated that he was one of the partners and he gave a statement on his letter-head in his own handwriting, only declaring that till the date of inspection i.e. 24.10.1994 he did not write any books of accounts relating to his business. He also declared in writing that he is giving 178 slips containing the transactions relating to his business for a detailed examination by the appellant. The slips were not seized by the appellant but they were submitted on their own by the owners of the business. Since the accounts books were not written by them, these slips were filed before the appellant for a subsequent examination, which was on their own volition. The stock book was signed and returned. No cash was recovered. The son of the respondent No. 2 visited the office of the appellant and declared that due to ill-health of his grand-mother he was seeking extension upto 30.10.1994. This was given in writing by the son of the respondent No. 2 who is the proprietor of the business premises in respect of M/s. Rajani Fireworks. On three dates, i.e. 7.11.1994, 15.11.1994 and 25.11.1994, the son of the respondent No. 2 and Kasanagottu Satyanarayan came to the office of the appellant but failed to give any proper explanation for the business transaction. Thereafter the matter had been taken up and best judgment assessment was completed. After a period of three months after the inspection, i.e. on 24.1.1995, the respon dent No. 2 herein filed a complaint for alleged commission of offences punishable under Sections 448, 380, 384 and 506 of the Indian Penal Code, 1860 (in short IPC) before the Judicial Magistrate, Ist Class, Karimnagar, stating that the ap pellant along with his subordinate, have taken away the bill books, cheque books, records and also Indira Vikas Patras (for short IVPs) worth Rs. 2 lacs forcibly without giving any acknowledgment and without conducting panchnama duly in timidating his son and forcibly taking the signatures of his son on white papers with an intention to extract Rs. 3 lacs. In the complaint it was mentioned that the shop-cum-residence was inspected on 24.10.1994 and the time of inspection was 7 - 9.30 p.m. In the sworn statement he mentioned it as 3 p.m. as the time of inspection. It is relevant to point that the complaint was not made by the owner of the busi ness namely the son of the respondent No. 2 but by the respondent No. 2 alone. The above complaint was referred by the Magistrate to the police. After a thorough enquiry the police filed a final report on 18.9.1995 that the com plaint itself is a false complaint. However, the police report was objected to by the complainant as wrong and incorrect and that it is without any proper investigation. It appears that without giving any reasons whatsoever and without recording any defect in the final report of the police and without any sufficient additional materi als, the said objection was taken into cognizance and the Magistrate has issued no tice and process to the appellant and his subordinate in CC No. 356/1996 and the officials were asked to appear before the Court for trial of offences u/Ss. 448, 380, 384 and 506, IPC. The appellant had appeared from time to time before the learned Magistrate and it was pointed out that the said complaint itself is false and in any case process ought not to have been issued since there was specific bar contained under Section 37 of the Andhra Pradesh General Sales Tax Act, 1957 (in short the Act) read with Sec tion 197 of the Cr.P.C. The appellant herein along with the other officials preferred a petition before the learned Magistrate under Section 37 of the Act read with Section 197, Cr.P.C. with a prayer to dismiss the complaint. A petition under Section 482, Cr.P.C. was filed before the High Court praying for quashing of the proceedings pending in CC. No. 356 of 1996. This was numbered as Crl. O.P. No. 4006 of 1997. This was admitted on 22.10.1997 and the High Court granted an order of interim stay. During the course of the hearing it was pointed out to the High Court that Crl.M.P. No. 54/1997 has been filed by the appellant and others before the learned Magistrate under Section 37 of the Act read with Section 197 of Cr.P.C. seeking dismissal of the complaint. The High Court disposed of the Crl.O.P. No. 4006 of 1997 directing the learned Additional Judicial 1st Class Magistrate, Karimnagar to dispose of the Crl.M.P. No. 54 of 1997 within a period of 3 months. Subsequently the mistake of the fact that the application itself has been dismissed for default on 21.4.1997 came to the knowledge of the appellant. The mistake has occurred since there was communica tion gap between the appellant and his counsel at trial court since the appellant has been transferred to various places subsequent to the filing of the criminal complaint. Therefore, the appellant herein filed a fresh Crl.O.P. under Section 482, Cr.P.C. before the High Court pointing the aforesaid facts and seeking the quashing of the complaint. This was numbered as Crl. Petition No. 5218/2001. The High Court while taking up the petition stayed all further proceedings in the CC No. 356 of 1996. By the impugned order the High Court dismissed the Crl.O.P.No. 5218 of 2001 filed by the appellant herein. The High Court even after noting down all the provisions relevant under the Act and after noting down the protection under Section 197, Cr.P.C. came to hold that "having regard to the specific allegation that officer who has searched and seized the documents has not issued any receipt to evidence that such seizure was in discharge of official duty or any search warrant was issued by the appellant before searching the business premises and the residence of the com plainant, it is for the appellant/accused to lead evidence and establish that acts done by him was in due discharge of the official duties and non-issue of receipt in evi dence of seizure was in dereliction of duties, if any. In the absence of the same, it is not possible for this Court to accept the plea taken by the appellant that the acts complained of are done in discharge of official duty or in dereliction of duties for quashing the proceedings at the initial stage unless the complainant is given oppor tunity to establish his case." The petition was resisted by the respondent before the High Court on the ground that Section 37 cannot come to the aid of the appellant as the alleged acts had noth ing to do with discharge of official duty. With reference to sub-sections (3) and (4) of Section 28 it was observed by the High Court that the acts complained of are not encompassed by the said provision to give any protection to the appellant. Accordingly, as noted above, the petition was dismissed.