IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION Nos.7555 & 10611 of 2009 DATE:07.04.2011 Crl.P.No.7555 of 2009 Between: Bishop Ernest Sri Paul Kommanapalli …… Petitioner And State of A.P. rep. by Public Prosecutor, High Court, Hyderabad and another …..Respondents Crl.P.No.10611 of 2009 Between: Rev.K.Timothy, …… Petitioner And State of A.P. rep. by Public Prosecutor, High Court, Hyderabad and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION Nos.7555 & 10611 of 2009 COMMON ORDER : The petitioners in both the petitions who are A-2 and A-1 respectively are accused of offences under Sections 405, 420 and 499 I.P.C in C.C. No.185 of 2009 on the file of VII Additional Chief Metropolitan Magistrate, Hyderabad. A-1 is Bishop of Rock Church Ministries. A-2 is pastor of Rock Church, Malakpet, Hyderabad. A-1 is the founder chairman of Rock Church Ministries, Hyderabad. The complainant/2nd respondent is a member of Rock Church. It is contended by the petitioners’ counsel that the 2nd respondent resigned from the Rock Church Ministries membership. The 2nd respondent’s counsel contends that his resignation is not yet accepted. This question of fact relating to resignation of the 2nd respondent as member of the church cannot be gone into in this petition filed under Section 482 Cr.P.C. 2) It is contended by the petitioners’ counsel that the 2nd respondent and 2 others filed O.P.No.1180 of 2007 on the file of II Additional Chief Judge, City Civil Court, Hyderabad and also filed petitions therein for appointment of receiver etc., and that having failed in their attempt to secure any orders in those petitions, the petitioner has resorted to filing of the present complaint in the lower Court by vague and general allegations. O.P. No.1180 of 2007 is stated to be pending in the civil Court and is in the midst of enquiry. It is contended that in O.P. No.1180 of 2007 the 2nd respondent and others did not allege any acts of misappropriation on the part of any of the accused. The said O.P. was filed by the 2nd respondent and two others against Rock Church Ministries and Rock Church under the provisions of Societies Registration Act questioning conducting of elections to the committee of the 2nd respondent church. In a petition relating to election dispute, the allegations regarding criminal offences relating to criminal breach of trust, cheating, defamation etc., may not find place. 3) It is alleged that the petitioners have been calling the 2nd respondent as a litigant and propagating other allegations against him and that it amounted to defamation. Undoubtedly the 2nd respondent had resorted to litigation by filing O.P. No.1180 of 2007 and several petitions therein. A person who resorts to litigation is literally called a litigant. Resorting to litigation is no crime and calling a person is a litigant cannot amount to calling him as a criminal. In my opinion, the said word litigant is neither an offensive word nor objectionable word nor un-parliamentary word. Therefore, the question of attracting definition of defamation under Section 499 I.P.C may not arise in this case. 4) Secondly, in the complaint there are no allegations of making any deception or inducement or playing fraud in order to make any person to part with any money or property in favour of the accused or the Church. In the absence of any such allegation in the complaint, use of the word ‘cheating’ in the popular sense will not attract ingredients of Section 420 I.P.C to this case. 5) Thirdly, the offence defined under Section 405 I.P.C viz., Criminal breach of trust is punishable under Section 406 I.P.C. The petitioners’ counsel did not file any copy of order of the Magistrate taking cognizance of the case for any particular offence. When the offence under Section 405 is alleged, the cognizance should have been taken under Section 406 I.P.C which prescribes punishment therefor. Irrespective of the 2nd respondent being a member or a non-member or a person who ceased to be a member of the society, he is not precluded from alleging an offence under Section 406 I.P.C and making a complaint thereunder, as it is a cognizable offence. There is no restriction that an offence under Section 406 I.P.C has to be initiated by the person who entrusted the property or money to the accused. 6) It is alleged in the para 4 of the complaint that devotees and their offerings to the God had rapidly increased and that A-2 are misusing funds of the church without maintaining accounts for the same at his will and pleasure and started misusing the said funds for his personal benefits even keeping the committee members in dark, having hand in glove with A-1 and that recently some buildings were constructed in the church premisis even without obtaining permission and without maintaining accounts till date though collections were made to the tune of several lakhs of rupees. For the said purpose, a criminal case alleging an offence under Section 406 I.P.C cannot be equated to a civil suit for rendition of accounts. In a criminal case, definite allegations are necessary to the effect that particular amounts were collected from particular persons by passing or without passing receipts and that such amounts were neither accounted for nor spent for the purpose for which they were entrusted. In the absence of allegations of details of the amounts collected and in the absence of details of the amounts spent for the construction purpose and in the absence of details of the amount said to have been misappropriated by the accused, in my opinion, the complainant cannot maintain the complaint for the offence punishable under Section 406 I.P.C. It is contended by the 2nd respondent’s counsel that along with the complaint, four documents are filed including two representations. On perusal of the two representations dated 14.04.2006 and 29.05.2007, I do not find any definite or specific allegations of failure on the part of A-2 to account for any specified collections or misappropriation of any specific amounts either for himself or for the purpose otherwise than it was meant to be appropriated. The allegations in the representations are in the nature of vague and general allegations and they are in the nature of seeking rendition of accounts. Mere failure to render accounts by the person in management to one of the members of the society cannot attract liability under Section 405 I.P.C punishable under Section 406 I.P.C. Thus, I am of the opinion that allegations in the complaint as well as the representations enclosed along with the complaint did not contain specific allegations of misappropriation of any entrusted amounts and they contain only general and vague allegations of failure to render accounts to the members. In those circumstances, I am of the opinion that the 2nd respondent could not make out ingredients required for maintaining a complaint for the offence under Section 406 I.P.C. 7) In the result, both the criminal petitions are allowed quashing proceedings in C.C. No.185 of 2009 on the file of VII Additional Chief Metropolitan Magistrate, Hyderabad. _______________________________ SAMUDRALA GOVINDARAJULU, J April 07, 2011 ksh