HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 630 OF 2009 DATED 6th JULY,2010 BETWEEN K.P.V.Subbaiah …..Petitioner/Accused No.33 and The State of AP, Rep. By its Public Prosecutor …Respondent HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 630 OF 2009 ORDER: 1. This Criminal Revision Case under Sections 397 and 401 of the Cr.P.C. is ﬁled challenging the order dated 04-02-2009 passed by the learned I Additional Metropolitan Sessions Judge, Hyderabad, dismissing the application in Crl.M.P.No. 980 of 2008 in C.C.No. 6 of 2002 ﬁled by the prosecution/complainant for withdrawal of the case against the petitioner under Section 321 Cr.P.C. 2. Brief facts of the prosecution case are that: the petitioner is Accused No.33 in C.C.No. 6 of 2002 on the ﬁle of the First Additional Metropolitan Sessions Judge, Hyderabad. The petitioner along with other accused are being prosecuted for the oﬀences under Sections 409, 420 r/w Section 5 of the A.P. Protection of the Depositors Financial Establishments Act, 1999. The petitioner is ﬁling this Criminal Revision Case on the ﬁle of this Court aggrieved by the order in Crl.M.P.No. 980 of 2008 in C.C.No. 6 of 2002 dated 4.2.2009. The petitioner submits that a complaint was lodged by the Principal Secretary to Government along with the Registrar of the Cooperative Societies, Hyderabad on 25.2.2002 against the management of the Charminar Cooperative Urban Bank Limited, Hyderabad and its oﬃcers and loanees before the Police Station, CID, Hyderabad. The same was registered as Cr.No.3 of 2002 under Sections 409, 420, 120(B) r/w Section 5 of A.P. Protection of the Depositors Financial Establishments Act, 1999. It was alleged in the complaint that the Charminar cooperative Urban Bank Limited was a ﬁnancial institution registered under the provisions of A.P. Cooperative Societies Act. It is submitted that one late Syed Alamdar Hussain Sajjad Aga was the Chairman of the Charminar Cooperative Urban Bank Limited. It was alleged that the Chairman, Managing Director, Staﬀ and the family members of the Chairman misappropriated the funds by granting loans to various institutions. It is alleged that the petitioner as he obtained loan from the bank, he was arrayed as accused No.33 in Cr.No.3/2002. The CID police after investigation ﬁled charge sheet and the same was taken on ﬁle as CC.No. 6 of 2002 on the ﬁle of the First Additional Metropolitan Sessions Judge, Hyderabad. It is submitted that the matter in C.C.No. 6 of 2002 was pending for framing the charges. 3. The prosecution ﬁled an application for withdrawal of the case against the petitioner on the basis of the Government Order passed in G.O.Rt.1713, Law(L.A.& J-Home-Courts.B) Department, dated 15.9.2008. The relevant portion of the said Government Order runs as follows: “Government after careful examination of the matter, based on the material made available have decided to withdraw prosecution against the accused Sri K.P.V.Subbaiah (A.33) borrower of Charminar Cooperative Urban Bank Limited, Hyderabad, Cr.No.3/2002 under Sections 409, 420,120(B) of the Indian Penal code, 1860 and Section 5 of Andhra Pradesh Protection of Depositors Financial Establishments Act, 1999 of Crime Investigation Department Police Station which is pending before the Honourable Metropolitan Sessions Judge Court, Hyderabad vide C.C.No. 6 of 2002, as the above sections are not applicable in his case, since he has paid the entire amount as per One Time Settlement Scheme (OTS) and as evidenced by the letter of Managing Director of Charminar Cooperative Urban Bank Limited, dated 31.12.2007 addressed to the Principal Secretary to Government, Agricultural and Cooperative Department, the Bank is not interested in pursuing the criminal case against the accused as the amounts due to the Bank have already been paid.” 4. The learned Magistrate by his order dated 04.02.2009 dismissed the said petition on the ground that the Public Prosecutor has not stated any reasons for withdrawal of the case against the petitioner except relying on the said Government Order. 5. This Court perused the impugned order and the relevant documents ﬁled by the petitioner herein. It is true that the Public Prosecutor while ﬁling the petition for withdrawal of the case against the petitioner based on the said Government Order necessarily has to state reasons for withdrawal by applying his mind independently. But, at the same time, dismissal of the said petition on the sole ground is not acceptable. 6. In the present case, the learned Magistrate after perusal of the entire record, decided the issue against the petitioner herein. The said order is erroneous in law in view of the judgment rendered by the Apex Court in the case of Vijaykumar Baldev Mishra @ Sharma Vs. State of Maharastra (AIR 2008 SC 961). Paragraphs 12 and 13 of the said judgment runs as follows: “ Section 321 of the Criminal procedure Code, 1973 provides for withdrawal from prosecution at the instance of the public prosecutor or Assistant Public prosecutor. Indisputably therefore the consent of the Court is necessary. Application of mind on the part of the Court, therefore, is necessary in regard to the grounds for withdrawal from the prosecution in respect of any one or more of the oﬀences for which the appellant is tried. The provisions of TADA could be attracted only in the event of one or the other of the four ‘things’ speciﬁed in Nalini {(1999) 5 SCC 253} case is found applicable and not otherwise. The Review Committee made recommendations upon consideration of all relevant facts. It came to its opinion upon considering the materials on record. Its recommendations were based also upon the legality of the charges under TADA in the fact situation obtaining in each case. It came to the conclusion that in committing the purported oﬀence, the appellant inter alia had no intention to strike terror in people or any section of the people and in fact the murder has been committed only in view of group rivalry and because the parties intended to take revenge the provisions of the TADA should not have been invoked. 13. The Public Prosecutor in terms of the statutory scheme laid down under the Code of Criminal Procedure plays an important role. He is supposed to be an independent person. While ﬁling such an application, the public prosecutor also is required to apply his own mind and the eﬀect thereof on the society in the event such permission is granted.” 7. In view of the aforesaid judgment of the Apex Court, this Court is of the view that the impugned order passed by the trial Court is liable to be set aside. Further, in the present case, the aggrieved bank, the Charminar Cooperative Urban Bank Limited, ﬁled Memo dated 17.10.2008 before the Court below, which reads as follows: “IN THE COURT OF THE 1ST ADDL. METROPOLITAN SESSIONS JUDGE, AT HYDERABAD. CRL.M.P.No. 980 OF 2008 IN CC.No. 6 of 2002 Between The State of AP …Complainant And KPV Subbaiah …Accused No.33 “MEMO It is submitted that the special PP served on me a notice of petition ﬁled under Section 321 Cr.P.C. seeking to consider of the Honourable Court for withdrawal of the prosecution against Sri Subbaiah. It is submitted that Subbaiah paid the loan amount of Rs.18,61,75,525/- and cleared his liability to CCUB. It is submitted that the Complainant Bank (CCUB) has no interest in pursuing the criminal case against him in future. It is submitted that the government through GORT.No.1713, dated 15.9.2008 directed the Collector to instruct the Spl. PP to ﬁle a petition under Section 321 of Cr.P.C. for withdrawal of the case against Sri Subbaiah. It is therefore prayed that in the light of the G.O., the CCUB has no interest in pursuing up the matter and that Criminal case against Subbaiah in C.C.No. 6 of 2002 may be withdrawan. Hence this Memo. Sd/- J.Narasimharao Counsel for the Charminar Coop.Bank.” 8. The present withdrawal of the case against the petitioner by the prosecution/respondent herein is based on the fact that the aggrieved party/Charminar Cooperative Urban Bank Limited has also forwarded a letter to the Government expressing its consent for withdrawal of the case. The said consent by the bank is in the nature of compromise between the parties concerned. 9. Hence, any further prosecution of the petitioner herein may cause prejudice to him and no fruitful purpose will be served by allowing the prosecution to continue against him. In view of the same, the present Criminal Revision Case is allowed and the impugned order of the trial Court is set aside and the petitioner is discharged from all the accusations. In view of the same, there is no need to proceed further with the prosecution against the petitioner. 10. For the aforesaid observations, the Criminal Revision Case is deserved to be allowed and accordingly the same is allowed. ----------------------------------- JUSTICE RAJA ELANGO DATED 6th JULY, 2010. Msnr.