HON’BLE SRI JUSTICE R. KANTHA RAO Criminal Petition No.2529 of 2008 Date:24.06.2010 Between: Iytha Nagendra Kumar …Petitioner/A-3 And State of A.P. rep. By P.P., Hyderabad and another …Respondents HON’BLE SRI JUSTICE R. KANTHA RAO Criminal Petition No.2529 of2008 ORDER: This criminal petition is filed under Section 482 Cr.P.C. by A-3 in C.C.No.193 of 2008 on the file of the VI Metropolitan Magistrate, Cyberabad to quash the entire proceedings in the said case. The allegations leveled against the petitioner and the remaining accused in the charge sheet are as follows: A-1 is the husband of A-2 and A-3 is the brother of A-1. A-1 obtained an amount of Rs.1,00,000/- on 03.06.2007 and again an amount of Rs.50,000/- on 15.06.2007 as hand loan from the second respondent/de facto complainant for the purpose of his business. He also borrowed some more amounts from other people and on 29.07.2007 at about 6.30 p.m. he closed the rice shop and escaped. He did not return the amount to the borrowers. Thereafter, on the report lodged by the second respondent, a case in Crime No.652 of 2006 dated 04.08.2007 was registered in Jeedimetla Police Station, Hyderabad. In the course of investigation, it was revealed that A-1 and A-2 left for Hyderabad and they have been running a rice shop there. On seeing the police, when they surprised the rice shop, the first accused absconded keeping the shop open and thereafter the investigating officer seized 275 rice bags lying in the said shop and he sold them for Rs.75,000/-. The amount was deposited into the Court. It has been further alleged in the charge sheet that the petitioner (A-3) was arrested on 23.11.2007 by the police at Shapurnagar, Hyderabad and an amount of Rs.4,50,000/- was seized from him by the police. It is said that the petitioner confessed before the police that the amount was entrusted to him by A-1, his brother to pay the same to the house owner Mr. Sheshagiri Rao as part payment towards the purchase of house. Thereafter, the police seized the amount of Rs.4,60,000/- from the petitioner considering the said amount as stolen property and after completing investigation, the charge sheet was laid alleging commission of offence by the accused under Sections 420 and 411 IPC. I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor representing the State. It may be understood from the version of the investigating officer who filed the charge sheet that by borrowing the amounts from several individuals including the second respondent and absconding from Hyderabad to Visakhapatnam with the said amount and not repaying the said amount to the persons who advanced the loans, A-1 and A-2 committed the offence of cheating punishable under Section 420 IPC. The petitioner further charge sheeted A-3 for the offence of 411 IPC on the ground that the amount handed over to the petitioner (A-3) by A-1 is a stolen property and it was found in possession of A-3. There is no whisper in the entire charge sheet that the petitioner A-3 had knowledge or reason to believe that the amount handed over to him by his brother A-1 is a stolen property. There is nothing in the charge sheet to indicate that A-3 had any knowledge about the dishonest or fraudulent act committed by A-1 and A-2 by borrowing the amounts from various individuals and absconding to Visakhapatnam and running a rice shop there. Section 410 IPC defines the stolen property as under: “Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which***criminal breach of trust has been committed, is designatedas “stolen property”, (whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India). But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then cases to be stolen property.” It is the contention of the petitioner that he was apprehended by the police at Kadapa and by using third degree methods against him, the police obtained an amount of Rs.4,60,000/- from him which is secured on hand loans and by pledging of gold ornaments, thereafter they brought him to Hyderabad and created a story as if it was given by A-1 with a direction to pay the same to Sheshagiri Rao and that as if he was caught by the police when he came to Hyderabad and was about to pay the amount to the said Sheshagiri Rao. Apart from the truthfulness or otherwise of the contention urged by the petitioner it requires to be noticed that absolutely there is no reference about A-3 in the report lodged by the second respondent with the police. Therefore, even according to the de facto complainant, the petitioner had no role in securing the amounts by his brother A-1 as hand loans from several other individuals. Nothing is stated in the charge sheet about the knowledge of the petitioner that the amount which was handed over to him by A-1 is the same amount which A-1 borrowed from second respondent or some other persons. Therefore, by any stretch of imagination, it cannot be said that A-3 committed an offence punishable under Section 411 IPC and for that matter any criminal offence punishable under law. For the foregoing reasons, implicating the petitioner in C.C.No.193 of 2008 can undoubtedly be considered as abuse of process of law. If the prosecution is allowed to be continued basing on the charge sheet, in so far as petitioner/A-3 is concerned, it is nothing but subjecting the petitioner to much hardship and lot of inconvenience without there being any prima facie case of commission of offence by the petitioner. Consequently, the entire proceedings in C.C.No.193 of 2008 on the file of the VI Metropolitan Magistrate, Cyberabad insofar as they relate to A-3 are quashed. The criminal petition is allowed. ________________ R.KANTHA RAO,J Date:24.06.2010 ccm HON’BLE SRI JUSTICE R. KANTHA RAO Criminal Petition No.2529 of2008 Date:24.06.2010