HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 7620 of 2009 O R D E R: The petitioners 1 to 5/A1 to A5 are accused of offences punishable under Sections 379, 420 and 411/34 IPC in C.C. No.199 of 2009 on the file of II Additional Judicial Magistrate of the First Class, Tirupathi. Dispute between the parties relates to management of Saibaba Temple in the Street corner of Gali Street and Kalikamma Street at K.T. Road. Originally, the 2nd respondent/complainant was resident of Dwarakamayi Sri Shirdi Saibaba Samaj, which is a registered society and which was managing Sai Baba temple. He filed a private compliant in the lower court against A-1 to A-5 alleging offences punishable under Sections 379, 420, 411/34 IPC and the Magistrate referred the same to the police for investigation under Section 156(3) Cr.P.C. The police registered the complaint as case in Crime No.139 of 2006 and investigated into the same and filed final report referring the case as civil in nature. The complainant after receiving notice of filing final report filed protest petition before the lower court. During enquiry of the protest petition, the complainant examined himself and gave sworn statement. After considering the same, the lower court took the case on file for the offences punishable under Sections 403, 406 and 408 IPC against A1 to A5. 2. It is contended by the petitioners’ counsel that if there are any allegations of mismanagement or misappropriation then remedy of the 2nd respondent is by way of taking proceedings before the District court under the A.P.Co-operative Societies Act or under the Trust Act and that this prosecution does not lie. Existence of a civil remedy is no bar or entertaining a criminal case, in case ingredients of any penal section of law are made out. 3. Therefore, it has to be seen whether the case is one which is of purely civil in nature or whether there are any criminal propensities in this case. 4. In the final report, the Investigating Officer namely, Sub Inspector of Police, Central Crime Station, Tirupathi stated that during the course of investigation he examined four witnesses including an auditor. The two other witnesses are the Joint Secretary and another member of the society. The auditor submitted audit report from July 2002 onwards. The Joint Secretary handed over copies of the resolutions of the society dated 17.1.2006 and 1.3.2007 wherein it was mentioned that the accounts were properly maintained and the connected records of the temple as well as the amounts are available in the temple funds. It is further noted that on 16.6.2002 the society resolved to hand over maintenance of the Samaj to new committee consisting of A1 to A5 and others and that in pursuance thereof, the new committee took over administration and maintenance of the temple. Thus, it is evident that it is a case of internal dispute between the old management and the new management of the society managing Saibaba temple affairs at Tirupathi. 5. It is pointed out by the petitioners’ counsel that in the sworn statement of the complainant, the complainant categorically stated that when A-2 happened to work at Tirupathi, he managed the temple effectively and without any compliant. It is stated that A2 and A5 who are Government servants are transferred from Tirupathi and they are working elsewhere. They are not in the management of the temple subsequent to their transfers from Tirupathi. 6. On the other hand, it is contended by the 2nd respondent’s counsel that A-1 had drawn funds to the extent of Rs.4,00,000/- on self cheques and that it is not permissible. Even as per the allegations in the protest petition, some of the self drawn cheque amounts were converted into term deposits. As per the auditor’s report and the accounts scrutinized by the auditor, all the amounts were accounted for by the accused. Simply because certain amounts are drawn on self cheques, it does not ipso facto amount to Criminal misappropriation or criminal breach of trust, unless misapplication or misappropriation of funds is made out. In this case, there is no allegation towards that end. The lower court in the order dated 16.4.2009 by which the case was taken on file for the above offences did not apply its mind and did not consider the material collected by the police during investigation, particularly that of the auditor and also relating to resolutions of the society approving the accounts of the society. 7. Under these circumstances, I am of the opinion that prosecution of the petitioners 1 to 5/A1 to A5 is nothing short of abuse of process of law due to internal fight between two groups for the management of Saibaba temple at Tirupathi. 8. In the result, the criminal petition is allowed quashing the proceedings in CC No.199 of 2009 on the file of II Additional Judicial Magistrate of the First Class, Tirupathi. ___________________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt. 01.04.2011 Mjl/*