HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION Nos.98, 762 and 3314 of 2011 COMMON ORDER:- Crl.P.No.98 of 2011 is filed under Sec.482 of the Code of Criminal Procedure, 1973 (Cr.P.C) by four accused in Cr.No.251/2010 of Tirupathi East Police Station for quashing the FIR in the said case. 2. Crl.P.No.3314 of 2011 is filed by one S.C.V. Subrahmanyam Naidu claiming interim custody of certain movables properties said to have been seized by the police as concerned in the aforesaid Cr.No.251/2010. Crl.P.No.762 of 2001 is filed by three petitioners namely M/s.Manimax Entertainment Private Limited and two others setting up a rival claim for the interim custody of the aforesaid properties. As the learned II Additional Judicial First Class Magistrate, Tirupathi (JFCM) dismissed their applications for interim custody of the above properties, the aforesaid petitioners filed the above two petitions. Thus these three petitions pertain to the same Cr.No.251/2010. Hence with the consent of learned counsel these three petitions have been taken up for disposal by this common order. 3. The circumstances which led to the filing of these three petitions should be noted. T h e de facto complainant in Cr.No.251/2010 is one Mr.K.Anand and he is the second respondent in Crl.P.No.98/2011. He is said to be the accountant of a concern called S.C.V.Cable Net, Tirupathi, which is said to belong to S.C.V.Subrahmanyam Naidu who is the petitioner in Crl.P.No.3314 of 2011. The case set out in the said report is that on the night of 15.11.2010 at about 9.00 PM N.Koundinya, B.Suresh, N.Venkatesh, Muneendra and Muruga with others (unnamed) trespassed into the premises of S.C.V. Cable Net at Tirupathi and by force took away or stole away certain movables pertaining to cable television telecast equipment. Description of the said movables is given in the report and they are further described as those constituting plaint-B schedule property in O.S.No.38/2003 a suit on the file of the Court of IV Additional District Judge, Tirupathi. 4. It must be mentioned here itself that in the above report it is also stated that the said suit which was brought by one M/s.In Cable Net represented by one R.V.R.Chowdary was dismissed. The aspect relating to the suit will be dealt with a litter later. It would be sufficient to note that four of the accused persons named in the above report are the petitioners in the quash petition i.e. Crl.P.No.98 of 2011. 5. In the course of investigation in Cr.No.251/2010 it is seen that police seized certain equipment allegedly pertaining to the cable net work mentioned in the FIR in the said case on 21.12.2010 in the evening hours from the premises bearing D.No.19-4-121/14D belonging to M/s.Max Entertainment Private Limited and this premises is said to situate in AIR bye-pass Road, S.T.V.Nagar in Tirupathi town. 6. It must be mentioned here that according to the report given in Cr.No.251/2010 originally one Mr.R.V.R. Chowdary and Subrahmanyam Naidu started in the year 2000 a concern called M/s.In Cable Net Tirupathi Private Limited on the 6th floor of R.N.R. Apartments situated in K.T. Road, Tirupathi. Subsequently it is stated that disputes broke out between the above two gentlemen and in the year 2003 Subrahmanyam Naidu started his own cable net work under the name of M/s.S.C.V. Cable Net in the above premises itself and was running that business. 7. In the year 2003 R.V.R. Chowdary representing M/s.In Cable Net filed the aforesaid suit O.S.No.38/2003 against Subrahmanyam Naidu and N.Koundinya and this Koundinya is the first petitioner in the quash petition. The said suit was filed for a declaration that the management and business plus plaint-A schedule premises, plaint-B schedule equipment and plaint-C schedule Tayota vehicle belong to M/s.In Cable Net. Both Subrahmanyam Naidu and N.Koundinya contested it. The learned IV Additional District Judge, Tirupathi on merits by his judgment dated 21.07.2008 held that the aforesaid A, B and C schedule properties belong to M/s.In Cable Net but he dismissed the suit on some technical ground which is not necessary to mention here. 8. Assailing the above judgment M/s.In Cable Net represented by R.V.R.Chowdary filed A.S.No.669 of 2008 in this Court insofar as it went against him. Likewise Subrahmanyam Naidu filed A.S.No.910/2010. In both the appeals the parties entered into a compromise and the said appeals were disposed of by a Division Bench of this Court on 07.12.2010 in terms of the said compromise. It is stated in the report pertaining to Cr.No.251/2010 that in the above compromise plaint-B schedule property i.e. cable network telecast equipment was allotted to the share of M/s.In Cable Net of R.V.R. Chowdary. The said equipment, it is stated in the aforesaid FIR, was in the 6th floor flat of R.N.R. Apartments situated in K.T. Road, Tirupathi and the said plaint-B schedule property was to be handed over to M/s.In Cable Net as per the terms of the compromise by Subrahmanyam Naidu. In the report pertaining to Cr.No.251/2010 it is alleged that Koundinya and others who are the petitioners in the quash petition stole it away on 15.11.2010 and accordingly it was registered for the offences punishable under Sections 143, 448 and 379 IPC r/w 149 IPC and investigation is pending. It is not known as to why the case was not registered for the offences of dacoity or robbery but the police may look into this aspect also in the course of investigation. The report in Cr.No.251/2010 was given on 16.12.2010 i.e. after the compromise decree dated 07.12.2010 passed in the aforesaid appeals. The police, it is stated, seized some equipment mentioned in the aforesaid FIR on 21.12.2010. 9. Thereafter four of the accused in Cr.No.251/2010 filed the quash petition i.e. Crl.P.No.98/2011 to quash the said FIR. Subsequently, having been unsuccessful in obtaining interim custody of the said equipment before the learned JFCM, Subrahmanyam Naidu and M/s.Manimax Entertainment came up with Crl.P.No.3314 of 2011 and Crl.P.No.762 of 2011 respectively setting up rival claims for interim custody of the said property. 10. The quash petition i.e. Crl.P.No.98 of 2011 to quash the FIR in Cr.No.251/2010 is first taken up. It should be noted that a perusal of the grounds in Crl.P.No.98 of 2011 would show that petitioners’ version is that Subrahmanyam Naidu i.e. the employer of the de facto complainant got the equipment in question under a lease agreement from a concerned called M/s.ESP International which originally started the cable TV business in the flat in question and that the said equipment belongs to ESP International and because of the disputes and after the expiry of the lease agreement the petitioners who claim the property through ESP International have taken away the property in question and therefore no offences are committed. This is in substance the case of the petitioners in the quash petition. The details of the rights of the petitioners are however not given in the quash petition. 11. What should be noted is that according to FIR the flat in question where the business is run appears to be in the possession of Subrahmanyam Naidu. Thus prima facie without the leave of the Subrahmanyam Naidu the said equipment or property cannot be taken away from the flat of Subrahmanyam Naidu’s M/s.S.C.V. Cable Network which is said to be carrying on business in the said premises. The offences registered are those punishable under Ss.143, 448 and 379 IPC read with S.149 IPC. The case pleaded by petitioners is otherwise. The allegations contained in the FIR thus show offences and it cannot be said that this is a case where allegations even if believed do not disclose any offences. It is true that there is also a delay of more than one month in giving the report to the police and further the petitioners may be within their right or may not be within their right to take away the properties. These claims of the petitioners and their pleas can be decided only by the investigating officer in the first instance in the investigation and if he files a charge sheet the claims of the petitioners have to be tested in the trial that may follow or in any enquiry preceding the trial in the competent court. The delay factor in giving the FIR has also to be considered in the said process. Thus the plea of the petitioners that they are not guilty of any offences or that the dispute is a dispute of civil nature has to be resolved only on evidence and this Court therefore cannot adjudicate that matter in this petition. Hence it follows that this Court cannot go into the said questions in this petition under Section 482 Cr.P.C. Thus it is held that the FIR in Cr.No.251/2010 cannot be quashed. 12. Now turning to the order to be passed in this Crl.P.No.98 of 2011, it may be noted that while admitting the said petition this Court earlier granted interim stay of investigation in the said case. Subsequently the second respondent therein K.Anand (de facto complainant) filed vacate stay petition and after hearing both sides this Court passed the following order. “Petitioner-R2 filed this application to vacate the stay granted by this Court on 21-01-2011. Learned counsel for the petitioner-R2 submits that he has no intention to arrest the accused persons concerned, but the matter to be investigated. Since because of the stay granted by this Court, the investigating agency is not in a position to find out the truth behind the entire episode and also submitted that this court may order for not to arrest the accused persons concerned. In view of the submissions made by the learned counsel, the earlier stay granted by this court on 21-01-2011 is hereby vacated with a direction to the police to investigate the matter further without arresting the accused in the said Cr. and also the investigating agency is further directed to file a report before this court on or before 11-04-2011. Post on 11-04-2011.” 13. The above order passed by this Court would show that the learned counsel for the de facto complainant across the bar stated that his client has no intention to get the petitioners arrested in the aforesaid criminal case and that he wants only the investigation to be completed. I am of the opinion that having regard to the above submission made by the learned counsel for the de facto complainant regarding the arrest of the petitioners, this petition can be disposed of by making the above order dated 18.03.2011 as a final order. Accordingly this criminal petition is disposed of directing the police to go ahead with investigation and complete it and file the report before the concerned jurisdictional JFCM and then take a decision with regard to arrest of the petitioners depending upon the result of the investigation. 14. That takes me to Crl.P.No.762 of 2011 and Crl.P.No.3314 of 2011. It may be noted that initially the JFCM took up Crl.M.P.No.4854 of 2010 of Subrahmanyam Naidu and Crl.M.P.No.154 of 2011 of M/s.Manimax Entertainment for interim custody of properties seized by the police in the present Cr.No.251/2010 and dismissed both the petitions by his common order dated 18.01.2011 on the ground that investigation is still pending. The JFCM also observed that the investigating officer has to still compare the seized properties with those mentioned in plaint-B schedule of O.S.No.38/2003 and made that also a ground for dismissal of both the petitions. 15. Subrahmanyam Naidu filed revision Crl.R.P.No.2 of 2011 against the dismissal of his Crl.M.P.No.4854 of 2010 by the JFCM and the learned IV Additional District Judge, Tirupathi dismissed that revision confirming the order of the JFCM and Subrahmanyam Naidu thereupon filed the present Crl.P.No.3314/2011. However M/s.Manimax Entertainment straight away approached this Court through Crl.P.No.762 of 2011 for interim custody of the property. Thus both of them have set up rival claims to the properties said to have been seized in Cr.No.251/2010 by the police. 16. The plea of Subrahmanyam Naidu is that the properties seized by the police are plaint-B schedule property in O.S.No.38/2003 and therefore in terms of the compromise recorded in the aforesaid two appeals i.e. A.S.No.669 of 2008 and A.S.No.910 of 2010 he has to handover those properties to M/s.In Cable Net of R.V.R. Chowdary and therefore he is entitled to the custody of the same. On the other hand the plea or claim of M/s.Manimax Entertainment in its petition is that initially a concern called M/s.ESP International started the cable TV network business in the 6th floor flat of R.N.R. Apartments, K.T.Road Tirupathi and under a lease agreement Subrahmanyam Naidu took the said business and he entered into a partnership with R.V.R. Chowdary and started the cable TV business under the name and style of M/s.In Cable Net in the above premises. Its further plea is that subsequently disputes broke out between Subrahmanyam Naidu and R.V.R. Chowdary and that led to the filing of O.S.No.38/2003 by R.V.R.Chowdary. It then pleaded that on 04.10.2010 M/s.ESP International under an agreement of even date sold its business to Raj Enterprises and on the very same date Raj Enterprises entered into a business supporting agreement with it i.e. M/s.Manimax Entertainment. 17. The further plea or version of M/s.Manimax Entertainment is that M/s.ESP International was not a party to the suit or appeals and it was not a signatory to the compromise memos filed in the appeals referred to supra and that it was also not a party to the said proceedings and therefore the said compromise is not binding on it. It is thus clear that M/s.Manimax Entertainment is claiming property seized by the police in its own right. 18. At this stage it must be noted that there is a dispute also regarding the identity of the properties seized by the police with those mentioned in the FIR in Cr.No.251/2010 and those mentioned in the plaint-B schedule in O.S.No.38/2003. A perusal of the copy of the seizure report, plaint-B schedule in O.S.No.38/2003 and the FIR in Cr.No.251/2010 which are all filed in material papers in Crl.P.No.762 of 2011 would show that it is not easy to compare the same and come to a conclusion that the properties seized by the police in the aforesaid Cr.No.251/2010 constitute plaint-B schedule properties. The claim of M/s.Manimax Entertainment is that it is in possession of the said properties seized by it in its own right and they have nothing to do with those mentioned in the FIR or in plaint-B schedule whereas the claim of Subrahmanyam Naidu is otherwise. 19. It should also be noted here that M/s.Manimax Entertainment filed W.P.No.33323 of 2010 in this Court for return of the properties said to have been seized from its premises by the police impleading Subrahmanyam Naidu and the concerned police officers as parties to the same. It also urged in that writ petition that the properties seized from it and which do not form part of the properties described in plaint-B schedule of O.S.No.38/2003 or those mentioned in the FIR should at least be returned to it. This Court in WVMP No.1/2011 in WPMP No.42276 of 2010 in WP No.33323 of 2010 passed an order on 06.01.2011 directing the parties to approach the concerned Magistrate’s Court i.e. II AJFCM Court, Tirupathi to dispose of their applications. It is not known whether the said order has been communicated to the II AJFCM Court, Tirupathi. However the learned JFCM as mentioned supra dismissed both the petitions without undertaking any exercise to adjudicate the claims of the parties simply on the ground that investigation is pending and the investigating officer has not compared the seized properties with plaint-B schedule properties in O.S.No.38/2003 as mentioned supra. 20. In the above circumstances, it is not possible for this court to decide these claims in these petitions having regard to the questions relating to the rights of Subrahmanyam Naidu who is the employer of the de facto complainant in Cr.No.251/2010 and M/s.Manimax Entertainment to the interim custody of the properties in question. The learned JFCM should have considered the claims of the above petitioners to the interim custody of the properties in question by a comparison of the police seizure report, FIR and the properties mentioned in the plaint-B schedule in O.S.No.38/2003 and if necessary by calling for further information which he considered to be just from the investigating officer and then decided the matter. As the learned JFCM did not undertake this exercise it can be said that the matter again requires fresh disposal by the learned Magistrate. In other words it follows that to secure the ends of justice the matter relating to the controversy in the petitions filed for interim custody of the property should be remanded to the concerned JFCM. 21. Accordingly Crl.P.No.762 of 2011 and Crl.P.No.3314 of 2011 are allowed and Crl.M.P.No.4854 of 2010 of Subrahmanyam Naidu and Crl.M.P.No.154 of 2011 of M/s.Manimax Entertainment and two others are remitted back to the JFCM for fresh disposal. The concerned investigating officer shall place all the necessary material and such other material as may be called for by the JFCM in order to enable him to adjudicate the claims of these two petitioners for the interim custody of the properties in question and pass appropriate orders regarding their entitlement to the same or otherwise. 22. All these three criminal petitions are disposed of accordingly. ______________________ N. RAVI SHANKAR, J 06th June 2011 CVRK