THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2165 of 2008 16th November, 2011 Between :- Shyam Sunder Chiramia .. Petitioner And The State, Rep.by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2165 of 2008 ORDER:- This petition has been taken out under Section 482 Cr.P.C. by Shyam Sunder Chiramia, who has been arrayed as A.4 in C.C.No.283 of 2004 on the file of the Judicial Magistrate of First Class (Special Excise Magistrate Court), Anantapur, to quash the proceeding therein against him. The facts which are necessary for disposal of this Criminal Petition are:- Mr.Y.Srinivasa Reddy has presented a report before the Station House Officer, Koduru P.S., alleging inter alia that on the night of 27-9- 1993 at Jallipalli village, some unknown offenders broke open the lock of the Store Room and entered into the Store Room and committed theft of two jaki hammers and two jaki drilling rods, all worth of Rs.62,480/-. PW.9 – G.V.Veera Raghava Reddy, S.I. of Police, Kuderu P.S., received the report and registered a case in Crime No.49 of 1993 under Sections 457 and 380 of IPC and issued F.I.R. During the investigation, P.W.5 – G.Sreenivas Reddy, Inspector of Police, Anantapur Rural Circle, arrested A.1 – Kuruba Venkatesu, A.2 – Vodde Yerriswamy and A.3 – Vodde Balakrishna and recovered one jaki hammer from the possession of A.1 – Kuruba Venkatesu in the presence of L.W.7 – K.L.Narayana Rao and L.W.8 – G.Nagireddy. On interrogation, A.1 to A.3 admitted of committing theft of another jaki hammer and two jaki drilling rods from the Store Room of Mansayapalli Quarry. They led the police party to Bellary to the shop of the petitioner herein, who has been shown as L.W.5 in the charge- sheet, and seized one jaki hammer and two jaki drilling rods under the cover of panchanama in the presence of L.W.7 – K.L.Narayana Rao and L.W.8 – G.Nagireddy. After completing the investigation, P.W.5 – G.Sreenivasa Reddy, Inspector of Police, Anantapur Rural circle, filed charge-sheet in the Court of the Judicial Magistrate of First Class, Uravakonda. The learned Magistrate took the charge-sheet on file as C.C.No.36 of 1997. Subsequently, the case came to be transferred to the file of Judicial Magistrate of First Class (Special Excise Magistrate Court), Anantapur and renumbered as C.C.No.283 of 2004. During the course of trial, the prosecution examined the petitioner herein as P.W.4. He stated before the Court that three persons pledged one jaki and two drilling hammers and borrowed Rs.3,000/-. P.W.5 – J.Sreenivasa Reddy, deposed before the Court that he recovered one jaki hammer and two drilling jaki rods from the shop of the petitioner herein in the presence of panch witnesses under the cover of panchanama Ex.P.4. The learned Magistrate, on perusing the evidence of P.Ws.4 and 5, came to the conclusion that the petitioner herein, who has been examined as P.W.4, received the stolen property and therefore he has to be tried for the offence under Section 411 of I.P.C. along with the other three accused and accordingly directed the petitioner herein to take trial along with other accused for the offence under Section 411 of I.P.C. The order passed by the learned Magistrate on 19-7-2000 reads as hereunder:- “Perused the evidence of P.Ws.4 and 5. It categorically discloses that P.W.4 received MO2 from 3 unknown persons and police seized the same from his possession. Evidence of P.W.5 also disclosed that MO2 seized from possession of P.W.4. Even though MO2 was seized from possession of PW4, police failed to file C.S. against him for the reasons best known to him. As MO.2 seized from possession of P.W.4, it is a fit case to try PW.4 also along with accused for the offence under Section 411 I.P.C. Hence, PW.4 is added as A.4. Issue sanctions to A.4. Case posted to 31-7-2000 for re-examining witnesses.” The said Order is assailed in this Criminal Petition. Heard learned Counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the respondent/State. Learned Counsel appearing for the petitioner submits that even if the evidence of P.W.5 is accepted in toto, it does not satisfy the necessary ingredients of Section 411 of I.P.C. to direct the petitioner herein to take trial along with A.1 to A.3 and therefore the order dated 19-7-2000 is liable to be quashed. Learned Additional Public Prosecutor appearing for the respondent/State supported the order dated 19-7-2000 passed by the learned Magistrate. I have gone through the evidence of P.W.4, who is no other than the petitioner herein, and P.W.5. P.W.5 claims to have seized one jaki and two hammers from the possession of the petitioner herein. The petitioner while being examined as P.W.4 specifically stated that three unknown persons came to him and pledged one jaki and two hammers and borrowed Rs.3,000/-. For better appreciation, I may refer the evidence of P.W.4 in his own words and it is thus:- Chief-examination:- I know the accused since 5 years. Now and then the accused used to come to my shop. I am doing Auto Mobile shop in the opposite of Mubarak Talkies. I got a Automobile shop at Bellary. One day accused came to my shop and informed to me that his family members are not doing well hence he pledged one jaki, two drilling hammers. I gave Rs.3,000/- to 3 persons, accused is the one of the person. The accused informed to me that his mother is not well to give Rs.3,000/- after pledging with me and one jaki and two hammers and they informed that they will returned back within 3 or 4 days and take back all items. The worth of the said property is Rs.8000/- to 10,000/- as they are second hand. The accused and their men did not return back and to take back the property which is my possession. After 1 ½ or 2 months the police came to my shop along with the accused. I handed over one Jaki and two hammers to the police and they took my statement. Cross-examination:- ARM:- 1st time 3 persons came to my shop. The compressor weight is 10 to 15 Kgs. At the time of incident, 3 persons came, prior to that they did not came to my shop. I did not gave any receipt for the receipt of the Jaki and hammer rods and also for payment of Rs.3000/-. The Andhra Police visited my shop. This type of hammer or Jamies are not available in my shop. Generally we may not accept in taking the old articles and giving the money but in this case I was at that time underwent bypass surgery due to generosity I gave Rs.3,000/- to those persons as the accused mother suffering illness. The M.O.1 and other hammer will be used for the purpose of drilling the mines. This articles may not usable general purpose of the digging of the wells and used the bores. The police came in the uniform, the police recorded my statement at my shop. I dictated my statement in Hindi to the police. The police came along with 3 or 4 persons. Except the police and the accused, none of other persons present. Except my statement, the police did not write any mahazar before me. It is not true to suggest either to police or the accused came to my shop and I am deposing falsely to help the accused as well as the police.” Nothing is suggested by the prosecution to P.W.4 that he received one Jaki and two hammers knowing fully well that they are the stolen properties. Section 411 of I.P.C. reads as hereunder:- “Dishonestly receiving stolen property:- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” None of the witnesses examined on behalf of the prosecution stated that the petitioner herein received one jaki and two hammers knowing fully well that they are the stolen properties. In the absence of any evidence that the petitioner received one jaki and two hammers knowing fully well that they are the stolen properties, directing him to take trial along with A.1 to A.3 for the offence under Section 411 of I.P.C. amounts to abuse of process of Court. Accordingly, the Criminal Petition is allowed and the order dated 19-7-2000 passed in C.C.No.283 of 2004 on the file of the Judicial Magistrate of First Class (Special Excise Magistrate Court), Anantapur, is hereby quashed. _________________________ B.Seshasayana Reddy, J 16th November, 2011 smr