IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY THE TWELVETH DAY OF MARCH TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE P. S. NARAYANA CRIMINAL PETITION No. 3 8 0 5 OF 2007 Between: G. Ramchandra Rao … Petitioner V/s. PLV Prasad & Anr. … Respondents Counsel for the Petitioner : Sri DV Sitharam Murthy Counsel for the Respondent : Sri C.Praveem Kumar THE HONOURABLE SRI JUSTICE P. S. NARAYANA CRIMINAL PETITION No. 3 8 0 5 OF 2007 O R D E R : Heard Sri Venkataramana, the learned counsel representing the petitioner. Sri C. Praveen Kumar, the learned counsel representing Respondent No.1 and the learned Additional Public Prosecutor representing Respondent No.2 – State of Andhra Pradesh. 2. The Criminal Petition is filed under section 482 of the Code of Criminal Procedure {hereinafter referred to as the Code for the purpose of convenience} to quash the proceedings in CC.No.128 of 2005on the file of the Court of Second Metropolitan Magistrate, Hyderabad and to pass such other suitable orders. 3. Sri Venkataramana representing the petitioner had taken this Court through the specific allegation made in the complaint and would maintain that all these allegations are the statements made in the pleadings or in the affidavits in the course of judicial proceedings and this being absolutely defamation under section 499 and 500 of I.P.C. cannot be maintained. The learned counsel relied on certain decision to substantiate his contention. 4. Sri C. Praveen Kumar representing the first respondent on the contrary would submit that the averments made in the complaint would go to show that apart from the allegations made in the pleadings and the affidavits in judicial proceedings, the report made to the Bar Council had been referred to and several other factual controversies are involved. The learned counsel would also maintain that PW-1 and PW-2 already were examined in chief and they are to be cross-examined. The learned counsel also relied on certain decision to substantiate his submissions. 5. The learned Additional Public Prosecutor would maintain that in the light of nature of allegations made in the complaint it may not be just and proper to exercise powers under section 482 of the Code. At this stage liberty given to the petitioner to urge all these grounds also before the learned Second Metropolitan Magistrate, Hyderabad. 6. Heard the learned counsel. Perused the material available on record. 7. The brief facts of the case are as follows: The first respondent is the son-in-law of one Sri J.Koteshwar Rao, who was shown as a witness in CC.No.128 of 2005 against which the present criminal petition is filed under section 482 of the Code. It is stated that the said Koteshwar Rao is the builder who got constructed Sreeram Apartments situate at Ramanthapur, Ranga Reddy district. It is stated that the first respondent is residing in Flat No. G-8, which was gifted by his father-in-law to his wife. It is further stated that his father-in-law is residing in the pent house of the said apartments. Admittedly right from the commencement of the construction of the said apartments by Sri J. Koteshwar Rao there were disputes in between him on the one hand and the Uppal Municipality for deviation from the approved plan on the other, thereafter, a pent house was constructed illegally without obtaining prior permission. It is stated that the Municipal Corporation disconnected water supply connection etc., the said J.Koteshwar Rao filed WP.No.5551 of 2000. However, when the said builder failed to comply the order of this Court and failed to deposit the money towards water connection. As a result of which, a contempt case No.627 of 2002 had been initiated by him. It is stated that the petitioner herein purchased a flat in the said Sri Rama Apartments identified as T-38 and got the same registered in the name of his wife. It is further stated that at the request of the various owners of the flats of the said apartments with a view to ameliorate their conditions they formed an association called as “Sree Ram Apartments Welfare Association”, during 2000. It is stated that the said association several times demanded Sri J.Koteshwar Rao to reimburse expenditure relating to provision and maintenance of common facilities and other capital expenditure incurred by the flat owners of the said association. It is further stated that the builder and his son-in-law being the occupants of the said apartments are required to pay the said maintenance charges etc. But with an intent to harass the members of the said association did not pay any amount resulting in filing of OP.No. 917 of 2002 which is pending on the file of the Court of the District Judge, Ranga Reddy. It is stated that there are several petitions, suit, complaints before courts and others for causing inconvenience to all the residents of the said apartments including the petitioner. It is further stated that the flat owners and families are subject to mental agony as also needless expense of time and money. As a result of the recalcitrant and negligent conduct of the said builder and the first respondent flat owners for the fault of purchasing a flat in the said apartments spend sleepless nights of agony and worry. It is further stated that the petitioner and the other flat owners convened a meeting to discuss about the denial of the common facilities viz., water, maintenance charges, electricity, bore well etc., by the first respondent started intimidating the flat owners and members of the association by taking photographs of women and recording the conversation of the members. It is further stated that this resulted in an altercation between the first respondent and the executive of SAWA. It is stated that the first respondent manhandled the watchman. A report was also lodged with the police. A report against the first respondent was made to the AP Bar Council, Hyderabad. But the Bar Council did not take any action against him and on submitting a reply by the first respondent the complaint lodged against him was dismissed. Taking advantage of the dismissal of the said complaint by the A.P. Bar Council, Hyderabad and also with a view to divide the association SAWA and to corner the petitioner as if he was individually responsible for all the cases filed by the SAWA instituted CC.No. 128 of 2005 under sections 499 and 500 of IPC against the petitioner. 8. Several grounds had been raised and specific stand had been taken that these statements are being made frivolous, a complaint under section 499 and 500 of I.P.C. cannot be maintained. 9. Per Contra, Sri C. Praveen Kumar placed strong reliance on a decision in THANGAVELU CHETTIAR V/s. PONNAMMAL[1] . , wherein the learned Judge of the Madras High Court held that defamatory remarks contained in plaint, signed and filed by the plaintiff would amount to publication within the meaning of section 499 of the Indian Penal Code. 10. Further reliance was placed on a decision in TRICHINOPOLY RAMASWAMY ‘ARDHANANI, BOMBAY AND ORS. V/s. KRIPA SHANKAR BHARGAVA [2] , wherein the learned Judge of Madhya Pradesh High Court also expressed similar view. 11. In Dr. J. SUDHARSHAN V/s. R. SANKARAN [3], wherein the learned Judge of the Madras High Court, while referring AIR 1926 Madra-906 (FB) held that where the allegations are per se defamatory criminal prosecution against plaintiff is maintainable irrespective of the pendency of the suit. 12. Further strong reliance was placed in the decision of the Apex Court in KANWAL LAL V/s. STATE BANK OF PUNJAB[4] . 13. This court had carefully gone through the averments made in the plaint as well as apart from this aspect of the statements made in the judicial proceedings. Certain other factual controversies are involved. In fact, it is brought to the notice of this Court that PW-1 and PW-2 already were examined and these witnesses are to be cross- examined. Hence, liberty is given to the petitioner to put forth all these grounds at the appropriate stage. 14. With the aforesaid liberty, the Criminal Petition stands dismissed. __________________________ JUSTICE P. S. NARAYANA. 12-03-2010. I s L THE HONOURABLE SRI JUSTICE P.S. NARAYANA CRIMINAL PETITION No. 3 8 0 5 of 2007 Circulation Entry No. Date: 12-03-2010 Computer No. 43 Court Master: I s L [1] ) 1966 CRIMINAL LAW JOURNAL-1149 (Vol.72, C.N. 351) = AIR 1966 MADRARS 363 (V-53 C 106) [2] ) 1990 CRIMINAL LAW JOURNAL-2616 [3] ) 1992 CRIMINAL LAW JOURNAL-2427 [4] ) AIR 1963 SUPREME COURT 1317 (V-50 C-193) (From Punjab)