THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE Nos.649 and 759 of 2003 COMMON JUDGMENT: Since both the Revisions are directed against the common order, dated 28.04.2003, passed by the learned X Metropolitan Magistrate, Secunderabad, in Crl.M.P.Nos.212 and 213 of 2003 in C.C.No.2409 of 2001, and the offences alleged against the petitioners are also the same, they are heard together and are disposed of by this common judgment. 2. The petitioners are accused in C.C.No.2409 of 2001, on the file of the X Metropolitan Magistrate, Secunderabad, which was taken cognizance for the offences punishable under Sections 403, 406 and 420 read with 34 IPC, and when the petitions i.e., Crl.M.P.Nos.212 and 213 of 2003 filed by them under Section 245 Cr.P.C. seeking their discharge were dismissed by the learned Magistrate by his order dated 28.04.2003, they approached this Court and filed the present Criminal Revision Cases. 3. The brief facts of the case are that the brother’s son of the petitioners filed a private complaint against the petitioners herein alleging the offences punishable under Sections 403, 406 and 420 IPC and the learned Magistrate referred the matter to the Police under Section 156(3) Cr.P.C. for the purpose of investigation. The Police after investigation filed a charge sheet and the learned Magistrate took cognizance of the same and it was numbered as C.C.No.2409 of 2001. As stated supra, the petitioners filed the said petitions under Section 245 Cr.P.C. seeking their discharge, but they were dismissed. Hence, these two Criminal Revision Cases. 4. It is mainly contended by Sri C.Padmanabha Reddy and Sri K.Gangi Reddy, learned counsel for the petitioners-A-1 and A-2, that the entire transaction between the parties is purely civil in nature and as such, the question of the Court below taking cognizance of the said offences against the petitioners is unwarranted. If at all there is anything, it is only with regard to the accounts, and on that score, it cannot be said that the petitioners have committed misappropriation, breach of trust or cheating. 5. Per contra, Sri T.Sharath, learned counsel appearing for the-de facto complainant-second respondent in Crl.R.C.No.759 of 2003, submitted that A-1 (petitioner in Crl.R.C.No.759 of 2003) instituted the suit i.e. O.S.No.264 of 1991 on the file of the Court of III Senior Civil Judge, Secunderabad, against A-2 (petitioner in Crl.R.C.No.649 of 2003) and the de facto complainant’s father and when the father of the de facto complainant died, intentionally they did not bring his legal representatives on record and it made his legal representatives i.e., the de facto complainant, his brother and mother to be brought on record. According to the learned counsel this is done with a mala fide intention. Further, he submitted that though there is an order restraining the petitioners from operating any bank account, they have withdrawn an amount of Rs.15 lakhs and misappropriated the same and hence, there is a prima facie case against the petitioners herein and the Court below has rightly dismissed the said petitions filed by the petitioners seeking discharge. 6. Heard. 7. Apparently, the relationship between the parties is not in dispute. It appears that there are disputes between the petitioners and the second respondent in Crl.R.C.No.759 of 2003, who is the de facto complainant. In this regard, a suit has already been instituted for rendition of accounts by A-1 and in the said suit, in an application filed by de facto complainant, the Court below was pleased to restrain the petitioners herein-A-1 and A-2 and one Smt Sultan Noor Mohammed from operating the bank account of the partnership firm till the disposal of the said suit. From the record, it appears that the said order was passed on 25.10.2000, whereas the said amount of Rs.15 lakhs was withdrawn by A-1 and A-2 prior to passing of the said interim order by the Court below, i.e., during 29.09.2000 to 12.10.2000. Further, the withdrawal of the said amount, in my considered view, cannot attract any criminal liability, even if it is accepted that the said amounts were withdrawn subsequent to the said interim order passed by the Court below. The remedy in my considered view insofar as the de facto complainant is concerned, is different, but not by lodging a complaint. 8. So far as the other contention of learned counsel for the de facto complainant that the petitioners intentionally did not bring the legal representatives of the father of the de facto complainant is concerned, it also cannot be accepted for the reason that the de facto complainant and the other family members were brought on record and they were arrayed as defendants 4 to 7 in the said suit. Therefore, it cannot be inferred that the petitioners had a fraudulent intention. Even if it is accepted that there is a fraudulent intention on the part of the petitioners in not bringing the legal representatives of the de facto complainant’s father, in my considered view, the same would not attract any criminal liability. 9. Further, as regards the contention of learned counsel for the de facto complainant that the petitioners have misappropriated the amount of the partnership firm, it is to be seen that in that context, the letter addressed by the Executive Officer of the Wakf Board clearly establishes the fact that the said amount was not credited in Alladin Muslim Charitable Trust. But, from the papers filed by the petitioners as well as the accused, it is clear that the said amount of Rs.10 lakhs has been deposited by way of a cheque bearing No.402591, dated 29.09.2000, of State Bank of India, Secunderabad Branch with regard to its customer by name Alladdin Muslim Charitable Trust and the same was credited on 03.10.2000. These documents are very much filed by the prosecution after investigation. But, however, may be due to oversight the Court below had not taken them into consideration. The said letter of the Executive Officer of the Wakf Board in the light of the said account maintained by the State Bank of India, Secunderabad Branch, in my considered view, looses its significance. When once the prosecution documents clearly establish the fact that an amount of Rs.10 lakhs was withdrawn by the accused i.e, the petitioners herein and the same was deposited in the bank on 29.09.2000, which has been credited to the account of Alladin Muslim Charitable Trust, it cannot be said that the said amount has been misappropriated by the petitioners. 10. In the light of the above discussion, this Court is thoroughly satisfied that the entire transaction between the parties is purely civil in nature and it does not attract any criminal liability. 11. Accordingly, this Court has no hesitation to come to the conclusion that the petitioners are entitled to be discharged and the orders impugned in these two Revisions are liable to be set aside. 12. In the result, both the Criminal Revision Cases are allowed and the orders impugned therein are set aside and petitioners-A-1 and A-2 are discharged from the offences punishable under Sections 403, 406 and 420 IPC in C.C.No.2409 of 2001 on the file of X Metropolitan Magistrate, Secunderabad. ___________________________________ JUSTICE GOPALA KRISHNA TAMADA 30th September 2010 dr