THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.2646 and 4503 of 2007 Date of Order: 27-08-2010 Crl.P.No.2646/2007: Between: 1. Kuntheti Venkata Subba Rao @ Subba Rao and another ..Petitioners/A-4 and A-5 and 1. State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and another. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.2646 and 4503 of 2007 Common order: Since both the Criminal Petitions arise out of one and the same Calendar Case, they are being heard together and disposed of by this common order. Crl.P.No.2646/2007 by the petitionrs/A-4 and A-5 and Crl.P.No.4503/2002 by the petitioners/A-2 and A-3 are filed under Sec. 482 Cr.P.C., to quash the proceedings initiated against them in CC No.653/2006 on the file of II Additional Judicial First Class Magistrate, Tanuku, West Godavari District, which was taken cognizance for the offence under Section 409 r/w 109 IPC. One Nadimpalli Satyanarayana Raju lodged a report with Inspector of Police, Tanuki Town Police Station against one Chinthala Venkata Subba Rao (A-1) alleging that he is looking after the affairs of Sri Ramabhadra Rice Mill, Tetali, (for short “the Rice Mill”); that the said Rice Mills is having an account in State Bank of India, Tanuku Branch bearing Account No.01050065460, and also current account in State Bank of Hyderabad, Tanuku Branch; that they used to get the amount from the Bank through A-1; that on 14-12-2004, he entrusted two cheques bearing Nos.0672285 for Rs.9,50,000/- drawn on State Bank of Hyderabad and another cheque bearing No.061487 for Rs.2,40,000/- drawn on State Bank of India, Tanuku, for encashment; that even after closure of the banks, A-1 did not come to the Rice Mill; that on enquiry they came to know that A-1 withdrew the amount from the bank and requests the police to take necessary action. On the strength of the complaint, police registered a case in Cr.No.206/2004 on the file of Tanuku Police Station for the offence punishable under Sec. 408 IPC. During the course of investigation, police arrested A-1 and pursuant to the confession made by him, an amount of Rs.60000/- was seized from his possession and also six promissory notes under a confession-cum-seizure report. The police also arrested A-2 on 29-3-2006 in front of his house situated near Uyyala Sthambham centre in Relangi of Iragavaram Mandal. On the strength of confession mde by A-2, police seized Rs.40,000/- and a bag containing papers and magazines pertaining to the Rice Mill. The police arrested A-3 on 29-3-2006 and A-6 on 30-3-2006. Police did not arrest A-4 and A-5 as they are absconding. After due investigation, the police filed a charge sheet before II Additional Judicial First Class Magistrate, Tanuku for the offence punishable under Sec. 409 r/w 109 IPC. Smt. Immu Vani, learned counsel for the petitioners/A-2 and A-3 in Crl.P.No.4503/2007 contends that A-2 and A-3 have no concern with the commission of the offence and they have not instigated/abetted, in consequence of the instigation or in pursuance of the conspiracy as per explanation to Sec.109 IPC. In the absence of allegations, the proceedings initiated against them are liable to be dismissed. Sri S. Subba Reddy, learned counsel appearing for the petitioners/A-4 and A-5 contends that there is no allegation levelled against A-4 and A-5 except stating that A-2 to A-6 are abettors in commission of the offence and in the absence of specific allegation and the role played by them, they cannot be proceeded for the offence alleged and therefore the proceedings initiated against them are liable to be dismissed. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the respondent No.2/defacto complainant in Crl.P.No.2646/2007 fairly concedes that confession made by A-1 cannot form basis to come to a conclusion that A-3, A-4 and A-5 abetted the crime; and so far as A-2 is concerned, the Investigating Officer seized Rs.40,000/- cash and a bag containing papers and magazines pertaining to the Rill Mill from him, and therefore, the proceedings initiated against A-2 cannot be quashed. In the charge sheet, it is no where alleged that A-3, A-4 and A-5 are responsible for commission of the offence, as per explanation to Sec.109 IPC to charge them for the offence under Sec. 409 with the aid of See.109 IPC. In view of the same, the case, in so far as A-3,A-4 and A-5 concerned, is fully covered under Guideline No.1 laid down by the Supreme Court in STATE OF HARYANA V. BHAJAN LAL (1992 Supp. (1) SCC 335). In view of the same, the proceedings initiated against them are liable to be quashed. Since there is some evidence against A-2, from whom police recovered Rs.40,000/- cash and bag containing papers and magazines relating to the Rice Mill, the prosecution should be given an opportunity to prove the case against A-2. Therefore, he proceedings against him cannot be quashed. Crl.P.No.2646/2007 is allowed quashing the proceedings initiated against the petitioners/A-4 and A-5 in CC No.653/2006 on the file of II Addl. Judicial First Class Magistrate, Tanuku. Crl.P.No.4503/2007 is partly allowed quashing the proceedings, in so far as petitioner No.2/A-3 is concerned, in CC No.653/2006. Crl.P.No.4503/2007 in respect of petitioner No.1/A-2 is dismissed. ________________ A.GOPAL REDDY, J. Dt.27-8-20110 kmr