HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2424 of 2007 DATED 05.03.2010 Between: Bhamidipati Lakshminarayana Subrahmanyam, … Petitioner And The State of Andhra Pradesh rep. By its Public Prosecutor … Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2424 of 2007 ORDER: This petition is filed by the petitioner/A-3 under Section 482 Cr.P.C for quashing proceedings in C.C. No.749 of 2003 on the file of IV Additional Judicial Magistrate of the First Class, Kakinada relating to offence punishable under Section 409 I.P.C. 2) A-1 worked as supervisor, A-2 worked as Senior Assistant and A-3 worked as Clerk in Kakinada Municipal Employees Co-operative Credit Society, Kakinada (in short, the society). Total defalcated amount in this case is stated to be Rs.1,26,175/- in the society. The society was granting loans to Class-IV employees of the municipality. Enquiry was conducted under Section 51 of the A.P. Co-operative Societies Act by Co-operative Sub Registrar, Kakinada and he gave report to the affect that A-1 to A-3 along with Ravula Srirama Murthy were responsible for misappropriation. Enquiry report is dated 30.04.1992. The alleged misappropriation of funds was relating to the year 1987-88. Enquiry under Section 51 of the Act started in the year 1991. After receiving enquiry report, Government of Andhra Pradesh vide memo dated 06.01.2003 deleted Ravula Srirama Murthy from this case. After obtaining sanction for prosecution from the District Collector, the Divisional Co-operative Officer, Kakinada gave report about this offence to the Sub-Inspector of Police, II Town Law and Order Police Station, Kakinada on 17.07.2003 and thereupon case in Crime No.110 of 2003 was registered and investigated into; and ultimately charge sheet was filed against A-1 to A-3 alone. 3) It is evident from enquiry report that A-3 was appointed as clerk in the society by resolution dated 25.07.1989 on salary of Rs.300/- per month. He was a part time clerk during that time in the society. Again, in the same enquiry report, it is stated that A-3 was involved in two transactions whose total value was Rs.8,000/-. In so far as loan of Rs.4,000/- of Mutyala Ellamma is concerned, it was found to be a benami loan misappropriated by A-1; and A-3 pasted white paper on the entries in the ledger of the loanee. It is not report of the enquiry officer that it was A-3 who misappropriated the said loan amount of Rs.4,000/-. In so far as another loan of Rs.4,000/- of P.Sudhakara Rao is concerned, A-3 is stated to have tampered with entries in the accounts as it happened to be another benami loan. Thus, allegations against A-3 are not alarming in nature. 4) It is contended by the petitioner’s counsel that there is delay of 14 years in giving report to the police and that the petitioner is being harassed with this case for the last nearly 21 years and that therefore, it amounts to abuse of process of law and unnecessary harassment to the petitioner. 5) The petitioner’s counsel placed reliance on P.Ramachandra Rao V. State of Karnataka[1] and contended that inordinate delay in filing of the case and in trial of the case is violation of Article 21 of the Constitution of India. After considering the previous decisions rendered by the Constitutional Bench of the Supreme Court, it was observed in the above decision as follows: “The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time- limits as bar beyond which a criminal proceedings or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix any time-limit for trial of offences. Having placed on record of the exposition of law as to right to speedy trial flowing from Article 21 of the Constitution this Court held that it was necessary to leave the rule as elastic and not to fix it in the frame of defined and rigid rules. It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed upto a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A. R. Antulay. In Kartar Singh's case (supra) the Constitution Bench while recognising the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state, "of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors- (1) length of delay, (2) the justification for the delay, (3) the accused" assertion of his right to speedy trial, and (4) prejudice caused to the accused's by such delay". 6) In Pankaj Kumar V. State of Maharashtra[2] also the Supreme Court had another occasion to consider fundamental right of an accused under Article 21 of the Constitution of India vis-à-vis speedy trial and held: “IT is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice”. 7) In that reported decision, first information report was recorded on 12.05.1987 for offences allegedly committed in the year 1981 and after prolonged investigation on three financial irregularities, charge sheet was filed in Court on 22.02.1991. In those circumstances, the Supreme Court quashed proceedings in the criminal case even without going into merits of allegations against the petitioning accused. 8) As pointed earlier, the alleged misappropriation relates to the year 1987-88, A-3 was appointed as part-time clerk on meagre salary of Rs.300/- per month on 25.07.1989, enquiry was ordered and commenced in the year 1991 and enquiry report was submitted on 30.04.1992 under Section 51 of the A.P. Co-operative Societies Act. In spite of it, the Divisional Co-operative Officer, Kakinada took time till 17.07.2003 for giving report in this matter. Total misappropriated amount found in the enquiry was Rs.1,26,175/-, out of which A-3 was concerned only with two loans of Rs.4,000/- each. There is no allegation of A-3 misappropriating those two loans. Allegation in the enquiry report is that he changed entries in accounts with a view to accommodate A-1 who is connected with those two loans as benami loanee. Having regard to above facts and dates in this case, this Court is of the opinion that the petitioner/A-3 is being harassed and humiliated since the year 1991 till date. It is not only abuse of process of law and it also amounts to violation of Article 21 of the Constitution of India against the petitioner/A-3. 9) In the result, the petition is allowed quashing proceedings in C.C. No.749 of 2003 on the file of IV Additional Judicial Magistrate of the First Class, Kakinada in so far as the petitioner/A-3 is concerned. _____________________________ SAMUDRALA GOVINDARAJULU, J March 05, 2010 KSH [1] AIR 2002 SUPREME COURT 1856 [2] AIR 2008 SUPREME COURT 3077