THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.Petition No.5072 of 2008 Date: 21.12.2011 Between: Prathapa Bhanu Kiran, @ Bhanu, Vijayawada. … Petitioner AND 1. The State of A.P., through Insepctor of Police, Palakol Town P.S., West Godavari Dist, rep.by its Public Prosecutor, High Court of A.P., Hyderabad. 2. Sub-Divisional Engineer (External), BSNL, Palakol, W.G. District. … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.5072 of 2008 ORDER: Out of the nine accused in C.C.No.56 of 2007 on the file of the Judicial Magistrate of First Class, Palakol, West Godavari District, A.7 laid the present Criminal Petition seeking for quashment of the case against him. He along with eight others was charge sheeted for the offences under Sections 419, 420, 468 and 471 of the Indian Penal Code (IPC, for short) read with Section 34 IPC and r/w Sec.109 IPC. They allegedly duped Bharat Sanchar Nigam Limited (BSNL) to a tune of ` 3,14,687/-. It is the case of Smt. Zareena Afsar, learned counsel representing the Additional Public Prosecutor that prima facie case is made out against A.7 and that whether the actual case is proved or otherwise can be determined only after the trial of A.7 along with the other accused. She contended that it is not a fit case for the quashment of the charge sheet against A.7. 2. Smt. K. Sesharajyam, learned counsel for A.7, on the other hand, contended that no case whatsoever made out against A.7 and that the charge sheet is liable to be quashed against A.7. Inter alia, she contended that the available evidence shows that there was no evidence against A.7 to prosecute him. 3. The case of the prosecution is: a) A.2 is the architect of this case. A.1 and A.2 are friends. A.2 was/is a resident of United States of America. A.3 is the father of A.2. A.4 is a friend of A.1. A.5 to A.8 are Post- Graduate Students in Rithams College, Tanuku. A.9 is also connected to the same college. As many as 76 persons obtained BSNL post-paid SIM cards. The customers committed default in payment of the rents. On verification, it was found out that 13 of them belonged to West Godavari District. It is the case of the BSNL that it could not trace out 10 addresses, out of the 13 addresses, as mentioned in their applications. b) The Sub-Divisional Engineer (External), BSNL, Palakol lodged a complaint with the Sub-Inspector of Police, Palakol Town Police Station. He alleged SIM card fraud and sought for redressal from police. 10 names of the persons whose addresses were not traced together with the amount payable by the cardholders (towards rent) were noted in the complaint. The Sub-Inspector of Police, Palakol Town Police Station (LW.18) allegedly conducted investigation and concluded that A.1 and A.2 have committed the offences in connivance with A.3 to A.9. A.2 allegedly hatched a plan to cheat BSNL and accordingly, instructed his father to give money to A.1 as and when A.2 asks for money. A.1 allegedly collected ` 20,000/- from A.3 in this process and that A.1 and A.3 inspected A.5 to A.8 to participate in the duping process resorted to by A.1 and A.3. A.4 allegedly helped A.1 and A.3 in contacting A.5 to A.8. c) The prosecution contended that the ration cards and driving licences of certain genuine persons were collected, that the photographs of A.4 to A.8 were pasted in the places of real photographs with spurious addresses and names and that the SIM cards were obtained. It is the case of the prosecution that A.5 to A.8 were paid ` 1,000/- each by A.1 to A.3, so as to help A.1 and A.3 to commit fraud. These are the overt acts against A.7. 4. The case of the prosecution is that A.9 in his turn paid ` 5,000/-per SIM card and collected SIM cards from A.1 and A.3 for distribution to various consumers. Thereafter, SIM cards were used indiscriminately and the amounts due were not paid, so much so, the Sub-Divisional Engineer, Palakol had no alternative but to lodge complaint with the police. 5. Smt. K. Sesharajyam, learned counsel for the petitioner pointed out the improbability of conviction in this case showing that the allegations in the complaint registered by the Sub-Divisional Engineer and the allegations in the charge sheet are entirely different. In the complaint, which was registered as FIR, the Sub- Divisional Engineer pointed out that 10 defaulters cheated BSNL by submitting fake documents and fake proofs of identification. On the other hand, in the charge sheet, it is the contention of the prosecution that A.5 to A.9 furnished false photographs and fake identification in connivance with A.1 to A.4 and that all the accused, consequently, are liable for punishment. 6. The learned counsel for the Additional Public Prosecutor contended that after the complaint was lodged, the Sub-Inspector of Police, Palakol and his superiors conducted investigation and that the complicity of the accused including A.7 came out in the investigation. Her contention that the complaint allegations and the charge sheet allegations need not be identical is certainly true. In the present case, the Sub- Divisional Engineer certainly was not aware who was responsible for the fake identification certificates. It is the investigating agency, which may determine who was responsible for the circulation of fake identifications. 7. At the same time, the prosecution must speak out what are the circumstances and nature of evidence available with the prosecution to show that the accused were the culprits in the commission of the offence. As rightly submitted by the learned counsel for the petitioner/A.7, the charge sheet does not show the basis on which it could be concluded that the accused were guilty of committing the offences alleged against them. Neither was there documentary evidence nor was there ocular evidence to prima facie establish the guilt of the accused. I n State of Haryana v. Ch. Bhajan Lal[1], the Supreme Court reiterated the principles for quashing a complaint. The Supreme Court inter alia observed that where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion is a sufficient ground to quash further proceedings. It also pointed out that where uncontroverted allegation and the evidence collected in support of the case do not disclose the commission of offence, the accused would be entitled to seek for quashment of the complaint or the charge sheet. I consider that the present charge sheet eminently qualifies for the circumstances narrated by the Ch. Bhajan Lal. The uncontroverted facts in the present case do not pin point the guilt of A.7 in any manner. Added to it, it was averred that SIM cards were obtained after presentation of the proof of identification before the issuing authority. Nevertheless, it is not shown by anyone that A.1 amongst others participated in obtaining SIM cards and making over the same to A.1 and A.3 by receiving consideration of Rs.1,000/-. 8. No prima facie case can be said to have been made out against A.7 where the complicity of A.7 in the commission of offence prima facie is not made out. There are contradictions between the charge sheet and the complaint. The allegations in the complaint are not supported by even prima facie evidence, such as pre-trial statements of witnesses. I, therefore, have no hesitation to accept the claim of A.7 that the prosecution failed in establishing the prima facie case against A.7. The charge sheet richly deserves to be quashed, so far as A.7 is concerned. 9. Accordingly, the Criminal Petition is allowed. The charge sheet is quashed, so far as the petitioner/A.7 is concerned. _________________ K.G. SHANKAR, J Date: 21.12.2011 Isn [1] (1991) 2 SCJ 35