IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY THE FIRST DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 849 of 2005 Between: N. Thammayya … Petitioner V/s. Arisetti Satyanarayanamurthy (A1) & 3-Ors. … Respondents Counsel for the Petitioner : Sri C. Praveen Kumar Counsel for the Respondent : Addl. Public Prosecutor Sri K. Suresh Reddy for A1 to A3 THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 8 4 9 OF 2005 O R D E R : This Criminal Revision is directed against the order of acquittal recorded by the learned III-Metropolitan Magistrate, Visakhapatnam under section 248 (1) Cr.P.C. for the offence under section 420 IPC in CC.No. 586 of 2000, dated 28-3-2005. 2. The brief facts of the case for the disposal of the present Criminal Revision Case are as follows : On 03-6-1978 M/s. Arisetti Suryanarayanamurthy Sugars Muragadam which is a partnership firm took a loan of Rs.2,67,000/- from State Bank of India, Parvatipuram keeping the land building and machinery belonging to M/s. Gunnaiah Rice Groundnut Dal and Sugar cane Mills, Seluru as collateral security to create an equitable mortgage in favour of the bank. In the month of December, A-1 to A-3 approached PW-1 at his house at Dwarakanagar, Visakhapatnam and had discussion with him for selling the sugar mill of Saluru. They came to an oral agreement to sell the mill for a total consideration of Rs.4,30,000/-, At that time the accused misrepresented to PW-1 that there are no encumbrances on the said property. In pursuance of the said agreement, PW-1 purchased the requisite stamps at Viskahapatnam on 17-12-1981. The accused got the sale deed typed and signed on the said sale deed. PW-1 paid Rs.1,75,000/- by means of account payee draft drawn on mercantile bank, Visakhapatnam dated 17-12-1991. The sale deed was got registered at Sub-Registrar Office, Saluru on 12-1-1982. In the original sale deed at page 10, it is clearly written that “there were no mortgages, charges and other encumbrances on the schedule mentioned property”, but later the State Bank of India, Parvathipuram branch filed a suit against the accused and the complainant along with other defendants stating that the above Kandasari Sugar Factory was kept as security and took loan of Rs.2,67,500/- on 8-6-1978 for the development of M/s. Arisetti Satyanarayanamurthy Sugars situated at Muragadam, Bobbili vide OS.No. 120 of 19876. When the complainant questioned the accused about the mortgage the accused contended that the complainant can contest the suit on the strength of the sale deed dated 17-12-1981 executed by the accused. The said suit was decreed by the Subordinate Judge, Bobbili against the complainant. Thus, the vendors, i.e., the accused had clear dishonest intention in suppressing the fact of charge created against the property by the date of execution of sale deed and that they had dishonest intention to have wrongful gain for themselves and to cause wrongful loss to the purchaser of the property by making false representation that there are no charges or encumbrances. On a report given by PW-1, on 29-6-1999 PW-3 registered the case in Cr.No.191/99 under section 420 IPC and investigated into. During the course of investigation, on 6-11-1999 he arrested A-3 and sent him for judicial remand and A-1 and A-2 have obtained anticipatory bail from Metropolitan Sessions Judge, Visakhapatnam. After completion of investigation, PW-3 filed charge sheet alleging that the accused have committed the offence. 3. On appearance of the accused, the learned Magistrate complied with the formalities as contemplated under section 207 Cr.P.C., and examined the accused under section 239 Cr.P.C. alleging the substance of accusation. The accused denied the substance of accusation and pleaded not guilty. Charge under section 420 of IPC was framed against the accused was read over and explained to them for which they pleaded not guilty and claimed to be tried. 4. To substantiate the case of the prosecution, the prosecution examined PWs.1 to 3 and got marked Exs.P1 to P5 were marked. On behalf of the accused, no oral evidence was adduced but marked Ex.D1 on behalf of defence. 5. After closure of the prosecution evidence, the accused were examined under section 313 Cr.P.C., for the incriminating evidence appearing against them. Accused denied the same. 6. Upon consideration of oral and documentary evidence placed on record, the learned Magistrate had comprehensively discussed the matter and found A-1 to A-3 not guilty for the offence punishable under section 420 IPC and acquitted them under section 248 (1) Cr.P.C. Challenging the same, the present Criminal Revision is filed. 7. The learned counsel for the petitioner has submitted only sole point that suppressing the fact, the mortgage property was sold to the petitioner herein. 8. On the other hand, the learned counsel for the respondents 1 to 3 submitted that PW-1 has filed the report before the Police after more than seventeen years and this case is civil in nature and as per Ex.P2 the date of sale deed is 17-12-1981 and the complainant gave report after seventeen years and even after filing of the suit also PW-1 has not given any report and the delay in giving the report also not explained by PW-1. And the present case has been filed by PW-1 on 29-6-1999 after the decree passed by the learned Subordinate Judge, Bobilli in OS.No.120 of 1987 and also according to PW-1 and the accused, they are parties in the suit and the suit was disposed of. He further submitted that the learned trial Judge has rightly discussed the matter at para No.18 of the judgment, which does not warrants any interference by this Court. 9. Heard the learned counsel for the petitioner as well as the learned counsel for the respondents 1 to 3 and perused the record. 10. The learned Magistrate after due trial acquitted all the accused on the following ground: The fact that the property was mortgaged can be attached before the Civil Court and also the petitioner having knowledge about the mortgage in the year 1987 and now the petitioner wrongly alleged in the compliant that there was dishonest intention on the part of the respondents 1 to 3 after a lapse of fifteen years. 11. This Court is of the view that there is nothing on record to interfere with the judgment of the trial court in view of the fact that the learned Magistrate has considered all the aspects and the said order is not against any legal principles and also does not suffer from any perversity. Hence, the present Criminal Revision filed by the petitioner is liable to be dismissed. 12. Accordingly, the Criminal Revision Case is dismissed. __________________________ JUSTICE RAJA ELANGO. 01-10-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 8 4 9 OF 2005 Circulation Entry No. 4 9 Date: 01-10-2010 Computer No. 43 Court Master: I s L