*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.P. No.583 OF 2007 % 27-01-2010 #Dr.Y.Madhusudhan Rao ….petitioner Vs. $ State rep. By the Public Prosecutor and another. …. Respondents !Counsel for the Petitioner : Sri B.Vijaysen Reddy Counsel for the 1st Respondent: Public Prosecutor Counsel for the 2nd respondent: D.Sudarshan Reddy <Gist : >Head Note: ? Cases referred: 1. (2009) 8 Supreme Court Cases 751 2. (2009) 7 Supreme Court Cases 712 HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.583 of 2007 DATED 27.01.2010 Between: Dr.Y.Madhusudhan Rao … Petitioner And State rep. By the Public Prosecutor and another … Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.583 of 2007 ORDER: This petition is filed by the accused under Section 482 Cr.P.C for quashing proceedings in C.C. No.408/2006 on the file of Chief Metropolitan Magistrate, Hyderabad relating to offences punishable under Sections 447, 420, 406 I.P.C and Section 86 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (in short, the Endowments Act). 2) Subject matter of the case is property which is stated to belong to Patala Hanuman temple in Bondalguda of Bahadurpura, Hyderabad. There is no dispute that the temple is located in 650 Sq. yards of site out of S.No.8 and T.S. No.30. According to the Endowments department, as per their books and files, land of 5,566 Sq. yards in T.S. No.30, Block-F, ward No.239 of Bondalaguda village and Bahadurpura Mandal is registered in the temple’s name. The petitioner claims to be owner of the temple on the ground that it is a private temple founded by their ancestors. The petitioner filed O.S. No.3613/1982 in civil Court and further filed A.S. No.49/1989 in the appellate civil Court and failed. Thereupon, the petitioner filed O.A. No.30/1999 before the Deputy Commissioner of Endowments, Hyderabad under Section 87 of the Endowments Act to declare the temple as one which is not a public religious temple, but is a private temple belonging to the petitioner’s family. The said O.A is pending. 3) While so, one Madhukar Rao @ Srinivasa Rao Rajendra executed agreement for sale-cum-general power of attorney without possession dated 01.11.2004 in favour of the petitioner in respect of part of house bearing municipal No.19-1-873 in S.No.8 and T.S. No.30 measuring 100 Sq. yards. Secondly, the same Madhukar Rao @ Srinivasa Rao Rajendra executed registered general power of attorney deed in favour of the petitioner on 29.10.2004 in respect of land measuring 3,781.11 sq. yards in survey No.8 corresponding to T.S. No.30 for the purpose of filing cases in Courts, resist cases filed by others over this land, compromise or refer to arbitration or to sign, execute, verify and file plaint, written statement, applications and to give police complaints etc., It is specifically stated therein that the petitioner shall not have power to execute sale deeds or other deeds or development agreements etc., Basing on these two documents, the Endowments department became alert and launched the present criminal proceedings against the petitioner. 4) In none of the above two documents Madhukar Rao claimed any connection for him with the temple. Further, property covered by those two documents was described as absolute property of Madhukar Rao. He has nothing to do with the present litigation between the petitioner and the Endowments department relating to nature of Patala Hanuman temple i.e., whether it is a private temple or a public temple. 5) Penal sections of law for which the petitioner is being prosecuted in the lower Court are Sections 447, 406, 420 I.P.C and Section 86 of the Endowments Act. Even as per report given by the Assistant Commissioner of Endowments to the police, which report constituted F.I.R in this case and even as per allegations in the charge sheet, the petitioner/accused did not make actual trespass into any temple land. It is apprehension of the department that under guise of those two documents, the petitioner may grab valuable property belonging to the temple. But, there is no allegation that the accused had in fact trespassed into any lands belonging to the temple. The alleged intention to trespass or to grab properties or its likelihood in future is no ground for prosecuting the accused for offence punishable under Section 447 I.P.C. 6) Secondly, the defacto-complainant/Assistant Commissioner of Endowments or the Endowments department is not a party to any of the above two documents. By executing those two documents it cannot be said that either Madhukar Rao or the accused cheated any third party. In similar circumstances the Supreme Court in MOHAMMED IBRAHIM V. STATE OF BIHAR[1] observed: “When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.” 7) Thus, question of deception of one party raises only when that party is a party to the document executed by the other party. In this case, the department is not a party to any of the above two documents. Further, no possession of properties covered by those two documents was delivered by Madhukar Rao to the petitioner thereunder. In those circumstances, neither the defacto-complainant nor the prosecution can be heard to say that there is any element of cheating or deceit of them in entering into the above two documents between Madhukar Rao and the petitioner. 8) Relying upon HARMANPREET SINGH AHLUWALIA V. STATE OF PUNJAB[2], it is contended by the petitioner’s counsel that in order to attract offence punishable under Section 406 I.P.C, the prosecution has to allege and prove entrustment of property to the accused by the defacto-complainant. In the case on hand, there is neither entrustment of any property by the department to the petitioner nor there is any misappropriation or mis-application thereof resulting in unlawful gain by the petitioner or wrongful loss to the department. Thus, viewed from any angle, the respondents did not allege could not prima facie make out various ingredients required for attracting penal liability under Sections 447, 420 and 406 I.P.C against the petitioner. 9) Further, under Section 86 of the Endowments Act, continuing to be in occupation otherwise than by lawful possession of a land belonging to religious endowment, is punishable. It is not the prosecution case muchless that of the defacto-complainant that the petitioner/accused was in possession of any land belonging to the temple prior to commencement of the Endowments Act of 1987 and continued to be in unlawful possession of the same subsequent to the Act also. 10) It is contended that filing of charge sheet by the police for offence punishable under Section 86 of the Endowments Act is not legal. Section 86(3) of the Endowments Act reads as follows: “No Court shall take cognizance of an offence punishable under sub-section (2) except on the complaint in writing of the Commissioner.” 11) Thus, the lower Court should not have taken cognizance of offence punishable under Section 86(2) of the Endowments Act on charge sheet filed by the police. If any offence was committed by the petitioner punishable under Section 86(1) and (2) of the Endowments Act, then it is for the Commissioner of Endowments to launch prosecution by way of filing complaint in writing before the Magistrate. It cannot be said that by virtue of Section 86(3) of the Endowments Act, offence under Section 86 of the same Act is a non-cognizable one. The said offence becomes a third category offence which is to be taken cognizance by the Court in a particular manner (i.e.,) only when the Commissioner of endowments filed the complaint in writing before the Magistrate. Thus, not only ingredients required under Section 86 of the Act are not satisfied but also taking cognizance of case for offence thereunder is not legal and is not in accordance with Sub- Section (3) of Section 86 of the Endowments Act. 12) In the present case on hand there is no allegation of any encroachment of any temple land by the petitioner in the charge sheet. Therefore, this Court finds that no case is made out by the prosecution even for offence punishable under Section 86 of the Endowments Act. 13) In the result, the petition is allowed quashing proceedings in C.C.No.408/2006 on the file of Chief Metropolitan Magistrate, Hyderabad. _____________________________ SAMUDRALA GOVINDARAJULU, J January 27, 2010 NOTE: L.R. copy to be marked (b/o)KSH [1] (2009)8 Supreme Court Cases 751 [2] (2009)7 Supreme Court Cases 712