1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE4H DAY OF MARCH2020BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH CRIMINAL PETITION NO.100001/2015 BETWEEN:
1. BASAVARAJ S/O KANTEPPA PUJAR AGE: ABOUT56YEARS, OCC: PRESENT MANAGER, SRI BASAVESHWAR URBAN CO-OPERTIVE BANK LTD., APMC ROAD, RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
2. GAYATRAMMA W/O CHANDRASHEKHAR KURUVATTI AGE: ABOUT54YEARS, OCC: EX-PRESIDENT AND PRESENT DIRECTOR, SRI BASAVESHWAR URBAN CO-OPERATIVE BANK LTD., APMC ROAD, RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI. ... PETITIONERS (BY SRI S N BANAKAR, ADVOCATE.) AND:
1. SHANKAR S/O MALKAPPA NIDAGUNDI AGE: ABOUT48YEARS, 2 OCC: AT PRESENT NIL, R/O: KHB COLONY NO.184, MEDLERI ROAD, RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
2. THE STATE OF KARNATAKA, REPRESENTED BY ADDL. SPP, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT: DHARWAD, THROUGH RANEBENNUR TOWN P.S. ... RESPONDENTS (BY SRI M B GUNDAWADE, ADVOCATE, FOR R.1; SMT. SEEMA SHIVA NAIK, HCGP, FOR R.2.) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE IMPUGNED ORDER
DATED2412.2014 PASSED BY THE PRL. CIVIL JUDGE & II ADDL. JMFC COURT, RANEBENNUR, IN P.C.NO.176/2013 NOW IN C.C.NO.1430/2014, IN TAKING COGNIZANCE AND ISSUING SUMMONS AGAINST THE PETITIONERS HEREIN FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS418& 420 READ WITH SECTION34OF IPC AND TO DISMISS THE COMPLAINT, ETC.,. THIS PETITION COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This petition is filed under section 482 of Cr.P.C., praying this Court to quash the order dated 24.12.2014, passed by the Prl. Civil Judge and II Addl. JMFC, Ranebennur, in 3 P.C.No.176/2013, which is numbered as C.C.No.1430/2014, in taking cognizance and issuing summons against the petitioners herein for the offence punishable under section 418 and 420 read with section 34 of IPC and to dismiss the complaint.
2. Though this petition is filed by the petitioners No.1 and 2, petitioner No.1 passed away during the pendency of this petition and hence the petition on behalf of petitioner No.1 is abated and consideration is only in respect of petitioner No.2.
3. The factual matrix of the case is that, the complainant who is respondent No.1 in this petition has filed a private complaint in P.C.No.176/2013 contending that he was a worker in Sri Basaveshwar Urban Co-operative Bank Limited, Ranebennur on contract basis. After having considered his work, he was appointed as 4 Junior Assistant in the bank on 31.3.1994. His daily duty as Junior Assistant in the bank was to look after the counter work and as such he worked for some time. After having rendered his service as Junior Assistant, he was promoted on 28.8.1998 as Senior Assistant. While he was rendering his service as Senior Assistant, he was rather illegally suspended without having any reasons and without giving him any opportunity of hearing before passing the order of suspension. In spite of having such illegal suspension, he honestly tolerated as an employee of the bank and the respondents who have been arraigned as accused in the complaint have all joined together in order to remove him from service and allegation was made against him that he is attending the work with the influence of alcohol. Later, the order of suspension was revoked and when he has given the reply, the respondents/accused in the complaint have decided to see that he should be 5 dismissed from service and that on 10.9.2012 in the morning when there was a board meeting, all the accused fraudulently, dishonestly, with an intention to deceive him, induced him and so deceived to agree to give it in writing stating that, on 23.8.2012 the complainant did come to the bank in a drunken manner and he further remained absent from 24.8.2012 unauthorizedly and further on account of BP and his mental disturbance, he acted in such a manner and should be pardoned for having committed illegal actions of offences and take him again into service. Believing the words of the accused persons, he gave it in writing in the above terms and all of them have pressurized to give such a letter and hence the accused persons did commit criminal offence punishable under sections 418 and 420 of IPC and hence action has to be taken. 6
4. Based on this complaint, the Magistrate referred the matter under section 156(3) of Cr.P.C. directing the CPI, Ranebennur Town Circle, for investigation. The Investigating Officer after the investigation has filed B report. Hence, the complainant/respondent No.1 herein has filed the protest memo and thereafter, in support of his case, he examined himself and one witness with regard to the allegations made in the complaint. The trial Court after considering the sworn statement and also the complaint averments, taken cognizance and issued process against these petitioners. Hence, the present petition before this Court.
5. The petitioner in the petition mainly contended that there is no any averments against this petitioner in the complaint and also the trial Court committed an error in referring the matter under section 156(3) of Cr.P.C. There is a 7 procedural irregularity and not examined the witnesses before referring the matter to the Investigating Officer under section 156(3) of Cr.P.C. Taking the cognizance is erroneous and illegal and ingredients of the offence invoked in the complaint are not made out and hence the very order of taking cognizance itself per-se is illegal and same is not sustainable in the eye of law.
6. The respondent/complainant’s counsel in his arguments he vehemently contended that the complaint was filed against 13 persons and the trial Court, after filing of the B report, recorded the sworn statement and there is a specific allegation of individual overtact pressurizing the complainant to write the document and the petitioner cannot invoke section 482 of Cr.P.C. The trial Court rightly invoked section 156(3) of Cr.P.C. directing the 8 Investigating Officer to investigate and file the report and no opportunity can be given to the accused while taking cognizance. It is further contended that this petitioner voluntarily went to the house of the complainant and pressurized the complainant to give a letter in writing and Ex.C.2 is in the handwriting of the complainant. Hence, the trial Court considering the material on record rightly taken cognizance and the same cannot be set aside.
7. In reply to the arguments of the respondent’s counsel, the petitioner’s counsel would contend that there is no any whisper in the complaint that this petitioner went to the house of the complainant and pressurized to give a letter and there is no any iota of material evidence against the petitioner to take cognizance. It is also contended that the Court only taken cognizance against this petitioner and other petitioner and 9 other petitioner is no more and hence the case has been abated and when the material is not available before the Court, if the criminal case is proceeded against this petitioner, it amounts to miscarriage of justice and hence it requires consideration.
8. The petitioner’s counsel in support of this petition, relied upon the judgment reported in 2019(3) KCCR2353 Melvin Kumar and others vs. K.S.Harisha and another, and referring to this judgment, the counsel would contend that the inherent powers under section 482 of Cr.P.C., can be exercised to give effect to an order under the Code to prevent abuse of process of the Court and to otherwise secure the ends of justice. It is also settled law that the inherent powers under this provision should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision 10 in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the Court and the issue involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. It is a settled proposition that the wholesome power under section 482 of Cr.P.C. entitles the High Court to quash a proceeding only when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The counsel referring to this judgment would contend that, in the case on hand also there is no material or iota of evidence to proceed against the petitioner.
9. The counsel also relied upon the judgment reported in ILR2019KAR3673 Yakoob Sharief vs. The State of Karnataka, by 11 Chikkaballapura Town Police Station and another and referring to this judgment, the counsel would contend that, referring the matter under section 156(3) of Cr.P.C. without recording the evidence of the complainant and other witnesses amounts to illegality and hence, in the case on hand also the trial Court committed an error in referring the matter under section 156(3) of Cr.P.C. without examining the witnesses as contemplated under section 200 of Cr.P.C.
10. The counsel also relied upon the judgment reported in 2019 (4) KCCR3108 B.M.Devarajappa and others vs. B.Munikrishnappa and referring to this judgment, the counsel would contend that, trial Court rejecting B report without considering, examining and adjudicating it and issuance of process and rejection of B report is not proper. 12
11. On the other hand, the counsel appearing for the respondent/complainant in support of his contention, he relied upon the judgment reported in (2014) 3 SCC383 Bhaskar Lal Sharma and another vs. Monica and others and referring to this judgment, the counsel would contend that while invoking section 482 of Cr.P.C., Core test that has to be applied before summoning the accused is that the facts stated against the accused have to be accepted as they appear on the very face of it. Appreciation, even in a summary manner, of averments made in a complaint, petition or FIR is not permissible at the stage of quashment of criminal proceeding and the same has to be proved which can only be done in the course of a regular trial.
12. The counsel also relied upon the other judgment reported in (2014) 3 SCC389 Vijayander Kumar and others vs. State of 13 Rajasthan and another and the counsel relying upon this judgment with regard to exercising powers under section 482 of Cr.P.C. would contend that, a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to informant/complainant and itself cannot be a ground to quash a proceeding. Real test is whether allegations in complaint disclose a criminal offence or not.
13. The counsel referring to these two judgments would contend that, the principles laid down in the judgments referred supra are aptly applicable to the case on hand. Both the averments of the complaint and as well as the sworn statement of the witnesses PW.1 and PW.2 clearly disclose that the complainant has made out a case to issue process and the trial Court has 14 rightly issued process considering the material on record.
14. Having heard the arguments of the petitioner’s counsel and also the counsel for the respondent/complainant and in keeping the submissions of respective counsels, the point that arise for consideration before this Court is whether the trial Court has committed an error in issuing process against the petitioner for the offence invoked against the petitioner and whether it requires interference by this Court.
15. In keeping the contentions of both the counsels, this Court has to consider the material on record. First, the complainant has filed the complaint before the trial Court which is numbered as P.C.No.176/2013. On going through the entire averments of the complaint, an omni bus statement is made against 13 respondents that they have pressurized the complainant and 15 induced him to agree with the writings made in the letter stating that on 23.8.2012 the complainant did come to the bank in a drunken manner, specifically mentioned in paragraph No.12. The matter has been referred to the Investigating Officer to investigate the case under section 156(3) of Cr.P.C. The very contentions of the petitioner’s counsel that the witnesses have not been examined before referring the matter to the Investigating Officer under section 156(3) and contend that the judgment of this Court reported in ILR2019KAR3673is applicable to the case on hand cannot be accepted for the reason that this Court has to read section 200, 202 and also section 190 of Cr.P.C. conjointly and then only the Court has to come to a conclusion that whether the averments made in the complaint discloses committing of an offence or not. 16
16. In the said judgment, this Court discussed with regard to referring the matter under section 156(3) of Cr.P.C. and on a perusal of section 200 of Cr.P.C., it is clear that when the Court takes cognizance based on the complaint, then proceed to record the evidence of witnesses on oath and section 202 of Cr.P.C. is with regard to the postponement of issue of process. Section 202(1) of Cr.P.C. is clear that any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
17. On a perusal of this proviso, it is clear that the word used is, Magistrate may on receipt 17 of complaint either inquire into himself or direct an investigation to be made by a police officer and in the case on hand also, on receipt of the complaint the Magistrate referred the matter under section 156(3) of Cr.P.C. directing the Investigating Officer to investigate the matter. In Yakoob Sharief’s case (supra), this Court discussed with regard to section 200 and 202 of Cr.P.C. and in the said case the Magistrate passed an order that the allegations made in the complaint reveals that the accused has committed the offence under section 323, 324, 420, 409 of IPC etc.,. hence, to refer the case to jurisdictional police under section 156(3) of Cr.P.C. for investigation. In the said case, the Court has formed its opinion that the accused has committed the offence and thereafter referred the case under section 156(3) of Cr.P.C. and the same is erroneous. 18
18. In the case on hand, an endorsement is made on the complaint itself that, the complainant is present, office to register the case as P.C., matter is referred to CPI Ranebennur Town Circle for investigation under section 156(3) and there is no any order of coming to the conclusion that the accused have committed the offences and not formed any opinion and hence, the order passed in the case on hand and also the order referred in ILR2019KAR3673are different. In the said case the Magistrate formed an opinion that the allegations made in the complaint reveals that the accused has committed the offences and in the case on hand no such opinion has been formed by the Court. Simply referred the matter for investigation. When such being the case, the judgment referred by the counsel is not applicable to the case on hand. It is the discretion of the Magistrate having considered the averments made in the complaint either to 19 inquire himself or refer the matter to the Investigating Officer under section 202 of Cr.P.C. by postponement of issue of process to ascertain whether there is sufficient ground for proceeding and in the case on hand the Magistrate simply referred the matter to the Investigating Officer to investigate to ascertain the sufficient ground for proceeding.
19. The other contention of the petitioner’s counsel that there is no any averment against this petitioner in the complaint and there is a force in the contention of the petitioner. On going through the entire averments made in the complaint, no specific overtact allegation is made against this petitioner except making the general omni bus statement against all the respondents/accused in the complaint. It is also pertinent to note that the Investigating Officer has investigated the matter and filed B report before the trial Court. 20
20. When the B report is filed, protest memo is filed by the complainant. On perusal of the protest memo filed before the trial Court also, there is no any specific overtact allegation against this petitioner and only while adducing the evidence before the trial Court, CW.1 and CW.2 have narrated that the very petitioner came to the house of the complainant and insisted the petitioner to give a letter committing the mistake on his part. This evidence is only adduced while recording the sworn statement and the same is not supported by the complaint averments and also the same is not in the protest memo. It is nothing but an after thought, in his sworn statement the complainant has improved his case.
21. The trial Court while considering the case on hand made an observation that on perusal of both the averments made in the complaint and based on sworn statement, the complainant has 21 made out a prima facie case to proceed against the petitioner. The observation made by the trial Court is erroneous and the same is against the records and there is no such specific allegation in the complaint and also in the protest memo that the petitioner went to the house of the complainant and pressurized in issuing the said letter. On perusal of the complaint in paragraph No.13, it is stated that, all the accused called upon him i.e., the complainant on 10.9.2012 in the morning before the commencement of board meeting in the afternoon at 4.00 p.m. and fraudulently, dishonestly, with an intention to deceive him, induced him and so deceived to give such a letter and the same is contrary to the sworn statement given by CW.1 and CW.2. The averments in the complaint is against all the respondents in the complaint but in the sworn statement twisted the same to the convenience of the complainant. 22
22. Having considered the material on record, first of all there is no specific averment in the complaint and the averment made in the complaint is against the sworn statement. The trial Court fails to take note of these contradictions and also it is nothing but an after thought when the sworn statement was given before the Magistrate. When such being the case, when there is no specific averment in the complaint, it is nothing but an abuse of process of the Court, if the process has been issued against the petitioner and proceedings is continued.
23. The Apex Court in the judgments referred supra and also this Court in several judgments made it clear that, if material found on record, then only the Court can issue the process in a criminal case. In the case on hand, it is nothing but an after thought when the sworn 23 statement was given before the Court, the complainant improved his case.
24. When such being the case, this Court is of the opinion that it is not a fit case to proceed against the petitioner for the offences alleged against her. The trial Court wrongly made an observation while issuing the process that the averments made in the complaint and also in the sworn statement makes out a case against the petitioner to issue process and that conclusion is erroneous and no such averment in the complaint except an omnibus allegation against all. The complainant also did not question the non issuance of process against the other accused persons.
25. Having considered the factual aspects of the case and also considering the material on record, if the proceedings against this petitioner is continued, it amounts to miscarriage of justice 24 and hence this Court do not find any good grounds to substantiate the order of the trial Court in issuing process and hence this petition is liable to be allowed and the order of issuing process against the petitioner is required to be set aside.
26. In view of the discussions made above, this Court proceed to pass the following: ORDER
The petition filed under section 482 of Cr.P.C. is allowed. The impugned order dated 24.12.2014, taking cognizance and issuing process in C.C.No.1430/2014, by the Prl. Civil Judge and II Addl. JMFC, Ranebennur, is hereby quashed. Sd/- JUDGE Mrk/-