Karnataka High Court
S.V. Hiremath And Ors. vs Veerabhadragouda And Anr. on 16 April, 2004
Equivalent citations: 2004CRILJ3607, 2004 CRI. L. J. 3607, 2004 AIR - KANT. H. C. R. 2595, (2004) 3 KCCR 1775, (2004) 4 ALLCRILR 439
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. This petition is filed under Section 482 Cr.P.C to quash the order dated 16-2-2002 passed by the Sessions Judge in Crl.R.P. No. 74/2000. The brief facts leading to this case is that the respondent is a registered contractor and the petitioners-1 and 2 are executive engineers in MRBC Sub-Division-5, Ron and Sub-Division-22, Ron, respectively. The other petitioners were working as assistant executive engineers in the aforesaid sub-divisions and they have been entrusted with the road repair work, to that effect an agreement was entered into between the respondent-1 and the assistant executive engineer MRBC Sub-Division-22. After completion of the work measurements were entered in the MRBC register. Accordingly, as per the agreement respondent-1 was entitled to receive a sum of Rs. 1,53,346.71. When he requested the petitioners herein for making such payments they did not consider his request and payment of said sum was not made. Therefore he made several written requests to the petitioners herein and thereafter legal notice was issued through his counsel on various dates to the assistant executive engineer, MRBC Sub-Division-22. Later he came to know that the petitioners herein with an intention to cheat the respondent-1 forged the documents of measurements taken in MRB, therefore he filed a complaint against all the petitioners and the complaint came to the referred to the police under Section 156(3) Cr.P.C. for investigation and report. After investigation the police said to have submitted 'B' report, therefore he challenged the same before the Magistrate. The Magistrate, after considering the materials placed on record dismissed 'B' report and the cognizance was taken and summons was issued to the petitioners. Later the complaint came to be dismissed an the ground that the respondent-1 herein who is a complainant before the Magistrate had not taken prior sanction from the appointing authority to prosecute the petitioners. Accordingly the respondent-1 herein challenged the said order of dismissal of the complaint before the Sessions Judge in Crl.R.P.74/2000. After considering the evidence placed on record the learned Sessions Judge held that the Magistrate has not taken into account the materials placed on record, namely that the petitioners-accused had forged the documents by inserting the name of K.C. Hiremath in place of the name of respondent-1 and the Magistrate has not considered all the materials and dismissed the petition only on the point of non-obtaining of sanction to prosecute the petitioners. Therefore, against the said order the petitioners herein have come up with this revision petition.
2. Heard the learned counsel for the petitioners and the respondents.
3. During the course of the arguments the learned counsel for the petitioners submitted that since he petitioners are the Government servants prior sanction is essential to prosecute them. It is further submitted that there is delay in lodging the complaint and also the police have submitted 'B' report after thorough investigation therefore the trial Court, after considering all the points raised before it, dismissed the complaint. Further it is submitted that most of the petitioners are already retired from service and if the complaint is remanded to the trial Court for reconsideration or to face the trial then it would be very difficult to appear on each and every date of hearing, therefore the order under challenge is liable to be dismissed.
4. On he other hand the learned counsel for the respondents contended that the present petition filed under Section 482 Cr.P.C. is not maintainable as there is no abuse of due process of law and the miscarriage of justice. If the petitioners have any good reasons it is for them to challenge before the Magistrate during trial and the learned Sessions Judge has given one more opportunity to re-consider the entire materials put-forth by both the parties and pass appropriate order. Since the petitioners have exceeded their powers and they have forged the documents therefore the provisions of Section 197 of the Cr.P.C., i.e., prior sanction, is not attracted and as also the magistrate has considered the other materials placed on record by the respondent-complainant. Therefore, the present petition is not maintainable.
5. Having heard the learned counsel for the petitioners and he respondents, the point that arises for by consideration and decision is whether the impugned order under challenge passed by the learned Sessions Judge calls for any interference and is there any abuse of due process of law and the miscarriage of Justice in passing such order?
6. The main allegations made against the petitioners is that the petitioners, in order to cheat the respondent-1, have forged and manipulated the agreement bonds in the name of some other person namely K.C. Hiremath as if the entire work was turned out by him only. Therefore, he lodged a complaint before the Magistrate on 31-3-1997 for the offence punishable under Sections 420 and 468 IPC. After recording the sworn statement of the complainant and statement of his witnesses and after hearing the arguments of the learned counsel for the respondent-1 complainant, the trial Court dismissed the complaint on the ground that the prior sanction has not been obtained to prosecute the petitioners.
7. I have carefully gone through the order of dismissal passed by the Magistrate and also the order of the learned Sessions Judge in Crl.R.P. 74/2000. The Magistrate has not touched the matter with regard to the oral and documentary evidence placed on record by the respondent-1. The Magistrate has dismissed the complaint solely on the ground of non-obtaining of sanction to prosecute the petitioners. The Magistrate has not at all considered the specific allegation of the respondent that the petitioners have forged the document with the sole intention to cheat him. Therefore, the learned Sessions Judge in his order has rightly held that in spite of legal notice issued to the petitioners, the petitioners have not made any payments about the repair works turned out by the respondent-1. The learned Sessions Judge by relying on the latest decision of this Court reported in the case S. Jayappa v. State of Karnataka, ILR 1999 Kant 3056 : (1999 Cri LJ 4475) has rightly set aside the order under challenge under Section 482 of the Cr.P.C. and remanded the matter back to the trial Court to consider afresh. This Court in the above said decision has held that, when a public servant fabricates the document with a sole intention to cheat and misappropriate the public funds then prior sanction is not required to prosecute the Government servant.
8. Having regard to the facts and circumstances of the case and also the decision referred to above and the evidence on record, both oral and documentary, I do not find any merit in the petition. Therefore, the present petition stands dismissed.