Karnataka High Court
The Mysore Education Society vs K S Venkatesh on 28 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28th DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.6750/2016
BETWEEN:
1. THE MYSORE EDUCATION SOCIETY
A SOCIETY REGISTERED UNDER THE
SOCIETIES REGISTRATION ACT, 1860
HAVING ITS HEAD OFFICE AT
M. P. L. SHASTRY ROAD
15TH CROSS, MALLESHWARAM
BANGALORE-560 003
REP BY ITS CHIEF EXECUTIVE
OFFICER SRI. SUBBURAMAN. B. K.
2. SMT. VIMALA RANGACHAR
WIFE OF SRI. RANGACHAR
AGED ABOUT 87 YEARS
PRESIDENT
THE MYSORE EDUCATION SOCIETY
RESIDING AT NO.3, "VEERAVATHY"
12TH CROSS, MALLESHWARAM
BANGALORE-560 003.
3. PROF. B. R. SESHADRI IYENGAR
SON OF SRI. BELUR RANGASWAMY IYENGAR
AGED ABOUT 85 YEARS
VICE PRESIDENT
THE MYSORE EDUCATION SOCIETY
RESIDING AT NO.173, MILK COLONY
SUBRAMANYA NAGARA
BANGALORE-560 021.
2
4. S. S. RAMDAS
SON OF LATE SRI. S. G. SUNDARASWAMY
AGED ABOUT 64 YEARS
SECRETARY, (DISCIPLINARY AUTHORITY)
THE MYSORE EDUCATION SOCIETY
HAVING HIS ADDRESS AT NO.24
KESHAVA NIVAS, KALIDASA ROAD
GANDHINAGAR, BANGALORE-560 009.
... PETITIONERS
(BY SRI. G. KRISHNA MURTHY, SR. COUNSEL
FOR SRI. CHETAN KUMAR. H, ADV.)
AND
K. S. VENKATESH
SON OF LATE K. S. SATHYANARAYANA
AGED ABOUT 48 YEARS
HAVING HIS ADDRESS AS
CARE OF SMT. K. S. RUKMINI SRINATH
NO.60, "SRI RAM", 3RD CROSS, 5TH MAIN
SRI. RAGHAVENDRA COLONY
CHAMRAJPET, BANGALORE-560 018.
... RESPONDENT
(PARTY-IN-PERSON)
THIS PETITION IS FILED U/S.482 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO QUASH THE
COMPLAINT IN C.C.NO.10445/2016 ON THE FILE OF VII
ACMM, BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioners/accused under Section 482 of the Code of Criminal Procedure 3 (Cr.P.C.) praying the Court to quash the criminal proceedings initiated in C.C.No.10445/2016 pending on the file of the VII Addl. Chief Metropolitan Magistrate, Bengaluru.
2. Brief facts of the case as pleaded in the petition is that petitioner no.1 is a society registered under the Societies Registration Act, 1860. The respondent was the Assistant Professor in Sanskrit in Petitioner no.1 society. Vide order dated 27.01.2011, respondent was appointed as the In-charge Principal to look after the current duties of the M.E.S.Pre-University College until further orders from the management. Therefore, his tenure as the in-charge principal as per the guidelines given by the Department of the Pre-University Education for the year 2011-2012 for the admission to the 1st year and 2nd year Pre-University cultural activities, the respondent was expected to follow the calendar of events and the instructions given by the 4 Departmental Authority. However, the respondent had deviated from the instructions making admissions on his own accord. From 30.05.2011 to 14.06.2011, the respondent had made 147 admissions in PCMB, 25 admissions in PCME and 48 admissions in Commerce in violation of the said instructions. Instead, the respondent as the in-charge principal made admissions against the regulations and norms laid down by the Department of Pre-University Education and also the instructions given by the Admission Committee constituted to monitor the admissions to be made under the management quota by the 1st petitioner- management. When petitioner no.1- Society enquired about these irregularities, the respondent was evasive. When the management asked for an explanation, the respondent applied for leave from 02.06.2011 to 17.06.2011. During the leave period, the respondent gave admissions on 4th and 14th June on his own accord. All these various actions of the respondent 5 constituted grave misconduct and mismanagement on the part of the respondent. It constituted as an abuse of the power vested with the respondent as in-charge principal. Therefore, enquiry was initiated against the petitioner by keeping him under suspension.
3. The respondent herein filed complaint in PCR No.11172/2015 making the averments that complainant had been discharging his duties scrupulously, devotedly, diligently, efficiently and had put in unblemished record of service ever since, he joined the institution. He earned accolades amongst his colleagues and from the students. The complainant was required to participate actively along with the management to select and allot seats to the candidates on merits, in accordance with and in compliance of the rules and regulations stipulated by the Government. The 'cut-off percentage of marks' and the 'last date' for submission of applications from the eligible candidates 6 for allotment of seats under various categories including the general merit quota assumed vital and crucial role, since the management was aware that the psyche of most of the students in their anxiety to get admission into a good educational institution, would have applied for a seat under relevant quota in more than one college. He allotted the seats to the students without any personal gain in the academic year 2011-12 because they were deserving candidates. No seat was left unfilled. The management earned Rs.6.00 lakhs compared to the previous year. The complainant on account of this bold step, had to suffer the reek of the management. The accused, specifically accused no.3 created stories and made defamatory statements and gestures in front of the students and the staff in the open quadrangle, tarnishing the image and intellectual integrity of the complainant. Raged by the attitude of the management, the students and staff protested and refused to enter the class rooms for about 10 to 15 7 minutes, demanding apology from the management. Apprehending that if corrective steps are not taken immediately and apologetic gestures are not made, the situation would go out of control and turn out to be more serious, the management therefore, conceded to the demands of the students and the staff, apologised accordingly, and requested all the students to go to their respective class rooms. The management conspired to give mental torture and agony disturbing his peace of mind. Accused no.4 pursuant to Annexure 3, issued a charge sheet dated 12.09.2011 calling upon the complainant to give explanation/defense statement before the Enquiry Officer. The complainant filed before the Enquiry Officer his statement of defense. Hence, he prayed to the Court to secure the presence of the accused, try the accused for the offence committed, convict them and to impose exemplary costs. 8
4. On the basis of the complaint and the sworn statement recorded by the Magistrate, the learned Magistrate took cognizance of the offence and ordered to issue process as against the petitioners herein.
5. Being aggrieved by the order of the learned Magistrate and also challenging the legality and correctness of the said order, petitioners are before this Court in this petition.
6. Heard the arguments of the learned Sr. counsel appearing on behalf of the counsel on record for the petitioners so also heard respondent no.2 - complainant/party-in-person.
7. Learned Senior Counsel made the submission that the alleged offence was committed in the year 2011 but the complaint is filed in the year 2015. Therefore, for all the offences, if the maximum punishment is 9 considered, as per Section 468(2) of Cr.P.C., the complaint itself is barred by law of limitation. Therefore, learned Magistrate ought to have considered this aspect first before considering all other aspects.
He also made the submission that so far as the alleged offences are concerned, in respect of the offence under Sections 177, 182, 191, 192 and 193, the Magistrate is not having the jurisdiction to entertain the complaint and to take cognizance in respect of these offences.
Learned Sr. counsel made the submission that the only procedure contemplated under Section 195(1)(a)(i) of Cr.P.C. is to be followed along with Section 340 of Cr.P.C. Therefore, he made a submission that learned Magistrate has no jurisdiction to entertain the complaint in respect of the said alleged offence. Even with regard to the other two offences under Sections 499 and 500 of IPC, maximum punishment imposed or prescribed in the statute is up to 2 years with fine or 10 both. Therefore, it is his submission that these legal aspects were not at all considered by the learned Magistrate and completely overlooking the legal aspects, has taken cognizance as against the petitioners.
It is also the submission that the petitioners are running a reputed educational institution. Making such false allegations, if such complaints are entertained, it is very difficult for the petitioners to run the educational institution.
He also made the submission that regarding the acts of the respondent/complainant in admitting the students as against the Rules and Regulations of the educational institution, enquiry had already been initiated, the complainant/respondent was kept under suspension and by this time, the enquiry officer might have submitted the report holding that all the 5 charges are proved against him. Hence, he submitted that looking to all these materials, the complaint filed is only 11 with a malafide intention, to harass the petitioners and only to cover up his misdeeds.
Learned Sr. counsel further made the submission that the case of the complainant is totally baseless. Hence, petition be allowed and the order passed by the learned Magistrate taking cognizance and issue the process to the petitioners herein be set-aside.
8. Per contra, the respondent/party-in-person made the submission so far as the limitation aspect is concerned, it is his contention that there is a power under the Cr.P.C. to the learned Magistrate to condone the delay and to entertain the complaint.
The second submission is as the offences are continuing offences, question of limitation will not arise. This aspect has been properly considered by the learned Magistrate in taking cognizance of the offences.
Regarding the jurisdiction aspect is concerned, he made the submission that the Magistrate is having 12 jurisdiction to entertain the complaint and take cognizance of the offences alleged against the petitioners.
Even on merits also, he made the submission that before the Magistrate he has produced 47 documents along with a private complaint showing prima facie case as against the petitioners herein. Therefore, he submitted that it cannot be said that his compliant is without any basis or without any prima facie case. Hence, he submitted that there is no merit in the petition. Petition is to be dismissed.
9. In support of his contention, learned Sr. advocate relied upon the following decisions:
(i) PEPSI FOODS LTD. AND ANR. vs SPECIAL JUDICIAL MAGISTRATE AND ORS. - (AIR 1998 SC,
128)
(ii) ZANDU PHARMACEUTICAL WORKS LTD. AND ORS. Vs MD. SHARAFUL HAQUE AND ORS. - (AIR 2005 SC 9) 13
(iii) SURINDER MOHAN VIKAL vs ASCHARAJ LAL CHOPRA - (AIR 1978 SC 986)
(iv) BRIJESH PATEL AND ANR. vs H S PUTTA KEMPANNA AND ORS. - (ILR 2010 KAR. 2257)
(v) M S AHLAWAT vs STATE OF HARYANA AND ANR.
- (AIR 2000 SC 168)
(vi) STATE OF U.P. VS MATA BHIKH AND ORS. - ((1994)4 SCC 95.
10. In support of his contentions, learned respondent/ party-in-person relied upon the following decisions:
(1) KAMALADEVI AGARWAL vs STATE OF W.B. AND OTHERS - ((2002)1 SCC 555) (2) STATE OF BIHAR AND ANOTHER vs K.J.D.SINGH - (1994 SCC (Cri) 63) (3) STATE OF M.P. vs AWADH KISHORE GUPTA AND OTHERS - (2004(1) SCC 691) (4) GANESH NARAYAN HEGDE vs S.BANGARAPPA AND OTHERS - (1995(4) SCC 41)
11. I have perused the averments made in the petition filed by the petitioners along with the documents produced with the petition to substantiate 14 their contentions. So also, I have perused the contents of the complaint and all other documents produced by the respondent with the written arguments.
12. Perusing the material the first and the foremost contention of the petitioners herein is that admittedly even according to the respondent/complainant, the alleged offence took place on 21st, 22nd and 23 June 2011 whereas the complaint is filed in the year 2015, therefore, the complaint itself is barred by law of limitation as contemplated under Section 468(2) of Cr.P.C. For this, it is the contention of the respondent/complainant that the Magistrate is having the power to condone the delay.
13. I have perused the provision under Section 472 and 473 of the Cr.P.C. It is true that in case of continuing offence the Magistrate has the power to condone the delay. But, looking to the order of the 15 Magistrate, nowhere, it is mentioned by the learned Magistrate that he has applied his mind to all the materials available on record even, with regard to the limitation aspect in the case because admittedly, the complaint is filed after 4 years from the date of the alleged incident. Therefore, before taking cognizance and issuance of the process which is having a serious effect, the learned Magistrate ought to have considered this aspect specifically by applying his judicial mind and then he could have passed the order. Looking to the order of the learned Magistrate, there is no mention about the limitation aspect. Even there is no specific mention that though there is delay in lodging the complaint, he condoned the delay and entertained the complaint even after the bar of limitation prescribed under Section 468(2) of Cr.P.C. In the absence of such specific order passed by the learned Magistrate, the learned Sr. counsel is justified in making the submission that the complaint itself is barred by law of 16 limitation. Therefore, when the bar of limitation has been raised by the petitioners herein to entertain the complaint by the learned Magistrate, in my considered opinion, the order passed by the learned Magistrate is to be set-aside, matter is to be remitted back to the very learned Magistrate to consider the matter afresh even with regard to the limitation aspect by applying his mind to all the available materials on record and then take a decision in accordance with law. Therefore, in view of this finding, question of considering the other aspects of the matter at this stage will not arise at all. Accordingly, I pass the following:
ORDER Petition is allowed. The order passed by the VII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.10445/2016 is set-aside. Matter is remitted back to the learned Magistrate to consider the matter afresh regarding the delay aspect and to take a decision in the matter and if the respondent/complainant wants 17 to make an application regarding the delay aspect, he is at liberty to make such application before the learned Magistrate.
All other contentions of the parties are kept open. Till the matter is considered afresh and decision is taken by the learned Magistrate, appearance of the petitioners herein is dispensed with.
In view of the disposal of the main matter, question of considering the application in I.A.No.1/17 does not arise at all.
Sd/-
JUDGE brn