Karnataka High Court
Sri. Mohan Kumar vs State Of Karnataka on 10 March, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
CRL.P No. 9116 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 9116 OF 2021
BETWEEN:
Digitally signed by B
K 1. SRI. MOHAN KUMAR
MAHENDRAKUMAR
Location: High S/O LATE ASHWATHAIAH
Court of Karnataka
AGED ABOUT 47 YEARS
R/AT 2ND BLOCK, 6TH CROSS
BENGALURU - 560 032.
2. SRI V.R. MAHESH KUMAR
S/O LATE RAMU M
AGED ABOUT 42 YEARS
R/AT NO.62, 1ST MAIN
NANJAPPA BLOCK, K.G. NAGAR
BENGALURU - 560 019.
3. P. SHIVARAJU
S/O P PRAKASH
AGED ABOUT 39 YEARS
R/AT NO.316, TEACHERS LAYOUT
DR. RAJ KUMAR ROAD
MYSURU - 570 011.
...PETITIONERS
(BY SRI K.N. PHANINDRA, SENIOR ADVOCATE FOR
SRI. ARNAV A. BAGALWADI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY R.T. NAGAR P S
REP. BY THE SPP OFFICE
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SMT. HEMA S RAJU
W/O SIDDHARAJU B S
AGED ABOUT 45 YEARS
-2-
CRL.P No. 9116 of 2021
NO.1452 , 37TH C CROSS
11TH MAIN, NEAR SHALINIGAR
4TH T BLOCK, JAYANAGAR
BENGALURU - 560 041.
...RESPONDENTS
(BY SRI. VINAYAKA V.S., HCGP FOR R-1;
SRI SUDHANVA D.S., ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH
THE COMPLAINT DATED 15.11.2021 AND FIR DATED 16.11.2021 IN
CRIME NO.254/2021, REGISTERED BY THE RESPONDENT R.T.NAGAR
POLICE PRODUCED AS ANNEXURE-A AND B PENDING ON THE FILE
OF THE 4TH ACMM COURT, NRUPATUNGA ROAD, BENGALURU CITY
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 406, 409, 420
AND 506 OF THE IPC, 1860.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The FIR registered by the R.T. Nagar Police station for the offences under Section 406, 409, 420 & 506 of the Indian Penal Code, 1860, is impugned in this petition.
2. The summary of the FIR is:
Complainant is representing the owners of the lands which were acquired by the Bangalore Development Authority (BDA) for formation of Arkavathi layout and the petitioner-accused No.1, operates in dealing with sites and lands belonging to the BDA, and accused No.2 offered to help the informant for disbursement of compensation in favour of the owners of lands which were acquired by the BDA. It was further alleged that, accused No.2 -3- CRL.P No. 9116 of 2021 referred the complainant to the accused No.1 stating that, he would help the complainant in her endeavor to ensure that the compensation was paid to the respective property owners of the lands which were acquired.
It was further alleged that, accused No.1 demanded a sum of Rs.1,50,00,000/-for ensuring that the complainant would be able to hasten the process of compensation and also alleged that accused no.1 has demanded a further sum of Rs.20,00,000/- to be paid to accused No.3 as part of the process. It was further alleged that the complainant having paid total sum of Rs.1,70,00,000/-, the accused Nos.1 to 3 have not ensured to disburse the compensation to the owners.
3. Taking exception of the same, this petition is filed.
4. Mr. K.N. Phanindra, learned senior counsel for the petitioners counsel submits that against the very same verbatim allegations in the FIR, the informant had lodged a compliant with the Deputy Commissioner of Police and in turn, he had referred the complaint to the respondent no.1 to enquire into the allegations made in the complaint against the petitioners-accused herein. Hence, he submits that, the registration of the FIR on the very same set of allegations is impermissible and violative of Article 21 of Constitution of India. In support, he places reliance on the decisions of the -4- CRL.P No. 9116 of 2021 Hon'ble Supreme Court in the case of Amitbhai Anil Chandra Shah v. CBI and Anr. ((2013)6 SCC 348) and State of Mizoram -vs- C.Sangnghina, [(2019) 13 SCC 335 para 14]. He further submits that no material is placed to substantiate the allegation that money was parted to the accused No.1.
5. On the other hand, learned HCGP submits that the allegations made in the FIR clearly discloses the commission of the cognizable offence and the veracity of the allegations requires to be investigated, and at this stage, registration of the FIR does not warrant any interference.
6. I have considered the submission made by the learned counsel for the parties.
7. The petitioner No.1-accused No.1 herein had lodged FIR for the offence under Sections 504 and 506 of IPC alleging that the petitioner was abused and threatened by the 2nd respondent, and the Police after investigation laid the charge sheet for the aforesaid offences.
8. Initially, the 2nd respondent had lodged the complaint with the Deputy Superintendent of Police, Special Task Force, Bangalore Development Authority making the very same allegation made in the impugned FIR. The DSP, Special Task Force, BDA after conducting an enquiry, submitted a report stating that there is no material against the petitioners -5- CRL.P No. 9116 of 2021 for having received the money from the complainant for ensuring disbursal of compensation.
9. Thereafter the 2nd respondent lodged a complaint with the Deputy Commissioner of Police, Central Division, Bengaluru City on 18.10.2021, and the Deputy Commissioner of Police, in turn directed the Police Inspector of R.T. Nagar Police station to look into the complaint filed by the 2nd respondent. The Police Inspector, R.T. Nagar Police Station, issued notice to the petitioners to give explanation to the allegations made in the complaint. The petitioners submitted the explanation on 1.11.2021 with the R.T. Nagar Police Station.
10. Thereafter, suppressing the complaint lodged with the Deputy Commissioner of Police, the 2nd respondent lodged the impugned FIR making the very same verbatim allegation that was made in the complaint filed with the Deputy Commissioner of Police.
11. The Hon'ble Supreme Court in the case of Amitbhai Anil Chandra Shah supra at paragraph 58.5 has held as follows:
"58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR."-6- CRL.P No. 9116 of 2021
12. The Hon'ble Supreme Court in the case of State of Mizoram supra at paragraph 14 has held as follows:
"14. Under Article 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once. Section 300 CrPC lays down that a person once convicted or acquitted, cannot be tried for the same offence. In order to bar the trial of any person already tried, it must be shown -- (i) that he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at that trial, on the same facts; (ii) that he has been convicted or acquitted at the trial; and (iii) that such conviction or acquittal is in force. Where the accused has not been tried at all and convicted or acquitted, the principles of "double jeopardy" cannot be invoked at all."
13. Hence lodging of the multiple FIRs by making verbatim allegations is violative of fundamental rights of the petitioners under Article 21 of the Constitution of India as well as an abuse of statutory power of investigation.
14. There is no material produced along with the FIR to substantiate the allegation that the petitioners-accused received a total sum of Rs. 1,70,00,000/- from the 2nd respondent on the pretext that they would help in her endeavor to ensure that the compensation would be paid to the respective property owners of the lands which were acquired by BDA.
15. To constitute an offence of cheating, there must be a dishonest intent to cheat from inception. In the instant case, -7- CRL.P No. 9116 of 2021 there is no allegation that the accused herein had induced the complainant to part with the money with an intention to cheat.
16. In the absence of any material that there was any misappropriation of property by the petitioners-accused, the registration of the FIR for the offence under Sections 406, 409, 420 & 506 of IPC is impermissible and also the lodging of the subsequent impugned FIR on the very same set of allegation is impermissible and violative of Article 21 of the Constitution of India.
17. In view of the above, the continuation of the investigation against the accused herein will be an abuse of process of law.
18. Accordingly, I pass the following:
ORDER
i) Criminal Petition is allowed
ii) The impugned FIR in Crime No.254/2021 registered by the Respondent-R.T.Nagar Police against the accused Nos.1 to 3 is hereby quashed.
In view of disposal of the main petition, I.A.NO.1/2022 does not survive for consideration and stands disposed of.
Sd/-
JUDGE HR