Karnataka High Court
Gurupadappa Revanasiddappa Shindur vs The State Of Karnataka on 21 December, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
CRL.P.No.101614/2017
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.101614/2017
BETWEEN:
Gurupadappa Ravanasiddappa Shindur
Age: 45 years, Occ: Business
R/o. Kallahakkal Layout
Hangal, Disrict: Haveri.
...PETITIONER
(By Sri. A. P. Murari, Advocate)
AND:
1. The State of Karnataka
Rep. by the Additional State Public
Prosecutor, High Court of Karnataka
Dharwad Bench.
2. Uliveppa Hemappa Halbhavi
Age: 44 years, Occ: Business
R/o. Suraleshwar, Taluk: Hangal
District: Haveri.
...RESPONDENTS
(By Sri. Praveen Uppar, HCGP for R1;
Sri. Mahesh Wodeyar, Advocate for R2)
---
CRL.P.No.101614/2017
:2:
This criminal petition is filed under Section 482 Cr.P.C.
praying to set aside the impugned common order at Annexure-D
dated 12.04.2017 passed by the Senior Civil Judge and JMFC,
Hangal, in CC No.93/2014 insofar taking cognizance of the offence
against the petitioner under Section 420 IPC and issuing NBW
against the accused.
This petition having been heard through physical
hearing/video conferencing hearing and reserved for judgment on
16.12.2020, coming on for pronouncement of judgment this day,
the Court made the following:
ORDER
The petitioner herein being aggrieved by the common order dated 12.04.2017 passed by the learned Senior Civil Judge and JMFC, Hangal (hereinafter referred to as 'the trial Court', for brevity), in CC No.93/2014, insofar as taking cognizance of the offence punishable under Section 420 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) against the petitioner on an application filed under Section 190 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity), filed by the present respondent No.2 herein, has filed this petition.
2. The summary of the case of the second respondent, who was the complainant in the trial Court is that, one CRL.P.No.101614/2017 :3: Smt. Manjula W/o. Gurupadappa Shindur, who is the wife of the present petitioner, was known to the complainant (respondent No.2 herein) through her husband (present petitioner). The present petitioner for his business activity had availed a loan from the complainant and had repaid it. That being the case, the motorcar, in which the accused Smt. Manjula and her husband (present petitioner) were traveling met with an accident. As such, in order to meet the medical expenses and other commitments, the accused Smt. Manjula availed a loan of `5,00,000/- from the complainant. When the return of the said loan amount was demanded by the complainant, on 18.11.2013 the accused gave him a cheque bearing No.522174 drawn on Canara Bank at its Akklalur Branch to the complainant. When the said cheque was presented for realization by the complainant through his banker, the same came returned unpaid with the banker's endorsement of insufficiency of funds in the account. This made the complainant to issue a legal notice upon the accused demanding the cheque amount from her. Since she did not pay the cheque amount, he filed a private complaint against her in P.C.No.4/2004 before the trial Court under Section 200 Cr.P.C., alleging offence punishable under Section 138 CRL.P.No.101614/2017 :4: of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act', for brevity).
While the matter was in the middle of recording evidence from the complainant side, the said complainant (respondent No.2 herein) filed two applications in the trial Court, one under Section 190 of Cr.P.C. and another one under Section 216 of Cr.P.C., requesting the trial Court to take cognizance of offence punishable under Section 420 of IPC and for altering the charge/accusation thereby to frame charge for the offence punishable under Section 420 of IPC against the accused Smt.Manjula, her husband Sri.Gurupadappa Revanasiddappa Shindur (petitioner herein) and the bank manager Sri.S. R. Doddamani.
The contention of the applicant (complainant) in those applications were that the accused and her husband, colluding with each other with an intention to cheat him, had issued the cheque towards repayment of the loan to the complainant, which cheque was not belonging to the original accused Manjula, but was belonging to her husband (petitioner herein), but the said husband and wife intentionally issued the said cheque to the complainant representing that it was belonging to the original accused CRL.P.No.101614/2017 :5: Smt. Manjula (wife of the petitioner herein). The bank manager has also colluded with the accused and her husband by intentionally issuing a bank endorsement stating that there was insufficient funds to honour the cheque, though he was aware that the said cheque was not belonging to the accused Smt. Manjula.
The trial Court after hearing on the applications and considering the material placed before it, by its common order on both the applications dated 12.04.2017, allowed both the applications and took cognizance of the offence punishable under Section 420 of the IPC and ordered for alteration of the charge originally ordered against the accused to the one for the offence punishable under Section 420 of the IPC. The said charge was also held to be made as against her husband (present petitioner). It further observed that, in view of alteration of charge punishable under Section 420 of IPC, the case henceforth to be proceeded as per the provisions contained in Chapter XIX of Cr.P.C., particularly for the trial of warrant case instituted otherwise than on police report. The matter was adjourned for alteration of charge under Section 420 of IPC read with Section 34 of the IPC against the accused and her husband (present petitioner). A non-bailable CRL.P.No.101614/2017 :6: warrant was issued against the accused. It is challenging that portion of the order of taking cognizance of the offence punishable under Section 420 of the IPC, the present petitioner has filed the present petition.
3. Respondent No.1 is being represented by the learned HCGP. The respondent No.2 is being represented by his counsel.
4. Though this matter is listed for admission, with the consent from both side, the same is taken up for final disposal.
5. Learned counsel for the petitioner in his argument submitted that there is neither the complaint constituting the offence nor the police report alleging the commission of offence under Section 420 of the IPC against the petitioner. That being the lacunae, the trial Court ought not to have taken cognizance of the offence under Section 420 of the IPC against the petitioner. He also submitted that the trial Court has committed an error of law by taking cognizance of the offence under Section 420 of the IPC against the petitioner, when the petitioner was examined as witness for the complainant/respondent No.2. It was further contended that the trial Court committed a grave error in issuing non-bailable CRL.P.No.101614/2017 :7: warrant against the petitioner with issuing summons for his appearance.
6. Learned HCGP for respondent No.1 and learned counsel for respondent No.2 in their arguments submitted that the impugned order is sustainable since the evidence led by the complainant in the trial Court made it clear and evident that the original accused joined by her husband (present petitioner) has practiced fraud upon the complainant intentionally. As such, the trial Court has rightly taken cognizance of the offence punishable under Section 420 of the IPC and accordingly has altered the charge.
In his support, learned counsel for respondent No.2 relied upon the judgment of the Hon'ble Apex Court in Sohan Lal and Ors. Vs. State of Rajsthan reported in (1990) 4 SCC 580.
In the said case, the FIR was lodged against the accused, on completion of investigation police framed charges under Sections 147, 323, 325, 336 and 427 of the IPC and forwarded the charge sheet to the Judicial Magistrate under Section 173 of the Cr.P.C. After taking cognizance and hearing the arguments, the Magistrate CRL.P.No.101614/2017 :8: ordered for discharge of accused Nos.4 and 5 of all the charges leveled against them and ordered the accused 1, 2 and 3 to be charged only under Section 420 of the IPC. The learned APP thereafter submitted an application to the Magistrate under Section 216 Cr.P.C. signed by the complainant praying that, on the basis of the entire evidence, a prima facie case is made out under Sections 147, 325 and 336 of the IPC, the charge to be amended and the accused be charged in accordance with the evidence. After recording plea of the accused the prosecution led evidence and examined the witnesses. The Magistrate after hearing the APP and the advocate of the accused and discussing the evidence observed that, if any accused was discharged of any charge under any occasion, then there would be no bar for taking fresh cognizance and reconsideration against him according to Section 216 Cr.P.C. and that the provision of Section 319 Cr.P.C. was also clear in that regard. Accordingly the Magistrate took cognizance for the offences punishable under Sections 147, 427, 336, 323, 325 of the IPC against all the appellants by the impugned order. A revision petition against the order was dismissed by the High Court. CRL.P.No.101614/2017 :9:
The Hon'ble Apex Court held that, "Add to any charge" means an addition of a new charge and alteration of charge is changing or variation of existing charge or making it a different charge under Section 216 of Cr.P.C. Addition to and alteration of a charge or charges implies one or more existing charge or charges. It further observed that, since appellants 4 and 5 were already discharged of the charges and no charge was existing against them, an application under Section 216 was not maintainable in their case, that too particularly when the Magistrate in his order did not say that he was proceeded suo moto against them. However, in case of the appellants No.1 to 3 against whom the charge under Section 427 was already in existence, the Hon'ble Apex Court held that there should arise the question of addition to or alteration of charge.
7. In the instant case, though the impugned orders are upon two separate applications one filed under Section 190 of Cr.P.C. and the another filed under Section 216 of Cr.P.C. and the trial Court has allowed both the applications and ordered for altering the charge for the one under Section 420 of IPC and also CRL.P.No.101614/2017 : 10 : took cognizance for the offence punishable under Section 420 of IPC. The present petitioner has confined the prayer in the petition only with respect to taking cognizance of the offence under Section 420 of IPC against him on the application in the trial Court under Section 190 of Cr.P.C. by the complainant.
8. Section 190 of Cr.P.C. reads as below:
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-
section (1) of such offences as are within his competence to inquire into or try."
A reading of Section 190 of Cr.P.C. makes it clear that, when a Magistrate acts under any of the clauses of its sub-section, he takes cognizance of the offence. Thus, his act is not to be considered as taking cognizance of an offender. The Magistrate CRL.P.No.101614/2017 : 11 : takes the cognizance of the case as a whole after specifying himself that there are reasons for him for issuing process against all those persons, who according to him appears to have involved in the offence.
Sub-section (1)(c) of Section 190 makes it further clear that the Magistrate upon his own knowledge that such an offence has been committed can take the cognizance of offence. As such, he can proceed against a person or persons other than those to whom the complaint was filed, provided according to him they appear to be involved in the offence.
The Hon'ble Apex Court in Raghubans Dubey Vs. State of Bihar reported in AIR 1967 SC 1167, was pleased to observe in paragraph No.8 of its judgment that once the Magistrate takes cognizance of an offence, it is his duty to find out, who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. Therefore, in the case on hand even though the present petitioner was not an accused before the trial CRL.P.No.101614/2017 : 12 : Court at the first instance, still there is no bar for the Magistrate to take cognizance of the offence and after prima facie convincing that the present petitioner was the offender for the alleged offence, of which the cognizance is taken, he can issue summons to him.
As observed by the Hon'ble Apex Court in Bholu Ram Vs. State of Punjab reported in (2008) 9 SCC 140, it is settled law that power under Section 319 Cr.P.C. can be exercised either on application made to the Court or by the Court suo motto.
In the instant case, the trial Court after perusing the materials placed before it and more particularly from the evidence led before it, was convinced that the offence punishable under Section 420 of IPC appears to have been made out from the circumstances of the case, and after applying its mind the trial Court proceeded to allow the I.A. filed under Section 190 of Cr.P.C. and has taken the cognizance of the offence and also proceeded to alter the charge to the one punishable under Section 420 of the IPC.
9. Section 216 Cr.P.C. reads as below:
"216. Court may alter charge.CRL.P.No.101614/2017 : 13 :
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
Learned counsel for the petitioner submitted that an alteration of charge contemplated under Section 216 Cr.P.C. does not include replacing one charge with the other, which amounts to substitute. In that regard, he relied upon the judgment of the Hon'ble Apex Court in Dilip Singh Vs. State of Punjab reported in AIR 1953 SC 364. Learned counsel drew the attention of the CRL.P.No.101614/2017 : 14 : court to a portion of paragraph No.24 of the judgment in the said case, which reads as below:
"Nor is it possible in this case to have recourse to Section 34 because the appellants have not been charged with that even in the alternative, and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing."
10. It is submitted that since the facts and circumstances of the said case totally differs from the one on hand, the said judgment would not enure to the benefit of the petitioner. On the other hand, when a Magistrate based upon the materials placed before him and more particularly upon the evidence recorded by him, when go to show that some offence which has been alleged by the complainant in the complaint is also appears to have been committed, then nothing prevents him to invoke Section 190 Cr.P.C. to take cognizance of the offence, for which there are sufficient materials before him. Further it is also to be noticed that, as already observed above, the petitioner herein in the present petition has not challenged the order passed by the trial Court upon the application filed under Section 216 of Cr.P.C., but he has confined challenging only that portion of the order passed by the trial Court insofar as CRL.P.No.101614/2017 : 15 : taking cognizance of the offence alone under Section 420 of IPC and issuing NBW against the petitioner. The said taking of cognizance, as already observed above, by the trial Court was after allowing I.A. filed under Section 190 Cr.P.C. As such, the said argument of the learned counsel for the petitioner is not acceptable.
11. In the instant case, originally the offence alleged was the one punishable under Section 138 of the N.I. Act, whereas by allowing the application filed under Section 216 Cr.P.C., the trial Court has taken cognizance of the offences punishable under Section 420 of IPC and has posted the matter for alteration of charge under Section 420 R/w. Section 34 of the IPC. In Sohanlal's case (supra), the Hon'ble Apex Court in para 12 of its judgment was pleased to hold that, add to any charge under Section 216 Cr.P.C. means the addition of a new charge. An alteration of charge means change or variation of an existing charge or making of a different charge.
12. Thus, though Section 216 of Cr.P.C. calls it as a provision for altering the charge, but the very same section in the very first sentence says that any Court may alter or add to any CRL.P.No.101614/2017 : 16 : charge at any time before the judgment is pronounced. Therefore, the interpretation given by the Hon'ble Apex Court in Sohan Lal's case (supra) that 'Add to any charge' means addition of new charge applies in the instant case, as such, addition of the charge punishable under Section 420 R/w. Section 34 of the IPC cannot be called as without the power of the trial Court or as an erroneous act by the trial Court. However, it cannot be forgotten that the petitioner herein has not challenged the allowing of the application filed by the complainant under Section 216 of the Cr.P.C. and alteration of the charge attracting Section 420 of the IPC. However, he has confined the scope of the petition only for challenging the trial Court taking cognizance of the offence against the petitioner under Section 420 of the IPC and issuing non-bailable warrant against him.
13. The trial Court by allowing the application filed by the complainant under Section 190 of Cr.P.C. has proceeded to take cognizance of the offence punishable under Section 420 of IPC.
In the instant case, it is not in dispute that the trial Court was competent to take cognizance for the offence including CRL.P.No.101614/2017 : 17 : the one punishable under Section 420 of the IPC. It has acted upon to take cognizance of the offence punishable under Section 420 of the IPC upon an application made by the complainant under Section 190 of Cr.P.C., as such, the trial Court after noticing the evidence placed before it that, though the cheque was given by the original accused Manjula in favour of the complainant, but the very negotiable instrument (cheque) was not at all pertaining to the said accused Smt. Manjula, but it was belonging to her husband (present petitioner) and that the evidence led before it further shown that the present petitioner Gurupadappa Revansiddappa Shindur, who had the responsibility to keep his bank account cheques safely, had enabled and led his wife Smt. Manjula (original accused) to issue the same to the complainant as though it is the cheque belonging to her account. Further, though the present petitioner contended that he had lost four cheque leaves, but the fact remains that he had not taken any steps in tracing those lost cheques including lodging any complaint with the police or issuing any written intimation to his banker about the loss of those cheques and requesting them not to honour those cheques, if they were presented before it.
CRL.P.No.101614/2017: 18 :
Interestingly, the present petitioner even after coming to know that his alleged lost cheque was misused by none-else than his wife and she had issued the said cheque duly filled and signed in favour of the complainant, still has remained silent and has not taken any action against his wife, though she has been residing with him. The fact that his wife has misused his cheque (if at all it was misused) was also to the knowledge of the present petitioner, who has admitted that he knew about his wife receiving a notice issued by the complainant after dishonor of the said cheque. Admittedly, the said notice was not replied. Had really his cheque was lost and his wife Manjula (accused) had misused it without the knowledge or consent of her husband, then the present petitioner at least should have sent notice to the complainant stating his version of the fact that his lost cheque was misused by his wife and should have proceeded to take appropriate action in the matter. Surprisingly, he has not acted in that direction.
14. All these aspects lead one to believe at the primary stage that there exists prima facie material to hold that both the original accused Manjula and her husband, who is the present CRL.P.No.101614/2017 : 19 : petitioner, were fully aware that the cheque issued to the complainant will be definitely dishonoured and that they never intended to pay the alleged loan amount to the complainant, as such, from the inception they had a deceptive mind.
15. Lastly, learned counsel for the petitioner also canvassed a point that Sections 142, 143, 144, 145 and 147 of the N.I. Act commence with a non-abstante clause "notwithstanding anything contained in the criminal procedure, 1973", as such, since those Sections provides a special procedure for trial of offences under Section 138 of the N.I. Act, the trial Court ought not to have allowed I.A. filed under Section 190 Cr.P.C.
In his support, he relied upon the judgment of the Hon'ble Apex Court in Damodar S. Prabhu Vs. Sayed Babalal H. reported in (2010) 5 SCC 663 and drew the attention of the Court to paragraphs No.9 to 12 of the said judgment which read as below:
"9. As mentioned above, the Negotiable Instruments Act, 1881 was amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 which inserted a specific provision, i.e. Section 147 `to make the offences under the Act compoundable'. We can refer to the following extract from the Statement of Objects and Reasons attached to the 2002 amendment which is self- explanatory:-CRL.P.No.101614/2017 : 20 :
"Prefatory Note - Statement of Objects and Reasons. - The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be cumbersome. The courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. ..."
(emphasis supplied) In order to address the deficiencies referred to above, Section 10 of the 2002 amendment inserted Sections 143, 144, 145, 146 and 147 into the Act, which deal with aspects such as the power of the Court to try cases summarily (Section 143), Mode of service of summons (Section 144), Evidence on affidavit (Section 145), Bank's slip to be considered as prima facie evidence of certain facts (Section 146) and Offences under the Act to be compoundable (Section 147).
10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:-
"147. Offences to be compoundable. -
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."CRL.P.No.101614/2017 : 21 :
At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure [Hereinafter `CrPC'] will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code.
11. So far as the CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates the offences which are compoundable without the leave of the Court, while sub- section (2) of the said section specifies the offences which are compoundable with the leave of the Court.
12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that `No offence shall be compounded except as provided by this Section'. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non- obstante clause."
A reading of the above paragraphs makes it very clear that nowhere the Hon'ble Apex Court in the said judgment has stated that the Code of Criminal Procedure is alien to the N.I. Act. It has only considered the aspect of compounding of an offence under Section 147 of the N.I. Act vis-à-vis Section 320 of Cr.P.C. It CRL.P.No.101614/2017 : 22 : has observed that, when there is specific provision under Section 147 of the N.I. Act for compounding of the offences, Section 320 of Cr.P.C. need not be invoked. That apart, the Hon'ble Apex Court has not stated that in a case initiated for the offence punishable under Section 138 of the N.I. Act, the Magistrate cannot exercise power under Section 190 of Cr.P.C.
16. In the instant case, as observed above, the Magistrate after recording evidence and at the application of the complainant and after due application of his mind, was convinced that there was material to proceed against the accused before him as well as the present petitioner for the offence punishable under Section 420 of the IPC and not under Section 138 of the N.I. Act. As such, the argument of the learned counsel for the petitioner that provision of Section 190 Cr.P.C. ought not to have been invoked by the trial Court in the instant case is also not acceptable.
17. Therefore, since the trial Court by considering the material aspects before it for disposal of those two IAs filed under Sections 190 Cr.P.C. and 216 Cr.P.C. has allowed both the I.As., I do not find any irregularity or perversity in the said order. CRL.P.No.101614/2017 : 23 : However, the only point for which interference of this Court may warrant in the impugned order is with respect to it directly issuing non-bailable warrant against the accused, without first causing summons to him to appear before it. It is only to that extent the impugned order deserves to be set aside and accordingly I proceed to pass the following order:
ORDER The petition is partly allowed. The order dated 12.04.2017 passed by the Senior Civil Judge and JMFC, Hangal in C.C.No.93/2014, only to the extent of issuing non-bailable warrant against the present petitioner is set aside. The remaining part of the said order allowing the applications filed by the complainant under Section 190 and 216 of Cr.P.C. remain un-altered.
Sd/-
JUDGE gab