Karnataka High Court
Sri. G.S. Shivaswamy vs The State By Tavarekere Police Station on 20 February, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.8769/2015
BETWEEN:
Sri G.S. Shivaswamy,
S/o Shivarudraiah,
Aged about 47 years,
Residing at No.109,
43rd Main Road, 9th Cross,
Ideal Homes,
Rajarajeshwari Nagara,
Bangalore - 560 098.
...Petitioner
(By Sri M.S. Bhagwat, Advocate)
AND:
1. The State by Tavarekere Police Station,
Represented by its Inspector,
Tavarekere, Ramanagara,
Ramanagara - 571 511.
2. Sri B.K.Srinivas,
S/o Kote Rangaiah,
Aged about 51 years,
Harsh Mahal, Byadarahalli,
2
Yeshwanthapura Hobli,
Bangalore North Taluk,
Bangalore - 560 097.
...Respondents
(By Sri Nasrulla Khan, HCGP for R1,
Sri Rajashekhara Seeri, Advocate for
Sri S.Nagabhushana, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the proceedings in Crime
No.86/2015 (Annexure-C) pending on the file of C.J.M.,
Bangalore Rural District, Bangalore.
This Criminal Petition coming on for admission
this day, the Court made the following:
ORDER
The petitioner has sought for quashing of the proceedings in Crime No.86/2015 pending on the file of Chief Judicial Magistrate, Bangalore Rural District, Bangalore. Respondent No.1- State by Tavarekere Police has registered a case in Crime No.86/2015 on the complaint lodged by respondent No.2 herein dated 13.2.2015 for the offences under Sections 380, 420 and 406 of IPC.
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2. After hearing the learned counsel for the petitioner and the respondent and after considering the entire materials on record, this Court has to consider whether the said proceedings in any way bad in law or the said criminal case has been lodged maliciously in order to harass the petitioner herein.
3. It is worth to refer here a decision of the Apex Court reported in 1992 Supp (1) SCC 335 in the case of State of Haryana and Others Vs. Bhajan Lal and Others, wherein the Apex Court has laid down certain guidelines as to under what circumstances the First Information Report and further proceedings can be quashed. The relevant guidelines are enumerated below;
i) "Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie 4 constitute any offence or make out a case against the accused.
ii) Where the allegations in the first information
report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
iv) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an 5 ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge."
4. According to the learned counsel for the petitioner, respondent No.2 has issued a cheque for a sum of Rs.45,00,000/- in the year 2014 precisely on 20.11.2014 and notice was issued after dishonour of the said cheque on 4.12.2014 and the same has been replied by the respondent on 8.12.2014 making the allegations that, the said cheque was subjected to theft. After receipt of the said notice, the petitioner has filed a private complaint on 4.3.2015 under the provisions of Negotiable Instruments Act before the Jurisdictional Magistrate i.e. before the 13th Additional Chief Metropolitan Magistrate, Bangalore. After receipt of the notice and after issuance of the reply, the respondent No.2 has in fact lodged a complaint against the petitioner that, his cheques were stolen in the year 2013 6 or 2014 itself and there was no occasion for him to issue any cheque on 20.11.2014. Therefore, the learned counsel contends that in order to wreck vengeance, a malicious complaint was lodged by respondent No.2 against the petitioner. Therefore, same is liable to be quashed.
5. The learned counsel for the petitioner further submitted that, though there is a mistake in the reply notice that, respondent No.2 has stated that, the cheques were lost by him in the year 2013, precisely on 16.7.2013, but it was actually he has lost the cheques in the year 2014, precisely on 16.7.2014. Merely because a mistake has crept in the notice itself, that itself cannot be called as mala fide intention, because much earlier to the said complaint, the petitioner has already informed the police with regard to loss of cheque and the said document is also produced before the Court. The first complaint was lodged to the Sub- 7 Inspector of police by the petitioner. Subsequently, after receipt of the notice under Section 138 of Negotiable Instruments Act dated 4.12.2014, the respondent No.2 has lodged another complaint on 13.2.2015 requesting the police to take appropriate action with regard to his cheques being stolen by the petitioner herein specifically mentioning about stealing of the cheques in this regard. Therefore, the said factual aspects are also to be found out, whether actually the said cheques were stolen in the year 2013 itself or in the year 2014 and there was no occasion for respondent No.2 to give the said cheque to the petitioner on 20.11.2014.
6. On perusal of the complaint averments there is a specific allegation that the petitioner herein Shivaswamy was working under respondent No.2 earlier and he was doing contract work and thereafter he left the job and he has stealthily taken away five cheques from the office of respondent No.2. Subsequently, when 8 the petitioner herein got issued a legal notice on 4.12.2014, then only respondent No.2 came to know that those cheques were actually taken away by the petitioner and there is no money transaction as such existed between the petitioner and respondent No.2. Therefore, he has lodged the complaint on 13.2.2015.
7. On plain reading of the First Information Report it is noticed that, there are certain allegations made against petitioner that he has actually stolen the cheque and misused the same after long lapse of time. Therefore, when the offences are constituted in the First Information Report, the truth or falsity of the said allegations have to be logically concluded after thorough investigation by the police. Though it is argued before this Court that with some mala fide intention the said complaint is filed, maliciously or mala fide intention is really a matter of fact that has to be established either before a Criminal Court under Section 138 of the 9 Negotiable Instruments Act or by way of investigation in this particular case. In this context, the learned counsel for the petitioner relied upon a decision of the Apex Court reported in 2017 (3) Supreme 696 in the case of Vineet Kumar and Others Vs. State of U.P. and Another, wherein the Apex Court has observed that, when there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercising powers under Section 482 of Cr.P.C. to quash the proceedings. In the said case 138 proceedings under the Negotiable Instruments Act was already instituted by one party and another party has instituted a case under Sections 452, 376(d) and 323 of Indian Penal Code. Having found sufficient materials on facts, the Apex Court has observed that the criminal complaint lodged for the offences under Sections 452, 376(d) and 323 of the Indian Penal Code are nothing but a counter blast 10 to the complaint lodged by the other party under Section 138 of the Negotiable Instruments Act. Therefore, having found sufficient materials on facts, the Apex Court has quashed the proceedings for the offences under Sections 452, 376(d) and 323 of the Indian Penal Code after considering various circumstances in the said case, how the incident was occurred in filing such a false complaint. The factual aspect of that case before the Apex Court is altogether different. The allegations were not made with reference to the disputed cheque, but a different allegations are made for the offences under Sections 452, 376(d) and 323 of the Indian Penal Code, where the Court has found that absolutely no medical examination has been done and also considering the statement of witnesses under Section 164 of Cr.P.C. the Court has come to the conclusion that it is a mala fide act on the part of a party to file such complaint as a counter blast to the cheque bounce case.
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8. Therefore, it is clear in this case that there is specific reference to the allegations with regard to the disputed cheque itself. Here in this particular case, respondent No.2 has specifically lodged a complaint with reference to the cheque, but not with reference to any other offence as such. Therefore, suppose if the cheques are proved to be stolen, it will have a straight bearing on the cheque bounce case. Therefore, in my opinion the above said two complaints are though different in nature, but they are referring to same cheque involved in the case under Section 138 of the Negotiable Instruments Act and also in the case in Crime No.86/2015. Therefore, in my opinion, they are to be independently dealt with without mixing up the cases together.
9. Of course, the accused is also entitled to prove his defence under Section 138 of the Negotiable Instruments Act in order to exonerate himself from the 12 liability so far as the cheque bounce case is concerned. If really the cheques were stolen and misused, that becomes different offence so far as the other party is concerned. That has to be dealt with independently and separately by the concerned police by filing appropriate report before the Court.
10. Under the above said circumstances, I do not find any strong reasons to quash the said criminal proceedings and the petition deserves to be dismissed. Accordingly, dismissed.
Sd/-
JUDGE ap*