Karnataka High Court
Kishan Lal B Kukreja vs Sham Sunder B Kukreja on 6 March, 2014
Author: H.S.Kempanna
Bench: H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 6TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
CRIMINAL PETITION NO.5632 OF 2009
BETWEEN
1. SRI. KISHAN LAL B KUKREJA,
S/O LATE BHAGHAVAN DAS KUKREJA,
AGED ABOUT 55 YEARS,
RESIDING AT NO.263, 3RD CROSS,
KEB LAYOUT, RMV II STAGE,
BANGALORE - 560 094.
2. SMT. MADHURA DEVI KUKREJA,
W/O KISHAN LAL B KUKREJA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.263, 3RD CROSS,
KEB LAYOUT, RMV II STAGE,
BANGALORE - 560 094. ... PETITIONERS
(BY SRI M R NANJUNDA GOWDA AND ASSTS, ADV.)
AND
SRI. SHAM SUNDER B KUKREJA
S/O BHAGAVAN DAS KUKREJA,
AGED ABOUT 45 YEARS,
R/AT NO.18, 1ST FLOOR,
NEHRU NAGARA,
BANGALORE - 20. ... RESPONDENT
(BY SRI C.N. RAJU, ADV. FOR
SRI. S SHANKARAPPA, ADV.)
2
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.17276/2009 PENDING ON THE FILE OF THE IV-
ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition has been filed by the petitioner challenging the order dated 1.8.2009 passed in PCR No.19343/08 by the IV Addl. CMM, Bangalore City taking cognizance for the offences punishable under Sections 420, 448, 471 r/w.120B of IPC.
2. The respondent herein filed a private complaint under Section 200 of Cr.P.C. against the petitioners and another alleging that they have committed the offences punishable under Sections 420, 448, 471 r/w.120B of IPC. It is alleged among other things in the complaint the first petitioner and the respondent are direct brothers. They had jointly taken 80 shares from Tata Chemicals Ltd. in their joint name. According to the complainant the benefit derived out of the said share are to be shared equally among the brothers i.e. the first 3 petitioner and the respondent herein. However, the first petitioner having colluded with his wife, the second petitioner, in order to cheat and make wrongful gain to himself, forged the signature of the respondent. Accordingly, sent an intimation to Tata Chemicals Ltd. which has issued the shares in the joint name of the first petitioner and the respondent and had got all the shares transferred exclusively in his name and in the name of the second petitioner, who is his wife, and started deriving the benefits that accrued from out of the said shares. The complainant on coming to know of the same contacted Tata Chemicals Ltd and from them he came to know that on the request given by him and his brother the shares have been transferred in the name of the first petitioner and his wife. On verification he found that his signature had been forged and the petitioner and his wife in order to cheat him and make wrongful gain have effected the said transfer and therefore, he filed the complaint before the learned 4 Magistrate alleging that the petitioners and another have committed the aforementioned offences.
The learned Magistrate after the complaint came to be filed posted the case for recording sworn statement. After recording the sworn statement on 1.8.2009 he passed the order as under :-
Complainant present. Sworn statement is recorded as cognizance is taken for the offences.
Thereafter on hearing the counsel for the complainant and on perusal of the sworn statement and the allegations in the complaint, he came to the conclusion that the complainant has made out a prima facie case against the petitioners and another and accordingly, directed the office to register the case against the petitioners and issued summons to them returnable by 3.10.2009.
The petitioners being aggrieved of the order of the learned Magistrate taking cognizance of the offences 5 and directing summons to them are before this Court seeking to quash the same.
3. The learned counsel for the petitioners contends a perusal of the order of the learned Magistrate goes to show that he has taken cognizance of the offences after recording the sworn statement which is in direct conflict with the law laid down by this Court in the case of State by A.Mahadeva - vs - Papireddy reported in ILR 2008 666. Therefore, he submits the order impugned cannot be sustained, it has to be set aside.
4. Per contra, the learned counsel appearing for the respondent did not dispute the position of law as laid down by this Court. He submitted, at best the order impugned has to be set aside and the matter has to be remanded back to the learned Magistrate to proceed from the stage of filing of the complaint before him.
5. From a reading of the order passed by the learned Magistrate, which is extracted supra, it is clear 6 that the learned Magistrate has taken cognizance after sworn statement is recorded. This Court in the case relied upon by the counsel for the petitioner has held as follows :-
"(i) The act of the Magistrate taking cognizance of the offence must precede the act of recording the sworn statements of the complainant and his witnesses if any. If the Magistrate proceeds to record the sworn statements of the complainants and his witnesses without taking cognizance of the offence. The subsequent act of recording the sworn statements of the complainant and his witnesses and the order of issuing process as a consequence thereof would be bad at law. But if the circumstances in the case go to indicate that the Magistrate applied his mind to the allegations mentioned in the complaint and after having applied his mind he proceeded to record the sworn statements of the complainant and his witnesses, it will only follow that the Magistrate on taking cognizance proceeded to record the sworn statements of the complainant and his witnesses.7
(ii) Cognizance of the offence can be taken only once and not twice in a case. The cognizance contemplated by Sections 190 and 200 must preceded the act of the Magistrate in recording the sworn statements of the complainant and his witnesses. The law contemplates the stage of taking cognizance of an offence. If the complaint itself does not make out any allegation, the Magistrate can dismiss the complaint at this stage itself and thus avoid recording the sworn statements of the complainant and his witnesses."
A perusal of the order as indicated above would go to show that the learned Magistrate has proceeded to take cognizance after recording the sworn statement. The learned counsel for the respondent contended the Magistrate earlier to the order impugned had taken cognizance and therefore, the order does not get vitiated.
This Court in the aforementioned decision has held cognizance of an offence can be taken only once and not twice. Therefore, I find no merit in the 8 contention urged by the learned counsel for the petitioners as the order impugned discloses that the cognizance of the offence has been taken after recording the sworn statement. The same cannot be sustained. It has to be set aside and the matter deserves to be remitted back to the learned Magistrate for fresh consideration of the complaint filed by the respondent.
6. In that view of the matter, I proceed to pass the following :-
ORDER
i) Criminal Petition is allowed;
ii) The order dated 1.8.2009 passed in PCR No.19342/2008, now C.C.No.17276/2009, is set aside;
iii) Matter is remitted back to the Magistrate for fresh disposal in accordance with law from the stage of filing of the complaint;
iv) The complainant and the respondent shall appear before the learned Magistrate on 22.3.2014.
Sd/-
JUDGE rs