Karnataka High Court
M.R. Dayalu vs State Of Karnataka on 3 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 6764 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6764 OF 2021
BETWEEN:
1. M.R. DAYALU
S/O RANGANAYAKALU
AGED ABOUT 47 YEARS,
R/AT NO.5293,
CONIFER LINE
GURNEE ILLINOIS
U S A-60031
2. SREEDHAR G
S/O V GAJAPATHY
AGED 48 YEARS,
R/AT 134, 3RD A CROSS
PRAKASH NAGAR
Digitally signed by
PADMAVATHI B K BANGALORE-560021
Location: HIGH
COURT OF
KARNATAKA
...PETITIONERS
(BY SRI. NEHRU M N.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
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CRL.P No. 6764 of 2021
BY MAGADI ROAD POLICE STATION
BANGALORE-560023
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560001
2. K SRINIVASA MURTHY
S/O LATE KRISHNAN
AGED ABOUT 49 YEARS,
R/AT NO.1408,
14TH MAIN, SUBRAMANYA NAGAR
BANGALORE-560010
...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1;
R2 - SERVED, UNREPRESENTED)
THIS CRL.P. IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ENTIRE CHARGE SHEET AND THE PROCEEDINGS IN
C.C.NO.903/2018 ARISING OUT OF CR.NO.202/2013 FILED BY THE
RESPONDENT POLICE FOR THE ALLEGED OFFENCE P/U/S 406, 420
R/W 34 OF IPC PENDING ON THE FILE OF THE HONBLE IV A.C.M.M.,
AT BENGALURU BY ALLOWING THIS MEMORANDUM OF CRL.P UNDER
SEC.482 OF CR.PC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 6764 of 2021
ORDER
The petitioners are before this Court calling in question the proceedings in C.C.No.903/2018, which arose out of crime in Crime No.202/2013 for offences punishable under Sections 406 and 420 read with Section 34 of IPC.
2. Heard Sri.Nehru M.N., learned counsel appearing for the petitioners and Smt. K.P. Yashodha, learned HCGP for respondent No.1.
3. The facts in brief, germane for consideration of the lis are as follows:
A crime comes to be registered in Crime No.202/2013 by one Sri. K.Srinivasamurty for an incident that happens on
04.07.2013 for offences punishable under Sections 406 and 420 of IPC. The petitioners were arrayed as accused Nos.1 and 3 in the said crime, out of the three accused. At the relevant point in time, petitioners/accused Nos.1 and 3 were not available for trial and the concerned Court split the charge sheet against accused Nos.1 and 3, the petitioners herein and conducted the trial against accused No.2. The trial Court, by its -4- CRL.P No. 6764 of 2021 order dated 07.11.2019, acquitted accused No.2 of all the offences on the score that the prosecution has failed to prove the guilt beyond all reasonable doubt. The petitioners who were not available for trial are sought to be tried in the subject crime now on the split charge sheet in C.C.No.903/2018. It is the continuance of trial in C.C.No.903/2018 that drives the petitioners to this Court in the subject petition.
4. The learned counsel appearing for the petitioners would submit that the absence of the petitioners was bona fide as they were not aware of any notice being issued to the petitioners after they had taken bail and were on bail throughout and would submit that the allegation is the one punishable under Section 406 or 420 of IPC and the offences against all the accused were similar and the order of acquittal would enure to the benefit of the petitioners.
5. The learned HCGP would however contend that the petitioners had escaped trial and had to be tried now under the split charge sheet, notwithstanding the facts, offences and the evidence are similar to that of accused No.2.
-5- CRL.P No. 6764 of 20216. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute. A crime is registered against three accused for offences punishable under Sections 406 and 420 of IPC. Charge sheet is laid against all the three accused for the afore-quoted offences.
There is no charge separately made against all the three, as all of them are accused of the same offence of either criminal breach of trust or cheating as obtaining under Sections 406 and 420 of IPC.
8. The trial Court, after a full blown trial, acquits accused No.2 in terms of its order dated 07.11.2019. The reasons rendered by the trial Court for acquitting accused No.2 is as follows:
" 7. In order to prove the guild of the accused 14 witnesses are cited in the charge sheet and the prosecution has got examined the complainant as PW1. The complainant in his evidence has deposed adverse to the case of the prosecution and stated -6- CRL.P No. 6764 of 2021 that there was difference between the accused and the complainant with respect to sale of the sites and had given a complaint in that regard and the said matter is settled between themselves and there is nothing to be complied by the accused and hence he does not intend to prosecute this case against the accused. He has identified Ex.P1 and Ex.P2. However he has stated that, he has signed to the said documents in the police station and nothing was seized in his presence at the time of preparing Ex.P2. He has stated that, he has not given any further statement to the police. He has also deposed that, the second accused has filed a private complaint bearing No.42/2014 before III ACMM Court and the said complaint is also agreed to be withdrawn by the accused. PW1 has been treated as hostile witness by the learned Sr.APP and permitted to be cross-examined. However, nothing is elicited in the cross-examination in support of the case of the prosecution. On the other hand, the PW1 has denied all the suggestions made in the cross-examination by the learned Sr.APP and has withdrawn all the allegations made against the accused.
8. In addition the accused has also filed a memo to withdraw PCR No.42/2014 filed against the complainant. Since the complainant is the material -7- CRL.P No. 6764 of 2021 aggrieved witness and in view of the evidence of PW1 there was no useful purpose to be served in examining the rest of the witnesses. Hence, the prayer of Sr.APP to issue process to the rest of the witnesses was rejected and they were dropped and since there was no incriminating evidence against the accused, the 313 statement is dispensed with.
9. The complaint was filed on sale transaction dispute and the purpose of filing the complaint appears to have been served. There is no oral or documentary evidence placed on record by the prosecution to prove the ingredients to attract the offences u/s. 406, 420 of IPC. Hence, there is no satisfactory material placed on record by the prosecution to prove beyond reasonable doubt the guilt of the accused. Taking an over all view of the matter the accused is entitled to benefit of doubt and will have to be acquitted of the charges levelled against him."
9. As the reason that could be gathered from what is quoted hereinabove is that the witnesses had turned hostile. If witnesses had turned hostile in a case against accused No.2, the same would be applicable to accused Nos.1 and 3, who had not being put to trial on account of their absence.
-8- CRL.P No. 6764 of 202110. In the light of the offences and evidence being similar and the witnesses turning hostile would become applicable to the case of the petitioners as well, permitting further proceedings to continue in C.C.No.21627/2015 would be a waste of judicial time and an exercise in futility.
11. The view of mine, in this regard, is fortified by the judgment rendered by a Co-ordinate Bench of this Court in Crl.P.4796/2017 wherein the Co-ordinate Bench considering identical set of facts has held as follows:
"12. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that petitioner/accused was never traced and non-bailable warrant issued against him was never executed. Hon'ble Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION vs AKHILESH SINGH reported in AIR 2005 SCC 268 has held quashing of charge and order discharging co- accused can be passed, if the proceedings initiated against co-accused is on similar allegations and if said judgment had reached finality. It is also held that discharge of a co- accused by the High Court by holding that no purpose would be served in further proceeding with the case, is just and proper. In another ruling in MOHAMMED ILIAS vs. STATE OF -9- CRL.P No. 6764 of 2021 KARNATAKA reported in (2001) 3 Kant LJ 551 this Court has held as under:
"The petitioner is the accused in the case and he is shown to be the absconding. Therefore, the case against the petitioner was split up and charge-sheet was laid against other available accused Nos.1 and 3 for committing an offence punishable under Sections 498A and 307 IPC r/w 34 Indian Penal Code, 1860. After the trial, the Sessions Judge acquitted the accused Nos.1 to 3. The petitioner was arrested and proceedings were revived against him in the split charge sheet.... In the instant case also, the full pledged trial was held against accused Nos.1 to 3, in respect of the same offence. In the second round of trial against the petitioner, the evidence to be produced cannot be different from the one that was produced by the prosecution in the earlier case. Therefore, in that view of the matter, the proceeding is quashed."
13. Yet, in another ruling THE STATE OF KARNATAKA vs. K.C.NARASEGOWDA reported in ILR 2005 Kar. 1822 this Court has held to the following effect:
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"As the case before the Sessions Judge is not a pending case, he cannot keep the file any longer pending nor he can close the case as he has to await appearance of the accused or the production by the State, for passing orders regarding undergoing sentence. As such, considering these peculiar facts and circumstances, it is deemed proper to exercise the inherent jurisdiction under Section 482 of Cr.P.C. instead of jurisdiction under Section 385 of Cr.P.C. in the interest of justice. As the entire material evidence of the prosecutions is one and the same, as against all the accused including the non-appealing accused No.1, who is said to be absconding, there is no second opinion that he is also entitled for the same benefit of doubt as he is extended for his co-accused. Accused acquitted by giving benefit of doubt."
14. In this background, when the facts on hand are examined, it would clearly indicate that not only complainant but also other witnesses including the inmates of ambulance in which they were travelling on the date of incident, had turned hostile in the proceedings which was continued against co-accused. Though, P.W.1 - complainant had admitted that he has lodged a compliant as per Ex.P-1 and had also admitted that he has given a statement identifying the
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CRL.P No. 6764 of 2021accused before the Investigation Officer, he did not identify the accused persons present before Court. In fact, statements given by him as per Exs.P-2 to P-4 when confronted, he denied the same and had also denied the suggestion put by the public prosecutor that he had furnished the statements as per Exs.P-2 to P-4 as false. P.W.2 to P.W.8 had not identified the accused persons present before the jurisdictional Sessions Court. In fact, they have not even identified the statements made by them before the Investigating Officer and nothing worthwhile has been elicited in their cross-examination to disbelieve their evidence. Thus, taking into consideration said evidence available on record Sessions Court had arrived at a conclusion that evidence of the witnesses examined by prosecution would not come to their assistance. In fact, witnesses to the seizure panchnama - Ex.P-40, who were examined as P.W.16 and P.W.17, have also turned hostile and they have stated that police had called them a year back to the police station and when they went to the police station, they had not seen any accused persons in police station. However, they admit police having taken their signatures on the papers and contents of it were not known to them.
15. It is in this background, trial Court on appreciation of entire evidence had acquitted all the accused persons by holding that prosecution had failed to prove the offence alleging accused persons beyond reasonable doubt attracting the ingredients of provisions of the offence alleged against them. In fact, Sessions Court has
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CRL.P No. 6764 of 2021observed that there was certain communal disturbance in Dakshina Kannada district and other places at Bantwal Taluk and to please on community of people, the Investigating Officer might have falsely implicated the accused persons in a false case or to avoid the blame to be received from the public or other community people and such possibilities cannot be ruled out. In this background, when prayer of petitioner sought for in the present petition is examined, it can be noticed that contents of supplementary charge sheet filed against the petitioner is similar, identical and in fact, it is replica of charge made against accused Nos.1 to 23 and 25 to 33, who15 were tried in S.C.No.12/2007, 94/2007 and 26/2008 and had been acquitted.
16. In that view of the matter, this Court is of the firm view that judgment rendered by trial Court insofar as it relates to accused Nos.1 to 23 and 25 to 33 is similar and identical to the charge made against the present petitioner. This Court does not find any independent or separate material having been placed by the prosecution against present petitioner to put him on trial once again and directing the petitioner-accused to undergo the order of trial, which ultimately would fetch same result as that of accused Nos.1 to 23 and 25 to 33. When allegation made against accused Nos.1 to 23 and 25 to 33 is compared with the allegation made against present petitioner, it has to be necessarily held that they are identical, similar and inseparable in nature and no independent decision can be taken against the present petitioner. Therefore,
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CRL.P No. 6764 of 2021no purpose would be served even if the present petitioner is ordered to be tried by the trial Court.
17. In view of the afore stated facts and the law laid down, as discussed hereinabove, it would emerge that there would be no harm or injustice that would be caused to prosecution if benefit of acquittal order is passed in favour of accused - petitioner, since accused Nos.1 to 23 and 25 to 33 against whom similar allegation had been made is already acquitted. Though, it is contended by Sri. Rachaiah, learned HCGP appearing for the State that petitioner should not be extended said benefit, since he is an absconder, by relying upon judgment of Coordinate Bench this Court is not inclined to accept said contention for single reason that said judgment had been rendered based on the judgment of Apex Court in the case of DEEPAK RAJAK vs. STATE OF WEST BENGAL reported in (2007) 15 SCC 305 where under Apex Court after noticing the facts obtained in the said case, had held that benefit of acquittal, should be extended to the appellant, since co-accused had been acquitted and held that a departure can be made in cases where accused has not surrendered "after conviction" in addition to not filing an appeal against the conviction. As such, noticing earlier position of law laid down it was held by the Apex Court that in case of acquittal of a accused for same offence on same set of facts and on similar accusations, if considered, it would entile for acquittal of co- accused also.
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CRL.P No. 6764 of 202118. In that view of the matter, present proceedings initiated against petitioner is liable to be quashed.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings in C.C.No.1170/2007 pending on the file of Addl. Civil Judge & JMFC, Bantwal, in Cr.No.130/2006 registered by Bantwal Rural Police Station, is hereby quashed insofar petitioner is concerned.
In view of criminal petition having been disposed of on merits, I.A.No.1/2017 for stay does not survive for consideration and same stands rejected."
The Co-ordinate Bench was considering a case where the co-accused who had escaped trial had not surrendered or was not arrested by the police.
12. Therefore, in the light of the aforesaid facts and the acquittal of accused No.2 and in the light of the judgment rendered by the Co-ordinate Bench of this Court (Supra), I deem it appropriate to obliterate the proceedings against the
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CRL.P No. 6764 of 2021petitioners accepting the subject petition filed under Section 482 of the Cr.P.C.
12. For the afore-said reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings against the petitioners in C.C.No.903/2018 pending on the file of the IV Additional Chief Metropolitan Magistrate, Bengaluru, stand quashed.
(iii) *
(iv) The observations made in the course of this order
would not influence or bind any trial against any other accused.
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JUDGE KG * Clause No.(iii) stands deleted vide Court order dated 14/09/2022.