Karnataka High Court
Sri. Sandeep Gururaj vs State Of Karnataka on 21 August, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Crl.P No. 5148 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.5148 OF 2023
BETWEEN:
SRI. SANDEEP GURURAJ
S/O S.V. GURURAJ,
AGED ABOUT 42 YEARS,
PRESENTLY RESIDING AT
B-04 V.K. RESIDENCY
DR. SHIVARAMKARANTH ROAD,
CHIKKALASANDRA,
BANGALORE-560061.
... PETITIONER
(BY SRI. GOUTHAM S. BHARADWAJ, ADVOCATE)
AND:
1. THE SATE OF KARANTAKA,
CUBBON PARK P.S.,
BENGALURU-560001,
R/BY SPP, HIGH COURT BUILDING.
2. M/S. LEGACY GLOBAL PROJECTS PVT.LTD.,
Digitally
signed by
VISHAL
HAVING OFFICE AT #333,
VISHAL NINGAPPA
NINGAPPA PATTIHAL
THIMMAIH ROAD,
PATTIHAL Date:
2023.08.22
BENGALURU-560052,
15:34:51
+0530 R/BY ITS AUTHORISED SIGNATORY
SRI. NATESH KUMAR.
3. RAVEENDRA .P.,
NO.104, S.B. ORCHID VIEW,
APARTMENT 11 & 13,
NETAJI ROAD, OPP. TO UTTARAHALLI,
BANGALORE-560061.
... RESPONDENTS
(BY SRI. DR. ABHISHEK MANU SINGHVI ,
SRI. SANDESH CHOUTA, SR. COUNSEL a/w SRI.R. CHANDRACHUD
AND SRI. SUNIL KUMAR PATEL, ADVS. FOR R2;
SRI. JAGADEESHA B.N., ADDL. SPP FOR R1)
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Crl.P No. 5148 of 2023
THIS CRL.P FILED U/S. 482 CR.P.C PAYING TO A)ISSUE AN
ORDER QUASHING THE ENTIRE PROCEEDINGS PENDING IN
C.C.NO.8330/2021 FOR THE ALLEGED OFFENCE P/U/S.420,406,120-
B R/W SEC.34 OF IPC PENDING ON THE FILE OF THE III ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU ARISING OUT OF
FIR BEARING CR.NO.14/2020 REGISTERED BY VIDHANSOUDA
POLICE STATION PRODUCED AS ANNEXURE-A. B) TO SET ASIDE
ORDER 01.12.2022 PASSED IN CC NO.8330 OF 2021 BY THE III
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALURU
PRODUCED AS ANNEXURE-'A' AND CONSEQUENTLY QUASH THE
CHARGE SHEET DATED 24.11.2022 FILED IN CC.NO.8330 OF 2021
BEFORE THE III ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BANGALORE PRODUCED AS ANNEXURE-F. C) GRANT SUCH OTHER
RELIEF AS THIS HON'BLE DEEMS FIT TO MEET THE ENDS OF
JUSTICE.
THIS PETITION, HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 16.08.2023 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, AT DHARWAD BENCH, THE COURT PRONOUNCED
THE FOLLOWING:
ORDER
The petitioner-accused No.1 is before this Court calling in question proceedings in C.C.No.8330 of 2021 registered for offences punishable under Sections 406, 420 and 120B r/w Section 34 of the IPC.
2. Heard Sri Goutam Sridhar Bharadwaj, learned counsel appearing for petitioner, Sri. Dr. Abhishek Manu Singhvi along with Sri. Sandesh Chouta, senior counsel, appearing for respondent No.2 and Sri. Jagadeesha B.N. Additional State Public Prosecutor respondent No.1.
3. Facts in brief, germane, are as follows:
-3- Crl.P No. 5148 of 2023This very petitioner was before this Court calling in question this very C.C.No.8330 of 2021 in Crl.P.2866 of 2022.
This Court, on the merit of the matter, in terms of its order dated 25-05-2022, rejected the criminal petition, holding that it was for the petitioner to come out clean in a full blown trial.
The petitioner then challenges this order before the Apex Court in Special Leave Petition No.4187 of 2023. The Apex Court, in terms of its order dated 29-03-2023 after hearing the petitioner, permits him to withdraw the petition. Therefore, the matter is dismissed as withdrawn. After the dismissal of the SLP, certain developments appear to have taken place.
Accused No.3, against whom a split charge sheet had been registered on account of him absconding is apprehended and he tenders a statement against the petitioner. He is then transposed as C.W.27 and is dropped from the array of accused from the charge sheet in C.C.No.8330 of 2021. Contending this to be the changed circumstance, the subject petition under Section 482 of the Cr.P.C., second in line, is preferred by the petitioner.
4. This Court, in terms of its order dated 27-06-2023 observing that the second petition is not maintainable, granted -4- Crl.P No. 5148 of 2023 a week's time to the petitioner, as he had sought time to take appropriate action on the subject criminal petition. The petitioner then again knocked at the doors of the Apex Court in SLP No.9233 of 2023. The Apex Court, in terms of its order dated 07-08-2023, observing that it would not like to get into the matter at this stage when the High Court is in seisin of the issue, disposed the matter by observing that it is for this Court to consider whether a second petition under Section 482 of Cr.P.C. was maintainable or otherwise.
5. The learned counsel appearing for the petitioner Sri.Goutam Sridhar Bharadwaj would seek to place reliance upon the judgments of the Apex Court in the case of SUPERINTENDENT AND REMEMBERANCER OF LEGAL AFFAIRS, WEST BENGAL v. MOHAN SINGH AND OTHERS1 and in the case of ANIL KHADKIWALA v. STATE (GOVERNMENT OF NCT OF DELHI) AND ANOTHER2, to buttress is submission that a second petition under Section 482 of the CR.P.C. would be maintainable. According to the learned counsel appearing for the petitioner, the circumstances that warranted filing of the subject petition is the transposition of 1 (1975) 3 SCC 706 2 (2019) 17 SCC 294 -5- Crl.P No. 5148 of 2023 accused No.3 as C.W.27. He would submit that all the allegations were against accused No.3 and in the light of the accused No.3 being dropped, it would become a circumstance enough to maintain the petition. He would seek quashment of the entire proceedings on this score.
6. Per-contra, the learned senior counsel Dr.Abhishek Manu Singhvi appearing for respondent No.2 would seek to refute the submission to contend that the facts obtaining in the cases before the Apex Court which allowed entertainment of a second petition were entirely different in comparison to the facts obtaining in the case at hand. The petitioner having urged every ground and those grounds having been turned down, cannot now contend that the second petition on the very same grounds is maintainable. He would seek dismissal of the petition.
7. I have given my anxious consideration to the submissions made by the respective learned counsel appearing for the parties and have perused the material on record.
[
8. After hearing the counsels, the matter is reserved only to answer the maintainability of the second petition under -6- Crl.P No. 5148 of 2023 Section 482 of the Cr.P.C. on the plea of the petitioner that there is a changed circumstance than what prevailed earlier. At the time when the matter was heard, this Court on 27-06- 2023, had passed an order declining to entertain the petition for grant of any interim order observing that slightly changed circumstance would not become a ground for interference. This was prima facie as the counsel for the petitioner sought time.
Between 27-06-2023 and 10-08-2023 what transpires is that the petitioner approaches the Apex Court in SLP No.9233 of 2023. The Apex Court declines to interfere observing that it is for the High Court to answer whether the second petition would be maintainable or not. The Apex Court, in terms of its order dated 07-08-2023 observes as follows:
"We would not like to get into the matter at this stage when the High Court is in seisen of the issue. The case sought to be made out by the petitioner is that there are certain changed circumstances of accused No.3 being dropped from the charges arrayed as a witness. Whether this can or cannot give rise to another petition under Section 482 of the Cr.P.C. is something for the High Court to consider.
The special leave petition stands disposed of accordingly.
Pending application also stands disposed of."-7- Crl.P No. 5148 of 2023
9. The issue now is, whether this petition, second in line, would be maintainable?
10. It is not in dispute that every one of the contention urged by the petitioner were considered in Crl.P.No.2866 of 2022 and was dismissed in terms of the order dated 25-05-2022. The order is not disturbed by the Apex Court in SLP 4187 of 2023. The petitioner has withdrawn the said SLP.
It is trite that withdrawal would amount to dismissal by consent. No liberty was sought by the petitioner at the hands of the Apex Court. Now on projecting a changed circumstance on accused No.3 being transposed as C.W.27, the very same grounds are urged in the petition that were considered and rejected earlier. Therefore, in the considered view of this Court, the contention of the petitioner that accused No.3 is transposed as C.W.27 contrary to Section 306 of the Cr.P.C. is a separate cause of action. That by itself will not clothe the petitioner with a right to initiate 482 Cr.P.C. petition, second in line, on the same cause of action which was considered on its merit and rejected and the rejection of which has become final.
Therefore, the submission of the learned counsel for petitioner is sans countenance.
-8- Crl.P No. 5148 of 202311. Insofar as the armory of the petitioner from his arsenal, none of those would become applicable to the facts of the case at hand as they are distinguishable without much ado, they were rendered on the facts obtaining before the Apex Court. In Apex Court in the case of ANIL KHADKIWALA (supra) has held as follows:
"8. In Mohan Singh [Supt. and Remembrancer of Legal Affairs v. Mohan Singh, (1975) 3 SCC 706 : 1975 SCC (Cri) 156 : AIR 1975 SC 1002] , it was held that a successive application under Section 482 CrPC under changed circumstances was maintainable and the dismissal of the earlier application was no bar to the same, observing : (SCC pp. 709-10, para 2) "2. ... Here, the situation is wholly different.
The earlier application which was rejected by the High Court was an application under Section 561-A of the Criminal Procedure Code to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one-and-a-half years without any progress at all and it was in these circumstances that Respondents 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding. It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such orders as it -9- Crl.P No. 5148 of 2023 deems fit to prevent abuse of the process of the court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of Respondents 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one-and-a-half years."
9. In Harshendra Kumar D. v. Rebatilata Koley [Harshendra Kumar D. v. Rebatilata Koley, (2011) 3 SCC 351 : (2011) 1 SCC (Civ) 717 : (2011) 1 SCC (Cri) 1139 :
2011 Cri LJ 1626] , this Court held : (SCC p. 362, paras 26-
27) "26. Criminal prosecution is a serious matter;
it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the
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Crl.P No. 5148 of 2023appellant has resigned much before the cheques were issued by the Company.
27. As noticed above, the appellant resigned from the post of Director on 2-3-2004. The dishonoured cheques were issued by the Company on 30-4-2004 i.e. much after the appellant had resigned from the post of Director of the Company. The acceptance of the appellant's resignation is duly reflected in the Resolution dated 2-3-2004. Then in the prescribed form (Form 32), the Company informed to the Registrar of Companies on 4-3-2004 about the appellant's resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the appellant, it would result in gross injustice to the appellant and tantamount to an abuse of process of the court."
10. Atul Shukla [Atul Shukla v. State of M.P., (2019) 17 SCC 299] is clearly distinguishable on its facts as the relief sought was for review/recall/modify the earlier order [Surendra Singh v. State of M.P., 2018 SCC OnLine MP 1425] of dismissal in the interest of justice. Consequently, the earlier order of dismissal was recalled. It was in that circumstance, it was held that in view of Section 362 CrPC the earlier order passed dismissing the quashing application could not have been recalled. The case is completely distinguishable on its own facts.
11. The Company, of which the appellant was a Director, is a party-respondent in the complaint. The interests of the complainant are therefore adequately protected. In the entirety of the facts and circumstances of
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Crl.P No. 5148 of 2023the case, we are unable to hold that the second application for quashing of the complaint was not maintainable merely because of the dismissal of the earlier application."
(Emphasis supplied) The Apex Court, in the afore-quoted judgment permitted entertainment of a second petition on the score that a material point in the first petition had been missed which would cut at the root of the matter and that was concerning proceedings for offence punishable under Section 138 of the N.I.Act. In the case at hand, all the contentions were heard and negatived holding that the petitioner had to come out clean in a full blown trial. Same goes with the judgment of the Apex Court in the case of MOHAN SINGH (supra), wherein the Apex Court holds as follows:
"2. The main question debated before us was whether the High Court had jurisdiction to make the order dated April 7, 1970 quashing the proceeding against Respondents 1, 2 and 3 when on an earlier application made by the first respondent, the High Court had by its order dated December 12, 1968 refused to quash the proceeding. Mr Chatterjee on behalf of the State strenuously contended that the High Court was not competent to entertain the subsequent application of Respondents 1 and 2 and make the order dated April 7, 1970 quashing the proceeding, because that was tantamount to a review of its earlier order by the High Court, which was outside the jurisdiction of the High Court to do. He relied on two decisions of the Punjab and Orissa High Courts in support of his contention, namely, Hoshiar Singh v. State [AIR 1958 Punj 312 : 60 Punj LR
- 12 -Crl.P No. 5148 of 2023
438 : 1958 Cri LJ 1093] and Namdeo Sindhi v. State [AIR 1958 Ori 20 : 1958 Cri LJ 67 : ILR 57 Cut 355] . But we fail to see how these decisions can be of any help to him in his contention. They deal with a situation where an attempt was made to persuade the High Court in exercise of its revisional jurisdiction to reopen an earlier order passed by it in appeal or in revision finally disposing of a criminal proceeding and it was held that the High Court had no jurisdiction to revise its earlier order, because the power of revision could be exercised only against an order of a subordinate court. Mr Chatterjee also relied on a decision of this Court in U.J.S. Chopra v. State of Bombay [AIR 1955 SC 633 : (1955) 2 SCR 94 : 1955 Cri LJ 1410] where N.H. Bhagwati, J., speaking on behalf of himself and Imam, J., observed that once a judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction over the same. These observations were sought to be explained by Mr Mukherjee on behalf of the first respondent by saying that they should not be read as laying down any general proposition excluding the applicability of Section 561-A in respect of an order made by the High Court in exercise of its appellate or revisional jurisdiction even if the conditions attracting the applicability of that section were satisfied in respect of such order, because that was not the question before the Court in that case and the Court was not concerned to inquire whether the High Court can in exercise of its inherent power under Section 5 61 A review an earlier order made by it in exercise of its appellate or revisional jurisdiction. The question as to the scope and ambit of the inherent power of the High Court under Section 561-A vis-a-vis an earlier order made by it was, therefore, not concluded by this decision and the matter was res integra so far as this Court is concerned. Mr Mukherjee cited in support of this contention three decisions, namely, Raj Narain v. State [AIR 1959 All 315 :
1959 Cri LJ 543 : 1959 All LJ 56] , Lal Singh v. State [AIR
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1970 Punj 32 : 1970 Cri LJ 267 : ILR (1970) 1 Punj 177] and Ramvallabh Jha v. State of Bihar [AIR 1962 Pat 417 : (1962) 2 Cri LJ 625 : 1962 BLJR 553] . It is, however, not necessary for us to examine the true effect of these observations as they have no application because the present case is not one where the High Court was invited to revise or review an earlier order made by it in exercise of its revisional jurisdiction finally disposing of a criminal proceeding. Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561-A of the Code of Criminal Procedure to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances that Respondents 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding.
It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances
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Crl.P No. 5148 of 2023obtaining at the time of the subsequent application of Respondents 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the High Court proceeded to consider the subsequent application of Respondents 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561-A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against Respondents 1 and 2."
(Emphasis supplied) The other judgment that the learned counsel for the petitioner would seek to place reliance upon in the case of MAHMOOD ALI v. STATE OF U.P. reported in 2023 SCC online SC 950 cannot be pressed into service at this juncture, as the earlier petition already been dismissed on the merit of the matter.
The petitioner cannot misuse this forum by filing repeated petitions on trivial change of circumstances urging the very same grounds which have all been negatived.
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Crl.P No. 5148 of 202312. For the aforesaid reasons, finding no merit in the petition, it is held neither maintainable nor entertainable and, is therefore, rejected.
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JUDGE kmv