Karnataka High Court
Smt. R Usha vs State Of Karnataka on 13 June, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.5387/2021
BETWEEN
1. SMT. R. USHA
W/O. JEEVANANDAM
AGED 50 YEARS
2. SRI. K. JEEVANANDAM
S/O. KANNAN
AGED 56 YEARS
BOTH ARE R/AT:
NO.6, NEW NO.28
4TH CROSS, KAVERINAGAR
R.T. NAGAR
BENGALURU - 560 032
... PETITIONERS
[BY SRI. PRAKASH M.H., ADVOCATE]
AND
1. STATE OF KARNATAKA
BY MANGALORE NORTH
POLICE STATION
MANGALORE DIST - 575 003
THROUGH THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
2
2. SRI. PRASHANTH KAMATH
S/O. LATE K.U. KAMATH
AGED 57 YEARS
R/AT: NO.105
ABHIMAN GARDENS
KADRI ROAD
MANGALORE - 575 003
... RESPONDENTS
[BY SMT. K.P. YASHODHA, HCGP FOR R1;
SRI. M.N. NEHRU, ADVOCATE FOR R2]
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS PENDING
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
CJM, MANGALORE IN PCR.NO.3/2021 FOR THE OFFENCE P/U/S
406,419,420,468,471 R/W 34 OF IPC AND SEC.17 OF MONEY
LENDERS ACT AND CONSEQUENTLY QUASH THE FIR IN
CR.NO.24/2021 REGISTERED BY THE RESPONDENT NO.1 FOR THE
OFFENCE P/U/S 406,419,420,468,471 R/W 34 OF IPC AND SEC.17
OF MONEY LENDERS ACT, AGAINST THE PETITIONERS.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question proceedings in PCR.No.3/2021, pending before the II Additional Senior Civil Judge and CJM, Mangalore, registered for offences punishable under Sections 406, 419, 420, 468, 471, 34 of the IPC and Section 17 of the Karnataka Money Lenders Act, 1961, arising out of Crime No.24/2021.
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2. Heard Sri. Prakash M.H., learned counsel appearing for the petitioners, Smt. K.P. Yashodha, learned HCGP appearing for respondent No.1 and Sri. M.N. Nehru, learned counsel appearing for respondent No.2.
3. Brief facts leading to the filing of present petition, as borne out from the pleadings, are as follows:
The petitioners and respondent No.2 - complainant have had certain transactions between them. Pursuant to the said transactions and in furtherance thereof, four different cheques were issued by respondent No.2 - complainant in favour of the first petitioner. These cheques, on there presentation, were dishonouned for want of sufficient funds. Pursuant to the said dishonour, legal notices were caused upon the complainant by the first petitioner. Different complaints were made for different cheques. A common reply was given by respondent No.2 complainant on 09.06.2020.4
4. Alleging offence punishable under Section 138 of the N.I.Act, the first petitioner initiates proceedings by filing a private complaint under Section 200 of the Cr.P.C. The concerned Court takes cognizance of the offence on 30.09.2020 and issues summons to respondent No.2 - complainant in the proceedings instituted by the first petitioner on the offence under the N.I.Act.
5. On coming to know of the proceedings initiated by the first petitioner, respondent No.2 registers a complaint against the petitioners on 19.01.2021, for offences punishable under Sections 406, 419, 420, 468, 471 and 34 of the IPC and Section 17 of the Karnataka Money Lenders Act, 1961. The allegations against the petitioners in the complaint registered by respondent No.2 is one of cheating and forgery. The subject matter in the case at hand is the transactions between the parties and the instruments involved in both these cases is the cheques issued by the complainant. The learned Magistrate having taken 5 cognizance of the offences, the petitioners have knocked the doors of this Court in the subject petition.
6. Learned counsel, Sri. Prakash M.H., appearing for the petitioners would contend with vehemence that the proceedings instituted by the complainant against the petitioners for the aforesaid offences is only as a counterblast to what the petitioners have instituted against the complainant for offence punishable under Section 138 of the N.I.Act.
7. On the other hand, learned counsel appearing for respondent No.2 - complainant would refute the submissions to contend that the cheques that were given are misused by the petitioners by not returning them, as the cheques were given as security in furtherance of a particular transaction. He would also seek that the case is at the stage of investigation and if the same is allowed to continue, it would attain its logical end. 6
8. I have given my anxious consideration to the respective submissions made by the learned counsel and perused the material on record.
9. The afore-narrated facts and link in the chain of events are not in dispute. The transaction between the petitioners and the complainant results in certain proceedings initiated by the petitioners for the offence punishable under Section 138 of the Act. The learned Magistrate takes cognizance of the offence and issues summons on 30.09.2020. The second respondent immediately registers a complaint invoking Section 200 of the Cr.P.C. The narration in the complaint to drive home the offence, reads as follows:
"DgÉÆævÀgÀÄ £À£Àß «gÀÄzÀÞ ªÀiÁ£Àå 15 ¹.JA.JA. ¨ÉAUÀ¼ÀÆgÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è SÁ¸ÀV ¦AiÀiÁ¢üAiÀÄ£ÀÄß ¤ÃrgÀÄvÁÛgÉ. ºÁUÀÆ £À¤ßAzÀ ¥ÀqÀPÉÆAqÀ ZÉPÀÄÌUÀ¼À£ÀÄß £À£ÀUÉ »AzÀPÉÌ ¤ÃqÀzÉ, ZÉPÀÄÌUÀ¼À£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆAqÀÄ £À£Àß «gÀÄzÀÞ ¸ÀļÀÄî ªÉÆPÀzÀݪÉÄAiÀÄ£ÀÄß ºÀÆrgÀÄvÁÛgÉ."
In terms of the afore-extracted complaint, the complainant accepts that transactions were between the parties but contends that the cheques that were issued are not returned and they 7 have been misused by the petitioners and it is for that reason, the present complaint is registered and investigation is sought at the hands of the learned Magistrate.
10. What would emerge from the afore-narrated facts are that, respondent No.2 has set the criminal law in motion as a counterblast or to wreck vengeance against the petitioners for having instituted proceedings against them for offence punishable under Section 138 of the Act. Wrecking vengeance and initiating proceedings as a counterblast without there being any semblance of substance in the complaint so registered, is considered by the Apex Court in the case of SURESH KUMAR GOYAL AND OTHERS VS. STATE OF UTTAR PRADESH AND ANOTHER reported in (2019) 14 SCC 318. The Apex Court in the said judgment has held as follows:
"12. While dealing with the jurisdiction under Section 482 CrPC to quash the proceedings at the stage of issuance of process, or at the stage of committal, or at the stage of framing of charges, that is to say before the 8 commencement of actual trial, in the light of material placed on record by the accused, this Court in Rajiv Thapar v. Madan Lal Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] laid down as under : (SCC pp. 347-48, paras 28-30) "28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the 9 Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should 10 not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one : whether the material relied upon by the accused is sound, reasonable and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?11
30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four : whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
13. In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant 1. The material on record is absolutely clear that the acquisition was from the funds of Appellant 1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that 12 the shares can be sold in the market and the proceeds can be divided between Appellant 2 and Respondent 2. If Respondent 2 is insisting on having complete ownership in respect of the shares concerned, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] and are convinced that the instant case calls for interference under Section 482 CrPC. Further, from the facts that Appellant 1 had disowned Respondent 2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreak vengeance against the father, brother and the brother-in-law of the complainant. The instant criminal complaint is an abuse of the process of court and is required to be quashed."
Therefore, in the light of the undisputed facts and the judgment of the Apex Court as extracted hereinabove, if the proceedings are permitted to be continued, it would become an abuse of the process of the law.
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12. For the aforesaid reasons, the following:
ORDER i. The Criminal Petition is allowed.
ii. The proceedings in PCR.No.3/2021, pending before the II Additional Senior Civil Judge and CJM, Mangalore, arising out of Crime No.24/2021 stand quashed, qua the petitioners.
iii. Any observation made in the course of this order would not come in the way of any proceedings pending between the parties before any competent judicial fora.
Sd/-
JUDGE SJK