Karnataka High Court
Sri Rajesh Kumar Kamalia vs Sri B M Karunesh on 31 August, 2012
Author: K.L.Manjunath
Bench: K.L.Manjunath
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W.A. NO.1356/2008 (GM-RES)
IN THE HIGH COURT OF KARNATAKA AT BANGALORE ®
DATED THIS THE 31ST DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE V.SURI APPA RAO
W.A. No.1356/2008 (GM-RES)
BETWEEN :
SRI RAJESH KUMAR KAMALIA
S/O. SRI RAJENDRA PRASAD
AGED ABOUT 37 YEARS
R/AT NO.1853, 40TH 'A' CROSS,
26TH MAIN, 9TH BLOCK, JAYANAGAR,
BANGALORE - 69,
KARNATAKA. ...APPELLANT
(By SRI. H KANTHA RAJA, ADV.)
AND :
1 SRI B M KARUNESH
S/O. LATE B M MADAIAH
AGED ABOUT 44 YEARS
2 SRI KANAKARAJ
S/O. SRI G BALASUBRAMANYAM
AGED ABOUT 40 YEARS
BOTH WORKING AT ADARSHA DEVELOPERS
NO.10, VITTL MALYA ROAD
BANGALORE.
2
W.A. NO.1356/2008 (GM-RES)
3 SRI HARISH NARAYAN
S/O. SRI M NARAYANAPPA
AGED ABOUT 40 YEARS
'ASHUTHOSH' 5TH CROSS
B S K I STAGE
BANASHANKARI - 560050.
4 STATE OF BIHAR
REP BY HOME SECRETARY
MANTHRALAY (SECRETARIAT)
PATNA, STATE BIHAR.
5 STATE OF BIHAR THROUGH
S.O. POLICE STATON
KOTWALI, DISTRICT PATNA
BIHAR. ...RESPONDENTS
(By Sri. S.G. BHAGAVAN, ADV. FOR R-1 TO R-3,
R-4 SERVED,
APPEAL AGAINST R-5 IS DISMISSED V.O. DT. 2.6.2010)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, prays that this Hon'ble Court be pleased to allow the
Writ Appeal; set aside the order dated 09.07.2008 passed by the
learned Single Judge in W.P. No.16514/2007.
This Writ Appeal coming on for Final Hearing this day,
K.L.MANJUNATH. J., delivered the following :
JUDGMENT
The legality and correctness of the order passed by the learned Single Judge in W.P. No. 16514/2007 dated 9 th July 2008 is called in question in this appeal.
2. Heard the learned Counsel for the parties.
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W.A. NO.1356/2008 (GM-RES)
3. The appellant herein was 3rd respondent before the Court below. He is a resident of Bangalore. He has entered into an agreement with the writ petitioner Nos.1 and 2 who were the Director and Managing Director of M/s. Adarsh Developers and the writ petitioner No.3 is the owner of the land on which the writ petitioners 1 and 2 are constructing the residential apartments.
4. The appellant who was the 3 rd respondent before the writ court approached the writ petitioners to buy flat bearing No. 1103 P(a) and 1103 P(b) in Block B at 'Adarsh Rhythm', B.G. Road, Bangalore for a consideration of Rs.34,99,915/- and Rs.24,07,848/- respectively. In terms of the agreement certain payments were also made by 3rd respondent to the writ petitioners. A dispute arose in regard to payment to be made by the 3 rd respondent to the writ petitioners. In the process, the writ petitioners received a legal notice sent by the 3rd respondent wherein he has mentioned about the lodging of FIR under Section 406, 420 and 34 of I.P.C. said to have been lodged before the Police Station at Patna in the State of Bihar and after coming to know of lodging of such a complaint, the writ petitioners moved the District Court and obtained an anticipatory 4 W.A. NO.1356/2008 (GM-RES) bail. Thereafter, the writ petitioners moved the Hon'ble Supreme Court to transfer the FIR pending in the Patna Police Station to Bangalore. The Hon'ble Supreme Court by its order dated 24 th September 2007 directed the writ petitioners to approach the High Court. Accordingly, writ petition was filed for transfer of FIR lodged by the appellant herein to the jurisdiction of Bangalore, where actually the cause of action arose.
5. The writ petition was resisted by the appellant on the ground that the writ petition filed before the High Court of Karnataka was not maintainable. The learned Single Judge allowed the writ petition and the complaint lodged by the appellant herein before the Police Station at Kotwali in Patna is ordered to be transferred to the Bangalore Police for further investigation granting such liberty to the Bangalore Police to decide, in which Police Station, the complaint of the appellant has to be registered and investigated. This order is called in question in this appeal.
6. Having heard the learned Counsel for the parties, we noticed the following undisputed facts :
That the transaction between the appellant and the respondents 5 W.A. NO.1356/2008 (GM-RES) is civil in nature. Because the dispute has arisen in regard to purchase of two residential flats situated in B.G. Road, Bangalore and agreements to purchase the flats were entered into between the appellant and respondents only in Bangalore and payments were made by the appellant to the respondents in Bangalore. From this, it is clear that the entire cause of action for lodging the complaint by the appellant before the Patna Police has arisen in Bangalore and no part of cause of action has arisen out of Bangalore.
7. The fact remains that the appellant lodged the complaint on the ground that the writ petitioners have committed an offence punishable under section 406, 420 an 34 of I.P.C. Annexure 'N' is the FIR. Annexure 'P' is attached to Annexure 'N' which is a legal notice got issued by the appellant through his Advocate to the respondents. The name of the informant is shown as Rajendrakumar Kamalia, the appellant herein. The distance and direction of the place of occurrence from Police Station is shown as 500 ft. towards East from the Police Station i.e., Prabhathnagar, Patna between 04.03.2005 to 15.07.2006. In all the correspondence taken place between the appellant and respondents disclose the address of the 6 W.A. NO.1356/2008 (GM-RES) appellant as Premises No.1853, 40th 'A' Cross, 26th Main, 9th Block, Jayanagar, Bangalore.
8. From the above facts, it is clear that at no point of time the cause of action has arisen within the jurisdiction of Patna Police Station. If no cause of action has arisen in Patna when offence referred to in the FIR is in regard to the offence said to have been committed for criminal breach of trust, cheating and dishonestly inducing delivery of property with a common intention by the writ petitioners and if such a property is in Bangalore, the complaint could not have been lodged by the appellant before the Patna Police.
9. The learned Single Judge considering the powers under Article 226(2) of the Constitution of India has ordered transfer of the complaint from Patna Police Station to Bangalore Police Station.
10. The main contention of the appellant before us is that this Court has no jurisdiction to transfer an FIR from Patna to Bangalore as this Court has no territorial jurisdiction in respect of Patna Police and more over in view of the Judgment of the Hon'ble Supreme Court in Gangadhar Janardan Mhatre Vs. State of Maharashtra and others [(2004) 7 SCC 768] it is only for the concerned Magistrate to take 7 W.A. NO.1356/2008 (GM-RES) action and grant relief to the writ petitioners and therefore, he contends that the order of the learned Single Judge suffers from infirmity and an error is committed by him in interfering with the investigation of the criminal case initiated by the appellant at Patna and requests the Court to allow the appeal.
11. Per contra, the learned Counsel appearing for the respondents Sri. Bhagawan contends that the facts involved in Gangadhar Janardan Mhatre has no application to the facts of this case because in the aforesaid case their Lordships had no occasion to consider the scope of transferring of a complaint from one Police Station to other Police Station as the question that had arisen for the consideration of the Hon'ble Supreme Court in the aforesaid case is in regard to the power of the Court to transfer an investigation, in respect of a matter pending before the Magistrate, whether the complainant can seek for transfer of investigation to some other agency. But in the instant case, the learned Single Judge relying upon the judgment of the Apex Court in AIR 2000 SC 2966 [NAVINCHANDRA N. MAJITHIA VS. STATE OF MAHARASHTRA] came to the conclusion that when no cause of 8 W.A. NO.1356/2008 (GM-RES) action arose within the territorial jurisdiction of another State any other High Court where actually cause of action has arisen has power to quash the proceedings. Therefore, he submits that when the High Court has power to quash the proceedings in respect of matter pending before the Magistrate Court or Police Station of another State. When a larger prayer of quashing of criminal proceedings can be granted by a High Court in respect of a matter pending before the Courts in other State, by applying the same liberty, if an order is made to transfer FIR for investigation to the court within whose jurisdiction the entire cause of action has arisen, this court cannot find fault with the order of the learned Single Judge. By applying the same principle when the learned Single Judge ordered for transfer of FIR the same cannot be held to be illegal and further cannot be held that the learned Single Judge has committed an error.
12. Having heard the learned Counsel for the parties, we do not see any merits in this appeal for the following reasons :
13. In Navinchandra N. Majithia's case the Hon'ble Supreme Court has observed as hereunder :
"The mere fact that FIR was registered in a 9 W.A. NO.1356/2008 (GM-RES) particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. That however does not mean that any person can create a false cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case. In the present case, a large number of events have taken place at Bombay in respect of the allegations contained in the FIR registered at Shillong. If the averments in the writ petition are correct then the major portion of the facts which led to the registering of the FIR have taken place at Bombay. Even the very fact that major portion of the investigation of the case under the FIR has to be conducted at Bombay itself shows that the cause of action cannot escape from the territorial limits of the Bombay High Court".
14. From the above, it is clear that when a major portion of the cause of action arisen within the territorial jurisdiction of one State 10 W.A. NO.1356/2008 (GM-RES) even if minor cause of action had arisen in respect of any other state, the Investigation has to be done only in the place where major portion of the cause of action arose. In the instant case, the entire cause of action has arisen within the territorial limits of Bangalore and no part of cause of action has arisen within the jurisdiction of Patna in the State of Bihar.
15. Therefore, we are of the view that the order of the learned Single Judge does not suffers from any infirmity and this Court cannot lightly interfere with such order.
16. In the result, this writ appeal is dismissed and parties to bear their own costs.
17. In view of the dismissal of the appeal, Misc. W. No. 9873/2009 for vacating stay does not survive for consideration and accordingly the same is dismissed.
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JUDGE.
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JUDGE.
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