Karnataka High Court
Asha Madhukar V Khanolkar vs H Ramachandra S/O Late Sri. ... on 22 August, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRIMINAL REVISION PETITION NO.615 OF 2007
BETWEEN:
Asha Madhukar V. Khanolkar
W/o Late Sri. Madhukar.V. Khanolkar
Aged about 52 years
R/o No.6/A, II Main
Paramahamsa Road
Yadavagiri
...PETITIONER
(By: Sri. Manmohan .P.N., Adv.)
AND:
H. Ramachandra
S/o Late Sri. P.R. Hariharan
Aged about 55 years
Residing at Door No. 4581
N.R. Mohalla, Mysore
... RESPONDENT
(By: Sri. Abhinav Anand, Adv.)
This petition is filed under Section 397 R/w 401
Cr.P.C. praying to set aside the order dated 10.02.2007
passed by the Presiding Officer, FTC-V, Mysore in Cr.R.P.
2
180/05 and confirm the order in C.C. No.1006/2005 passed
by the third Additional C.J. Mysore.
This petition coming on for dictating order this day,
the court made the following:
ORDER
Complainant's revision under Section 397 R/W 401 of Cr.P.C., assailing the order dated 10.02.2007 in Crl.R.P. No. 180/2005 on the file of the Fast Track Court -V, Mysore setting aside the order passed by the Additional CJM, Mysore taking cognizance against the respondent for offence punishable Under Section 406 of IPC.
2. Heard learned counsel Sri. Manmohan, for the petitioner and Sri. Abhinav Anand for the respondent/accused.
3. Perused the records in supplement thereto. It reveals the factual matrix:
One Madhukar V. Khanolkar husband of the petitioner filed a complaint under Section 200 Cr.P.C against P.V. 3 Khanolkar and H. Ramachandra to prosecute them for offence punishable under Sections 405 and 406 of the IPC on specific allegation that one V.S. Khanolkar, his father and the father of the first accused P.V. Khanolkar, had four sons (one who filed complaint), the first accused the other two sons, namely Manohar V. Khanolkar and A.V. Khanolkar. He had also a daughter Mrs. Sitha Krishna Swamy (Sitha V. Khanolkar).
4. Late Sri. V.S. Khanolkar had acquired certain movable and immovable properties and accumulated wealth. During his lifetime, he had executed a will dated 23.02.1982, bequeathing his movable and immovable assets and interest in the firm in favour of his four sons and one daughter. He died on 24.08.1992, leaving behind him, surviving four sons and a daughter. Referring to the will, he alleged most of his assets were bequeathed to his children except a house situated in Bangalore which was gifted to his grandson Pradeep Krishna Swamy S/o Smt. Sita Krishna Swamy and Sri A.S. Krishna Swamy. He had 4 money to his credit in several bank accounts which was a liquid asset. He appointed the second accused H. Ramachandra as the executor of the said will along with the first accused.
4. The recitals of the will clothed both the accused and held them responsible for collection of funds, and to credit it and retain it for benefit of the beneficiaries. They were bestowed with power to administer the estate in terms of will.
5. It is averred Sri. V.S. Khanolkar had accounts in Canara Bank and its another two branches at Mysore and also in the State Bank of Mysore in Mysore. It is alleged, both the accused as executors of the will took custody of the movable and immovable assets. The amount standing to the credit of the deceased was withdrawn from the accounts in Mysore. It is alleged they withdrew the amount from all the accounts as described in Para No.9 of the complaint totaling to Rs.1,12,544.19 paise, but they did not disburse it amongst the beneficiaries. It is alleged though 5 he addressed letters to the bank managers of Canara Bank and State Bank of Mysore informing them that their interest was not protected, and to prevent the accused from withdrawing the amounts, the manager, Canara bank informed him, accused had withdrawn the amount. Thus, the complainant sought prosecution of both the administrators named in the will.
6. Learned Jurisdictional Magistrate on receipt of the complaint referred it to the jurisdictional police for investigation and to submit the report permissible under Section 156(3) of Cr.P.C. The Jurisdictional police officer after investigation, has filed final report dated 29.04.2000 in the form of negative report. Notice of it was given to the complainant, who opposed it and filed a protest memo and sought permission to establish charges in herself. The learned Jurisdictional Magistrate granted time. In the meanwhile, the complainant died and his wife Smt. Asha Madhukar V. Khanolkar filed an application under Section 256 of Cr.P.C. to come on record. That application was 6 allowed on 17.08.2002. On the basis of it, she continued as legal representative.
7. In the following up action, she tendered evidence and examined a witness. Learned Magistrate took cognizance of the offences on sworn statement and registered a case. Order passed by the trial judge was questioned by the second accused in Cr.R.P. No. 180/05. The learned Judge, FTC-V allowed the revision petition setting aside the order of the learned Magistrate taking cognizance of the offence punishable under Section 406 IPC, and dropped prosecution against which this revision is filed.
8. Learned counsel Sri. Manmohan for the petitioner, and Sri. Anand Abhiman appearing for the respondent were at their best in supporting their contentions for and against the impugned order of the learned Judge Fast Track. It is not in dispute that V.S.Khanolkar, by will and last testament, disposed of his assets. The 1st accused and two were named as the 7 administrators of the will. They entered office soon after his demise and by legal fiction came in possession of the entire assets(estate) of the deceased which includes bank accounts and the funds therein.
9. It is also not in dispute that the amount in various bank accounts as enumerated in para No.9 of the complaint totalled Rs.1,12,544.19, and was withdrawn from the banks by the accused. It is disputed by accused No.2 contending it was not withdrawn, but transfer of funds from one bank to another branch. But the complaint is, the accused have withdrawn the amount from banks and misappropriated it. The question whether the acts of the accused in withdrawing the amount of the deceased, and not distributing amongst the beneficiary would fall within the mischief of Sections 405 and 406 of IPC or any of the offence under the Code, was the question in limine before the magistrate. Undoubtedly the material allegation in the complaint is the basis. The narration of facts in the complaint would show that the accused No.1 and 2, (as described in the original complaint) were appointed 8 administrators of the will dated 23.02.1982. It is not in dispute that both the accused accepted the office of administrators were required to act in terms of the bequeath by the testator. Therefore their act of taking possession of the assets of the deceased is established.
10. The next question is, how the said asset has been dealt. Is it in accordance with the directions in the will, or is it in contravention of it, or whether it is misappropriation as alleged. The thrust of the allegation is that they have withdrawn the amount from the savings bank account in Mysore and instead of distributing it to the beneficiaries, applied it for their own benefit. Such an act, according to the complainant, amounts to misappropriation and other offence punishable under Sections 405 and 406 of IPC.
11. Be that as it may. Whether the allegation in the complained support the charge to make out prima facie case was the question to be considered by the trial court at an appropriate stage. The proceedings before the trial court shows, since the B Report was filed by the police officers in 9 response to the reference of the Magistrate under Section 156(3) the complainant opposed it with a protest memo, consequent to which the learned Additional Magistrate accepted her sworn statement and also of a witness. On analysis of such material, the learned magistrate opined negative report of the police officer was unacceptable, and cognizance is taken and by order impugned passed by him, process was issued to secure presence of the second accused. Against such order the respondent-second accused H. Ramachandra filed revision before the sessions court in Crl. R.P 180/2005. The case was assigned to learned judge Fast tract Court-V, who after summoning the records has held the order of Magistrate taking cognizance is improper and unsustainable and set aside the same absolving the respondents of all the charges and dropped all the proceedings.
12. Though learned counsel, Sri Abhinav Anand would support the impugned order of the revisional court on the ground revisional court was within its jurisdiction to examine the legality or otherwise of the impugned 10 judgment passed by the magistrate and in that regard could pass appropriate orders to prevent misuse of law, yet, the circumstances in which the prosecution was initiated, nature of allegations made against the accused and the overt acts attributed to them are relevant aspects for consideration. It is seen from the allegations in paragraph 9 of the complainant, complainant has brought out that the 2nd accused who was one of the administrators to administer the will, having entered office, withdrew the amount and despite requests to apportion it between the beneficiaries in terms of the will, failed to discharge the duty of administrator. The allegations are specific that the 2nd accused had withdrawn the amount from the account to the credit of the deceased and had also failed to distribute it among the beneficiaries.
13. Whether withdrawal of the amount by the accused was misappropriation or misuse of trust, had to be considered based on the material evidence. Besides, when a private is presented under Section 200, Cr.P.C., the magistrate would receive it and examine it to form an 11 'opinion' as to whether prima facie case is made out and call upon the complainant to tender sworn statement. At this stage, the magistrate is not required to analyze material for ascertainment as to whether the material allegations establish guilt. What is contemplated is only forming an 'opinion' and not analysis of the material to decide the guilt or otherwise of the accused. The first stage is to take cognizance and then call upon the complainant to tender sworn statement.
14. In the instant case, the magistrate had not taken cognizance, but directed the I.O. of the jurisdictional police in exercise of power conferred under Section 156(3) read with Section 202, Cr.P.C. The magistrate thought fit not to take cognizance in the first instance but to refer the complaint for investigation by the jurisdictional police, which order, undoubtedly, is permissible under Section 202, Cr.P.C. On receipt of the result of investigation/enquiry by the jurisdictional police, the magistrate is empowered to analyze it and consider other evidence produced by the complainant. After taking into consideration the report of 12 the police and the statement of the complainant, the magistrate would decide whether a prima facie case is made out to proceed against the accused, or dismiss the complaint. This is clearly spelled out in Section 203, Cr.P.C.. In case the magistrate decides to reject the complaint under Section 203, then he is required to assign reasons. However, if the magistrate feels after considering the report of the police officer and the statement of the complainant that a prima facie case is made out, the magistrate is not required to assign any reason or pass a considered order. The magistrate may accept and form an 'opinion' based on the police report and the statement of the complainant and summon the accused as is provided under Section 204, Cr.P.C. Therefore, even though for dismissal of the complaint under Section 203, Cr.P.C., the magistrate has to pass a reasoned order, for issuing process to summon the presence of the accused under Section 204, no such considered order is required to be passed. This is because after summoning the accused, the magistrate would call upon the complainant if the case has to be tried 13 as warrant case, to tender evidence before charge as is provided under Section 245, Cr.P.C. On such examination of the complainant, the magistrate would decide whether charge has to be framed or the accused has to be discharged. Therefore, a clear safeguard is provided to the accused against prosecution on insufficient material.
15. In the instant case, that stage had not come. The magistrate had merely issued process to summon the accused as is permissible under Section 204, Cr.P.C. and hence detailed examination of material was not required. In fact, it was too premature to say whether the allegations in the complaint would justify framing of charge. That could only be done under Sections 245 and 246, Cr.P.C. The learned sessions judge has ignored the mandate of Sections 203 and 204, Cr.P.C. to form an opinion that the allegations made in the complaint bring out civil action and not criminal action. Applying the decision of the apex court reported in AIR 1965 SC 1251, the revisional court judge felt the dispute was civil in nature and has erroneously dropped the proceedings.
14
16. We must keep in mind that the allegation is, accused no.2 had withdrawn amount from the account to the credit of the deceased and for a long period of more than a year, he had neither distributed it amongst the beneficiaries nor re-invested it. Therefore, the allegation of the complainant that it was temporary misappropriation, if not total misappropriation, had to be considered. The order passed by the jurisdictional magistrate was, undoubtedly, discretionary which the revisional court has unjustifiably interfered with.
17. In the circumstances, I am satisfied interference by the revisional court with the impugned order passed by the magistrate and dismissing the complaint, cannot be sustained. In the result, the revision petition is allowed. The impugned order passed by the Judge, Fast Track Court- V, Mysore, in Cr..R.P.18011/05 is hereby set aside. It is remanded back to the trial court to proceed from the stage where the impugned order was set aside. However, the right of the accused to seek discharge shall not be affected 15 by the observations made in the course of this order. To avoid any further delay, the parties are directed to appear before the jurisdictional magistrate on 22.9.2012. Registry is directed to transmit the lower court records to the court below forthwith.
Sd/-
JUDGE Bsv/vgh*