Karnataka High Court
Smt Kathyaini.Y.P vs The State Of Karnataka on 12 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2060
Author: K.Somashekar
Bench: K.Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 12th DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL PETITION No.8140/2016
BETWEEN:
Smt. Kathyayini Y.P.
W/o late K.Ramakrishna Shetty,
Aged about 56 years,
R/at No.16, Pristine Magnum,
Sreenivagilu, 28th Cross Road,
Bangalore-47 ...Petitioner
(By Sri. Sanjay Yadav for Sri. Mahesh S, Advocates)
AND:
1. The State of Karnataka,
By Koramangala Police Station,
Bengaluru-95.
2. Sri. Sarala Shetty
W/o late K.Ramakrishna Shetty,
Aged about 62 years,
R/at No.301/A, Stag Aditya,
2nd Cross, Ashwini Layout,
Kormangala,
Bengaluru-560054. ... Respondents
(By Sri.K.Nageshwarappa, HCGP for R1;
Sri. C.S.Ravishankar, Adv., for R2)
2
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the entire criminal
proceedings in Cr.No.185/2016 (PCR No.14914/2015)
pending on the file of IV ACMM, Bangalore.
This Criminal Petition coming on for admission,
through video conferencing this day, the court made the
following:
ORDER
Sri.Sanjay Yadav for Sri. Mahesh S, learned counsel for the petitioner and Sri.C.S.Ravishankar, learned counsel for the 2nd respondent appear through video conferencing, whereas Sri. K.Nageshwarappa, learned HCGP for Respondent No.1 is present before the Court physically and heard the arguments and perused the entire materials placed on record.
2. Though the case is posted for admission, with the consent of both the parties, the matter is taken up for final disposal.
3. This petition is filed for quashing the entire criminal proceedings initiated against the petitioner in 3 Cr.No.185/2016 arose in PCR.No.14914/2015 pending on the file of IV A.C.M.M., Bangalore for the offence punishable under Sections 406, 464, 471, 420 of IPC.
4. It is transpired in the private complaint filed by the complainant/2nd respondent is that the complainant is married to one Sri. K.Ramakrishna Shetty on 25.05.1979. Subsequent to their marriage, she has blessed with two sons by name Amit Shetty and Ashit Shetty. On 16.01.2007, her husband K.Ramakrishna Shetty died intestate leaving behind the 2nd respondent and his two children. During the life time of Sri. K.Ramakrishna Shetty, he had acquired several immovable properties, out of them, one of the property being the residential apartment bearing No.3, New No.3/6 situated at Langford Road, Langford Town, Bangalore East where he had acquired the same under a registered sale deed dated 15.05.1998. The petitioner herein was married and working in State Bank of 4 Mysore and came in contact with the 2nd respondent and her husband on the pretext of doing some business. It is further alleged that apart from business relationship, there was no relationship between the petitioner and the husband of 2nd respondent. The learned counsel for the petitioner has produced a copy of private complaint and copy of FIR vide Annexure- A1 & A2, a copy of election card as annexure-B, the copies of passport of petitioner and her late husband as Annexure C and C1, a copy of the passport as annexure-D, a copy of the transfer certificate as annexure-D1, NOC and intimation of allotment issued by KHB as annexure-F and F1, a copy of gift deed as annexure-G, a copy of the order of additional commissioner as annexure-H, medical reports of the hospital as annexure-J, a copy of the death certificate of K.Ramakrishna Shetty as annexure-K and photographs of petitioner and her husband as Annexure-L. 5
5. Learned counsel for the petitioner has contended that the learned Magistrate without going through the contents of the private complaint, has referred the same for investigation to the jurisdictional police station as contemplated under Section 156(3) of Cr.P.C. and directed the police to submit a report by 22.10.2016 which is contrary to the directions of the Hon'ble Supreme Court in the case of Priyanka Vs. Srivatsa and Another Vs. State of U.P. reported in 2015 Crl.L.J. 2396. Learned counsel for the petitioner submits that the investigation was halted due to granting of interim stay on 23.11.2016 but the same was vacated on 11.09.2019. The learned counsel for petitioner took several adjournments for getting instruction from the petitioner and to find out whether 'B' report has been filed or not. On all these grounds, the petitioner prayed to allow the petition quashing the entire criminal proceedings initiated against the petitioner.
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6. Per contra, learned counsel for the 2nd respondent has taken me through the averments made in the private complaint and the statement of objections by way of affidavit filed by the 2nd respondent to resist the petition wherein it is contended that the 2nd respondent is married to one Sri. K.Ramakrishna Shetty on 25.05.1979 as per Hindu Rights and Customs prevailing in their Society. Subsequent to their marriage, she has blessed with two sons by name Amit Shetty and Ashit Shetty. To prove the same, she has produced their marriage photographs as document Nos.1 and 2. On 16.01.2007, her husband K.Ramakrishna Shetty died intestate leaving behind the 2nd respondent and his two children and to substantiate the same, she has produced death certificate of her husband as document No.3. During the life time of Sri. K.Ramakrishna Shetty, he had acquired several immovable properties, out of them, one of the property 7 being the residential apartment bearing No.3, New No.3/6 situated at Langford Road, Langford Town, Bangalore East where he had acquired the same under a registered sale deed dated 15.05.1998 and to substantiate the same, she has produced a copy of the sale deed as document No.4.
7. The 2nd respondent has produced several documents pertaining to the case. It is further contended that, the petitioner has cheated several people by committing criminal breach of trust, cheating, misrepresentation, forgery etc., on the pretext of running business in the name and style of 'M/s. Comfort Home Inn Pvt. Ltd.,' thereby grabbed crores of money from the public. In this regard, several complaints have been registered by the several police stations against the petitioner in Cr.Nos.220/23013, 249/2013, 129/2013, 573/2013 and 143/2013. The copies of the same are produced as document Nos. 10 to 8 14 respectively. FIR has been recorded by the jurisdictional police on all these crime and investigation is on force in accordance with law. Further it is contended that, the husband of 2nd respondent has acquired residential apartment bearing Nos.6,7,14,15 'Ganga Block' and apartment No.313, 'Kumaradara Block' situated at National Games Housing Project, Koramangala, Bangalore by virtue of the registered sale deeds and they were in peaceful possession and enjoyment of the said properties during his lifetime. The petitioner with the deceitful intention to have an unlawful enrichment has committed the act of fraud, cheating, forgery and criminal breach of trust. Hence, the 2nd respondent has approached the Koramangala Police Station with the complaint, however, the said police failed to acknowledge the complaint against the petitioner instead advised her to approach the Court for the relief. Hence, the 2nd respondent has filed a private complaint against the petitioner in PCR 9 No.14914/2015. On all these grounds the 2nd respondent prays for dismissal of the petition.
8. Having gone through the argument addressed by the learned counsel for the 2nd respondent as well as the statement of objections filed by the 2nd respondent and materials on record, it is relevant to state here that, on filing of private complaint by the 2nd respondent, the same has been referred to the jurisdictional police for investigation as contemplated under Section 156(3) of the Cr.P.C. and for submitting the report. Subsequent to the same, the case in crime No.185/2016 was registered against the petitioner for the aforesaid offences and FIR has been filed. Due to obtaining interim stay, the investigation is stalled.
9. Section 154 of Cr.P.C. says information to the police and their power to investigate which is in chapter XII of the Cr.P.C. but in the instant case, the 10 complainant had initiated the criminal proceedings by filing a private complaint and the same has been referred for investigation to the jurisdictional police as contemplated under Section 156(3) of Cr.P.C., whereby the concerned judicial Magistrate has taken the cognizance as contemplated under Section 190 of Cr.P.C. which reads as thus:
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.11
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try".
However, when once cognizance has been taken by the judicial Magistrate of any rank and referred the case for investigation under Section 156(3) of Cr.P.C., then the investigating officer ought to have investigated the matter in accordance with law by recording a statement of witness and securing material documents and ought to have submitted a report after completion of investigation as contemplated under Section 173(2) of Cr.P.C. If the investigating officer has vested with the power, he ought to have conducted mahazar in the presence of panch witnesses and also record the statement of witnesses. But in the instant case, when the interim stay has been granted to stay the further proceedings in Cr.No.185/2016, then there is no power vested to the investigating agency to investigate the 12 matter in order to laying the charge-sheet. It is relevant to refer Section 161 of Cr.P.C. wherein it is held that "
Examination of witnesses by police.- "Any police officer making an investigation under this chapter, or any police officer not below such ranks the State Government may, by general or special order, prescribe in this behalf acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case."
10. When once the crime came to be registered either on a private complaint, then the same is referred to the jurisdictional investigating agency or the written complaint filed by the complainant, then the power is vested with the investigating agency to proceed with it according to the Cr.P.C. Examination of witnesses by police officer in order to laying a charge sheet against the accused and also securing the material documents, where the charges were alleged to have lugged against the accused even to proceed as contemplated under 13 Section 173(2) of Cr.P.C. Even after laying charge sheet, the power is vested with the investigating agency as under Section 173(8) of Cr.P.C., in this provisions, nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
11. But in the instant case, filing of petition under Section 482 of Cr.P.C., the case in Cr.No.185/2016 arose in PCR No. 14914/2015 has been halted and there is no progress for laying the 14 charge sheet against the accused for the aforesaid offences which is reflected in the FIR said to have been recorded by the 1st respondent. However, the inherent power under Section 482 of Cr.P.C. can be exercised sparingly, cautiously, judicially and judiciously. Therefore, keeping in mind if there is any abuse of process of law and if there is any miscarriage of justice, then only the power under Section 482 of Cr.P.C. can be exercised, but in the instant case subsequent to registration of the crime, there is no progress of the case as there is a stay. Hence, one can infer when the matter has been stayed for investigation, definitely, there is no progress at all whether the investigating officer has made an endeavor to proceed either to lay the charge sheet or if no material has been secured naturally, he has to file 'B' report but in the instant case there is no progress at all, even vacating the interim stay granted earlier. But learned counsel for the petitioner submits that he wants to ascertain the present status of the case 15 in Cr.No.185/2016, since, it is the case of the year 2016, moreover, the crime came to be registered based upon the private complaint filed by the 2nd respondent/de-facto complainant. When the crime came to be registered by the 1st respondent police, it is the duty cast upon the investigating agency to proceed with the matter without any hurdles and obstacles and investigate the matter freely and lay the charge sheet or any other report as contemplated under Cr.P.C.
12. Respondent No.1 who is represented by the learned HCGP for the State but there is no wider scope for address his arguments, since it is a private complaint filed by the 2nd respondent and based upon the same, the matter is referred for investigation to the jurisdictional police under Section 156(3) of Cr.P.C. for the aforesaid offences. However, in the instant case, it is said that there is no substance in the contention made by the learned counsel for the petitioner for intervention 16 relating to the Cr.No.185/2016. Hence, the petition is liable to be rejected. Accordingly, the petition is dismissed.
13. It is made it clear whatever the observation made in the order; the same shall not influence the mind of either Court below where the private complaint came to be registered or investigating agency. Let the investigating officer has to proceed with the case freely without any interferences. Ordered accordingly.
Sd/-
JUDGE JS/-