Karnataka High Court
Shri A Anup Son Of T.V.Aravindakshan vs The Station House Officer & Anr on 12 June, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200623/2017
Between:
Shri. A. Anup,
Son of T.V. Aravindakshan,
Aged about 40 Years,
Residing at K-1203,
Purva Venezia,
Yalahanka New Town,
Bangalore.
... Petitioner
(By Sri. Vishwakrmaraj Naik, Advocate)
And:
1. The Station House Officer
Statino Bazaar Police Station,
Kalaburagi.
Represented by
Addl. SPP, Kalaburagi.
2. Shri Udayshankar Shetty,
Son of Shri Subaschandra Shetty,
Carrying on business at Plot No.3,
S.No.1/1B, Brahmapur Village,
Kalaburagi.
.. Respondents
(By Sri. Maqbool Ahmed, HCGP for R-1)
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This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to call for records in C.C.No.1139 of 2013
on the file of the Principal Civil Judge and J.M.F.C.,
Kalaburagi and quash all proceedings in C.C.No.1139 of
2013.
This petition coming on for admission this day, the
Court made the following:-
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C., praying to quash the proceedings in C.C.No.1139/2013 pending on the file of Prl. Civil Judge and JMFC, Kalaburagi.
2. Brief facts of the case are that, the complainant being the Proprietor of Shetty Constructions was owning a Multiplex Cinema Theater and the said theater was given on lease during November-2006 to Fun Multiplex Private Limited, Mumbai, a film running company and the said company took the property on lease, thereafter they have applied for permission to start the exhibition of films at the theater, leased by the respondent No.2 and in pursuant 3 to this the Entertainment Tax Officer granted permission for commencing exhibition of the films. Thereafter, an application was came to be filed for the licence and it was given. Subsequently, it is alleged that when the lease was coming to end, the petitioner had applied for renewal to Entertainment Tax Officer by impersonating the respondent No.2 relying upon the application dated 4.9.2006 with a photograph of the petitioner affixed thereto, thereby he has cheated the complainant and has fabricated the documents. On the basis of the complaint, a case was registered in Crime No.183/2011 and subsequently after the investigation the charge sheet was came to be filed by the police and a case is pending in C.C.No.1139/2013.
3. The main grounds urged by the learned counsel for the petitioner is that there is no question of petitioner using the name of the respondent- complainant to get the licence since the property has 4 been leased to Fun Multiplex Private Limited and they are running the show in the said premises. He would further contend that the complainant himself has filed an application on 4.10.2006 and subsequently withdrawn the said application on 16.11.2016, then question of fabricating the document also does not arise at all. He would further contend that the petitioner has also obtained the permission to use the computerized ticketing and the Commercial Tax Department has also granted permission for computerized ticketing. He would further contend that there is no question of accused committing offence under Section 419, 420, 468, 471 r/w Section 34 of IPC. All the documents which have been placed along with the petition clearly goes to show that no offences have been made out by the complainant. The cognizance taken by the Court below is also not in accordance with law. On these grounds, he prayed for allowing the said petition by quashing the proceedings.
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4. Per contra, the learned High Court Government Pleader would contend that the complaint was came to be filed in the year 2011. Subsequently after the investigation charge sheet came to be filed in the year 2013 and till then the proceedings have not taken place and the petitioner belatedly now challenged before this Court without any just cause. He would further contend that already the charge sheet has been filed and the contention of the accused-petitioner is a disputed question of fact and as such this Court cannot exercise the power under Section 482 of Cr.P.C. and quash the proceedings at this juncture. He would further contend that by relying upon the decision of the State of Orissa Vs. Saroj Kumar Sahoo reported in (2005) 13 SCC 540 by contending that the High Court cannot ordinarily hold any enquiry as to reliable of evidence to suspend the allegation, it is the function of the trial Court. He would further contend that the High Court normally refrain from giving a prima facie 6 decision in a case where the entire facts are incomplete and hazy more so when the evidence has not been collected and produced before the Court. On these grounds, he prayed for dismissal of the said petition.
5. I have heard the learned Senior Counsel Sri. Srivatsav, appearing for the petitioner and also Sri. Maqbool Ahmed, learned High Court Government Pleader, appearing for the respondent-State and I have also perused the records.
6. The main contention of the learned counsel for the petitioner is that, the petitioner has obtained the property by taking the property on lease and thereafter he has also obtained requisite licence from the competent authorities to run the theater as contemplated under the law. When the petitioner- accused has obtained the necessary permission from the competent authorities, then under such circumstances he cannot be said that he has cheated 7 the respondent-State and he cannot fabricated the documents. He has further contended that the complainant has filed an application on 04.10.2006 and subsequently he himself has withdrawn the said application on 16.11.2016. The complaint itself substantiate the said fact, as such there is no material to show that the petitioner has committed the offence as alleged against him and same is liable to be quashed.
7. During the course of argument, learned High Court Government Pleader has brought to my notice, the decision, in the case of State of Orissa Vs. Saroj Kumar Sahoo reported in (2005) 13 SCC 540. Para No.11 of the said decision, reads as under;
" 11. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest 8 Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.
8. By going through the proposition of the law it has been held that this Court while exercising the inherent power should not be exercised to stifle a 9 legitimate prosecution. But, however it has been also observed that there are no hard-and-fast rule to give a specific direction that the High Court should not exercise the extraordinary jurisdiction and quash the proceedings. Keeping in view the above said proposition of law if we go through the facts and circumstances of the case, main allegation, which has been made as per the complaint dated 14.10.2011 that though the application was came to be filed on 4.10.2006, subsequently said application was withdrawn on 16.11.2006 and the said application said to have been withdrawn has been exercised by the petitioner and by affixing his photographs again he has applied for the renewal of the licence and thereby he has cheated the complainant. The said complaint if it is looked into there appears to be some prima facie material to show that some wrong has been committed by some person. Be that as it may. Already the police have investigated the case and have filed the charge sheet before the 10 jurisdictional Court. When already the police have taken the cognizance and have investigated the case and have filed the charge-sheet, then under such circumstances it is not just and proper to interfere with the further proceedings of the trial Court. Leave apart this. Even if all the contentions taken by the petitioner taken into consideration on their face value and the records also discloses that it is for the Magistrate concerned to consider those contention in an application filed under Section 239 of Cr.P.C. When an alternative remedy has been made available under Section 239 of Cr.P.C. then under such circumstances the accused-petitioner has to file an application before the Court and the concerned Magistrate has to consider the application and dispose of it on merit. This proposition of law has been held in the case of Umesh Vs. State of Kerala, reported in (2017) 3 SCC 112, wherein it is held as under;
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"4. We find it difficult to appreciate the contention. Even if all contentions taken by the appellant are taken on their face value also, it is for the Magistrate concerned to consider those contentions in an appropriate application filed under Section 239 of Cr.P.C.
5. In that view of the matter, we do not propose to go into all the contentions taken by the appellant. The appeals are hence disposed of as follows: the appellant shall surrender before the Judicial Magistrate, First Class, Chavakkad, where the criminal cases are pending, within four weeks from today. On thus surrendering, on the appellant's furnishing a bond for a sum of Rs.50,000 (Rupees fifty thousand), in each case, along with two solvent sureties for the like amount, the appellant shall be released on bail. The appellant will be free to file applications under Section 239 of Cr.P.C.
6. We direct the learned Magistrate to consider the applications, if any filed, having regard to the contentions taken by the appellant and dispose of the same, in accordance with law."
9. In the above decision, it is held that after filing of such petition, the Magistrate has to consider the contentions regarding discharge, all the contentions can be appreciated by such Court.
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10. Under the above said facts and circumstances of the case, in view of the dictum of the Apex Court quoted supra by giving liberty to the accused-petitioner to file appropriate application before the trial Court, if he advised to do so. In view of the above said facts and circumstances, the petition stands dismissed.
The observation made above will not come in the way of the trial Court while disposing of the application under Section 239 of Cr.P.C.
Sd/-
JUDGE BL