Karnataka High Court
Anil Parashuram Soudagar vs State Of Of Karnataka on 16 June, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 100506 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO.100506 OF 2019 (482)
BETWEEN:
1. ANIL PARASHURAM SOUDAGAR
AGE: 52 YEARS,
OCC: FOOTWEAR BUSINESS,
R/O SUKHADHAMA BUILDING,
MAMMADEVI ROAD, ATHANI,
DIST BELAGAVI
2. SUSHMA W/O ANIL SOUDAGAR
AGE: 48 YEARS, OCC: HOUSEWIFE
R/O SUKHADHAMA BUILDING,
MAMMADEVI ROAD, ATHANI,
DIST: BELAGAVI.
... PETITIONERS
(BY SRI M.B.GUNDAWADE, ADV.)
AND:
1. STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH TILAKAWADI POLICE STATION, BELAGAVI.
2. RUDRAYYA MALLAYYA HUGAR
AGE: 40 YEARS, OCC: BUSINESS,
R/O DEVALAPUR, TQ: BAILHONGAL,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI RAMESH CHIGARI HCGP FOR R1, ADV.)
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CRL.P No. 100506 of 2019
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C.,
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONER/ACCUSED NO.6 and 8 IN C.C.NO.1465/2015 ON THE
FILE OF JMFC-IV COURT, BELAGAVI, FOR THE ALLEGED OFFENCES
U/SEC 408 R/W SECTION 35 OF INDIAN PENAL CODE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel Sri M.B.Gundawade for the petitioner and learned High Court Government Pleader for respondent No.1-State at the stage of admission itself.
2. This petition is filed under Section 482 of Cr.P.C., with the following prayer.
Therefore on the above stated grounds and any other grounds that may be submitted at the time of hearing of the present case it is most respectfully prayed that, the Hon'ble Court be pleased to pass an order:
A. To quash the entire proceedings against the Petitioners/accused Nos.6 & 8 in C.C.No.1465/2015, on the file of JMFC-IV Court, Belagavi for the alleged offences U/Sec.408 R/w Section 35 of Indian Penal Code.
B. Any other orders may kindly be passed that the Hon'ble Court deems fit in the interest of justice.", -3- CRL.P No. 100506 of 2019
3. Brief facts of the case are as under:
A complaint came to be filed by the 2nd respondent Sri Rudrayya Mallayya Hugar with the Tilakwadii Police, Belagavi, based on which, the Tilakwadi Police registered a case in Crime No.54/2012.
4. The gist of the complaint averment reveals that, the complainant is the distributing representative of Janavikasa Abhiyana, conducted by Janavikasa Abhiyana Abhivruddi Samste. The said Samste was run by Sri Sushil Sharad Pathankar and his wife Smt.Smita Pathankar, under the Firm as Krishi Jeevana Yojane. Sri Vasant Hanamappa Chougale and Sri Ramesh Changappa Kakathikar were looking after the affairs of both the firms. The Firm was colleting the money from its members in order to distribute Sugar, Rice and other household items at reasonable price and also used to distribute the manure to the farmers in a competitive price. People like complainant were appointed as the distributing -4- CRL.P No. 100506 of 2019 representatives to distribute the items as per the needs of its members.
5. The representatives used to collect money from its members and to place orders and the said Samste used to cater to the needs as per the orders placed by the representatives. The petitioners are the Secretary and Director of the Janavikasa Abhiyana Abhivruddi Samste as per Annexure-F.
6. The said Society was registered with the Registrar of Co-Operative Societies, Belagavi. The Byelaws of the said Samste reveal that petitioner No.1 was the Secretary and he was entitled to collect money and issue receipts and also to hold meetings and his decision is final. Insofar as the 2nd petitioner is concerned, she is the wife of the 1st petitioner and she was one of the directors of the Society.
7. According to the complaint averments, the orders placed on 06.11.2011 were not complied by the -5- CRL.P No. 100506 of 2019 said Samste though the amount has been received in respect of the said order. The other representatives have also sent money but the same is not complied. The total dues to the representatives who have paid the money and not received the goods is to the tune of Rs.46,23,569/-.
8. In the meantime, the complainant was able to catch hold of accused Nos.1 and 2 in Satara in the month of February 2012 and enquired. He has issued cheques drawn on State Bank of India towards amount, but the cheques were all dishonored. Vasant Chougale and Ramesh Kakatikar were also enquired about the non- honoring of the cheques, for which he did not properly respond and therefore, a complaint came to be filed.
9. After registration of the complaint, the police investigated the matter thoroughly and filed the charge sheet. Present petitioners are accused Nos.6 and 8 in the charge sheet.
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10. Learned Magistrate took cognizance of the offences alleged against all the accused persons and issued process. Being aggrieved by the same, the petitioners are before this Court.
11. In the petition, the following grounds have been raised:
That, the Petitioners are innocent persons and have not committed any of the offences as alleged. Hence the entire proceedings initiated against the Petitioners are liable to be quashed.
The allegations mentioned in the complaint against the Petitioners if taken into considerations, will not attract any penal provisions.
The informant/Respondent No.2 had not made any allegations against the Petitioners in the information given by him before the Tilakawadi Police.
Thought the Petitioners were shown as members of the said institutions, but they have no any connection with the activities of the institution, more specifically in respect of supply of goods.-7- CRL.P No. 100506 of 2019
The informant and other charge sheet witnesses had clearly stated that, they have contacted Jan Vikas Abhiyan Firm situated at Congress road Belagavi. They also stated that, the said firm is belongs and run by Sri Susheel Sharad Pathankar, resident of Satara and one Vasant Hanamant Chougule and another Ramesh Changappa Kakatikar, both are resident of Belagavi are the Managers of the said firm.
The investigations papers nowhere disclose about any kind of transactions of the Jan Vikas Abhiyan Firm are having any kind of connection with the Petitioners. The witnesses having no contact with the Petitioners.
It is alleged that, the informant and charge sheet witnesses had paid the amount to Account No.31012470869 "Jan Vikas Abhiyan Firm" and no to the "Jan Vikas Abhiyan Abhivruddhi".
That, the investigation papers nowhere discloses that the Petitioners are having any control over the transactions of the Jan Vikas Abhiyan Firm of any type.
Both the Petitioners have also informed the Deputy Registrar of Co-operative Society, Belagavi by letter dated 21-05-2012.-8- CRL.P No. 100506 of 2019
The names of the Petitioners were not forthcoming in the information as well as the FIR.
That, on perusal of the contents of the complaint, it nowhere discloses specific involvement of Petitioners in the alleged incident.
The investigation papers eve if taken to consideration it nowhere attracts any penal provisions of law including sections 408 of IPC and it appears that they are of civil in nature.
The allegations also do not disclose any type of criminal intention on the part of the Petitioners.
That, the contents of the complaint are too much vague in respect of the alleged act by Petitioners.
No evidence is forthcoming to show that, the Petitioners have committed the alleged offence in respect of the alleged incident.
On perusal of the entire documents on record it nowhere discloses the malafide intention, motive of the Petitioners to commit such an offence as alleged by the Respondent No.2.-9- CRL.P No. 100506 of 2019
The proceeding against the Petitioners before the JMFC-IV Court Belagavi, at C.C.No.1465/2015 for the offences under sections 408 R/w. section 35 of I.P.C. are in contravention of the provisions of law, facts and amounts to illegal proceedings, hence are liable to be quashed.
More specifically for which the charge sheet has been submitted and taking cognizance against the Petitioners without any allegations for the offences under sections 408 R/w. 35 of IPC is also liable to be quashed, since there is no evidence and allegations against the Petitioners for the said offences.
The registration of the case against the Petitioners clearly discloses that it is an abuse of process of law and the same is liable to be set right by the Hon'ble Court by quashing the same.
Initiation of the criminal proceedings against the Petitioners causing harassment, inconvenient and also affecting family life of the Petitioners.
The entire allegations made out in the complaint even if they had taken on their face value and accepted in their entirety, do not prima facie
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constitute any offence or make out the case against the Petitioners.
On perusal of the investigation papers and documents on records no specific allegations against the Petitioners are forth coming.
The acts of the Trial Court in respect of the Petitioners are totally in contravention with the provisions of law and are liable to be quashed.
It is quite essential for the Hon'ble Court to exercise inherent powers U/s. 482 of Cr.P.C to avoid any further harassment at the instance of Respondent No.2 for no fault on the part of the Petitioners herein. Since filing of the complaint by the Respondent No.2 clearly is with a malafide intention and also to misuse the procedure of law for selfish motive of Respondent No.2.
Viewed from any angle the proceedings against the Petitioners are not legally sustainable in law and are liable to be quashed.
12. Reiterating the grounds urged in the petition, Sri M.B.Gundawade learned counsel for the petitioners vehemently contended that the petitioners are no way responsible for the alleged misdeeds of Janavikasa
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CRL.P No. 100506 of 2019 Abhiyana Samste. He further contended that the petitioners had already tendered resignation on 29.05.2011 and addressed a letter to the Assistant Registrar of Co-Operative Societies, Belagavi intimating their resignation and therefore, they are not at all responsible for the misdeeds of Janavikasa Abhiyana Abhivruddi Samsete and sought for quashing of further proceedings pending in C.C.No.1465/2015.
13. He further contended that accused Nos.1 and 2 are the main culprits and they had opened another Firm and the money is actually received in the said Firm and these petitioners are no way responsible for the alleged misdeeds of accused Nos.1 & 2 and the Society being not made as an accused, the complaint is not maintainable and sought for allowing the petition.
14. The 2nd respondent, who is the de-facto complainant, though served with the notice of this petition remained absent.
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CRL.P No. 100506 of 2019
15. Learned High Court Government Pleader however, opposes the case of the petitioners by contending that the police after thorough investigation found that the 1st petitioner being the Secretary of Janavikasa Abhiyana Samste, was entitled to collect money and issue receipts. The 2nd petitioner is the wife of petitioner No.1 and she was one of the directors, she is also responsible for the misdeeds of the society and sought for dismissal of the petition.
16. Perused the materials on record meticulously.
17. It is the contention of Sri M.B.Gundawade, learned counsel for the petitioners that, the petitioners are no way responsible for alleged misdeeds of the Jana Vikasa Samsete which is a different Firm than Janavikasa Abhiyana Abhivruddi Samste. He further submits that, there are two different and distinct firms and the petitioners have dealt with Janavikasa Samste and not with Janavikasa Abhiyana Samste and therefore, petitioners are no way responsible.
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CRL.P No. 100506 of 2019
18. The material collected by the investigating agency placed on record, prima facie shows that the money received by the Janavikasa Abhiyana Samste, is registered with the Registrar of Co-Operative Societies, Belagavi and petitioner No.1 is the Secretary of the said Samste and petitioner No.2 is the one of the directors of the said Samste. Mere tendering resignation, which is sent to Assistant Registrar of Co-Operative Societies on 21.05.2011 would not ipso-fact affect the criminality insofar as the petitioners are concerned. Any way, it is the defence that is taken by the petitioners to put forth before the Trial Court during the course of trial. When exactly they tendered the resignation and was the resignation accepted by other members of the Society by calling a General Body Meeting or a meeting of the Board are all matters that are required to be adjudicated in a full fledged trial before the Trial Court.
19. Further, there is no other materials on record except the copy of the resignation letter which is annexed
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CRL.P No. 100506 of 2019 to this petition. In a matter of this nature when evidence is necessary to arrive at a conclusion, the power vested in this Court under Section 482 of Cr.P.C., cannot be exercised by holding a mini trial.
20. Suffice to say that the material collected by the investigating agency prima facie would be sufficient to proceed against the petitioners and they are required to be tried before the learned Magistrate. Accordingly, the grounds urged in the petition are not sufficient to accept the prayer of the petitioners. Hence, this Court pass the following order.
ORDER The petition is hereby dismissed.
However the observations made above by this Court shall not affect the rights of the petitioners during the trial.
This order shall not also deter the rights of the petitioners to file necessary application before the leaned Magistrate seeking discharge. If such application is filed,
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CRL.P No. 100506 of 2019 the learned Magistrate is at liberty to decide the same in accordance with law being uninfluenced by the observations made by this Court.
Sd/-
JUDGE EM