Karnataka High Court
Sri. Venaktesh Mourya vs The Police Inspector on 23 August, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.6494/2017
Between:
Sri Venkatesh Mourya
S/o Patalappa,
Aged about 42 years,
Residing at No.48, Temple Road,
11th Cross, Malleshwaram,
Bengaluru-560 003.
And also:
Residing at 3rd Floor, Gangappa Building,
Near Bharat Petrol Bunk,
Mulbagal-KGF Bypass Road, Mulbagal,
Kolar District-563 131. ...Petitioner
(By Sri J. D. Kashinath, Advocate)
And:
1. The Police Inspector
Upparpet Police Station,
Bengaluru.
Represented by S S P
High Court of Karnataka,
Bengaluru-560 001.
2. Kum. Sharda Holehonnura Purana Math
D/o Ajjayya,
Aged about 41 years,
2
Residing at K. R. Extension,
1st Cross, Near PLD Bank,
Madhugiri Town,
Tumkur District-572 175. ...Respondents
(By Smt. Namitha Mahesh B. G., HCGP for R-1 &
Sri V. B. Siddaramaiah, Advocate for R-2)
This Criminal petition is filed under Section 482 of
Cr.P.C praying to quash the charge sheet filed in
C.C.No.11602/2017 for the offences punishable under
Sections 506, 406, 420 and 376 of IPC and also quash the
FIR registered in Crime No.231/2016 registered on the
complaint of respondent No.2 for the offences punishable
under Sections 506, 406, 420 and 376 of IPC pending on
the file of IV Additional Chief Metropolitan Magistrate at
Bengaluru as abuse of process of law.
This Criminal petition coming on for Admission, this
day, the Court made the following:
ORDER
Heard learned counsel for the petitioner and learned HCGP for respondent No.1.
2. The brief facts of the case are that respondent No.1 herein filed a private complaint before the IV Additional Chief Metropolitan Magistrate, Bengaluru (PCR No.8026/2016) under Section 190(A) read with Section 200 of Cr.P.C seeking action against 3 the petitioner for the alleged offences punishable under Sections 376, 406, 420 and 506 of IPC.
3. Learned Magistrate referred the said complaint for investigation under Section 156 (3) of Cr.P.C. After investigation, the charge sheet came to be laid against the petitioner for the offences under Sections 341, 420, 493, 495 and 376 of IPC.
4. The case of the prosecution is that respondent No.2 was running an NGO by name Tipperudraswamy Gramodyoga Sangha [R] at Molakalmuru Taluk, Chitradurga District. She was also running another NGO called Swadeshi Mahila Mandali at Madhugiri. She came in contact with the petitioner herein in the month of August, 2010. It is stated in the complaint that the petitioner induced respondent No.2/complainant to make him President of NGO, accordingly, she made the accused as president of two NGOs i.e. Tipperudraswamy Gramodyoga Sangha and 4 Chaitanya Vidya Samastey on 13.09.2011. Further allegations are that the petitioner, after becoming the president of the aforesaid NGOs, used to take the complainant to various place like government offices and companies to get financial aid. The material allegations attracting the alleged offences finds place at para No.12 of the complaint which reads as under:
"12. The Complainant further submits that, the accused and the complainant usually visited Bangalore for the NGO related work, on 05.11.2011 the accused called the complainant to hotel Tribhuvana were he was staying in room No.303 by saying that some people are coming to hotel to meet them who can provide financial aid for their NGO's. When she went to his room there was no one expect the accused and when the complainant asked him then the accused told her that they will be coming in few minutes to meet them and started having discussion and later on the accused forced the complainant and raped her against her will and the complainant resisted the said act. After the said act the complainant said the accused that she will lodge a complaint. The accused begged her not to lodge a complaint because his entire political career will be spoiled and the reputation of both of them will also be spoiled, it will also effect their NGO's and the complainant's dreams to run 5 NGO's will come to an end, the accused promised her that he will marry her. The copy of cash bill receipt is herewith produced for the kind perusal of this Hon'ble Court and marked as Annexure-D."
The allegations attracting the offences of cheating is in Para Nos. 16 & 18 which read as follows:
"16. The complainant further submits that, meanwhile the accused took a hand loan from the complainant on numerous occasions through cash and RTGS from two account No.64042160902 of State Bank of Mysore. Molakalmuru and account No.54033029849 of State Bank of Mysroe, Madhugiri, the total hand loan taken by the accused from the complainant is around Rs.35,00,000/- (Rupees Thirty Five Lakhs Only) and also taken around 250 grams of gold articles like Neck chain and Bangles.
The same was pledged by the accused in Muthoot Finance. The copies of the bank statement showing RTGS transactions send by the complainant ato the accused is herewith produced and marked as Annexure F and G for the kind perusal of this Hon'ble Court.
18. The complainant further submits that, later on the complainant came to know through reliable sources that the accused is already married and having children and he was also having illicit relationship with two other women. She questioned the accused 6 about the above said things and the accused lied to her stating that he is not married and some people are intentionally spreading rumors about him because they are not happy to see them together."
5. After investigation, the charge sheet is laid against the petitioner. The learned counsel for the petitioner submits that the proceedings initiated against the petitioner are defective and void ab-initio. The learned Magistrate has failed to comply with the guidelines laid down by the Hon'ble Supreme Court in the case of Priyanka Srivatsav and another vs. State of Uttar Pradesh and others reported in (2015) 6 SCC 287, referring the complaint for investigation to the jurisdictional police. The order of reference does not indicate application of mind. Further, even while taking cognizance, the learned Magistrate failed to apply his mind to the facts of the case. The order of the cognizance discloses that the learned Magistrate has not considered either the allegations or the materials produced by the Investigating Agency. 7
6. Further he submits that the allegations made against the petitioner are biased and ulteriorly motivated. The complainant and petitioner had financial transaction. Her grievance essentially pertains to the financial transaction. The complainant herself had instituted two proceedings against the petitioner under Section 138 of Negotiable Instrument Act, 1881. The complaint in question is filed solely with the motive of pressurizing the plaintiff to return the money advanced by the complainant.
7. With regard to the allegations under Section 376 of IPC is concerned, the counsel submits that according to the complainant, the incident had taken place in the year 2011. There is inordinate delay in lodging the complaint. According to her own version, she accompanied him to various lodges and was a consensual partner and therefore the offence under Section 376 of IPC is not made out.
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8. He further contends that offences alleged against the petitioner under Sections 493 and 495 of IPC also could not have been taken cognizance by the learned Magistrate without satisfying as to the compliance of Section 198 of Cr.P.C. As per the said provision, the Court could not have taken cognizance except upon complaint made by the aggrieved person. These defects have vitiated the entire proceedings and hence, he seeks to quash the proceedings.
9. The learned HCGP submits that the allegations made against the petitioner squarely attract each of the offence alleged in the complaint as well as in the charge sheet. The proceedings was initiated by lodging a private complaint. Therefore, provisions of Section 198 of Cr.P.C. is not applicable. The learned Magistrate has referred the complaint for investigation under Section 156(3) of Cr.P.C. and after securing necessary evidence, the charge sheet has been laid 9 against the petitioner. The charge sheet refers to incriminating documents which not only connect the accused but also make out each of the alleged offence. Therefore, there is no justifiable reason to quash the proceedings against the petitioner. The contention urged by the petitioner are required to be established only during the trial and hence, seeks to dismiss the petition.
10. Considered the submission and perused the records.
11. Insofar as the contention urged by the petitioner that the learned Magistrate has failed to comply with the guidelines issued by the Hon'ble Supreme Court in Priyanka Srivatsav and another vs. State of Uttar Pradesh and others reported in (2015) 6 SCC 287, is concerned, suffice it to refer to the order dated 11.08.2016 passed by the learned Magistrate which reads as under:
"Complainant is present. Heard submissions of advocate for the complainant. On the 10 perusal of the complaint cognizable and non- bailable offences are disclosed if an order is passed for investigation, there is scope to collect evidence during the course of investigation. A detail investigation is necessary. Taking into consideration nature of offences and other materials placed before this court, I proceed to pass the following order:
ORDER
1. Complaint is referred for investigation U/s. 156(3) of Cr.P.C. to SHO, Upparpet Police Station.
2. Await report.
Call on: 29.12.2016 IV ACMM, Bangalore."
The above order, in my view, is in accordance with the guidelines laid down by the Hon'ble Supreme Court in Priayanks Srivatsava's case (supra). Though the affidavit was not filed in support of the allegations but, the learned Magistrate had not taken cognizance of the offences, but has merely referred the matter for further investigation by the Police. While passing the reference order, the learned Magistrate has 11 taken into consideration the allegations made against the petitioner and has even recorded that the said allegations made out cognizable and non bailable offence. Therefore, I do not find any error or infirmity in the order of reference made by the learned Magistrate.
12. Even the order of cognizance indicates that the learned Magistrate has applied his mind to each of the offences and has considered the material placed by the Investigating Agency in support of the said accusation. This is evident from the order dated 07.04.2014, which reads as follows:
07.04.2017 Note:
The PI/PSI of Upparpet Police Station has filed this charge sheet against the accused persons for the offence punishable U/s.341, 420, 493, 495 and 376 of IPC.
Original F.I.R. in Crime No.231/2016(PCR No.8026/2016 on the file of IV Addl., CMM Court, Bangalore,) and complaint, with connected paper are herewith enclose, and charge sheet and its connected papers are here by checked. 12
Accused is on anticipatory bail order in Crl.Pet.,No.8821/2016 dtd., 2nd February 2017 on the file of Hon'ble High Court of Karnataka, Bangalore.
For kind orders, Perused the materials, there are sufficient materials placed by the prosecution to proceed against the accused persons.
Hence, cognizance for the offences punishable U/S.341 420 493 495 and 376 of IPC Against the accused persons is taken. Register the case as criminal case in Register No.III of this Court.
Issue SS to accused returnable by 12/5/17."
V Addl., CMM, B'lore.
This order in my view satisfies the requirements of application of mind. Therefore, I do not find any substance in the contentions urged by the learned counsel for the petitioner in this regard.
13. On careful consideration of the material on record, I find that the allegations made in the complaint squarely attract each of the offences alleged against the petitioner. There are specific allegations that the 13 petitioner herein subjected the complainant to forcible rape. In the complaint as well as in her statement, the complainant has narrated the events that led to the commission of rape.
14. A reading of the charge sheet indicates that at the time of commission of the said offence there was no promise of marriage. It is only after committing the offence of rape, petitioner is said to have made the promise to marry the complainant. Therefore, it cannot be said that the act of rape was consensual as sought to be made out. In so far as the delay in lodging the complaint, I find sufficient averments in the complaint as well as in the charge sheet explaining the delay.
15. The material produced by the Investigating Agency i.e., the letter said to have given by the petitioner to the accused clearly indicates that the petitioner represented to the complainant that he has married her and along with the charge sheet, 14 Investigating Agency has produced another letter at Sl No.26 which is said to have been written by the petitioner to the complainant stating that on his own accord he has tied thali to the complainant and even if his wife were to question him, he would stand by this act. There are also other incriminating documents and letters exchanged between the parties, the genuineness of which has to be decided during the trial.
16. In the wake of the prima facie material produced along with the charge sheet, I do not find any justifiable reason to quash the proceedings against the petitioner. Accordingly, Criminal petition is dismissed.
17. It is made clear that the observations made in this order shall not influence the trial court in whatsoever manner during the trial or considering the application of the petitioner for discharge.
Sd/-
JUDGE ds/HA