Karnataka High Court
Darshan Lal M vs State Of Karnataka on 10 December, 2020
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO. 3399 OF 2017
BETWEEN
Darshan Lal M
S/o Shri Gehna Ram
Aged 62 years
Occupation: Business
Residing at 130-C
New Kitchnu Nagar
Ludhiana
Punjab-141001.
... Petitioner
(By Sri. Prasanna Kumar P, Advocate)
AND
1. State of Karnataka
By Chickpet Police Station
Chickpet Sub-Division
Bengaluru City
Represented by its
State Public Prosecutor
High Court Building
Dr. B.R. Ambedkar Veedhi
Bengaluru-560 001.
2. Sri Mangilal
S/o Sri Habtaji
Aged 43 years
Occupation: Proprietor
M/s Parameshwara Garments
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M.H. Plaza, Mamulpet
Bengaluru - 560 053.
... Respondents
(By Smt. Rashmi Jadhav, HCGP for R-1;
Sri Gopal Singh - Adv., for R-2 (Absent))
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to quash the
order dated 03.12.2016 in C.C.No.2699/2017 (PCR No.
3567/2013) passed by the learned C.M.M., Bangalore
(Now transferred to IX-ACMM, Bangalore) thereby
rejecting the 'B' Report filed by the 1st Respondent / Police
and taking cognizance against the petitioner herein for the
offence punishable under Sections 420 and 471 of IPC
and ordering to register case and issue summons and
consequently quash the entire proceedings pending
thereon.
This Criminal Petition coming on for Admission, this
day, the court made the following:
ORDER
The petitioner is arraigned as an accused in C.C.No.2699/2017 arising out of PCR No.3567/2013 pending on the file of the IX ACMM, Bangalore City, Bangalore, for the offences punishable under Sections 420 and 471 of the IPC, 1860. The present petition has been filed challenging the order rejecting the 'B' Report and thereby taking cognizance against the petitioner and ordering to register a case and issue summons against :3: him in respect of the offences under Sections 420 and 471 of the IPC and praying to quash the entire criminal proceedings initiated against the accused in C.C.No.2699/2017 for the offences reflected in the private complaint.
2. Heard the learned counsel Shri Prasanna Kumar P for the petitioner who is present before court physically. But there is no representation for Respondent No.2 / complainant either physically or through video conferencing. Therefore, it is taken as there is no argument on the part of Respondent No.2 who initiated the private complaint against the accused in PCR No.3567/2013. However, learned HCGP for Respondent No.1 is present before court physically. Consequently, heard the arguments in respect of Respondent No.1 / State by Chikpet P.S. Bangalore City.
3. The first respondent police have laid a detailed enquiry and investigation of the case in PCR No.3567/2013 and had filed a 'B' summary report stating in the report that the second respondent / complainant :4: has not made out any case of forgery or cheating against the petitioner / accused. It transpires in the complaint filed by the second respondent that the petitioner is the Proprietor of M/s. Service Hosiery Works, Mohalla Bandian, Ludhiana, Punjab. He is into the business of supply of wholesale garments and accessories to different place. The second respondent herein who has initiated the private complaint against the accused had placed certain orders with the petitioner for supply of certain goods. Petitioner being a proprietorship concern, had supplied the goods to Respondent No.2 / complainant and the total outstanding amount as on November 2012 was Rs.46,12,830/-. The second respondent had issued a cheque bearing No.052053 dated 10.11.2012 for a sum of Rs.46 lakhs in favour of the petitioner, by way of payment in respect of the goods that he had purchased from the petitioner, with instruction to present the said cheque in the third week of January 2013. Accordingly, the petitioner /complainant had presented the cheque on 19.01.2013, but however the same came to be returned with an endorsement as 'funds insufficient'. Hence, the :5: complainant had first issued a demand notice to the accused but when he failed to pay the amount covered under the cheque and issued notice refuting the claim of the petitioner herein, the petitioner / complainant initiated criminal proceedings against the accused before the Court of Judicial Magistrate First Class, Ludhiana and the said court was pleased to take cognizance against the second respondent and had ordered issuance of summons.
4. As a counterblast to the said case and in order to overcome the liability, the second respondent filed a private complaint in PCR No.3567/2013 alleging that the second respondent / complainant had a manufacturing unit of production of 'T' shirts at Ludhiana, Punjab and that the petitioner / accused had supplied knitting material required. In respect of the said transaction, that second respondent had issued three cheques, first cheque for Rs.10 lakhs, second cheque for Rs.5 lakhs and third cheque for Rs.6 lakhs and that the petitioner / accused had tampered the third cheque to seem that it was issued for Rs.46 lakhs and had presented the same for clearance. :6:
5. The Magistrate had referred the said PCR No.3567/2013 to the first respondent / police as under
Section 156(3) of Cr.P.C for investigation and to submit a report. In compliance, the first respondent / police on completion of investigation, had filed a 'B' report on 22.04.2013 clearly stating that the second respondent / complainant had failed to make out any case of alleged fabrication of document or cheating. Thereafter, the second respondent had contested the said 'B' report and had furnished his sworn statement. However, the learned CMM, without observing that a case under Section 138 of the NI Act was in fact pending against the second respondent, by its order dated 3.12.2016 took cognizance against the petitioner / accused for the alleged offences under Sections 420 and 471 of the IPC and ordered issue of summons against the petitioner. It is this order which is under challenge in this petition.
6. The learned counsel for the petitioner has facilitated a Xerox copy of the cheque dated 10.11.2012 for a sum of Rs.46,00,000/- of South Indian Bank Ltd., Ludhiana (Punjab) issued by the second respondent in :7: favour of the petitioner company. It is inferred that the cheque in question has been challenged before the court having jurisdiction in respect of tampering of the sum of Rs.46,00,000/-. But a perusal of the cheque does not indicate any tampering of the said amount.
7. Whereas the learned counsel for the petitioner has taken me through the ingredients relating to constituting offences under Section 420 and 471 of the IPC. The case was referred under Section 156(3) Cr.P.C. for investigation and submitting the report. Consequent upon referring the case, the first respondent - police took up the case for investigation and investigation has been done in detail and laid the 'B' summary report. In that report stating that the complainant / second respondent herein had not made out any case of forgery on the cheque. In the absence of any material facilitated by the complainant, the Investigating Agency had no other go but to file a 'B' report. The said report not having been accepted, the learned Magistrate has failed to appreciate the material relating to 'B' summary report laid by the Investigating Agency. But in the instant case, except self- :8: serving testimony of the complainant who is the author of the complaint, there is absolutely no material to show that the cheque in question has been fabricated. On all these premise, learned counsel for the petitioner submits that it requires for exercise of power under Section 482 Cr.P.C. If not, certainly there shall be miscarriage of justice to the gravamen of the accused. Consequently, learned counsel seeks to allow this petition and to quash the entire criminal proceedings initiated against the petitioner / accused in C.C.No.2699/2017 arising out of PCR No.3567/2013.
8. The complaint in PCR No.3567/2013 came to be initiated by the complainant. Though the complainant is represented in this petition through counsel, neither the counsel nor Respondent No.2 is present before court physically and address their argument relating to the case in C.C.No.2699/2017 regarding initiation of the private complaint in PCR No.3567/2013. However, the first respondent / Investigating Agency has laid 'B' summary report. Consequently, it is taken that there is no :9: argument on the part of Respondent No.2. It is only to give a right of audience to Respondent No.2 in this petition filed by the accused challenging the order dated 3.12.2016 passed by the IX ACMM, Bangalore City in C.C.No.2699/2017 arising out of PCR No.3567/2013 for the offences under Sections 420 and 471 of the IPC.
9. Learned HCGP for Respondent No.1 is supporting the 'B' report submitted by the first respondent police who have thoroughly investigated the case and laid the 'B' summary report and wherein that report stated that the complainant did not make out any prima facie case and he did not produce any material documents to constitute an offence under Section 420 and 471 of the IPC. When the 'B' summary report has been laid by the Investigating Agency, the Court of the IX ACMM, Bangalore, has proceeded to take cognizance of the offences under Sections 471 and 420 of the IPC, by order dated 3.12.2016, which is contrary to the object of taking cognizance under Section 190 of Cr.P.C., specifically for taking cognizance.
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However, in this petition, there is warranting circumstances for exercise of power under Section 482 Cr.P.C. If not, certainly there shall be miscarriage of justice.
10. It is in this context of the contentions taken by the learned counsel for the petitioner by urging the grounds taken, there is no dispute that the second respondent / complainant has registered the case in PCR No.3567/2013. Consequently, subsequent to filing of a private complaint, the same was referred for investigation as contemplated under Section 156(3) of the Cr.P.C. When a private complaint is filed, it is the domain vested with the Judicial Magistrate having jurisdiction either to refer the case under Section 156(3) of the Cr.P.C. or himself / herself to take the case for recording sworn statement relating to substantiate the allegations made in the complaint and to proceed further. But in the instant case, on filing a complaint by the second respondent before the court of the IX ACMM, Bangalore City, Bangalore as the aforesaid court had jurisdiction it had referred the matter as contemplated under Section 156(3) : 11 : of the Cr.P.C. to the first respondent police for investigation and to submit the report. Subsequent to referring the matter, the first respondent police have taken up the case for investigation and thoroughly investigated the case and laid the 'B' summary report. In the report laid by the Investigating Agency, it is specifically stated that the complainant did not make any case of forgery or cheating. Consequently, no ingredients have been constituted for offences under Sections 420 and 471 of the IPC. Summons has been issued against the original complainant / second respondent herein by the Judicial Magistrate having jurisdiction at Ludhiana in the proceedings under Section 138 of the NI Act relating to dispute of the cheque in issue. It is the second respondent herein who is required to participate in that cheque proceeding and put forth his defence. But he has opted for filing a private complaint before the court of the IX ACMM, Bangalore City, where it is registered as case in C.C.No.2699/2017.
11. Though the Investigating Agency - Respondent No.1 had thoroughly investigated the case and laid a 'B' : 12 : summary report, even subsequent thereto, there is a power vested with the Magistrate by proceed further by summoning the complainant and summoning the witnesses to record the statements and proceed further for taking a specific process. But in the instant case, after filing of the 'B' summary by the Investigating Agency, proceeding with the case for taking specific cognizance does not arise when matter relating to cheque in issue is pending for consideration before the court having jurisdiction at Ludhiana in proceedings initiated under Section 138 of he NI Act, wherein complainant / second respondent is required to participate in the proceedings before the Ludhiana Court. Therefore, private complaint registered by him is only a counterblast. Consequently, the grounds urged in this petition and the contentions taken by the learned counsel for the petitioner appears to be justifiable. Therefore, under Section 482 Cr.P.C., the inherent power has to be exercised judiciously, sparingly. In this regard, it is required to refer to the judgment in State of Karnataka vs. L. Muniswamy and others (AIR 1977 SC 1489), wherein the relevant portion reads thus: : 13 :
"In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's has inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice."
The criminal proceeding is manifestly attended with mala-fide and the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Hence, it is necessary to exercise the inherent powers under Section 482 of Cr.P.C. if not, certainly there shall be miscarriage of justice in respect of the gravamen of the accused. In terms of the aforesaid ratio and the : 14 : reliance and also reasons assigned supra, the initiation of criminal prosecution against the accused requires to be set aside. Accordingly, I proceed to pass the following:
ORDER Petition filed by the petitioner / accused under Section 482 Cr.P.C. is hereby allowed. Consequently, the case in C.C.No.2699/2017 arising out of PCR No.3567/2013 is hereby set aside.
Sd/-
JUDGE KS