Karnataka High Court
Sri. K. P. Gopalakrishna, vs The State Of Karnataka By on 5 April, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.49023 -49025 OF 2016
AND
WRIT PETITION Nos.49258-49260 OF 2016 (GM-RES )
BETWEEN:
1. Sri. K.P. Gopalakrishna,
Chairman and Trustee of
National Education Trust,
Residing at Vijayanagar
4th Stage, 2nd Phase, Mysuru City,
Karnataka.
2. National Education Trust,
No.CA, 13TH Main Road,
HAL II Stage,
Indiranagar,
Bengaluru - 560 038.
National Public School,
No.CA, 13th Main Road,
HAL II Stage,
Indiranagar,
Bengaluru - 560 008.
National Public School,
2
National Games Village Complex,
80 Feet Road, Koramangala,
Bengaluru - 560 047.
NPS International School,
No.21, Anjanadri Road,
Vijayanagar 4th Stage, 2nd Phase,
Mysore - 570 018.
...PETITIONERS
(Respondent No.1 replaced and Respondent No.3
deleted vide order dated 7.4.2017
(By Shri Chandrashekar, Sr.Counsel for
Shri. Ashwin.C, Advocate)
AND:
1. The State of Karnataka by
Vijayanagar Police Station,
Mysuru City - 570 017.
2. Central Board For Secondary Education(CBSE)
"Shiksha Kendra", 2,
Community Centre, Preet Vihar,
Delhi - 110 301.
Represented by its Secretary.
3. National Commission for
Minority Education Institutions,
Government of India,
Gate No.4, 1st Floor,
Jeevan Tara Building
5, Sansad Marg,
Patel Chowk,
New Delhi - 110 001.
3
Represented by its
Deputy Secretary.
4. Department of Public Instructions
Government of Karnataka,
K.R.Circle,
Bengaluru - 560 001.
Represented by its
Commissioner.
5. Sri. Vivekanda,
S/o Mariyappa,
Aged about 43 years
Block Education Officer,
Taluk Zone,
Mysuru - 570 018.
...RESPONDENTS
(By Smt.Anitha.R, High Court Government Pleader
for R-1 & R-4
Smt.M.C.Nagashree, Additional Central Government
Standing Counsel for R-3
R-5 and R-2 are Served)
*****
These Writ Petitions are filed under Articles 226 and 227
of the Constitution of India read with Section 482 of the Code
of Criminal Procedure 1973, praying to quash the FIR in Crime
No.0253/2016 dated 08.08.2016 filed by the R-5 vide
Annexure-A as illegal and Arbitrary.
These Writ Petitions coming on for Orders, this day, the
court made the following:
4
ORDER
Heard ShriS.M.Chandrashekar, Senior Advocate, appearing for the Counsel for the petitioners and the learned Government Advocate as well as the Counsel for respondent no.3.
2. The facts of the case are as follows:
The first petitioner is the Chairman and Trustee of the second petitioner - Trust. The second petitioner is a Trust registered under the Indian Trusts Act,1882 and Petitioners no.3, 4 and 5 are schools manages by the Trust. It is claimed that the primary object of the Trust is to impart education principally to the Malayalam speaking community and also to preserve their language and culture. It is claimed that the schools established and run by the petitioners are administered 5 by linguistic minorities for the benefit of Malayalam speaking linguistic minorities in Karnataka State. The said members had associated themselves under the name of 'National Educational Trust', 'Citizens Education Society' and 'National Academy for Learning', for the purpose of imparting education to Malayalam speaking people.
It is claimed that the Supreme Court in the case of Society for Unaided Private Schoolsof Rajasthan vs. Union of India, (2012)6 SCC 1, has held that the Right to Information Act,2005 is not applicable to institutions established and managed by linguistic minorities. The State of Karnataka had intended to enforce the provisions of the Right to Information Act, 2005 and directed the institutions such as the petitioner - schools to admit students sent to it by the 6 Government. It is in this background that the petitioner
- institutions had applied to the National Commission for Minority Educational Institutions (NCMEI), the third respondent herein, seeking recognition of the petitioner - institutions as linguistic minority educational institutions. It is claimed that certificates to that effect were duly issued by the third respondent endorsing that the petitioner - institutions were minority educational institutions and the said Certificates were also produced before the fourth respondent namely, the Department of Public Instructions. However, it transpires that the fourth respondent is said to have made inquiry with the third respondent about the issuance of such certificates in respect of the petitioner
- institutions and the petitioner- institutions were shocked to learn that the third respondent had disowned 7 having issued any such certificates and the fourth respondent therefore had taken exception to the claim of the petitioners of having been issued certificates declaring them as minority educational institutions.
3. It is in this background that criminal proceedings have been initiated against the first petitioner as the Chairman of the Trust and even before the criminal court could take cognizance of the offence, wide publicity was given to the incident as if the petitioners had committed fraud and the image and reputation built by the institutions over the decades was severely tarnished and the management was put to much embarrassment. Apart from this, a serious consequence was that the Central Board for Secondary Education (Hereinafter referred to as the 'CBSE', for brevity), to which the educational institutions of the 8 Trust are affiliates has, immediately sought to withdraw its affiliation to the institutions, thereby placing in jeopardy the careers of thousands of students who were directly affected by such action.
The petitioners declare that the petitioner- institutions are ranked as one of the finest educational institutions in the country and are amongst the top ten institutions in the country. Particularly, the founder Chairman of the institutions, the first petitioner ShriK.P.Gopalakrishnais rendering yeoman's service in the field of imparting education. The petitioner - Institutions are trend setting institutions and role models to other educational institutions not only in the State of Karnataka, but also for institutions elsewhere in the country. In this regard, it is contended that there need be no exaggeration of the reputation that the 9 schools and institutions of the petitioners enjoy. The Government of Karnataka itself, at the recently held Global Investors Meet of 2016, had show-cased the petitioner - institutions as models of excellence established in the State and imparting high quality education. However, with the present scenario, the petitioners are in dire straits of having to extricate itself from false and scurrilous attacks and the criminal proceedings. It is in this background that the present petition is filed.
According to the complaint, it is stated that the petitioner, particularly, the Chairman of the Trust, namely, ShriK.P.Gopala Krishna had forged the Certificates said to have been issued by the third respondent and had attempted to use the same as genuine certificates and this has lead to the 10 consequence not only of criminal proceedings being initiated, but also the affiliation of the several institutions having been withdrawn by the CBSE. It is contended that the very initiation of the proceedings is void ab initio when the alleged forged certificates were not even produced along with the complaint filed by the fifth respondent and it is on a false allegation that the proceedings are initiated on the basis that the alleged certificates are forged.
4. The learned Senior Advocate would point out that in the complaint, apart from ShriK.P.Gopalakrishna, NPS International School, Mysuru, is named as the accused and offences punishable under Sections 418, 419, 420, 465, 468, 471 and 417 read with section 34 of the Indian Penal Code, 11 1860 are invoked and the matter is said to be currently investigated by the City Crime Bureau, Mysuru.
It is pointed out that there is a glaring circumstance which would indicate the falsity of the very complaint. In that, the forged certificate, according to the complainant,which has been sought to be misused by the Chairman of the petitioner - institutions is produced as Annexure R.7 Series, which is said to be the certificate issued on the letter head of the National Commission for Minority Educational Institutions dated 26.10.2015 bearing No.F.NO.1745/2014 and signed by one Sandeep Jain, Deputy Secretary. It is pointed out that the said copy of the forged certificate when compared with the documents produced by the petitioners vide memo dated 3.4.2017 which bore the 12 admitted signatures of the said Sandeep Jain, Deputy Secretary of the National Commission for Minority Educational Institutions, would indicate that the signatures do not tally. In that, the signature found on the alleged forged certificate and the signatures on the documents which are now produced at Exs.P-3 and P-4 and which are the admitted signatures of Sandeep Jain, do not tally. Therefore, it was evident that the said document produced as the alleged forged certificate is prepared for the purposes of implicating the petitioner - Chairman of the Trust, for reasons best known to respondent no.3. Therefore, no reliance could be placed on the alleged forged certificates in bringing home any kind of charge against the petitioner - institutions or its Chairman Dr.K.P.Gopalakrishna. It is further pointed out that this is a glaring circumstance 13 which alone would be sufficient to dislodge the alleged criminal case against the petitioners and its Chairman.
Further, respondent no.3 has alleged that the petitioner had sought the religious minority status and that respondent no.3 was not the competent authority to consider the religious minority status and the applications filed by the petitioner in this regard had been rejected. And even the application seeking linguistic minority status has been rejected. Therefore, the forged certificate was to overcome this rejection and hence, reliance being sought to be placed on the alleged forged certificate beingthe only case sought to be made out against the petitioner would have to be established as being disowned by Sandeep Jain, who is the signatory to the document. It is contended that it is significant to notice that the present pleadings are 14 supported by an affidavit of a person other than Sandeep Jain, Deputy Secretary and therefore it was Sandeep Jain alone who was competent to categorically declare that the signatures found on the alleged forged document was not his. In the absence of any such denial by the competent person and the alleged author of the document, any statement made is hearsay and hence the pleadings cannot be taken into account in holding that the document issued to the petitioners was not duly signed by Sandeep Jain.
The circumstance that the alleged forged certificate and the copy of the document that was issued to the chairman of the petitioner - institutions not being one and the same would lead to a serious 15 doubt about the veracity of the criminal complaint now lodged.
It is further contended that in terms of Section 2(f) of the National Commission for Minority Educational Institutions Act, 2004, a minority for the purpose of the Act would mean a community notified as such by the State Government. It is highlighted by the learned Senior Advocate that there is no notification by the Central Government indicating as to what are the linguistic minorities, except indicating six religious communities.
Insofar as the application said to have been filed by the petitioner -institutions and which is produced by respondent no.3 claiming that the petitioner had also claimed religious minority status is inexplicable. In this 16 regard, attention is drawn to the said applications, which are found at page 38 and 49 of the Statement of Objections filed by respondent no.3 and at pages 12,36, 38 and 39. The applications at pages 12 and 13 are not signed by the chairman and the applications at pages 38 and 49 are indeed signed by the Chairman. The applications found at pages 38 and 49 are seeking linguistic minority status and not religious minority status. The learned counsel would submit that the petitioner is not aware of the signatory to the applications found at pages 12 and 36, where religious minority status is said to have been sought for. In the absence of any notification by the Central Government indicating the linguistic minorities, it would be inexplicable as to how the Commission would adjudicate as to the linguistic minority status of any 17 applicant. Therefore, the rejection of the application of the petitioner seeking linguistic minority status is without any basis. There is no reference point as to the linguistic minority as notified by the Central Government, in the absence of which, it is unclear as to how the Commission could decide the issue. In any event, this is an issue that is pending before the Apex Court and has not attained finality.
It is further pointed out that apart from the fact that the petitioners had proceeded under the bona fide belief that the certificate issued and duly signed by the Sandeep Jain was genuine and bona fide and having acted upon it and the same having been disowned at a later point of time, is for no fault of the petitioner nor could be claimed as being mischief played by the petitioners. The turn around by the respondent no.3 in 18 disowning the certificate is a matter which ought to be explained by the third respondent itself and cannot be attributed to any criminal act on the part of the petitioners or its Chairman.
It is also contended that once the controversy was raised by the third respondent, at the instance of the fourth respondent, the petitioners had promptly negated the certificate and have not chosen to take the benefit of the certificate and did not receive the benefit earlier either. On the other hand, the petitioners had the benefit of interim orders of this Court insofar as the State Government compelling the petitioners to admit students to their institutions under the Right to Information Act,2005 and at the time when the certificate was issued, interim orders were in force and therefore the status as sought to be indicated in the 19 certificates were of no immediate benefit. Hence, it could not be said that the petitioners had derived any benefit from the same.
In this regard, the learned Senior Advocate would point out that a Constitution Bench of the Supreme Court in dealing with the expression 'defraud' as contemplated under Sections467 and 468 as well as sections 24 and 25 of the Indian Penal Code, 1860 have held that the expression 'defraud' would involve two elements, namely, deceit and injury to the person deceived. If there is no injury to the person deceived and if the deceiver has not derived any benefit on account of such fraud, it could not be said that the rigour of the provisions could be attracted, in bringing home the charges. He would place reliance on the said decision to point out that the petitioner - institutions or 20 its Chairman have not derived any benefit from the so called forged certificate. It is term 'forged' only on account of the said Sandeep Jain allegedly having disowned having signed the document. This circumstance is not brought out before this court by the very alleged author of the document making a statement to that effect to the satisfaction of this court.
Therefore, viewed from any angle, namely as to the status of the institutions which could be declared by the third respondent, either as a linguistic minority or as a religious minority, being ambiguous and open to question and is in fact said to be pending consideration before the Supreme Court. And the document that is sought to be relied upon as being a forged document itself being demonstrated as not a document that was issued to the petitioner - institutions and its Chairman, 21 the entire criminal case sought to be made out against the petitioner is completely diluted and cannot be effectively pursued.
The fall out of the criminal proceedings namely, the disaffiliation by the CBSE being the direct result of the criminal proceedings, having been initiated be also set at naught as it was a "knee jerk" reaction by the CBSE and only on the basis of lame criminal proceeding that was initiated. The learned Senior Advocate therefore, seeks that the proceedings initiated be quashed insofar as the petitioner - institutions are concerned.
5. The learned Counsel for respondent no.3 on the other hand, would vehemently oppose the petition and would contend that the same is filed at a nascent 22 stage and is not in the nature of an appeal against a judgment of the criminal court. When the matter is under investigation and is being completed and the incriminating material collated, it would be premature for this court to enter upon the merits of the case as it were, which is the endeavour on the part of the petitioner in bringing this petition. Since the certificates sought to be relied upon by the petitioner is in the wake of several applications seeking religious minority status in respect of some of its institutions and linguistic minority in respect of some of the other institutions, all of which have been rejected, the serious circumstance of the certificate having been produced claiming such status as having been declared by the Commission assumes a serious consequence and therefore, the same ought not to be set at naught at this 23 stage without recourse to a full-fledged trial and whatever the defences available to the petitioners could be urged before the trial court and the entire criminal case cannot be scuttles on the arguments now canvassed in respect of circumstances, which would be subject matter of trial. And findings cannot be foreclosed on the basis of legal arguments sought to be put forth. The learned Counsel would seek to draw attention to the applications filed by the petitioners and its Chairman and which have been rejected and the fact that the certificates produced were forged and have been denied on oath by the representative of the Commission and therefore, the proceedings ought to be permitted to run their course before the trial court and cannot be tested summarily in these proceedings and therefore would seek that the petition be dismissed.
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6. While the learned Government Pleader would endorse the contentions on behalf of the learned counsel for the respondent no.3 and would claim that the complaint lodged by the Commission as to the certificate sought to be utilized by the petitioners as being forged must be taken to its logical conclusion and cannot on the basis of the self serving documents by the petitioners be tested in its writ jurisdiction in a summary fashion when the petitioners would be given the full opportunity of defence at the trial and therefore there is no warrant to dilute the proceedings in even permitting the same at this stage and seeks dismissal of the petition.
7. In the light of the above contentions and the facts and circumstances, the fact remains and it is not in dispute that the petitioner - institutions have gained a 25 very high reputation in the field of education and are institutions which are role models in the State and elsewhere. As already pointed out by the learned Senior Advocate, Shri S.M. Chandrashekar, the State Government itself is said to have showcased the petitioner - institutions as ideal schools at The Global Investors Meet, 2016, which speaks volumes for its reputation and standards. When such institutions have been built with such pain staking effort and when they enjoy such reputation, it would be inexplicable that a senior educationlist, such as Dr.Gopala Krishna would stoop to the level of forging a document issued by the Commission declaring its status and when such an act did not advance his case or provide any benefit to the institutions, immediately. That circumstance itself would throw doubt on the alleged act of the petitioners 26 and its Chairman. It is highly unlikely that he would stoop to such level.
This brings us to the question as to how criminal proceedings could have been initiated. It is only on such certificate having been produced before the Department of Education that the Department of Education of the State Government has chosen to consult respondent no.3 in seeking verification as to whether any such linguistic minority status had been granted to the petitioners and on denial and on disowning of the said certificate by respondent no.3, that the criminal proceedings have been instituted. If that be the only circumstance which has prompted initiation of criminal proceedings, then a comparison made between the original certificate, which is 27 available on record and which bears the signature of the said Sandeep Jain and the alleged forged certificate would clearly indicate that there is a marked difference in the signatures. In that, the admitted signature of Sandeep Jain would indicate that there is an underlining to the signature which does not proceed from the letter 'S' whereas in the alleged forged certificate and other certificates which are produced as series at page 30 onwards of the statement of objections filed by the State Government, it is seen that all the signatures contain an underscore which proceeds from the letter 'S'. This is a singularity which would straight away be discernible to the naked eye and which would indicate that the signatures are different and not of the same person. In other words, the certificates said to have been issued to Dr.Gopala Krishna declaring his 28 institutions as linguistic minority institutions does actually bear the true and admitted signature of Sandeep Jain where as the alleged forged certificate now sought to be produced does not contain the admitted and real signature of Sandeep Jain. This is a circumstance which would straight away dilute the criminal case sought to be made out against the petitioner and its chairman.
The second aspect of the matter is whether the declaration of minority status is free from doubt. In that, according to section 2(f) of the National Commission for Minority Educational Institutions Act, 2004, it is only on a notification issued by the Central Government that a minority status as to whether it is linguistic or religious can be declared by the Commission in line with the notification. Admittedly, 29 there is a Notification by the Central Government only in respect of six religious minorities and there is no notification declaring linguistic minorities. This is a grey area which requires to be addressed and possibly answered by the Supreme Court where the issue is said to be pending consideration at the instance of an institution from Calcutta.
Insofar as the State of Karnataka is concerned, there is an order passed by the learned Single Judge in a writ petition in which the petitioners herein are also parties, wherein the learned Single Judge is said to have declared that the question as to the minority status could be decided in an appeal by a competent authority. Such a finding has been challenged by way of a writ appeal before a Division Bench and the Division Bench 30 has stayed the operation of the order of the learned Single Judge. Therefore, the matter is in a state of flux. In that, the question whether the petitioner could claim the status of a linguistic minority is a question that hangs in the balance, in the absence of any notification or authority which could adjudicate on the same and arrive at a finding. Therefore, the entire question of whether the petitioner had derived any benefit on account of the alleged forgery even if fastened on the petitioner is highly doubtful.
In this regard, a judgment of the Supreme Court in Dr.Vimlavs. Delhi Administration , AIR 1963 SC 1572, which is a Constitution Bench judgment relied upon by the learned Senior Advocate has addressed the ingredients of fraud and the two elements that are very necessary in establishing fraud. In that, there ought to 31 be person who is aggrieved or who has suffered loss and a person who has dishonestly committed fraud and who is said to have derived any benefit and in the absence of one or the other, the offence would not be complete and cannot be brought within the frame work of the penal provision. If that principle is applied, it cannot be said that the petitioner - institutions and its Chairman have derived any benefit from the so called forged certificate. Therefore, even if the forgery can be attributed to the petitioner, for argument's sake, in the absence of any benefit being derived by the petitioner
- institutions or its Chairman, it cannot be said that a criminal case could be made out. Therefore, the entire episode only results in the reputation of the several schools and institutions run by the petitioners being besmirched and the careers of thousands of students 32 being placed in jeopardy by virtue of the consequence of the affiliation having been withdrawn by the CBSE, on the ground of a complaint having been lodged and the same having been given wide publicity not only in the local press, but also nation wide. This damage cannot be easily undone and therefore, the first step in this direction would be to quash the proceedings initiated on the basis of the complaint and secondly, to direct that the disaffiliation by the CBSE, which was a direct consequence of the criminal case being instituted ought to be reversed. The interim order of stay granted earlier is made absolute, in that regard.
The petition is allowed. The First Information Report in Crime No.0253/2016 dated 8.8.2016 stands quashed. The order of disaffiliation passed by the 33 second respondent as at Annexure- B is hereby quashed.
SD/-
JUDGE nv