Karnataka High Court
Sri. Shailesh Kumar vs Smt Nisha S Kumar on 6 August, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 05.07.2024
Pronounced on : 06.08.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.13767 OF 2023
BETWEEN:
1. SRI. SHAILESH KUMAR
S/O A.JANARDHAN ACHAR
AGED ABOUT 55 YEARS
RESIDING AT NITHYANANDANAGAR
DERALAKATTE
MANGALURU - 575 018.
2. SRI B.K.NARAYAN
S/O BAIKADY KRISHNAYYA
AGED ABOUT 65 YEARS
RESIDING AT 501, PAVAN APARTMENTS
KARANGALPADY
MANGALURU - 575 003.
... PETITIONERS
(BY SRI P.P.HEGDE, SR.ADVOCATE A/W
SRI VENKATESH SOMAREDDY, ADVOCATE)
AND:
1. SMT. NISHA S. KUMAR
W/O SHAILESH KUMAR
AGED ABOUT 47 YEARS
RESIDING AT NO.32,
2
DEKKAN CHAMBERS
136, JSS ROAD, MUMBAI,
MAHARASTRA - 400 004.
2. THE STATE OF KARNATAKA
THROUGH SUB-INSPECTOR OF POLICE
MANGALURU EAST POLICE STATION
REPRESENTED BY
THE LEARNED STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 01.
... RESPONDENTS
(BY SMT.NISHA S.KUMAR, PARTY-IN-PERSON FOR R-1;
SRI THEJESH P., HCGP FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 02.11.2023
PASSED BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE AND
CJM, D.K., MANGALORE IN CR.NO.168/2014 OF MANGALORE EAST
POLICE STATION (NOW REGISTERED AS C.C.NO.166/2023 ON THE
FILE OF II ADDL. SENIOR CIVIL JUDGE AND CJM, D.K.
MANGALORE) IN SO FAR AS IT PERTAINS TO PETITIONERS HEREIN
/ ACCUSED NO.1 AND 2 IS CONCERNED.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.07.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners/accused Nos.1 and 2 are before this Court calling in question proceedings in C.C.No.166 of 2023 pending 3 before the II Additional Senior Civil Judge and CJM, D.K., Mangalore arising out of crime in Crime No.168 of 2014 registered for offences punishable under Sections 406, 420 and 465 of the IPC by which the concerned Court rejects 'B' report and takes cognizance of the offences alleged against the petitioners/accused. The 1st respondent is the complainant and the 1st petitioner is her husband. The 2nd petitioner is the manager of the Company run by the 1st petitioner.
2. Heard Sri P.P. Hegde, learned senior counsel appearing for the petitioners, Smt. Nisha S. Kumar, 1st respondent/party-in- person and Sri P.Thejesh, learned High Court Government Pleader appearing for respondent No.2.
3. On 19-03-1999 the complainant gets married to accused No.1 and from the wedlock, they have a son who is now 21 years old. Accused No.1 was the Director of Giltec International Private Limited in which the complainant was also a Director. The name of the Company is said to have been changed from Giltec International Private Limited to Steelnox International Private Limited. Accused 4 No.1 was also running his own proprietorship business in the name of Shagil Precision India, a 100% Export orient unit. It is the case of the complainant that after 5 months of marriage, accused No.1 had forced her parents to purchase two properties in Mangalore measuring 50 cents each, out of which 20 cents was registered in her name and 30 cents in the name of accused No.1.
4. It is the averment that the accused No.1 forced the complainant to offer surety for the loan borrowed by him at Syndicate Bank. Later, in the year 2005, alleging physical abuse against accused No.1 upon the complainant the Police was asked to interfere. It is the contention that the Police did not take any action upon the assault made by the husband. In the year 2006, it appears, that certain Swiss partners of accused No.1 had initiated criminal proceedings against accused No.1 for the offences of cheating, forgery and intimidation. This is said to have been closed by a settlement. These facts are narrated in the complaint by the wife. The story in the lis would begin from 2007. The complainant had two personal bank accounts in Syndicate Bank, Kankanady Branch, Mangalore - one current account and the other savings 5 bank account. The complainant secures employment in New York, USA. After securing employment at Citi Bank, USA she was regularly visiting India. After the exit of the complainant from the Company, it appears that the relationship between the husband and the wife had completely floundered. Accused No.1 on 17-04-2007 creates a mortgage with the Syndicate Bank for his Company Shagil Precision on the properties that had been purchased in the year 2005, narration of which is made hereinabove. Several proceedings have taken place thereafter.
5. The criminal law in the lis is sought to be set into motion in year 2014 when the complainant registers a complaint on 28-01-2014 alleging offences of forgery and cheating against her husband/accused No.1, the Manager of Shagil Precision, accused No.2 and the Branch Manager of Syndicate Bank, accused No.3. It is the allegation in the complaint that her signatures were forged to withdraw money or create equitable mortgage with the connivance of the Branch Manager. The matter was referred to investigation by the learned Magistrate under Section 156(3) of the Cr.P.C., which then becomes a crime in Crime No.168 of 2014 for offences 6 punishable under Sections 406, 420 and 465 of the IPC. As observed hereinabove, it was against three accused. The investigation is conducted by the police. The signatures were referred to the Forensic Science Laboratory ('FSL') which confirmed that the signatures had a mismatch. Notwithstanding this, it appears that the Police filed a 'B' report before the concerned Court. The complainant files a protest petition. The concerned Court then rejects the 'B' report and takes cognizance of the aforesaid offences against all the three accused. Aggrieved by the order of taking cognizance, the petitioners have knocked at the doors of this Court in the subject petition.
6. A coordinate Bench of this Court, in terms of its order dated 26-12-2023, grants an interim order of stay of further proceedings on the ground that taking of cognizance after filing of 'B' report runs counter to the decision of the coordinate Bench in the case of DR.RAVIKUMAR V. K.M.C. VASANTHA reported in ILR 2018 KAR 1725. The order dated 26-12-2023 reads as follows:
7
"Learned High Court Government Pleader takes notice for respondent No.2 - State.
Issue notice to respondent No.1.
List this matter after service of notice on respondent No.1.ORDERS ON I.A.NO.1/2023
Heard learned Senior counsel Sri P.P. Hegde, for learned counsel for petitioner.
This application is filed praying to stay the impugned order dated 02.11.2023 passed by the II Addl. Senior Civil Judge and CJM, D.K. Mangalore in Cr. No.168/2014 of Mangalore East Police Station (now registered as CC No.166/2023) for the offences punishable under Sections 406, 320 and 465 of IPC.
Perused the impugned order.
The trial Court took cognizance for the offences punishable under Sections 406, 320 and 465 of IPC and 'B' report filed by the Mangalore East Police Station was rejected. Thereafter, the trial Court issued process against the accused persons.
As per the ratio laid down by this Court in the case of RAVIKUMAR (Dr.) VS KMC VASANTHA reported in ILR 2008 KAR 1725, it is observed that it is well recognized principle of law that, once the police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of 'B' Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed. But, in the present case the trial Court has not followed the said procedure as contemplated in law.
Hence, there shall be stay of the impugned order dated 02.11.2023 passed by the II Addl. Senior Civil Judge and CJM, 8 D.K. Mangalore in Cr. No.168/2014 of Mangalore East Police Station (now registered as CC No.166/2023).
Accordingly, IA No.1/2023 is allowed."
The complainant prefers an application seeking vacation of the interim order and therefore, the matter is heard on merits itself.
7. The learned senior counsel Sri P.P. Hegde would submit that the complainant is in the habit of signing differently in different documents. Since accused No.1 is the husband of the complainant, he is aware of this fact. There can be no question of forgery of a cheque given by the complainant herself. Therefore 'B' report filed by the Police was in tune with law. The order of the learned Magistrate who rejects the 'B' report and takes cognizance of the offence is contrary to law. He would contend that a purely civil or business transaction is sought to be given a colour of crime. It is his further contention that prior to registration of the crime or after registration of the crime the entire loan that was secured on the alleged forged document has been cleared and the complainant is not burdened of a rupee. Therefore, he would seek quashment of the proceedings in its entirety.
9
8. Per contra, the 1st respondent/complainant in-person would vehemently refute the submissions taking this Court through the documents appended to the petition. It is her contention that her signature was forged. In the shara behind the cheque or in the endorsement of the Bank it is clearly indicated that there is signature mismatch. Even then accused No.1 using his influence and conniving with accused No.3 has created documents. The complainant was not in the know of anything. She receives a notice invoking the SARFAESI Act 2002. It is her case that only then she comes to know that there is a mortgage created and, therefore, steps were taken to get to know the mortgage so created. It is then she comes to know that her signatures were forged. It is her case that the concerned Court appropriately rejected 'B' report filed by the Police and taken cognizance of the offences, as the Police ignored even the FSL report which clearly indicates the act of forgery. The complainant would submit that merely because the loan is cleared, it does not take away the act of accused of the forgery and harassing the complainant.
10
9. I have given my anxious consideration to the submissions made by the learned senior counsel, the learned High Court Government Pleader, as also, the 1st respondent who appeared in- person and have perused the material on record.
10. The afore-narrated facts are not in dispute. They are in fact a matter of record and the matter is at large before the concerned Court, as 'B' report is rejected and cognizance is taken. The relationship between accused No.1 and the complainant is also a matter of record. The complainant secures employment in USA and had executed a General Power of Attorney in favour of the husband in case of need to execute certain documents. It is the case of the complainant that she had never permitted withdrawal of amounts from the joint account in the general power of attorney. She would take this Court through the cheque that was presented for withdrawal of cash, which is dated 29-11-2007 for a sum of `19,05,690/-. The endorsement behind the cheque reads as follows:
"There is difference in drawer signature. Spoke to Mr. Narayan. New card to be obtained.
Sd/-."11
The endorsement is that there is a difference in signature. The concerned officer states that he has spoken to the Manager of the Company and he would arrange to get a new card. Pursuant to this the amount was released. In the same manner there are several cheques that are presented which are all appended to the statement of objections. What triggers registration of complaint is the alleged act of creation of mortgage by accused No.1, her husband which she comes to know pursuant to an application filed under the Right to Information Act and collecting all the certified copies of the alleged forged documents including signed blank stamp papers, surety documents. She then comes to know huge forgery being done by the husband, using the general power of attorney that she has executed in favour of her husband. It is, therefore, the complainant registers the complaint before jurisdictional police on be 28-01-2014. It reads as follows:
"Respected Sir/Madam, Sub: Complaint on Mr. Sailesh Kumar (Proprietor), Mr. B.K. Narayan (Manager) and staff of Shagil Precision India, Nithyanand Nagar, Mangalore and the Bank Managers and other officials of M/s. Syndicate Bank, Kankanady Branch, Mangalore.
Ref: 1) My complaint to Central Bureau of Investigation dtd 10.09.2012.12
2) FIR 131/2013 filed by M/s. Syndicate Bank, Kankanady Branch, Mangalore.
I, Mrs. Nisha S. Kumar, w/o Sailesh Kumar, a law abiding person, female aged 37 years permanent resident of Shagil Precision India, D. No 2-331/6A, Nithyanand Nagar, Mangalore- 574 160 and presently camping at 302 Deccan Chambers, 136 J.S.S road, Mumbai - 400 004.
I filed a complaint with Central Bureau of Investigation on 10.09.2012 which was then forwarded to Vigilance Department, Bangalore for investigation. (Copy of the complaint enclosed along with 132 enclosures which should be taken as part and parcel of my complaint) I had fully co-operated and appeared in person for investigation held by the Bank Vigilance and given my written statement 3 (three) tomes. After dragging the investigation for more than a year and half with malafide intentions. I was informed that a complaint (FIR.No131/2013) has been filed by the Bank Manager of M/s Syndicane Bank, Kankanady Branch, Mangalore with your goodself.
On getting a copy of the complaint through RTI, it has come to my utter shock and surprise that they have suppressed all my allegations/facts of forged loan and restructure documents, blank signed (forged and genuine) documents, missing account documents, land swindling/grabbing and issuance of luxury loan to a borrower who had been slapped with a SARFARESI notice.
I request your goodself to take this complaint as a connected complaint to FIR No. 131/2013 and provide me a separate FIR No. and prosecute Mr.Sailesh Kumar (Proprietor), Mr. B.K. Narayan (Manager), staff of Shagil Precision India, Nithyanand Nagar, 2 Mangalore and the concerned Bank Manager/Officials/ staff of M/s. Syndicate Bank, Kankanady Branch, Mangalore as per law for the corrupt practices, breach of trust, conspiracy, forgery and other violations of law and thus render justice."
13The Police conduct investigation and the investigation leads to filing of 'B' report in favour of the accused. The 'B' report is protested by the complainant by filing her objections. The objections read as follows:
"OBJECTION FILED BY THE COMPLAINANT TO THE FINAL B REPORT FILED BY POLICE ATTACHED TO MANGALORE EAST POLICE STATION IN CRIME NO.168/2014.
The complainant named above humbly begs to submit as follows:
1. That the complainant is residing in the above mentioned address.
2. The complainant submits that, she is the legally wedded wife of Accused No.1 Mr. Shailesh Kumar and there marriage was solemnized on 19-03-1999 at Mumbai. That out of the wedlock they have got a mail child namely Yash S. Kumar presently age 17 years. The complainant further submits that after the marriage of the complainant she was residing with her husband. Her husband was the Director of Giletec International private Limited in which she was also one of the Director. That, the name of the company was subsequently changed as Steelnox International Private Limited. The accused No.1 is also running his proprietorship business in the name and style of Shagil Precision India.
3. The complainant further submits that, in the year 2007 she had secured an employment in New York, U.S.A. and she used to come down India on regular intervals. The complainant further submits that, she had her personal bank account at Syndicate Bank, Kankanady Branch, Mangalore in S.B. A/c No.01062010029528 and current account No.106/101/828.
Complainant further submits that, from 2007 onwards the matrimonial relationship between the complainant and accused No.1 was strained. That taking advantage of the absence of the complainant, the accused persons have connived together and 14 to commit forgery and fraud against her have forged her signature on the cheque leaves belonging to her aforesaid bank account and withdrawn huge amount and embezzled with funds by committing such forgery. The accused No.2 and 3 are also joined hands with accused No.1 in committing the forgery and withdrawing huge amount from her bank account.
4. The complainant further submits that, on coming to know the fraud committed by the accused persons, she had made an application under the Right to Information Act to accused No.3 and collected the certified copies of the forged documents which includes signed blank stamp papers, loan papers, surety documents. Etc. and came to know that in all those records her signature was clandestinely forged for thereby caused huge financial loss by the complainant.
5. The complainant further submits that the police though took up the investigation on the basis of the complaint and even seized the original forged and concocted documents from the bank but the investigating officer did not send the forged cheque and other documents to the Forensic Science Laboratory for ascertaining the genuinity or otherwise of the signature of the complainant. Furthermore the investigating officer though recorded the statement of the complainant and that of the witnesses but deliberately not filed the charge sheet against the accused by colluding with them. The complainant submits that the accused are guilty of the offences of fraud forgery, impersonation and also defalcating the funds belonging to the complainant but the police have filed the false and frivolous B report in the above case alleging that the complaint is lodged by the complainant on mistake of facts. The complainant further submits that grave injustice was committed against her in filing B report on her complaint. Hence, the objection.
Hence, it is humbly prayed that this Honourable Court may be pleased to receive this objection and after verifying the complainant and the witness listed below, it need be and the above named accused may be dealt with as per law in the interest of justice."
15The complainant narrates that filing of 'B' report should not be accepted as FSL report also confirms that the signatures of the complainant were forged. This would be enough circumstance to try the accused. The concerned Court records the sworn statement of the complainant, rejects 'B' report, takes cognizance and issues summons. The order dated 02-11-2023 of the aforesaid action of the concerned Court reads as follows:
"The complainant has filed the complaint against the accused persons for the offences punishable under Sections 406, 420, 465 of IPC. In view of the directions of Hon'ble High Court of Karnataka in Crl. Petition No.5715 of 2018 my predecessor-in-office recorded the sworn statement of the complainant and 60 documents are exhibited in evidence.
Heard the counsel for complainant on issuance of process to the accused persons.
Court has gone through the averments made in the complaint and also gone through the documents. Prima facie they reveal that the accused persons have committed the alleged offences. It is further pertinent to note that, on taking entire allegations in the complaint and at its face value prima facie constitute the case against the accused persons. At this stage, Court cannot venture to consider the genuineness or correctness of allegations. The allegations have to be taken at its face value to find out so as to whether those allegations make out a prima facie case. In my considered opinion the allegations made in the complaint if read as a whole make out a prima facie case attracting the ingredients. Accordingly, I proceed to pass the following:
ORDER Cognizance taken for the offences punishable U/s 406, 420, 465 of IPC.16
The 'B' Final Report filed by the East P.S. is hereby rejected.
Hence, office to register the case against these accused persons for the above said offences.
Issue summons with copy of complaint to the accused Nos. 1 to 3 r/by 27-12-2023.
II Addl.Sr.C.J. & CJM Mangaluru."
It is this order that has driven the petitioners to this Court in the subject petition.
11. The issue is whether rejection of 'B' report and taking cognizance of the offence is in consonance with law or otherwise. As observed hereinabove, the complainant immediately after coming to know of the alleged forgery allegedly committed by accused No.1 in connivance with others, cancels the general power of attorney on 10-10-2011. Thereafter she applies to the Bank under the Right to Information Act with regard to several documents which are alleged to have been forged. The documents which are furnished to her pursuant to her application are as follows:
"With reference to above subject, and your RTI application dated 18-07-2014:17
1. Document No.5853/11-12 contains a total of 9 pages.
2. the enclosure submitted with the above mentioned settlement document contains 6 pages.
3. As per the document available in this office settlee was present and settler was represented by settlee as per the GPA stated in the document 5853/2011-12.
4. As per the document available in this office settlee was present and settler was represented by settlee as per the GPA stated in the document 5853/2011-12
5. Upon inspection of the document and enclosures available in this office. The enclosures furnished in this office are those in question No.2 which includes GPA.
6. Upon inspection of the document and enclosures available in this office. The enclosures furnished in this office are those in Question No.2 which includes GPA.
7. T.S.Ravi, Senior Sub-Registrar Vikram Magar, Senior Sub-Registrar Ganesh Prabhu, FDA Yashodha, SDA Geetha Bhai, SDC
8. Vikram Magar - Senior Sub-Registrar
9. No complaints in this office.
10. District Registrar, D.C. Office Compound, Dakshina Kannada, Mangalore, DK.
Total information includes 15 pages, request pay Rs.30/- to obtain the requisite information."
She secures all the documents. Securing of the documents revealed plethora of factors. It is then the complainant seeks to register the complaint before the jurisdictional Police. The disputed signatures were sent to FSL. The opinion of FSL is as follows:
"¸ÀASÉå:£Áå«¥Àæ/640/PÀå.r/228/2014 ¤zÉÃð±ÀPÀgÀªÀgÀ PÀbÉÃj £ÁåAiÀÄ «eÁÕ£À ¥ÀæAiÉÆÃUÁ®AiÀÄ, ªÀÄrªÁ¼À, ¨ÉAUÀ¼ÀÆgÀÄ.18
¢£ÁAPÀ:21-09-2015 gÀªÀjUÉ, ¸ÀºÁAiÀÄPÀ ¥Éưøï DAiÀÄÄPÀÛgÀÄ PÉÃAzÀæ G¥À«¨sÁUÀ, ªÀÄAUÀ¼ÀÆgÀÄ.
ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ: ¸À»UÀ¼À£ÀÄß ¥ÀjÃQë¹ ªÀgÀ¢ PÀ¼ÀÄ»¸ÀĪÀ - §UÉÎ. G¯ÉèÃR: ¸ÀA/117/FSL/CSD/2015 dt:20-09-2015.
ªÉÄîÌAqÀ «µÀAiÀÄ ªÀÄvÀÄÛ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ Mangalore East P.S, Cr.No.131/2013 gÀ°è, D1 to D22 ªÀgÀV£À ¥Àæ²ßvÁ ¸À»UÀ½gÀĪÁ zÁR¯ÉUÀ¼À£ÄÀ ß ªÀÄvÀÄÛ DgÉÆæUÀ¼ÁzÀ ©.PÉ.£ÀgÁAiÀÄt ªÀÄvÀÄÛ ¸ÀĤÃvÁ r'¸ÉÆÃd gÀªÀgÀ PÉÆÃjPÉAiÀÄ ¸À» ªÀÄvÀÄÛ §gÀºÀUÀ¼ÉÆA¢UÉ ºÉÆðPÉ ªÀiÁr ªÀgÀ¢ ¤ÃqÀ®Ä PÉÆÃjgÀĪÀÅzÀÄ ¸ÀjAiÀĵÉÖ. DzÀgÉ, F PÀbÉÃjAiÀÄ C©ü¥ÁæAiÀÄzÀ ªÀgÀ¢ ¸ÀASÉå/FSL/367/QD/228/2014 dt:24-04-2014 ¥ÀæPÁgÀ C©ü¥ÁæAiÀÄ MAzÀgÀ°è, S3 to S27, R1 to R6 UÀÄgÀÄvÀÄ ¤ÃrgÀĪÁ M¦àvÀ ¸À»UÀ¼À£ÀÄß §gÉ¢gÀĪÀ ªÀåQÛ D3, D4 JAzÀÄ UÀÄgÀÄvÀÄ ¤ÃrgÀĪÀ ¥Àæ²ßvÀ ¸À»UÀ¼À£ÀÄß §gÉ¢gÀÄvÁÛgÉ ºÁUÀÆ C©ü¥ÁæAiÀÄ JgÀqÀÄ ªÀÄvÀÄÛ K¼ÀgÀ ¥ÀæPÁgÀ S3 to S27, R1 to R6 UÀÄgÀÄvÀÄ ¤ÃrgÀĪÁ M¦àvÀ ¸À»UÀ¼À£ÀÄß §gÉ¢gÀĪÀ ªÀåQÛ D1, D2, D5 to D22 JAzÀÄ UÀÄgÀÄvÀÄ ¤ÃrgÀĪÁ ¥Àæ²ßvÁ ¸À»UÀ¼À£ÀÄß §gÉ¢gÀĪÀÅ¢¯Áè ªÀÄvÀÄÛ D1, D2, D5 to D22 ¥Àæ²ßvÁ ¸À»UÀ¼ÀÄ £ÀPÀ®Ä ªÀÄÆ®PÀ SÉÆÃmÁ ¸À» ªÀiÁqÀ¯ÁVzÉ JAzÀÄ C©ü¥ÁæAiÀÄ ¤ÃqÀ¯ÁVgÀÄvÀÛzÉ. DzÀÝjAzÀ, ¥Àæ²ßvÁ ¸À»UÀ¼ÁzÀ D1, D2, D5 to D22 £ÀPÀ®Ä ªÀÄÆ®PÀ SÉÆÃmÁ (imitation forgery) ¸À» ªÀiÁrgÀĪÀÅzÀjAzÀ, F ¸À»UÀ¼ÀÄ AiÀiÁgÀÄ ¥sÉÆÃdðj ªÀiÁrzÁÝgÉ JAzÀÄ ºÉüÀ®Ä ¸ÁzÀå«gÀĪÀÅ¢®è. CzÀÝjAzÀ, F ¥ÀæPÀgÀtzÀ zÁR¯ÉUÀ¼À£ÀÄß ¹éÃPÀj¸ÀzÉ »AwjV¸À¯ÁVzÉ.
Sd/- 21/9/2015 Director, Forensic Science Laboratories (Police Department) Madivala, Bangalore - 560 068"
The disputed signatures are confirmed to be forged. Notwithstanding these factors, the Police file a 'B' report. It is trite law that merely because the accused have cleared the loan it would 19 not become a circumstance that it would wash away the acts of the accused in conniving to create documents with forged signatures. Plethora of submissions are made by the 1st respondent in-person seeking a decision at the hands of this Court with regard to the forgery and acts of the accused. The matter is still at large before the concerned Court, as cognizance is taken and summons issued. It is still at the stage of summons. The only issue is whether the order of rejection of 'B' report and taking of cognizance runs counter to the judgment of the coordinate Bench in the case of RAVIKUMAR supra. The coordinate Bench in the case of RAVIKUMAR has held as follows:
"5. The procedure followed by the Learned Magistrate is not in accordance with law. It is well recog nized principle of law that, once the Police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the Court has to examine the contents of 'B' Summary Report so as to ascertain whether the Police have done investigation in a proper manner or not and if the Court is of the opinion that the investigation has not been conducted properly, the Court has got some options to be followed, which are,-
i) The court after going through the contents of the investigating papers, filed u/s 173 of Cr. P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr. P.C., but before taking cognizance such exercise has to be done. This my view is 20 supported by the decisions of the Hon' ble Apex Court in a decision reported in between ABHINANDAN JHA v. DINESH MISHRA [AIR 1968 S.C. 117.] (para 15) and also Full Bench decision of Apex Court in between KAMALAPATI TRIVEDI v. STATE OF WEST BENGAL [(1980) 2 SCC 91.] (second head note.)
ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec. 204 of Cr. P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.
iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec. 200 Cr. P.C.
v) If the court is of the opinion that the materials collected by the police in the report submitted under section 173 of Cr.
P.C. are not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under Section 190 read with 200 Cr. P.C. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complaint/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct 21 the investigation under section 202 of Cr. P.C., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3) of Cr. P.C., once the magistrate takes cognizance and starts inquiring into the matter himself.
vi) After taking such report under section 202 of Cr. P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s. 203 of Cr. P.C. as the case may be.
vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s. 204 of Cr. P.C. But, none of these procedures have been followed by the Learned Magistrate. On the other hand, as could be seen from the records, the Learned Magistrate even0 without rejecting the 'B' Summary Report and without taking cognizance of the offences, but after going through the contents of the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. On the basis of the contents of the Protest Petition, and after relying upon the contents of the Protest Petition and the sworn statement, the Learned Magistrate has rejected the 'B' Summary Report which virtually amounts to putting the horse behind the Cart.
6. Of course, the contents of the Protest Petition before taking cognizance can only be used for a limited purpose of ascertaining whether the investigation done by the Police is proper and correct. Therefore, the Learned Magistrate has committed a serious error in not passing any orders on the 'B' Summary Report before taking cognizance on the basis of the Protest Petition."
22If the law as laid down by the co-ordinate Bench of this Court is pitted against the order that is impugned in the subject petition, in the considered view of this Court would not get vitiated as the coordinate Bench holds that while rejecting the 'B' report and taking cognizance what the concerned Court is required to do is to apply its mind. For application of mind certain guidelines are laid down by the coordinate Bench. All these are found in the order impugned. It cannot be said that the order rejecting 'B' report and taking of cognizance suffers from want of application of mind. The Court considers the submissions, the complaint and the documents which prima facie reveal that the accused have committed the alleged offences and on the face of it they constitute the offence to be tried against the accused. The concerned Court further holds that the Court considered genuineness or correctness of the allegations at the stage of an order on the 'B' report and rejects the 'B' report, registers the criminal case and issues summons to the accused. I find the order is in complete compliance with the tenets of law as laid down by the coordinate Bench in RAVIKUMAR'S case (supra). I do not find any warrant to interfere with the order impugned. 23
12. It becomes apposite to refer to the judgment of the Apex Court in the case of ZUNAID v. STATE OF U.P.1, wherein it is held as follows:
"10. In Rakesh v. State of Uttar Pradesh1, it is observed as under:--
"6. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510, notice must be had of the decision of this Court in H.S. Bains v. State (UT of Chandigarh), (1980) 4 SCC 631 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options: (H.S. Bains case (supra) "6. .... (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."
The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein. Reference in this regard may be made to the decision of this Court in Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768. The following view may be specifically noted:
1
2023 SCC OnLine SC 1082 24 "9. ....The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See India Carat (P) Ltd. v. State of Karnataka, (1989) 2 SCC 132]" (SCC P. 140, Para 16)."
11. In view of the above, there remains no shadow of doubt that on the receipt of the police report under Section 173 Cr. P.C., the Magistrate can exercise three options.
Firstly, he may decide that there is no sufficient ground for proceeding further and drop action. Secondly, he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; and thirdly, he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. It may be noted that even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report. As held by this Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, as followed in B. Chandrika v. Santhosh, a Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report. No doubt a Magistrate while exercising his judicial discretion has to apply his mind to the contents of the Protest Petition or the complaint as the case may be."
The Apex Court holds that all that is necessary for the Magistrate to reject the 'B' report and taking cognizance is that application of mind should pervade the order to the contents of the protest 25 petition or the complaint, as the case would be. That would be enough compliance with law. Therefore, the order impugned does not suffer from any error. As observed hereinabove, any further observation with regard to the contention of the petitioners, defence of the complainant or the allegations of the complainant and defence thereto by the accused would seriously prejudice further proceedings before the concerned Court. The interim order is granted only on the ground that it is in violation of the law laid down by the coordinate Bench in RAVIKUMAR, while it is not, as it is in compliance with RAVIKUMAR, as also the judgment of the Apex Court in the case of ZUNAID supra.
13. Leaving open all contentions to be urged by the parties before the concerned Court, I find no warrant to interfere in the case at hand. Since the issue is now 10 years old, it is necessary for the concerned Court to expeditiously conclude the trail. 26
14. For the aforesaid reasons the following:
ORDER
(i) The criminal petition lacking in merit stands rejected. Interim order if any operating, shall stand dissolved.
(ii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings pending before the concerned Court or any other proceedings pending before any other fora between the same parties.
Consequently, I.A.No.2 of 2024 stands disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:MJ