Karnataka High Court
Sachin And Anr vs The State Of Karnataka on 10 February, 2022
Author: V.Srishananda
Bench: V.Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL PETITION No.200601/2021
BETWEEN
1 . SACHIN S/O BASU JADHAV
AGE.24 YEARS, OCC. BUSINESS,
R/O MADBHAVI,
TAL AND DIST.VIJAYAPUR-586101
2 . SATISH S/O BASU JADHAV
AGE.27 YEARS, OCC.BUSINESS,
R/O MADBHAVI,
TAL AND DIST.VIJAYAPUR-586101
...PETITIONERS
(BY SRI PRAKASH JADHAV, ADVOCATE)
AND
1 . THE STATE OF KARNATAKA
THROUGH GANDHI CHOWK POLICE
STATION, R/BY SPP HIGH COURT OF
KARNATAKA AT KALABURAGI-585103
...RESPONDENTS
(BY SRI. SHARANABASAPPA M. PATIL, HCGP FOR R1;
SRI AMARESH S. ROJA, ADVOCATE FOR R2)
2
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
QUASH THE ENTIRE PROCEEDINGS WHICH IS C.C. NO.
1953/2018, PENDING BEFORE THE LEARNED I ADDL.
CIVIL JUDGE AND JMFC-I COURT, VIJAPAUR WHICH IS
ARISEN OUT OF GANDHI CHOWK, VIJAYAPUR FIR NO.
202/2017 FOR AN OFFENCE PUNISHABLE U/SEC. 420, R/W
34 OF IPC, HENCE MAY KINDLY BE PLEASED PASSED AN
ORDER FOR MEETS THE ENDS OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though this matter is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.
2. Heard the learned counsel for the petitioners, the learned High Court Government Pleader for respondent No.1 and learned counsel for respondent No.2.
3. The present petition is filed under Section 482 of Cr.P.C. with the following prayer:
"The petitioners are praying that to quash the entire proceedings which is C.C. No. 1953/2018, pending before the learned I Addl. Civil Judge and JMFC-I Court, Vijapaur which is arisen out of Gandhi Chowk, vijayapur FIR No. 202/2017 3 for an offence punishable u/Sec. 420, r/w 34 of IPC, hence may kindly be pleased passed an order for meets the ends of justice and equity."
4. Brief facts of the case are as under:
Mahanagar Palike, Vijayapur lodged a compliant with Gandhi Chowk police on 16.07.2017 contending that the petitioners herein on misleading the general public in respect of Digital India Common Service Centre (hereinafter referred to as 'Scheme') and have illegally collected money from the general public and thereby committed an offence under Section 420 read with Section 34 of IPC. In the complaint, it is also contended that the petitioners herein have collected money from the general public to the tune of Rs.300/- to Rs.600/- for registering the applications. Based on the information received from the general public, the complainant who is the Commissioner of Mahanagar Palike, Vijayapur visited the shop of the petitioners herein at about 3.30 p.m. along with panchas. After reaching the said shop, they found a person by name Sachin Jadhav. The said person revealed 4 that Satish Jachav, who is the second petitioner herein is the owner of the shop. On enquiry, said that they are registering the applications for the said scheme. When they enquired that whether they have obtained necessary permission from the corporation. Sachin replied that no such permission is obtained. Therefore, the Commissioner found that the petitioners are indulged in illegally collecting money from the general public and seized equipments, namely, computers, printers etc. He also seized cash of Rs.21,570/-. Upon receipt of the complaint, the police investigated the matter and filed charge sheet against the petitioners.
5. The petitioner herein has challenged the action of the police on the following grounds:
o It is most respectfully submits that with reverence, the Common Service Center, launched by the Government of India in Digital India scheme and issued the several notification by the CSC e-Governance Service India Ltd, called for the called for the private persons online service under the e-government scheme 5 o FOR THAT, the 2nd Petitioner herein applied the online common Service Center through the Digimail https://mail.digimal.in. on 14.02.2017. and his vide Application No 1742568449344484, successfully submitted, subsequently the e-Governance Service India Ltd, successfully registered Petitioner Application on 12.02.2017, and issued a digimail user ID [email protected] and its password: 371l73.
o Thereby, Digital India Common Service Center issued a vide Certificate No 676602022154 to the petitioner on 25.02.2017 while, issued Digital URL: Seva Portal https://digitalseva.csc.gov.in and its connecting ID/CSC/ID: 62695740017 as well as it wallet number and its password: 371173 to the Petitioner, for working on online portal with certain condition.
o There is a vital condition is that, if the candidate application successfully generated in portal, then automatically Rs.28.75, Acknowledgement generated by the CSC portal, such amount should be collect from the Applicant, therein, CSC is charged for each Application Rs.9.75 through the user wallet; and rest of the amount given remuneration to the users for their service and other maintains.
o Thereafter that, first time the petitioner was deposited Rs.200 in 9 his vide 62695740017 Wallet, through his Bank of Baroda vide an account Nos 1034011 1000218 on 01.03.2017, subsequently depositing and applied several 6 Application successfully by the Petitioner from his portal, thereon CSC charged for each application, Rs. 9.75 from the 2nd Petitioner wallet. Since then, more than four Months continuously petitioners had been run the said online browsing center. During that period no one made an allegation against the Petitioner meantime, more than 1606 Application applied by the Petitioners same portal wallet.
o FOR THAT, day by day Applicants strength increased, then, ass per CSC portal certain provision used by petitioner and crated new sub-wallet ID, for sub-workers who were working under his wallet ID in the same scheme, those are sub workers wallet 1D Nos are 621695740126, 621695740029 and 621695740135 Nos practically used by the sub-user, in their wallet money deposit by the Petitioner by the petitioner CSC ID wallet account.
o Herein humbly submits that, more than 1606 Application applied by the Petitioner and sub user in Digital India portal, for that, SCS was charged more than Rs.123545.25 from the 2nd Petitioner wallet, and the Petitioner same remuneration received from the SCS more than Rs.45,299.76. Hence alleged offences were not committed by the Petitioners.
o Herein humbly submits that, in those 1606 application several houseless poor gets house in PMAY and H.F.A in 7 Pradhan Mantri Awas Yojana, which is lunched by the India.
o Herein humbly submits that, after the several poor persons constructed their houses in the PMAY and H.F.A Scheme, then he PMAY and H. F.A local Political and official staff on the complainant jealous on the petitioner browsing center because of he was directly provided government benefits to poor through the online; there for local politician fraudulently made a call and informed that petition was illegally running the online browsing center.
o Hence, in this case no prima facie shows that, this case is 14 criminal nature, pertaining records and evidence shows that it is purely civil nature case and more that 1606 transaction made between the Petitioner and CSC e- Governance Service India Ltd, under Digital of India Scheme.
o lf anyhow mislead to public and amount received by the petitioner, then, first priority of the complainant, he should inform to the CSC authority for cancellation of the petitioner CSC portal permission.
o Since then to till today neither informed by the Since complainant nor cancelled the Petitioner CSC portal Te t is shows that mala-fide intentionally lodged that complaint against the Petitioners.
8o Herein humbly submits that, the Present case, a complainant without seen any documents or Government Scheme intention as well neither collect the proper information from the CSC authority nor said allegation informed to the CSC.
o Whereas, only based on local Politician influence, the said complaint lodged by the complainant for undue harassment to petitioners, and it is abuse of the process of Law, regarding this, the Hon'ble Supreme Court of India law lays down in the of SUSHIL SETHI AND ANOTHER Vs. THE STATE O ARUNACHAL PRADESH AND OTHERS (2020) 3 SCC 240 at para 9 and 10 of the judgment as follows; w 9. In view of the above and for the above and for the reasons stated above, we are of the firm opinion that this is a fit case to exercise the powers under Section 482 Cr.P.c. and to quash the criminal proceedings against the appellants for the offence under Section 420 read with Section 1203 of the IPC. To continue the criminal proceedings against the appellants would be undue harassment to them. As hereinabove, no prima facie case for the offence under Section 420 of the IPC is made out.
o 10. The instant appeal is accordingly allowed. The impugned judgment and order passed by the High Court is set aside. The impugned FIR and the charge sheet filed against the and appellants for the offence under Section 420 IPC are hereby quashed.
9o Herein humbly submits that, the complainant a vital contention in complaint is that;
o The Petitioners were not obtained the permission from the complainant office.
o The petitioners mislead the public and received Rs.300 and 600 from the public.
o Pertaining, the Petitioner the submission, concerned portal is not operating by the complainant office, and Government of India called for the online expert service and created a employment platform to the unemployment persons, and Digital Seva provides their service through the CSC portal. For this, no required permission from the complainant office. The Petitioner herein humbly submits that, the reliance on various judgments of Hon'ble Supreme Courts which the basic principles lays down under inherent powers under Section 482 of Cr.P.C to be exercised by the Hon'ble High Court and has set aside the criminal proceedings observing that, When there are civil disputes nature in the case, at that time initiated criminal proceedings, it would be an abuse of the process of the Court and placed reliance on the judgments in MURARI LAL GUPTA Vs. GOPI SINGH, 2005 (13) SCC 699; at para 6 of the judgment as follows;
"The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averment 10 made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with money."
o If the complainant made the compliant under the Mala- fide intention and undue influence in such condition Hon'ble High Court should be exercised their power which is contemplated under the 482 of Cr. P. C, regarding this the Hon'ble Supreme Co of India law lays down in the case of VESA HOLDINGS PRIVAT ATE LIMITED AND ANR Vs. STATE OF KERALA & ORS., 2015 (8) SCC 202. at para 9 of the judgment as follows; In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In such condition Hon'ble court invoked and secure the end of justice regarding in the case of K. SUBBA RAO AND ORS. VS STATE OF TELANGANA REP. BY ITS SECRETARY, DEPARTMENT OF HOME & ORS., 2018 (14) SCC 452. Para 5 of the judgment follows;
11"5. Criminal proceedings are not normally 5 interdicted by us at the Interlocutory stage unless there is an abuse of process of a Court T Court, at the same time, does not hesitate to interfere to secure the ends of justice.
o Instantly, the learned trial Court examined the PW- 1/CW.2 a inspect Panchay on 03.03.2020, and observed and thus recorded that, he was not signed on any document nor an materials recovered in his presence. In view of this statement there is no prima facie shows against the Petitioners as well as single evidence never shows that the Petitioners were committed such offence; wherefore, this Hon'ble Court might be quashed a entire proceedings which is pending against the Petitioners in respective concerned Court.
o Herein humbly submits that, if a complainant lodged under the undue influence, frivolous. or vexatious based al u hat time Hon'ble High Courts should be exercised 482 Cr.P.C power for quashing the entire proceedings at any stag stage for the Secure end of justice, regarding this the Hon'ble Supreme Court of India law lays down in the case of SHAKSO BELTHISSOR Vs. STATE OF KERALA AND ANOTHER (2009) 14 SCC 466 as follows;
"9. The scope and power of quashing a first information report and charge sheet u/s 482 of the CrPC is well settled. The said power is exercised by the court to prevent abuse of the 12 process of law and court but such a power Could be exercised only when the com plaint filed by the complainant or the charge sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive"
o Herein humbly submits that, the aggrieved persons he is innocent till fund a guilty, if the aggrieved persons sought for quashing of the charge-sheet, in such condition, regarding Hon'ble Supreme Court India lays down principal for quashing of the charge-sheet, in the case of R.P. KAPUR Vs, STATE OF PANJAB 1960 AIR 862 as follows;
a) Where there is a legal bar against institution or continuance of the criminal proceedings.
b) Where the allegations in the FIR do not constitute an offence, even if take at face value and in their entirety.
c) Where the allegations made constitute an offence, but there is no evidence which can prove them.
o In the instant case, vital two allegation made by the complainant therein, first one, the petitioners were not obtained the permission from any Government authority. On supra said allegation, second principal of supra judgment clearly hits, because of the charge sheet records and Police papers speaks about that, Petitioner was running his online browsing center under the CSC 13 Scheme, which was launched by the Government of India in Digital India Scheme. Whereof, the complainant 1st allegation is improper. In the instant case, third principal of supra judgment hits to the Petitioner case; because charge 'sheet and police records speaks about that petitioner was received Rs.29.75 from the public as per acknowledgement issued by the CSC portal.
o Whereas any piece of papers does not shows that petitioners were received Rs.300 or 600 from the public. Whereof, the complainant vital second allegation also improper.
o The complainant or police records does not speaks about that improper how, where and when Petitioners were not committed the said complainant or offence in this case no described by the complainant or sufficient investigation officer crystal clear show that no sufficient that no show material against to the Petitioner for prosecute the case, regarding this, the Hon'ble Supreme Court of India law laid down in the case of PRTI SARAF AND ANOTHER Vs. STATE OF NCT OF DELHI AND ANOTHER Date of disposed on 10.03.2021 in the para No 32 of judgment as follows;
"32. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal 14 proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings."
6. Re-iterating the above grounds, Sri Prakash Jadhav, learned counsel for the petitioner, contends that the Investigation Officer has no power to investigate the matter as per Section 78 of the Information Technology Act and any matter is to be investigated under Information Technology Act, it should be by a person, who is not below the rank of an Inspector. In the case on hand, investigation is conducted by the Head Constable and therefore, the entire charge sheet is vitiated.
7. Further, the learned counsel places reliance on the Judgment rendered in RK Kapoor Vs. State of Punjab reported in AIR 1960 SC 862 and contends that the continuation of the criminal proceedings, based on such and charge sheet would amount to abuse of process of court and therefore, sought for quashing of the proceedings.
158. Per contra, learned High Court Government Pleader opposes the petition prayer. So also Sri A.M. Nagaral. Sri Nagaral further contended that no offence under the provisions of the Information Technology Act, is invoked by the Investigation Agency and therefore, the charge sheet filed by the Head constable for the offence punishable under Section 420 of IPC against the petitioner is perfectly justified and sought for dismissal of the petition.
9. He further contended that the guidelines filed by the learned counsel for the petitioner in page No.24 in respect of question No.7, the petitioner is authorised to collect the fee of Rs.25 + service tax and prima facie, the Investigating Agency has collected the information that the petitioner has collected a sum of Rs.300 to 600/- from the applicants for registering the application for the aforesaid scheme and therefore, there is no scope for quashing the further proceedings and prayed for dismissal of the petition.
1610. In the light of the arguments put forth on behalf of the parties, this court perused the records including the Common Service Centre Guidelines [CSC for short] issued by the E-Governance Services India Ltd.,
11. The facts of the case reveal that the petitioners herein have established a Common Service Centre under E-Governance scheme at Vijayapur. Under CSC as per the guidelines issued by the E-Governance, the general public can register the applications for the various schemes evolved by the Central Government on line with the help of the computer. The petitioners were catering to the said needs. As per the guidelines issued by the E-Governance scheme, the prospective applicants can take the services of the petitioner on payment of Rs.25/- as the application charges + service tax. However, the Commissioner of Vijayapura received the complaint from the general public that petitioners without having any licence whatsoever, have established CSC in Vijayapura and catering to the needs of the general public by collecting Rs.300 - 600/-
17from the prospective applicants. Prima facie collection of money in a sum of Rs.300 - 600/- per application is against the guidelines issued by the E-Governance services India Ltd., The said document is filed by the petitioner himself before this court today.
12. To the question No. 7, the guidelines issued is as under:
"Q7. Does the citizen have to pay anything?
a) Pay for application at CSC Rs.25/- + service tax;
b) Beneficiary share will be told by ULB/Municipality in case you are given a benefit under the scheme. Currently this is only applicable for interested applicants."
13. Further, after raiding the petitioners' shop, the equipments namely computers, printers etc., were also seized and a complaint came to be lodged before the Gandhinagar Police, Vijayapura. The police after thorough investigation filed the charge sheet. The complaint is of 18 the year 2017 and the charge sheet came to be filed on 18.8.2017. The matter is pending before the Jurisdictional Magistrate in CC No.1953/2018. The present petition is filed on 22.03.2021 seeking quashing of the proceedings.
14. Since the charge sheet is filed and the petitioners have already appeared before the Court, it is always open for the petitioner to file appropriate application before the Jurisdictional Magistrate, seeking necessary orders.
15. Further, whether at all the petitioners have collected a sum of Rs.300 to 600/- for filing the application online from the prospective applicants or they have collected only Rs.25/- is a matter of evidence which cannot be gone into by this court while dealing with a petition filed under Section 482 Cr.PC. More over, there is no material on record placed by the petitioner as well to show that he has collected only Rs.25/- as per the guidelines issued by the E-service committed by producing the receipt books.
The raid party did not find any receipt books during raid as 19 well. These are all the matters which are to be decided by the learned Trial Magistrate after full fledged trial.
16. Further, since there is no offence invoked by the Investigating Agency under the provisions of the Information Technology Act, the arguments put forth on behalf of the petitioner that filing of charge sheet by the Head Constable has vitiated the entire trial, cannot also be countenanced in law. On the contrary, for the offence punishable under Section 420 IPC, the Head constable is entitled to investigate and file charge sheet. Therefore, viewed from any angle, there is no merit in any one of the grounds urged on behalf of the petitioner.
17. There cannot be any dispute as to the principles of law enunciated in the rulings relied on by the learned counsel for the petitioner. It is well settled principles of law that under the criminal jurisprudence, each case will have to be dealt with the facts of that particular case and the principles of law governing the facts of that case alone, is to be considered. Having 20 discussed the facts of the above case, which is simple in nature, as could be seen from the charge sheet materials, this court is not required to go into the other details of the matter having regard to the scope of Section 482 of Cr.PC.
18. Accordingly, from the foregoing discussions, following order is passed:
ORDER The Criminal Petition is dismissed.
Sd/-
JUDGE Srt/PL