Karnataka High Court
Sri. Virupakshappa S/O Fakkirappa vs The State Of Karnataka on 21 April, 2023
1 CRL.P NO. 102030/2017
C/W CRL.P NO. 102031/2017
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 21st DAY OF APRIL, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL PETITION No. 102030/2017
C/W
CRIMINAL PETITION No. 102031/2017
IN CRL.P No. 102030/2017:
BETWEEN:
SRI. VIRUPAKSHAPPA
S/O FAKIRAPPA BOMMASHETTY,
AGE : 37 YEARS, R/O: UPINBETAGERI,
DHARWAD, TQ. DIST: DHARWAD.
....PETITIONER
(BY SRI J.S. SHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY ITS POLICE SUB - INSPECTOR,
GARAG POLICE STATION,
TQ: DHARWAD, DIST: DHARWAD,
REPRESENTED BY ITS
Digitally signed by
CHANDRASHEKAR
LAXMAN
PUBLICE PROSECUTOR.
KATTIMANI
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
...RESPONDENT
(BY SMT.GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING THAT THE ENTIRE PROCEEDINGS IN C.C.NO.33
OF 2012 (GARAG P.S. CRIME NO.223 OF 2009), ON THE FILE OF I
ADDL. CIVIL JUDGE AND JMFC FOR THE OFFENCE PUNISHABLE
2 CRL.P NO. 102030/2017
C/W CRL.P NO. 102031/2017
UNDER SECTION 408, 409 AND SEC.34 OF IPC IN SO FAR AS IT
RELATES TO THE PETITIONER IS CONCERNED KINDLY BY
QUASHED BY ALLOWING THIS CRIMINAL PETITION.
IN CRL.P No. 102031/2017:
BETWEEN:
SRI. VIRUPAKSHAPPA
S/O FAKIRAPPA BOMMASHETTY,
AGE : 37 YEARS, R/O: UPINBETAGERI,
DHARWAD, TQ. DIST: DHARWAD.
....PETITIONER
(BY SRI J.S. SHETTY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS POLICE SUB - INSPECTOR,
GARAG POLICE STATION,
TQ: DHARWAD, DIST: DHARWAD,
REPRESENTED BY ITS PUBLICE PROSECUTOR.
2. SRI. A.K. JOSHI,
AGE: MAJOR, ASSISTANT
REGISTRAR OF CO - OPERATIVE
SOCIETIES, DHARWAD SUB -
DIVISION, DHARWAD.
...RESPONDENTS
(BY SMT.GIRIJA S. HIREMATH, HCGP FOR R1
R2 SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING THAT THE ENTIRE PROCEEDINGS IN
C.C.NO.533 OF 2015 ON THE FILE OF I ADDL. CIVIL JUDGE AND
JMFC FOR THE OFFENCE PUNISHABLE UNDER SECTION 408, 409
AND SEC.34 OF IPC INSOFAR AS IT RELATES TO THE PETITIONER
IS CONCERNED KINDLY BY QUASHED BY ALLOWING THIS
CRIMINAL PETITION.
3 CRL.P NO. 102030/2017
C/W CRL.P NO. 102031/2017
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
ON 30.03.2023, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These two separate petitions are filed by petitioner Virupakshappa Bommashetty under Section 482 of Code of Criminal Procedure (for short, 'Cr.P.C.'), to quash the criminal proceedings initiated against him in C.C.No.33/2012 (Crime No.223/2009) and C.C.No.533/2015 (Crime No.125/20212) for the offences punishable U/secs.408 and 409 r/w/s 34 I.P.C. on the file of I Addl.Civil Judge and J.M.F.C., Dharwad.
2. Since the petitioner is same and the allegations made against him are common, these two petitions are clubbed together and decided by a common order.
3. In support of his petition, petitioner has contended that the initiation of criminal proceedings against him is nothing but abuse of process of the Court and with the 4 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 sole intention of harassing him. Therefore, it is a fit case to quash the further proceedings.
3.1 When the respondent police have already registered the case against one Nissar Ahamad Mujawar, question of entertaining one more complaint on the same allegations and filing additional charge sheet does not arise. There was no order passed by the Magistrate to conduct further investigation. The police authorities are trying to mislead the Court by filing additional charge sheet. On this ground alone, the issue of process against the petitioner is illegal and not sustainable in law.
3.2 The respondent police have failed to take note of the fact that it was the petitioner who on verification of records found the misappropriation committed by Nissar Ahamad Mujawar and immediately reported the matter to the society and based on it, audit was conducted and complaint came to be filed. Such being the case, filing additional charge sheet against petitioner is illegal. The 5 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 material in the additional charge sheet does not constitute any offence. Without any application of mind, the trial Court has issued process and prays to quash the proceedings.
4. On the other hand learned High Court Government Pleader submitted oral objections to the effect that at the relevant point of time petitioner was working as Secretary and accused No.2-Nissar Ahamad Mujawar was working as pigmy collector at Credit Cooperative Society by name Samagra Grameen Abhivridhi Pattina Sahakar Sangh, Uppinabetageri ('Society', for short). From 15.09.2009 accused No.2-Nissar Ahamad Mujawar remained unauthorized absent. He had also taken away some of the documents with him.
4.1. After conducting internal audit, the president of the said society lodged a complaint dated 08.12.2009 alleging that for the period from 01.04.2008 to 13.09.2008, accused No.2-Nissar Ahamad Mujawar has misappropriated Rs.3,56,650/-. Based on it, case was registered in Crime 6 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 No.223/2009. After completing investigation, charge sheet came to be filed in C.C.No.33/2012 against him for the offences under Section 409 Indian Penal Code. In the charge sheet Nissar Ahamad Mujawar is arraigned as accused No.1.
4.2. Learned High Court Government Pleader would further submit that regular audit was conducted by the Senior Auditor, Office of Asst. Director of Cooperative Societies. His report disclose that for the year 2008-09, in addition to accused No.2-Nissar Ahamad Mujawar, the present petitioner is also responsible for the misappropriation. Accordingly additional charge sheet is filed, arraigning petitioner as accused No.1 and Nissar Ahamad Mujawar as accused No.2.
4.3. So far as Crl.P.102031/2017 is concerned, learned High Court Government Pleader would submit that Sales Officer No.1, in the Office of Asst. Director of Cooperative Societies has filed a complaint dated 13/28.07.2012 alleging that for the year 2008-09 and 2009-10 both petitioner and 7 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 Nissar Ahamad Mujawar have misappropriated a total sum of Rs.3,79,730/- under different heads. Based on the said complaint, case was registered in Crime No.125/2012 and after completing the investigation, charge sheet is filed in C.C.No.533/2015 for the offences punishable under Sections 406 and 409 r/w/s 34 Indian Penal Code against accused No.1- Virupakshappa Bommashetty who is petitioner and accused No.2-Nisar Ahamad Mujawar. The charge sheets makes out a strong prima facie case against the petitioner and prays to dismiss the petitions.
5. Heard the arguments and perused the records.
6. It is not in dispute that at the relevant point of time petitioner was working as Secretary and accused No.2- Nissar Ahamad Mujawar was the pigmy collector in the Society. In fact accused No.2-Nissar Ahamad Mujawar was initially appointed as clerk, thereafter as pigmy collector. He has also worked as Office Assistant and Recovery Assistant. Alleging that from 08.09.2009, he remained unauthorized 8 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 absent, notice sent was sent to him by the Society and returned un-served. A paper publication was also issued. When he did not respond to all of these, petitioner who was the Secretary was directed to verify the records. On the basis of his report, complaint was lodged against Nsisar Ahamad Mujawar. After investigation, charge sheet came to be filed against him in C.C.No.33/2012.
7. It is relevant to note that the charge sheet was based on the internal audit of the accounts of the Society. However, when the regular audit was conducted by the Senior Auditor, Office of Asst. Director of Cooperative Societies, it was revealed that for the year 2008-09, petitioner who was the Secretary is also responsible for the misappropriation. Therefore additional charge sheet came to be filed in C.C.No.33/2012 arraigning petitioner as accused No.1 and Nissar Ahamad Mujawar as accused No.2. 9 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017
8. In Vinay Tyagi V/s Irshad Ali alias Deepak and others1, while discussing in detail as to how the investigation is required to be conducted, the power of the trial Court and higher Courts to order for investigation, further investigation etc., and also the power of the Investigating Officer to conduct further investigation, the Hon'ble Supreme Court has clearly held that under Section 173(8) Cr.P.C. the Investigating Officer is having statutory powers to conduct further investigation. The Hon'ble Supreme Court also observed that there is no specific requirement in the provisions of Section 173(8) Cr.P.C. to seek leave of the Court for the Investigating Officer to conduct further investigation. It is a legal practice and a procedural propriety which is followed by the Investigating Officers and the Courts. The requirement of seeking prior leave of the Court to conduct further investigation and/or to file a supplementary report will have to be read into and is a 1 (2013) 5 SCC 762 10 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 necessary implication of the provisions of Section 173(8) Cr.P.C.
9. In this judgment, the Hon'ble Supreme Court has clearly observed that the power to conduct further investigation whereby the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8) Cr.P.C. is vested with the executive. It is the continuation of previous investigation and therefore is understood and described as further investigation. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at the subsequent stage of the preliminary investigation.
10. The Hon'ble Supreme Court further held that it is commonly described as a supplementary report. Supplementary report would be the correct expression as the subsequent investigation is meant and intended to 11 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 supplement the preliminary investigation conducted by the empowered police officer. This is a kind of continuation of previous investigation. The base is discovery of fresh evidence and in continuation of the same offence and chain of events relating to some occurrence incidental thereto.
11. The investigating officer has not conducted any further investigation. In the present case so far as C.C.No.33/2012 is concerned, after the audit conducted at the Office of Asst. Director of Cooperative Societies the fact of involvement of petitioner in the misappropriation for the year 2008-09 came to the notice and therefore rightly the investigating officer has filed additional/supplementary charge sheet placing the said evidence on record. It is within the power vested in him under Section 173(8) Cr.P.C.
12. So far as C.C.No.533/2015 is concerned, it is a normal charge sheet filed against both accused.
13. The material placed on record against both accused including the petitioner in both cases makes out 12 CRL.P NO. 102030/2017 C/W CRL.P NO. 102031/2017 strong prima facie case. The allegations made against them are required to be proved in a full fledged trial. Absolutely no grounds are made out by the petitioner to quash the criminal proceedings initiated against him either in C.C.No.33/2012 or C.C.No.533/2015. In the result, both petitions are liable to be rejected and accordingly I proceed to following:
ORDER Both the petitions filed under Section 482 Cr.P.C. by the petitioner/accused No.1 are hereby dismissed.
SD/-
JUDGE CLK/KGK CT-AK