Karnataka High Court
Veeranagouda K S/O Basanagouda vs The State Of Karnataka And Anr on 10 November, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201425/2019
BETWEEN:
VEERANAGOUDA K. S/O BASANAGOUDA
AGE: 79 YEARS, OCC: BUSINESS & AGRI.
R/O MASKI, TQ. MASKI
DIST. RAICHUR-584124
... PETITIONER
(BY SRI PRASANNA KUMAR, ADVOCATE FOR
SRI R.S.LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE SHO.,
SADAR BAZAR P.S., RAICHUR
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107
2. SHRENIKRAJ S/O DHOOLCHAND
AGE: 66 YEARS, OCC: BUSINESS
R/O OLD BAZAAR, SINDHANUR
TQ. SINDHANUR
DIST. RAICHUR-584128
... RESPONDENTS
(BY SRI SHARANABASAPPA M.PATIL, HCGP FOR R1;
SRI SHIVANAND V. PATTANSHETTI, ADVOCATE FOR R2)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE ORDER OF TAKING
COGNIZANCE AND ISSUE OF PROCESS DATED 19.08.2019 IN
CRIMINAL CASE NO.746/2019 (ARISING OUT OF SADAR BAZAR
P.S. CRIME NO.71/2018) BY THE PRL. CIVIL JUDGE & JMFC-II,
RAICHUR FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
465, 468, 471, 420 OF IPC AGAINST THE PETITIONER ON THE
STRENGTH COMPLAINT LODGED BY THE RESPONDENT NO.2
AND ALL FURTHER PROCEEDINGS IN THE MATTER.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the order of taking cognizance and issuance of process dated 19.08.2019 passed in Criminal Misc.No.746/2019 arising out crime No.71/2018 pending on the file of Principal Civil Judge and JMFC-II Court, Raichur for the offences punishable under Sections 120B, 465, 468, 471, 420 read with section 34 of IPC.
2. Heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent-State.
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3. The allegation made in the complaint dated 21.06.2018 that the Educational society was registered in the year 1983 and at the time of registration there were 11 promoters and CW.2 was elected as President in the year 1986 and till date he has continued as President of the Society. On 07.06.2018, from the office of Registrar of Co-operatives Societies, Raichur, the complainant had obtained certified copies. To his utter shock, some documents have been inserted in between the documents which have been placed before the Registrar of Co- operatives Societies on 07.11.1983 for registration such as Memorandum of Association, Resolutions, Rules and Regulations, by tampering the documents and fabricated list is furnished total mentioning the number of members as 109. The same was inserted and made to believe the same as original documents. It is further alleged that the second page of the original registration document has been over written as 7 and 5 pages have been inserted. The said insertion of documents is fabricated as they are 4 typed in different typing machine and different set of papers. It prima facie discloses that documents are fabricated and inserted in the original documents pertaining to the registration. Hence, the complaint is lodged. Based on the complaint, the police have registered the case in crime No.71/2018 for the offences punishable under Sections 120B, 420, 465, 468, 471 read with section 34 of IPC.
4. The police after registration of case has investigated the matter and filed the chargesheet and before filing the chargesheet they have taken the opinion of the experts regarding disputed signatures and also admitted signatures and cited CWs.1 to 25 as witnesses. Hence, the petitioner is before this Court.
5. The main contention of the learned counsel for the petitioner before this Court is that while taking the cognizance and issuance of process, the trial Court has committed an error and in a mechanical manner proceeded to take the cognizance and the same suffers infirmity. It is 5 also contended that on perusal of the complaint, FIR and the investigation records and accepting them on the face of it, even though no offence as alleged under sections 465, 468 and 471, 420 of IPC are made out against the petitioner and the very ingredient of the offence is missing and proceedings initiated at the instance of respondent No.2 and the same is direct outcome of the management tussle on the one side and respondent No.2 and CW.2 on the other side. The very initiation of criminal proceedings is nothing but an abuse of process and the same is initiated with malafide intention. The learned counsel would also submit that only with political vendetta a criminal prosecution is initiated and complainant has filed the complaint without mentioning any of the ongoing litigation between him on the one side and the petitioner on the other side.
6. The learned counsel brought to the notice of this Court that the elections were conducted and the same was challenged before this Court in writ petition which was 6 dismissed by order dated 18.11.2016 and thereafter the writ appeal was also filed in and the same was dismissed by judgment dated 17.06.2019. When the order has been suffered by the complainant, he had adopted both mode of initiating the criminal case against the petitioner and hence, it is clear that with the malafide intention the complaint is filed and the Investigating Officer also proceeded in an erroneous manner and filed a false charge sheet against the petitioner. The trial Court also failed to consider the material on record while taking cognizance and very taking of cognizance is contrary in law and hence, it requires interference by this Court.
7. Learned counsel for the petitioner would contend that there is no allegation of forgery and only an allegation made in the complaint that pagination varies in the documents submitted to the office of Registrar. Hence, there cannot be any criminal prosecution against this petitioner and if it is continued, it amounts to miscarriage of justice.
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8. Per contra, learned counsel for the complainant would submit that in the complaint a specific allegation is made with regard to tampering of original documents which has been placed at the time of registration of society in the year 1983 and inserted the documents wherein 109 members' list has been inserted and made to believe those documents as original documents. A specific allegation is made with regard to forgery, fabrication of document and using of the said document for the purpose of election. When such being the allegation made, the Investigating Officer collected the disputed signature and also admitted signature and sent the said documents to the concerned department for its verification and based on the opinion of the expert, the case has been registered. The learned counsel for the petitioner would also submit that disputed aspects cannot be decided in a proceeding under section 482 of Cr.P.C., the Court has to take note of the material whether the continuation of proceedings amounts to miscarriage of justice. In the case on hand, 8 the trial Court considering the material on record rightly taken the cognizance and it does not require any interference by this Court.
9. Learned High Court Government Pleader would submit that the trial Court has not committed any error in passing the order of taking cognizance and applied its mind by perusing the chargesheet material and its enclosures and comes to the conclusion that there are sufficient materials to proceed against the petitioner and hence, does not require interference by this Court.
10. Having heard the learned counsel for the petitioner and learned counsel for respondent No.2, and learned High Court Government Pleader for the State, when the order of taking cognizance is questioned before the Court, the Court has to look into whether the learned Magistrate applied his mind or not. On perusal of the order sheet dated 19.08.2019, the learned Magistrate while taking cognizance perused the chargesheet and statement recorded under section 161 of Cr.P.C., and 9 other documents annexed to the chargesheet and on perusal of the same, it comes to the conclusion that there are sufficient materials to proceed against the accused. Hence, invoking section 190 (1)(b) of Cr.P.C., cognizance of the offences punishable under Section 465, 468, 471, 420 of Cr.P.C., is taken against accused and issued the process. The specific allegation in the complaint which is available along with the FIR is clear that the society was registered in the year 1983 and while registering the Society an application was given along with memorandum of association and rules and regulations but specific allegation is that total 109 members' list has been fabricated and inserted in the original records and pagination was also altered and the details typed in the documents are found to be typed in a different machine, which prima facie discloses insertion of papers. Based on the said allegation, the case has been registered and investigated the matter and disputed signatures and admitted signatures were also sent to the FSL and obtained the opinion of the expert and thereafter filed the 10 chargesheet. The main contention of the learned counsel for the petitioner is that no specific allegation against this petitioner is made that he indulged in forging of the documents and also counsel would submit that opinion does not disclose that the said insertion, fabrication and forgery of documents is committed by this petitioner. The learned counsel for the petitioner would vehemently contend that no doubt, this petitioner is a beneficiary but merely he is a beneficiary in the said act, he cannot be prosecuted.
11. In support of his contention, learned counsel for the petitioner brought to the notice of this Court paragraph No.20 of the decision of the Hon'ble Apex Court in the case of Sheila Sebastian vs. R.Jawaharaj and Another reported in (2018)7 SCC 581 wherein the Hon'ble Apex Court discusses with regard to section 464 of IPC. The offence of forgery cannot lie against a person who has not created it or signed it. But the fact is that whether the accused has created it or not, it has to be ascertained only during the course of trial and not at the 11 stage of taking cognizance and while taking cognizance, the Court has to look into the material placed by the Investigating Officer before the Court. The other question before the Court whether the learned Magistrate has applied his mind or not while taking cognizance. In the case on hand, the learned Magistrate perused the charge sheet and its enclosures and statement of witnesses and found that there are prima facie materials to proceed against this petitioner. No doubt, the counsel brought to the notice of this Court paragraph Nos.25 and 28 of the judgment referred supra, wherein also the Hon'ble Apex Court discusses with regard to section 464 of IPC and comes to the conclusion that the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and respondent No.1. It is further observed that law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the 12 courts to ensure that suspicion does not take place of the legal proof.
12. The Hon'ble Apex Court in detail discussed in paragraph Nos.25 and 28. It is at the stage of only taking up of cognizance and not proving of the case and only at the time of taking cognizance Court has to look into the material collected by the Investigating Officer and whether the charges leveled against the petitioner is proved, the same requires full-fledged trial. I have already pointed out that petitioner has not disputed that he is the beneficiary but the question is whether he indulged in fabrication of documents and committed forgery and whether it is done at the instance of this petitioner has to be looked into. Even while framing charges a strong suspicion is enough to frame the charge and there is no need to consider the proof whether it ends in conviction, but only the Court has to look whether it is a fit case to proceed against the accused. In the case on hand, only cognizance is taken based on the material collected by the Investigating 13 Officer. The Investigating Officer has sent the disputed documents to the hand writing expert and opinion is taken. In terms of the opinion of the expert, there was commission of offence alleged and when such being the case, it is not a fit case to exercise power under section 482 of Cr.P.C., to quash the order of taking cognizance. I have already pointed out that while taking cognizance there is no need to pass the detailed order by the learned Magistrate and only he has to apply his judicious mind. If the Court satisfies that there are prima facie materials to proceed, then Court can take cognizance. But I do not find any error or illegality committed by the trial Court in taking cognizance. Hence, there is no merit to exercise the power under section 482 of Cr.P.C., to quash the proceedings against the petitioner herein. The Court can exercise the power under section 482 of Cr.P.C., only if it is an abuse of process and continuation of criminal proceedings would lead to miscarriage of justice, at that juncture, the Court can exercise power under section 482 of Cr.P.C., and power cannot be exercised when the prima facie materials 14 are there to proceed with the case against the petitioner. At the time of taking cognizance no need to look into the merits of the case whether the material collected by the Investigating Officer is sufficient or not but only it has to look into the material whether that material prima facie discloses the case to proceed in the matter. Hence, issuance of process against the petitioner cannot be quashed by exercising power under section 482 of Cr.P.C.
13. In view of the observations made above, I pass the following:
ORDER The petition is dismissed. The observation made in this order shall not influence the trial Court in any manner.
Sd/-
JUDGE VNR