Karnataka High Court
M/S Bhagwan Mahaveer Memorial Jain ... vs State Of Karnataka on 5 February, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.8156/2018
BETWEEN:
M/S. BHAGWAN MAHAVEER
MEMORIAL JAIN TRUST,
A REGISTERED CHARITABLE
TRUST, HAVING ITS REGISTERED
OFFICE AT NO.17/1, MILLERS
ROAD, VASANTHANAGAR,
BANGALORE-560 052
REP. BY ITS SECRETARY
MR. CHANDMAL KISHANLAL
... PETITIONER
(BY SRI.S.MOHAN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY BANGALORE METROPOLITAN
POLICE STATION, BBMP OFFICE
COMPOUND, HUDSON CIRCLE,
BANGALORE 560 002
REP. BY THE STATE PUBLIC
PROSECUTOR, HIGH COURT
BUILDINGS, BANGALORE-560 001
2. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA
PALIKE, N.R.SQUARE,
BANGALORE-560 002
... RESPONDENTS
(BY SRI.S.RACHAIAH, HCGP FOR R-1;
SRI.AMAR CORREA, ADVOCATE FOR R-2)
2
THIS PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE COMPLAINT DATED
28.08.2018 FILED BY RESPONDENT NO.2 WITH
ADDITIONAL DIRECTOR GENERAL OF POLICE,
BENGALURU METROPOLITAN TASK FORCE, BENGALURU
AGAINST THE PETITIONER TRUST IN RELATION TO
PROPERTY BEARING NO.17, MILLERS ROAD,
VASANTHNAGAR, BENGALURU AND QUASH THE FIR IN
CR.NO.53/2018 OF BANGALORE METROPOLITAN TASK
FORCE POLICE STATION WHICH IS NUMBERED AS
CR.NO.20315/2018 ON THE FILE OF C.M.M, BENGALURU
FOR THE OFFENCE P/U/S 420 OF IPC AND SECTION 441
OF THE KARNATAKA MUNCIPAL CORPORATION ACT, 1976
AND CONSEQUENT INVESTIGATION AND CRIMINAL
PROCEEDINGS.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner has sought for quashing of the complaint dated 28.08.2018 filed by second respondent and the consequential registration of FIR in Crime No.53/2018 registered for the offences punishable under Section 420 of IPC and Section 441 of Karnataka Municipal Corporations Act, 1976, which proceedings are pending on the file of Chief Metropolitan Magistrate, Bengaluru. In fact, this Court while ordering notice on 09.11.2018 and granting stay of further proceedings 3 had directed second respondent to file an affidavit explaining the circumstances leading to initiating criminal prosecution in respect of a contract/ agreement, which has not been filed on the ground that certain documents ought to have been collected.
2. In the light of short point being involved in the present petition, matter is taken up for final disposal by the consent of learned Advocates appearing for parties.
3. Second respondent herein filed a complaint with the Bangalore Metropolitan Task Force, Bengaluru (for short 'BMTF'), on 28.08.2018 alleging that petitioner as a lessee had obtained vacant site bearing Municipal No.17/1 situated at Millers Road, Vasanthnagar, Bangalore - 560052, on lease for establishment of a hospital for the public, who are poor and in need of medical services, under a lease deed dated 19.05.1976 for a period of 99 years (due to expire on 18.05.2075) on terms and conditions stipulated 4 thereunder and conditions so stipulated had been violated. Hence, second respondent sought for a detailed investigation being conducted by BMTF, which complaint came to be registered by first respondent in Crime No.53/2018 against petitioner for an offence punishable under Section 441 Karnataka Municipal Corporations Act, 1976 and Section 420 of IPC.
4. Having heard the learned Advocates namely, Sri.S.Mahesh, learned counsel appearing for petitioner, Sri.S.Rachaiah, learned HCGP appearing for respondent No.1-State and Sri.Amar Correa, learned counsel appearing for respondent No.2 and after bestowing my careful and anxious consideration to the contentions raised at the bar, it requires to be noticed that there cannot be any dispute with regard to the proposition that simultaneous criminal proceedings and action for civil wrong can be proceeded with. Criminal proceedings cannot be quashed under Section 482 Cr.P.C. holding that dispute may likely to fall within the four corners of a civil dispute and it is an alternative to criminal 5 proceedings. Likewise, where Court finds that civil liability is sought to be brought under the cover of criminal liability, on facts obtained, if this Court is of the opinion that it would be an abuse of process of law, necessarily proceedings would be quashed. The basis for quashing of the proceedings would be that continuation of criminal proceedings would be an abuse of the process of law.
5. It is well settled that power under Section 482 of Cr.P.C. would be sparingly used and in that process, due process of law is not scuttled. Hon'ble Apex Court in the case of BINOD KUMAR & OTHERS vs STATE OF BIHAR & ANOTHER reported in (2014) 10 SCC 663 has held that at the stage of considering a prayer for quashing of complaint or FIR, High Court would not embark upon conducting an enquiry as to the probability, reliability or genuineness with regard to the allegations made in the complaint and it has been further held where averments made in the complaint is taken at its face value, ingredients of a criminal offence 6 cannot be discerned, it would not hesitate to quash the proceedings. On the other hand, if it is found that averments would so disclose that there is an element of criminal liability, Courts would not quash the proceedings.
6. Principles relating to exercise of jurisdiction under Section 482 of Cr.P.C. has been elaborately stated by the Hon'ble Apex Court in INDIAN OIL CORPORATION vs NEPC INDIA LTD. reported in (2014) 10 SCC 663 and it reads as under:
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State (NCT of Delhi), [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of 7 Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Singh [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used 8 sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged.
If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out:
(a) purely a civil wrong;
or
(b) purely a criminal offence; or
(c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a 9 commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings.
The test is whether the allegations in the complaint disclose a criminal offence or not."
7. Keeping these salutary principles and authoritative pronouncement of the Hon'ble Apex Court in mind, when the allegations made in the complaint in the instant case are perused it would clearly indicate that alleged non performance of contractual reciprocal promises is the ground on which complaint has been lodged or in other words, violation of contractual obligation by petitioner-accused. It is the grievance of the complainant that certain obligations cast on the petitioner-lessee has been violated. If it is so, it is always open for the second respondent to initiate appropriate proceedings in a Civil Court and even there being no element of mens rea attributable to the petitioner, criminality cannot be attached to such acts 10 of the petitioner as could be discerned from the allegations made in the complaint itself.
8. The ground on which second respondent- complainant has tried to ignite criminal prosecution are:
(i) petitioner-lessee, who has taken premises on lease, has allowed a hotel to be run by granting sub lease without permission of the lessor (BBMP);
(ii) property of BBMP has been mortgaged by the lessor to Punjab National Bank;
(iii) property has been leased to third party and thereby causing financial loss to BBMP.
9. In fact, allegations made in the complaint are as vague, vagueness could be. It is apt to note at this juncture the authoritative pronouncement of Hon'ble Apex Court in the case of STATE OF HARYANA AND ORS vs CH. BHAJAN LAL AND ORS reported in 1992 Supp. (1) SCC 335 wherein Hon'ble Apex Court 11 has illustratively listed out myriad cases where the power under Section 482 of Cr.P.C. or power vested under Article 226 of Constitution of India can be exercised by this Court and insofar as present case is concerned, this Court is of the considered view that illustrations at Sl.Nos.4, 5 and 7 would be relevant. Hence, they are extracted hereinbelow for immediate reference:
"(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) xxxx (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the 12 accused and with a view to spite him due to private and personal grudge."
10. It is in this background when allegations made in the complaint are read, the only irresistible conclusion which can be drawn would be that accepting the allegations made by the complainant is true it would not be a cognizable offence and even if proceedings are taken to its logical end, no prudent person can ever reach a conclusion that there is sufficient ground for convicting accused for any criminal act. Though it cannot be said by petitioner in the instant case that proceedings have been initiated with ulterior motive for wrecking vengeance, this Court cannot lose sight of the fact that non performing of reciprocal promises of a contract or violation of conditions stipulated under the lease-deed ipso facto would not result in any criminality being attributed to the lessee, who is petitioner herein. In fact, petitioner has specifically contended that property which is taken on lease has not been mortgaged but only lease hold 13 rights and thereby accused has caused financial loss to the BBMP. Hence, FIR is registered against the petitioner in Crime No.53/2018 for the offences punishable under Section 441 of Karnataka Municipal Corporations Act, 1976 and Section 420 of IPC. As to whether Government order dated 02.02.2013 issued with regard to powers and functions of the Special Task Force called "The Bangalore Metropolitan Task Force"
empowering it to enquire into the offences pertaining to Government land etc., the Division Bench in W.P.Nos.12381-382/2013 by order dated 23.07.2013 has held:
"4. After perusal of the statement of objections and the submissions made on behalf of the respondents, it was clear and fairly conceded on behalf of the petitioners that the powers of the BMTF were not sought to be curtailed by the impugned order, but infact, clarified with the condition that if the complaint discloses commission of offences only under the Indian Penal Code or the Karnataka Police Act, it would not be competent for the BMTF to proceed with the investigation thereof. Barring that, there is no prohibition or restriction on BMTF against detection or 14 investigation of any offences under the specified enactments or against implication of any government officer if he were found to be involved in the commission of the alleged offence."
Thus, BMTF would not be competent to investigate with reference to offences under Karnataka Land Revenue Act, 1964; Bangalore Metropolitan Region Development Area, 1985 and Special Acts, which would also include Karnataka Municipal Corporations Act, 1976, but not under the Indian Penal Code. Thus, FIR registered against the petitioner for the offences punishable under Section 420 of IPC would also not be sustainable and it is liable to be quashed for this additional reason also.
11. This Court would not embark upon conducting any roving enquiry in that regard and it is for the second respondent to proceed in accordance with law against petitioner for violation of any such conditions by taking recourse under the civil law. Hence, this Court is of the considered view that continuation of criminal proceedings, which has now 15 been initiated against petitioner would definitely fall within the mischief of abuse of process of law. In that view of the matter, petitioner is entitled to succeed in this petition.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Complaint dated 28.08.2018 filed by second respondent against petitioner and proceedings pending in Crime No.53/2018 on the file of Chief Metropolitan Magistrate, Bengaluru, for the offences punishable under Section 420 of IPC and Section 441 of Karnataka Municipal Corporations Act, 1976, is hereby quashed and petitioner is acquitted of the said offences.
SD/-
JUDGE DR