Karnataka High Court
Sri N. Narayanappa vs The State Of Karnataka on 18 March, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.6137/2020
BETWEEN:
SRI N.NARAYANAPPA
S/O NARASIMHAPPA
AGED ABOUT 50 YEARS
ADVOCATE, OFF: 1ST FLOOR
JAI HIND COMPLEX
KOLAR-BANGARPET MAIN ROAD
BANGARPET TOWN
KOLAR DISTRICT
R/AT GUTTAHALLI VILLAGE
GULLAHALLI POST, BUDIKOTE HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563114.
... PETITIONER
(BY SRI M.B.CHANDRACHOODA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE POLICE SUB-INSPECTOR
BANGARPET POLICE STATION, BANGARPET
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT ANNEX BUILDING
BENGALURU-560001.
2
2. SRI SUNIL KUMAR
S/O YELLAPPA
AGED ABOUT 38 YEARS
ADVOCATE,
R/AT NO. 2162, BHOVINAGAR
BANGARPET TOWN
KOLAR DISTRICT-563114.
... RESPONDENTS
(BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1;
SRI D.PRABHAKAR, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE COMPLAINT IN PCR
No.35/2020 ORDER DATED 05.03.2020 ON THE FILE OF THE
PRL.CIVIL JUDGE AND JMFC, BANGARPET AND REGISTRATION
OF CRIME IN CR.NO.68/2020 ON THE FILE OF THE BANGARPET
POLICE FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
107, 120B, 193, 196, 197, 199, 200, 207, 209, 284, 409, 416,
419, 420, 426, 465, 466, 468, 471, 474, 504, 511 OF IPC AND
SECTION 45 OF THE ADVOCATES ACT.
THIS CRIMINAL 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 complaint in PCR No.35/2020, order dated 05.03.2020 on the file of Principal Civil Judge and JMFC, Bangarpet and registration of Crime No.68/2020 by Bangarpet Police under Sections 107, 120B, 193, 196, 197, 199, 200, 207, 3 209, 284, 409, 416, 419, 420, 426, 465, 466, 468, 471, 474, 504, 511 of IPC and Section 45 of the Advocates Act.
2. The factual matrix of the case is that respondent No.2 herein has filed the private complaint which is number as PCR No.35/2020. Learned Magistrate, on perusal of the complaint averments and documents along with the witness list and affidavit, forms on opinion that the documents prima facie shows that there is an offence and therefore, took cognizance for the above said offences and thereafter, referred the matter under Section 156(3) of Cr.P.C. to the PSI, Bangarpet Police Station for investigation.
3. Learned counsel appearing for the petitioner would vehemently contend that there is a civil dispute between the parties in O.S.No.31/2018 and also there was an agreement executed by the power of attorney in favour of the petitioner herein and based on the said power of attorney, the matter was compromised before the Lok-Aadalath. When the Execution Petition was filed before the Court for enforcing the said compromise, it was noticed that inadvertently, the scheduled of 4 the premises was not included in the said compromise petition and hence, withdrew the Execution Petition filed before the Court. In the meanwhile, the complaint is filed against this petitioner by respondent No.2 making the allegation that he indulged in fabrication of the document. The said complaint is not filed by Ramakka but the same is filed by the present respondent, who got the sale deed executed after obtaining the decree from the Court, which is nothing but an abuse of process. Hence, it requires interference of this Court.
4. Per contra, learned counsel for respondent No.2 would submit that in the complaint, the specific allegations are made against the petitioner herein, who being an Advocate indulged in similar acts and several cases are also registered against him. In para Nos.8 and 9 also, the specific allegations are made that the signature of Ramakka has been forged and based on the same, the agreement of sale has been created. Based on the said agreement, a decree was also obtained and thereby cheated the respondent No.2 herein. Hence, the learned 5 Magistrate by applying his judicious mind referred the matter under Section 156(3) of Cr.P.C. for investigation.
5. Learned High Court Government Pleader appearing for the State would submit that the specific allegations are made in the complaint, that too, for fabrication of document and forgery of the signature of Ramakka and the matter is under investigation. Learned HCGP also would submit that the FSL report with regard to the forgery of signature has to be obtained and since the law is set in motion, the same has to be investigated.
6. Having heard the learned counsel for the petitioner and learned counsel for the respondent and so also the learned HCGP for State, and also on perusal of the records, the learned Magistrate vide order dated 05.03.2020 on perusing the complaint, relevant documents and witness list and so also the affidavit, passed an order that the documents produced along with the complaint prima facie shows the commission of offence. Though in the order, the learned Magistrate has stated that the cognizance is taken, the same is not in accordance with law. 6 Once the learned Magistrate makes out his mind and forms an opinion that the matter has to be referred under Section 156(3) of Cr.P.C., the said order of taking cognizance would become redundant as it is a pre-cognizance order. However, this Court has to look into the order of the learned Magistrate, whether he has applied his judicious mind or not.
7. Having taken note of the contents of the complaint and also the documents, learned Magistrate has formed an opinion that it is a fit case to refer the matter under Section 156(3) of Cr.P.C. When the learned Magistrate has applied his judicious mind while referring the matter under Section 156(3) of Cr.P.C. looking into the contents of the complaint and also the documents, witness list and affidavit, this Court cannot find fault with the order referring the matter under Section 156(3) of Cr.P.C. It is also important to note that the matter referred under Section 156(3) of Cr.P.C. not affects the rights of the petitioner herein and the Apex Court also in the case of HDFC SECURITIES LTD. AND OTHERS v. STATE OF MAHARASHTRA AND ANOTHER reported in AIR 2017 SC 61 7 held that the stage of cognizance would arise only after investigation report is filed before the Magistrate. The order directing the investigation not causing an injury of irreparable nature, cannot be quashed at a premature stage in para No.24, which is extracted herein below:-
"24. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under Section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter have emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only 8 after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under Section 482 of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 of Cr.P.C. should be sparingly used. In these circumstances, we do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the appellants before the High Court. Accordingly, we affirm the order so passed by the High Court dismissing the writ petitions. The appeal is dismissed."
8. The other contention of the learned counsel for the petitioner is that the suits are filed and earlier there was a sale agreement executed and based on the said agreement, the decree is also obtained and after obtaining the decree, the present complaint is filed, which has to be investigated by the investigating officer. Now when the matter has been referred 9 under Section 156(3) of Cr.P.C., the High Court should not venture to probe into the matter and collect the material as Appellate Court, but only has to examine as to whether the learned Magistrate has committed an error while passing the order under Section 156(3) of Cr.P.C. or not. Hence, I am of the opinion that it is not a fit case to exercise the powers under Section 482 of Cr.P.C. to quash the order referring the matter under Section 156(3) of Cr.P.C. for investigation.
9. In view of the discussion made above, I pass the following:-
ORDER The petition is hereby dismissed.
In view of the disposal of the main petition, I.A.1/2020 does not survive for consideration and the same stands disposed of.
Sd/-
JUDGE PYR