Karnataka High Court
B. Shivakumar vs Hanumanna M on 3 September, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL PETITION No.7414/2012
BETWEEN:
1. B SHIVAKUMAR, MAJOR
SENIOR MANAGER
CAUVERY KALPATHARU
GRAMEENA BANK, SAKALESHPUR
BRANCH, HASSAN DISTRICT
2. K J BASAVARAJ, MAJOR
BRANCH MANAGER
CAUVERY KALPATHARU GRAMEENA
BANK, SIDDARAMANA HUNDI
BRANCH, MYSORE TALUK
MYSORE DISTRICT
3. H K SREENIVASAN, MAJOR
EX. GENERAL MANAGER
CAUVERY GRAMEENA BANK
R/AT -NO.38, 9TH CROSS
BANASHANKARI 3RD STAGE
3RD PHASE, KATTARIGUPEE
BANGALORE-560005
4. K RAMPARASAD, MAJOR
EX. GENERAL MANAGER
CAUVERY GRAMEENA BANK
R/AT-APARTMENT NO.4/2
FLAT NO. G/2, S V NIVAS
4TH 'A' CROSS, KAGGADASAPURA
BANGALORE-560093
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5. L T AMBUJAKSHI, MAJOR
FORMER GENERAL MANAGER
NEW IS WORKING AS-CHAIRMAN
CAUVERY KALPATHARU GRAMEENA
BANK, HEAD OFFICE, NO.CA-20
VIJAYANAGAR, 2ND STAGE
MYSORE-570017
6. K SEETHARAMAN, MAJOR
EX. CHAIRMAN, CAUVERY
GRAMEENA BANK, R/AT
NO.18, 13TH CROSS, S B M COLONY
MATHIKERE
BANGALORE-560054. ... PETITIONERS
(BY SRI S G BHAGAVAN, ADV.)
AND:
HANUMANNA M
S/O LATE MUNIVENKATAPPA
AGED ABOUT 56 YEARS
R/AT GAYITHRI EXTENSION
CHANNARAYAPATNA -573116
HASSAN DISTRICT. ... RESPONDENT
(BY SRI C LAKSHMINARAYANA RAO, ADV.)
THIS PETITION IS FILED UNDER SECTION 482 CR.P.C.,
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.820/2012 IN THE COURT OF THE ADDITIONAL CIVIL
JUDGE & J.M.F.C., CHANNARAYAPATNA & ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
The petitioners, who are aggrieved by the impugned order of issuance of process for offences punishable under Sections 463, 464, 465, 468, 469, 470 and 471 IPC, are before this court by invoking Section 482 Cr.P.C.
2. I have heard Sri.S.G.Bhagavan, learned counsel for petitioners and Sri.C.Lakshminarayana Rao, learned counsel for respondent and I have been taken through the records and order passed by the courts below.
3. At the first instance, respondent initiated a complaint under Section 200 Cr.P.C. alleging offences punishable under Sections 463, 464, 465, 468, 469, 470 and 471 IPC against petitioners.
4. The learned Magistrate referred the complaint to the jurisdictional police under Section 156 (3) Cr.P.C. The investigation officer submitted the final report ('B' report) stating that offences are not made out against petitioners. On receipt of final report, the same was notified to 4 complainant who filed a protest petition along with 27 documents.
The learned Magistrate recorded sworn statement of complainant and received documents as per Ex.P1 to P35 and issued process to petitioners for offences punishable under Sections 463, 464, 465, 468, 469, 470 and 471 IPC, in terms of the impugned order.
5. Before adverting to the contentions raised by learned counsel for parties, it is necessary to refer to offences for which summons is issued to petitioners.
6. The learned Magistrate has issued process to petitioners for an offence punishable under Section 463 IPC, which defines forgery; Section 464 IPC deals with making a false document; Section 465 IPC is the penal section providing punishment for forgery; Section 468 IPC provides for punishment when forgery is committed for the purpose of cheating; Section 469 IPC provides for punishment when forgery is committed for the purpose of harming reputation; Section 470 IPC, describes forged document including 5 electronic record and Section 471 IPC provides for punishment for using forged document as a genuine document.
7. The learned Magistrate without bearing in mind the distinction between defining sections and penal sections has issued process to the accused. It is true that the learned Magistrate need not write a detailed or reasoned order under Section 204 Cr.P.C., however, the order of issuance of process should justify the material made available before the learned Magistrate.
8. Now adverting to the submissions made at the Bar, the main attack against the impugned order is that, on receipt of final report, the learned Magistrate has not acted in terms of Section 190 Cr.P.C. The learned Magistrate has neither accepted the final report not rejected the final report. The learned Magistrate without taking cognizance has recorded sworn statement of complainant and issued process to petitioners in terms of the impugned order. 6
9. In a decision reported in 1992 CRI.L.J.586 (in the case of Venkatesh Narayanappa and others Vs. Sri Vittal), this court has held:-
"...When 'B' report is submitted, 3 courses are open to the learned Magistrate, viz., (i) either to accept the B Report and drop all further action; or (ii) on consideration of the B Report direct the police to make further investigation; or (iii) take cognizance of the offence, if any, disclosed on the very report. In the said decision it is further held that where the Magistrate accepts B report the only course left open to the learned Magistrate is to drop all further action."
10. In a decision reported in 1982 (2) KLC PAGE 358 (in the case of D.P.Sharma -vs- C.R.Gowda) this court has held:
"7. ...Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent Sections of Chapter XV of the Code or under Section 204 of Chapter XVI of the Code that it can be positively stated that he has applied his mind and, therefore, has taken cognizance. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. Cognizance of an offence is a step towards the exercise of jurisdiction"
8. Section 200 Cr.P.C. reads:-
"200. Examination of complainant.- A Magistrate taking cognizance of an offence on 7 complaint shall examine upon oath the complainant and the witnesses present, if any, and substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate."
9. Therefore, taking cognizance of an offence must precede examination upon oath of the complainant. Therefore, examination of the complainant on oath without taking cognizance of an offence would definitely render the subsequent proceedings invalid."
11. Sri.Lakshminarayana Rao, learned counsel for respondent has relied on following decisions of Supreme Court as also of this court.
12. In a decision reported in 1992 Crl.LJ 586 (in the case of Venkatesh Narayanappa and Others -vs- Sri.Vittal), this court has held that it is not mandatory on the part of Magistrate to accept the report submitted by the police. Even in case where 'B' report is submitted by the police, Magistrate can take cognizance and issue summons to the accused. Therefore, what has been held in this decision cannot be construed that the Magistrate can ignore 8 his duties under Section 190 Cr.P.C. and proceed under Section 200 Cr.P.C.
13. In a decision reported in 2012 Crl.LJ 1309 (in the case of Vasanti Dubey -vs- State of Madhya Pradesh) the Supreme Court has held:
"even when the final report/closure report is filed by the investigation officer, the Magistrate can ignore and take cognizance on applying his mind independent of the case (final report)"
It has further held:
"even after the police report indicates that no case is made out against the accused, the Magistrate can take cognizance on applying his mind independent of the case."
The Supreme Court has stated that the Magistrate is entitled to take cognizance under Section 190 Cr.P.C., at once he disagrees with the adverse police report. Therefore, after the final report is received by the learned Magistrate whether in favour of the accused or against the accused, the learned Magistrate has to deal with the final report under Section 190 Cr.P.C.
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14. In a decision reported in (2012) 5 SCC 424 (in the case of Bhushan Kumar and Another -vs- State (NCT of Delhi) and Another) the Supreme Court has held that, order of issuance of summons under Section 204 Cr.P.C., need not be a reasoned order, with which we are not concerned in the instant case.
15. In the case on hand, the gist of averments of the complaint are as follows:-
Accused no.1 to 5 who were holding responsible posts in Cauvery Grameena Bank had committed forgery of Ex.P24 (investigation report) and submitted the same against the respondent and the same was produced before the trial court pursuant to the notice issued by the trial court in C.C.No.35/2001. The trial court has held that this document is a forged document. The complaint has been filed on the premise that petitioners herein have forged Ex.P24.
When the complainant has alleged forgery of document by five accused (petitioners herein), the learned Magistrate should have applied his mind and should have 10 referred to the contents of Ex.P24 before issuing process to the accused. In view of aforestated legal infirmities, the impugned order cannot be sustained.
16. Therefore, I pass the following:
ORDER The petition is accepted. The impugned order is set aside. The matter is remanded to the learned Magistrate for reconsideration from the stage of receipt of final report in the light of observations made herein and in accordance with law.
Sd/-
JUDGE Np/-