Karnataka High Court
Sri. Jitendra Virwani vs State Of Karnataka on 28 February, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRL.P. NO.2692/2019
BETWEEN
SRI. JITENDRA VIRWANI
S/O MOHANDAS VIRWANI,
AGED ABOUT 51 YEARS,
NO.332, EMBASSY WOODS
6A, CUNNINGHAM ROAD
VASANTHANAGAR,
BANGALORE - 560 001.
AND ALSO AT:
M/S EMBASSY PROPERTY DEV. LTD.,
NO.150, EMBASSY POINT,
INFANTRY ROAD,
BANGALORE-01.
...PETITIONER
(BY SRI S.MAHESH, ADV. OF MAHESH & CO.)
AND
1. STATE OF KARNATAKA
BY H.A.L. POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 01.
2. SRI KRISHNAPPA
S/O NOT KNOWN TO THE PETITIONER
(MAJOR), AGE NOT KNOWN
2
TO THE PETIONER
ASSISTANT EXECUTIVE
ENGINEER BBMP
MAHADEVAPURA ZONE
MARATHAHALLI
BANGALORE - 560 037.
...RESPONDENTS
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1,
SRI ARAVIND M.NEGLUR, ADV. FOR R2.)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE ENTIRE CRIMINAL PROCEEDINGS AGAINST
THE PETITIONER HEREIN IN C.C.NO.56278/2015
PENDING ON THE FILE OF X ADDL.C.M.M., BENGALURU
FOR THE OFFENCE P/U/S 288 AND 336 OF IPC.
THIS CRL.P COMING ON FOR 'ADMISSION', THIS DAY
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by petitioner-accused No.1 under Section 482 of Cr.P.C praying to quash the proceedings in C.C.No.56278/2015 pending on the file of X Additional Chief Metropolitan Magistrate, Bengaluru for the offence punishable under Sections 288 and 336 of IPC.
2. I have heard the learned counsel for the petitioner, learned Additional SPP for respondent No.1 and the learned counsel for respondent No.2. 3
3. Though the case is listed for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.
4. Respondent No.2 filed a complaint alleging that M/s. Embassy Property Developments Pvt. Ltd. are constructing a building in property bearing No.298/159/172 in Sy.No.10/1a, 10/1b, 11, 12/1, 12/2, 12/3, 13/2, 17/2, 17/3 in Ward No.150 of Kaadubisanahalli Village. It is further alleged that a portion of the building had developed crack and that it is likely to collapse and cause damage to the life of human being. On the basis of the complaint, case has been registered.
5. It is the submission of learned counsel for the petitioner-accused No.1 that learned Magistrate without application of mind has taken cognizance. It is further submitted that on careful perusal of provisions of Sections 288 and 336 of IPC, the ingredients are not 4 attracted against the accused as per the allegations made in the complaint. It is his further submission that the said construction work is admittedly taken up by M/s. Embassy Property Developments Pvt. Ltd. The company is a necessary party to the proceedings. Without making the Company as an accused, the proceedings are not sustainable in law. In order to substantiate the said contention, he has relied upon the decision of the Hon'ble Supreme Court in the case of Aneeta Hada Vs. Godfather Travels and Tours Private Limited reported in 2012 (5) SCC 661. It is further submitted that as per Section 468 of Cr.P.C., cognizance taken is barred by limitation. The alleged offence are punishable with six months imprisonment and the cognizance is taken belatedly. It is further submitted that though the Company has committed an offence, the complainant and the investigating officer personalized the offence and filed charge sheet against the petitioner-accused. It is his further submission that 5 thereafter when the BBMP authorities have inspected the building, they have given permission to construct the said building and the building work was completed and Occupancy Certificate was issued by BBMP by letter dated 10.01.2014. It is further submitted that by going through the entire materials, it is seen that the filing of the complaint and the charge sheet is nothing but an abuse of process of law. On these grounds, he prayed to allow the petition and quash the proceedings.
6. Per contra, learned Additional SPP vehemently argued and submitted that as per Section 468 of Cr.P.C if an accused is absconding and absent, then under such circumstances, the provisions of Section 468 of Cr.P.C., is not attracted. It is his further submission that already accused No.2 has pleaded guilty and when he has pleaded guilty, that itself shows that commission of offence and prima facie material as against the petitioner-accused No.1. It is his further 6 submission that petitioner-accused No.1 is admittedly an active partner of the firm. In that light also, he is liable to be punished under the said provision. On these grounds, he prayed to dismiss the petition.
7. It is the submission of learned counsel for respondent No.2 that accused has committed the offence and they are statutory and the mens rea is there for having committed the alleged offence. It is his further submission that in order to take cognizance, filing of the report has to be taken into consideration and not the cognizance. In order to substantiate the said contention, he has relied upon the decision of the Hon'ble Supreme Court in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty reported in 2007 AIR SCW 4998. It is his further submission that the said offence is a continuing offence and the building was cracked and it is endangering to human life. Under such circumstances, it cannot be held that the cause of 7 action is not there. It is further submitted that the incident is purely a question of fact and law. At this stage, it cannot be held that there is no material as against the petitioner. It is further submitted that insofar as the subsequent permission and issuance of Occupancy Certificate is concerned, they are not having any knowledge or information. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by learned counsel for the parties and perused the records.
9. It is not in dispute that the petitioner accused is a Director of M/s.Embassy Property Developments Pvt. Ltd. and he has taken up construction of the building and it is also not in dispute that portion of the building has developed crack and immediately thereafter the work has been stopped. 8 Thereafter the investigation has been completed and chargesheet is filed.
10. First and foremost contention taken up by learned counsel for the petitioner is that without arraying the Company as an accused, complaint and chargesheet filed as against the petitioner, who is a Director is not sustainable in law. In order to substantiate his contention, learned counsel has relied upon the case of Aneeta Hada (supra). In the said decision, the Hon'ble Supreme Court has held that to prosecute the functionaries of the Company for the offence committed by the Company, there should be specific averments in the complaint to the effect that such person/s was/is incharge of and being responsible for conduct of business of the Company has to be arrayed as accused. In the absence of such averment, the functionaries of the Company cannot be prosecuted. 9 It is the submission of learned counsel for respondent No.2 that the ratio laid down in the said decision of Aneeta Hada (quoted supra) would not applicable to the facts and circumstances of the case as the said case has been decided while dealing with the offences under the Negotiable Instruments Act, 1881 (hereinafter referred as 'the N.I. Act') and as per Section 141 of the N.I. Act, there is specific averments that the company has to be erred as an accused then only the case can be proceeded as against the authorized officials. No doubt on plain reading of the submission of the learned counsel for respondent appears to be acceptable, but subsequently also the Hon'ble Apex Court in catena of decisions has relied upon the decision of Aneeta Hada (quoted supra) and has categorically held that if an offence has been committed by the company, then under such circumstances, without adding the company or in the absence of specific averments in this behalf with reference to the functionaries of company, the 10 complaint itself is not maintainable. In that light, the submissions made by the learned counsel for the respondent is not acceptable. What the Court has to see is the ratio laid down in the said case, not the factual matrix, which has been based on which the ratio has been laid down.
11. Be that as it may. On close reading of the contents of the complaint and other materials, the petitioner/accused has been charge sheeted for the offences punishable under Sections 288 and 336 of IPC.
12. On close reading of the said sections, section 288 of the Act indicates that while pulling down or repairing any building if there is any negligence or omits to take any care, in that background it can constitute an offence but hearing in the instant case on hand, admittedly it is not in the process of pulling or repairing the building. The alleged crack has taken place and even insofar as Section 336 of IPC is concerned, any act 11 if it is rash and negligent endangering the human life or the personal safety, then under such circumstances, the provisions of Section 336 of IPC is attracted. In that light, the contention of the learned counsel for the petitioner is not acceptable.
13. Be that as it may. It is brought during the course of arguments that already the re-permission has been granted for the purpose of construction of building and thereafter, the building has been constructed and occupancy certificate has also been issued on 10.01.2014. When the said crack which was in existence and it has been also rectified and no such incident as per Sections 336 and 288 of IPC have taken place, then under such circumstance, I am of the considered opinion that no useful purpose is going to be served in continuation of the proceedings as against petitioner/accused No.1. The last contention raised by the learned counsel for the petitioner is that the cause 12 of action is barred by limitation but in view of the decision of Japani Sahoo (quoted supra), the said contention does not survive for consideration. At paragraph No.53 of the said decision, it has been observed as under:
"53. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/court and not of filing of complaint or initiation of criminal proceedings."
14. Taking into consideration of the ratio laid down in the said decision and the factual matrix, I am of the considered opinion that the said contention does not stand to any reason. When as already observed above, the company has not been erred as an accused and only the partner of the said firm inter alia has been 13 made as accused and already the occupancy certificate has also been granted and no such incident has also taken place as contemplated under the said Section. Under such circumstances, I am of the considered opinion that it is a fit case to exercise the power under Section 482 of Cr.P.C. and to quash the proceedings.
15. In that light, petition is allowed and the proceedings initiated insofar as petitioner/accused No.1 is concerned in C.C. No.56276/2015 pending on the file of X Additional CMM Court, Bengaluru for the offences punishable under Sections 288 and 336 of IPC is hereby quashed.
Sd/-
JUDGE dn/vbs CT-HR