Karnataka High Court
Suresh S/O Thimmareddy vs The State Of Karnataka on 21 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100388 OF 2022
BETWEEN:
SURESH
S/O THIMMAREDDY
AGE: 41 YEARS,
OCC.: ACCOUNTANT IN JINDAL
SANJEEVINI HOSPITAL, THORANAGALLU,
NOW. R/O. 1ST CROSS,
BESIDE FRIENDS APARTMENT,
PARVATHI NAGAR,
BALLARI - 583101.
... PETITIONER
(BY SRI B.S.SANGATI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY SUB- INSPECTOR OF POLICE,
THORANAGAL PS, SANDUR CIRCLE,
BALLARI.
REPRESENTED BY SPP.
HIGH COURT BUILDING,
DHARWAD.
2. RANJITH
S/O UMESH SHETTY,
AGE: 42 YEARS,
OCC.: EMPLOYEE IN PRIVATE FIRM,
2
R/O.: FACILITY DIRECTOR,
JSH, THORANGALLU
BALLARI - 583 101.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET AND ENTIRE
PROCEEDINGS IN CC NO.430/2021 (THORANAGAL PS CRIME
NO.14/2021) PENDING ON THE FILE OF THE CIVIL JUDGE AND
JMFC, SANDUR, AS AGAINST PETITIONER FOR THE ALLEGED
OFFENCE PUNISHABLE U/S 406, 408, 420 OF IPC IN CC
NO.430/2021 (THORANAGAL PS CRIME NO.14/2021).
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in the subject criminal petition calls in question proceedings in C.C.No.430 of 2021 pending before the Civil Judge and JMFC, Sandur registered for offences punishable under Sections 406, 408 and 420 of IPC.
2. Brief facts as projected by the prosecution are as follows:-
The petitioner was appointed as an Assistant Admin and Receptionist in Jindal Sanjeevini Multi-Speciality Hospital ('Hospital' for short) in the year 2004. With effect from 3 01-04-2016 the petitioner was promoted as Accountant in the Hospital. While so working in the cadre of Accountant, a complaint came to be filed against the petitioner on 29-01-2021 alleging that the petitioner has misappropriated amounts belonging to the Hospital between 1-04-2016 and 16-12-2020 during which period he was working as Accountant. An FIR came to be registered based on the said complaint for offences punishable under Sections 406, 408, 420, 465, 468 and 471 of the IPC. It appears that the Police after investigation have also filed a charge sheet. It is at that juncture the petitioner knocks the doors of this Court in the subject criminal petition.
3. Heard Sri.B.S.Sangati, learned counsel appearing for petitioner and Sri.Ramesh Chigari, learned High Court Government Pleader appearing for respondent No.1.
4. The learned counsel appearing for the petitioner would vehemently argue and contend that the petitioner is innocent and has not indulged in any act of misappropriation as is alleged. As per every document, there are receipts and every 4 transfer of alleged amount has been made only through RTGS.
He would submit that further proceedings in C.C.No.430 of 2021 be interjected or quashed.
5. The learned High Court Government Pleader however takes this Court to certain documents to contend that the matter requires trial as there are serious allegations against the petitioner and would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
7. The afore-narrated facts of the petitioner getting appointed as an Assistant and later getting promoted as Accountant are not in dispute. The period of allegation as found in the complaint and the FIR is between 1-04-2016 and 16-12-2020. Therefore, from the date of his becoming Accountant, the petitioner is alleged to have indulged in certain acts which led to registration of the complaint. The complaint 5 was registered on 29-01-2021. The complaint clearly narrates that the petitioner has created documents for transfer of funds to several accounts totally amounting to Rs.63,40,584/-. Every detail of transfer is indicated in the complaint. The allegation, therefore, was of the offences punishable under Sections 406, 420 and 468 of the IPC. After investigation, the Police have filed a charge sheet wherein other offences as found in the FIR have been deleted and what is retained is offences punishable under Sections 406, 408 and 420 of the IPC.
8. For an offence punishable under Section 406 of the IPC, the ingredients as found in Section 405 of the IPC will have to be met, for which entrustment of property is a necessary ingredient to allege criminal breach of trust. The petitioner was working as an Accountant and funds of the Hospital were held in his trust.
The allegation of misappropriation of these funds would amount to criminal breach of trust.
9. For cheating the ingredients are found in Section 415 of the IPC. If the complaint and the contents of the charge sheet 6 are noticed, it becomes clear that the allegation against the petitioner is misappropriation of Rs.63,40,584/- by creation of certain accounts and transfer of amounts to those account numbers, which would definitely come within the purview of Section 415 of the IPC. Therefore, the offences alleged in the charge sheet prima facie meet the facts obtaining in the case and it is a matter for trial in which the petitioner has to come out clean. There is no document placed before this Court or facts narrated that are so unimpeachable which would entitle interference at this stage of the proceedings under Section 482 of the Cr.P.C. The Apex Court in the case of KAPTAN SINGH v.
STATE OF UTTAR PRADESH1 has held as follows:
"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 1 (2021) 9 SCC 35 7 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 :
(2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.8
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.
10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession 9 to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.
11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.
10... ... ... ...
14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."
In the light of the afore-narrated facts and the judgment of the Apex Court wherein the Apex Court has observed if there are serious triable issues, this Court, under Section 482 of the Cr.P.C., would not generally interfere.
10. Since there are seriously triable issues in the case at hand, I decline to interfere with the proceedings pending against the petitioner. In the result, the Criminal Petition lacks merit and is accordingly dismissed.
11In view of dismissal of the petition, I.A.No.1/2022 filed for stay also does not survive for consideration and accordingly, stands dismissed.
SD JUDGE bkp CT:MJ