Karnataka High Court
Basavant S/O Shivangouda Patil vs The State Of Karnataka on 7 February, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 7th Day of February 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
W.P. Nos. 105347-105349/2016 (GM-POLICE)
Between:
Shri Basavant s/o Shivangouda Patil,
Age: 70 years, Occ.: Agriculture,
R/o: Yallatti village, Taluka Jamkhandi,
Dist.: Bagalkot (senior citizenship Not claimed)
- Petitioner
(By Sri Vitthal S. Teli, Advocate)
And
1. The State of Karnataka through
The Banhatti Police Station,
Banhatti, Jamkhandi represented by
The S P P, High Court of Karnataka,
Dharwad Bench, Dharwad.
2. Mallamma Shivappa Chimmalagi,
Age: 58 years, Occ: Government
Servant, r/o: Girish Nagar, KGN Complex,
Tq: Jamkhandi, Dist.: Bagalkot.
- Respondents
(Smt. Veena Hegde, HCGP)
These Writ Petitions are filed under Articles 226
and 227 of Constitution of India r/w Section 482 of
Cr.P.C. praying to quash the entire proceedings in C.C.
No. 1144, 1145 and 1146 /2015 for the offences
punishable under Sections 406, 408, 420, 201, 465, 467,
468 and 471 of IPC on the file the Court of the JMFC,
Banhatti & etc.
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These Writ Petitions coming on for Preliminary
Hearing this day, the Court made the following:
ORDER
These writ petitions are filed under Article 226 and 227 of Indian Constitution read with Section 482 of Code of Criminal Procedure, 1973, seeking quashing of the proceedings in C.C. No. 1144, 1145 and 1146/2015 on the file of the learned JMFC, Banahatti in Bagalkot District, which are registered against the petitioner for the offences punishable under Section 406, 408, 420, 201, 465, 467, 468 and 471 of the Indian Penal Code.
2. The brief factual matrix that emanate from the records are that one Smt. M.S. Chimmalagi, Development Officer, Jamakhandi, lodged a complaint stating that the petitioner-accused was working as Secretary of Primary Agricultural Co-operative Bank (for short 'Bank'), Yallatti, during the year 1990-1991 and onwards (presently he is removed from the service).
It is seen from the complaint that during his tenure of service as Secretary of the said Bank he has misappropriated some amount to the tune of 3 Rs.4,19,701.94. It is specifically stated on which of the year the said amounts have been misappropriated by him. It is also observed in the complaint that from 1991 to 2008-2009 during the accounting years, on the report of the Auditor, the complainant came to know about the said misappropriation. Therefore, in order to take appropriate action, the complaint came to be lodged. The Banahatti Police after investigating into the matter filed detailed charge sheets for the above said offences. In fact the Court after going through contents of the charge sheet has taken cognizance and registered the cases in C.C. No. 1144/2015 to 1146/2015 and issued summons to the accused. The petitioner has challenged the said order before this Court.
3. The learned counsel for the petitioner Sri Vitthal S. Teli, strenuously contends before this Court that the petitioner is a dismissed employee of the said Bank and in fact appropriate disciplinary action has already been taken for the said misappropriation. Presently he is aged 67 years and after long lapse of time, the present cases have been filed without explaining the delay in lodging the 4 complaints. Nowhere in the charge sheets stated why such delay has been occurred in lodging the complaints.
4. The learned counsel also contended before this Court that, every year the audit report is to be submitted to the competent authorities. In such an eventuality, in the year 1990-1991 itself or within a short span of time, this alleged offence must have been come to the knowledge of the competent authorities, but till 2011 no action has been taken. Therefore, that itself is sufficient to quash the proceedings. Further, the learned counsel relied upon a decision reported in AIR 2005 SC 9 (Zandu Pharmaceutical Works Ltd. and Ors. V. Md. Sharaful Haque and Ors.) wherein the Apex Court has observed that at paragraph No.12 in the following manner.
"12. The factual position as highlighted above clearly goes to show that the complainant had not come to Court with clean hands. There was no explanation whatsoever for the inaction between 1995 and 2001. The High Court seems to have been swayed by the fact that the appellants have rejected the claim of the complainant on 05.12.2001. It failed to notice that the communication dated 5.12.2001 was in response to the letter of the complainant dated 24.11.2001."5
In the said case the apex Court was dealing under Section 468 of Cr.P.C. with reference to bar of taking cognizance after lapse of period of limitation. The Court has come to the conclusion invoking provisions under Section 468(2)(c) of the Cr.P.C. and found that the complaint was barred by time and as such it quashed the proceedings. Such principle laid down in the said case is not applicable so far as this case is concerned because the prosecution has laid the charge sheets invoking the provisions as noted above. Some of the offences enumerated therein clearly disclose that there is no limitation prescribed to investigate such matters, particularly under Section 420, 465, 467, 468 and 471 of the IPC which are punishable with more than three years. Therefore, the provision under Section 468 of Cr.P.C. is not applicable.
5. In another decision cited by the learned counsel which is also on the same point reported in 2015 (2) RCR (Civil) 495 (Johnson Alexander Vs. State by C.B.I., A.C.B) that, on facts the apex Court has considered the effect of Section 468(2)(b) of Cr.P.C. The learned counsel has relied upon another ruling which is reported in 1994 (Supp) (3) 6 SCC 97 between [Biswanath Prasad Singh V. State of Bihar) wherein the apex Court has observed that, FIR was filed on 10.12.1977 and charge sheet was filed on 05.02.1983 with regard to filing of charge sheet, no delay has been explained, charge was framed on 25.04.1989, no stay was granted by the Supreme Court, there was no much progress in the case, the appellant was already dismissed from service and his Provident Fund and gratuity forfeited and the appellant crossing the age of superannuation. Held, in such circumstances, the prosecution launched against the appellant is liable to be quashed. In the above said rulings, the apex Court has also discussed the earlier decision of the Supreme Court in Abdul Rehman Antulay V. R.S. Nayak, wherein the apex Court has observed that, if charges are made against the appellant misappropriating the public funds, in such case, more stricter view has to be taken by the Court as narrated in Abdul Rahiman (supra). But the Supreme Court further stated, the Court can exercise its discretion to interfere in such matters considering the factual aspect involved in that particular case.
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6. Last but not the least, the learned counsel relied upon a decision reported in (2011) 11 SCC 412 (Thermax Ltd. and Ors. V. K.M. Johny and Ors.).
7. The learned counsel drawn my attention to paragraph No. 16 of the said judgment wherein the apex Court has observed that:
"16. The principles enunciated from the above-quoted decisions clearly show that for proceedings under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Sections 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to a criminal proceeding."
What emerges from the above said decision is that the Court has to examine, if the entire allegations made against the person is accepted, it is more of civil in nature than the criminal proceedings before the Court, then only the Court can exercise its extraordinary powers under Article 226 and 227 of the Constitution of India or under Section 482 of Cr.P.C. The term 'extraordinary' itself presupposes, it is clearly the satisfaction of the Court which exercises its discretion, otherwise, general principle is that the Court 8 should not interfere with the criminal proceedings casually without making a specific observation with regard to its satisfaction. In this background the above said ruling is also in my opinion not helpful because in that case the Court has come to the conclusion on facts that the case is of civil flavour and it is filed only to avoid limitation. In such circumstances the Court has come to the conclusion that the criminal proceedings have to be quashed.
8. Now returning to the facts of this case, on careful perusal of the allegations made in the charge sheets it is the case of the prosecution that the accused has in the year 1991 received a sum of Rs.16,810/- from CW15 and issued receipt but not deposited the said amount to the bank. Likewise in the eyar 1991 also in the same fashion he has misappropriated an amount of Rs.2,000/-, Rs.3,000/- and Rs.5,000/- pertaining to several transactions in total an amount of Rs.21,810/- has been misappropriated by the accused. The learned counsel contended that there are no allegation of cheating, but when the parties have paid the amount with all expectation that the amount will be credited to their account, but the accused has misused the 9 said amount for himself. The Court has to examine either at the time of framing of charges or at the time of disposing of the matter on merits, whether the said attitude of the accused amounts to cheating or not. This is too premature stage to draw an inference.
9. On looking to the above said aspects there is no material available to show that it is of a civil flavour and it does not amount to any criminal act of the accused. In order to come to such conclusion that the complaint has been filed to convert a civil litigation into a criminal proceedings, there must be sufficient materials, until and unless the Court is certain to give such opinion with regard to the proceedings being civil in nature the Court should not exercise power u/S 482 of Cr.P.C. to quash the said proceedings. Even on perusal of the above said facts and circumstances it is not only the offences u/S 406 and 408 of IPC is alleged, but the other offences of forgery and tampering the documents have also been alleged against the petitioner. Those factual aspects have to be marshalled by the Court either at the time of framing of charges or at the time of disposing of the matter. It is not that merely 10 because the Police have invoked so many provisions of IPC the Court is bound to frame charges on those aspects, the Court has to examine meticulously the contents of the charge sheet and then find out which are the offences actually attracted on the basis of facts that emanate from the records and thereafter the Court can frame charges against the person.
10. This Court cannot weigh and appreciate the material on record to come to any conclusion. At the time of exercising power either under Articles 226 and 227 of the Constitution of India or under Section 482 of Cr.P.C., the Court has to see, whatever material available on record if they are accepted as they are, whether it will not constitute any offence against the accused so as to quash the entire proceedings.
Under the above said circumstances and facts of the case, I do not find any genuine reasons to interfere with the proceedings merely because there is delay in lodging the complaint, the delay has not been explained. The delay can be explained even during the course of evidence or at any 11 stage of the proceedings. Hence, I am of the opinion that the petitioner has not made out any grounds to interfere and quash the proceedings. Hence, the petitions are dismissed.
Sd/-
JUDGE bvv