Karnataka High Court
Mr. Shivaprasad vs The State Of Karnataka on 8 September, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Criminal Petition. No. 3165/2016
BETWEEN:
Mr. Shivaprasad Nagvekar B.
Aged about 33 years,
S/o Chandrakanth nagvekar boloor,
Permanent Address: 1-19-1384,
Shvadhaam, Urwa,
Marigudi Road, Urwa,
Mangaluru City - 575 006.
...Petitioner
(By Shri. P.N. Hegde and
Shri. Umesh P.H., Advocates)
AND:
1. The State by Karnataka,
Through the Police Inspector,
Mangaluru East Police Station,
Mangaluru,
Rep. by Public Prosecutor,
Dakshina Kannada,
Mangaluru - 575 002.
2. Rohan Monterio,
Aged about 31 years,
2
S/o Gilbert Monterio,
Property, Real Estate & Developers,
G-4, Divya Deepa Arcade,
Bendorewell,
Mangaluru - 575 002.
... Respondents
(By Shri. S. Rachaiah, HCGP for R1.
Respondent No.2 served)
This criminal petition is filed under Section 482
Cr.P.C. by the advocate for petitioner, praying to quash
the entire proceedings in C.C. No. 3733/2007 pending on
the file of the J.M.F.C. (II Court), Mangaluru, in respect of
this petitioner, for the offences p/u/s 507, 506, 120(B),
307 R/W 34 of IPC.
This criminal petition coming on for orders, this day,
the Court made the following:
ORDER
Though matter is listed for orders, the same is heard for final disposal by consent.
2. This petition is filed by accused No.4 in crime No.302/2004 of Mangaluru East police station. Initially case was registered against sole accused (Bannanje Raja), for the offences punishable under Section-506 I.P.C. After completion of investigation, charge sheet 3 came to be filed for the offences punishable under Sections-507, 506, 120-B, 307 read with Section-34 of the Indian Penal Code against four accused. As the present petitioner (accused No.4) was absconding, case against him was split up and Sessions Court has proceeded to try the case as against accused No.2 (Naveenchandra) in S.C. No.82/2007 which was pending on the file of the III Additional District and Sessions Judge, Mangaluru. The jurisdictional Sessions Judge, by judgment passed in SC 82/2007 on 10.06.2008 acquitted accused No.2 on the ground that prosecution had failed to prove the guilt of the accused beyond reasonable doubt and acquitted him for the offences alleged against him.
3. Present petitioner who has been arraigned as accused No.4 is now seeking for quashing the proceedings in C.C. No.3733/2007 (split up charge sheet) wherein he has been arraigned as accused No.2 and to consequently, acquit him for the offences alleged against him.
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4. I have heard Shri.P.P. Hegde, learned counsel appearing for petitioner and Shri. S. Rachaiah, learned HCGP., appearing for 1st respondent-State. The 2nd respondent-original complainant remained un- represented, despite service of notice. Perused the records.
5. Learned counsel for the petitioner has made available to the Court, certified copies of depositions of PW.1 to PW.8 recorded in SC. No.82/2007. Same is taken on record and perused.
6. It is the contention of learned counsel appearing for the petitioner that petitioner was a student in St. Aloysius College, Mangaluru during the year 2001 to 2004 and had obtained degree in Bachelor of Business Management and had also pursued his educational career in United Kingdom and thereafter, went to Switzerland for training and returned to India only in the year 2009 and since then he has been residing at Mangaluru. On the basis of a false complaint lodged by 2nd respondent, petitioner has been falsely implicated in crime No. 302/2004 by 5 the 1st respondent-police. It is also contended that all the material prosecution witnesses examined in SC. No.82/2007, while trying accused No.2 had turned hostile and Accused-2 was acquitted on the ground that said witnesses had deposed of not having witnessed the alleged incident and there was no material whatsoever to prove the case of prosecution and hence, he prays for acquittal of the petitioner by quashing the proceedings pending before trial Court.
7. Per contra, the learned HCGP., appearing for the 1st respondent-State argued in support of the prosecution and contends that since present petitioner was absconding, case against him was split up and if the proceedings are quashed, it would amount to granting a premium to an accused who has been absconding and as such he prays for dismissal of the petition.
8. Having heard the learned counsel for the respective parties and on perusal of the case papers, particularly, the depositions of material witnesses who have been examined on behalf of the prosecution in 6 SC. No. 82/2007 (tried against Accused No.2) as well as the charge sheet material, it would disclose that case of the prosecution was: that on 01.10.2004 at about 6.30, at the instigation of accused No.1, accused Nos. 3 & 4 had visited the office of the complainant (PW.1) and demanded him to pay amount of Rs.25,00,000/- as ransom money and had threatened the complainant that if he failed to pay said amount, he would be murdered and had threatened him by firing three rounds of bullet in the air in the verandah of the complainant's office where PW - 1 was attending to his office work. The allegation/overt act alleged against accused No.2 was that he had assisted accused Nos. 3 & 4 in their act.
9. During trial against accused No.2, the prosecution had examined material witnesses namely, the complainant Mr. Rohan Rejinald Monterio as PW.1, two eyewitnesses namely, Mr. Rajesh Kumar and Mr. Shivanand Wagle as PWs. 2 & 3. On perusal of their evidence it would disclose that they did not support the case of prosecution and had turned 7 hostile. In their cross-examination nothing worthwhile has been elicited to remotely connect the accused persons to the alleged incident which took place on 01-10-2004 at about 6.30 p.m. In fact, the panchas to Mahazar namely, PW-7 and PW-8 have also not supported the case of the prosecution. The complainant who has been examined as PW.1 has not only disowned the statement recorded by the police under section-161 of Cr.P.C., but also deposed that he has not received any threat from accused Nos. 3 & 4, at the behest of accused No.1, as alleged by the prosecution. Nothing worthwhile has been extracted in his cross-examination dated: 09.06.2008. Apart from complainant, alleged eyewitness who has been examined as PWs. 2 & 3 did not support the case of prosecution. It is in this background, learned Sessions Judge while trying accused No.2 has evaluated the evidence and found that prosecution had failed to prove the alleged incident that took place on 01.10.2004 and consequently, acquitted accused No.2 8 for the offences alleged against him, by Judgment dated 10.06.2008.
10. As could be seen from the charge sheet material, though the allegation made against accused No.2 is different from the allegation made against accused Nos. 3 & 4 (petitioner herein), the prosecution is solely relying on the evidence of PWs. 1 to 3 (the complainant and eyewitnesses to the incident) to prove the charges levelled act made against the petitioner - accused No.4, herein as well. Unfortunately, these material witnesses including the complainant did not support the case of the prosecution and he has also turned hostile. Totality of the circumstances would clearly indicate that prosecution has failed to prove the alleged incident that took place on 01.10.2004.
11. Under these circumstances, this Court is of the considered view that continuation of proceedings against accused No.4 (petitioner) before Court below, in the split up charge sheet in C.C. No.3733/2007 would only be a futile exercise and it would not serve any 9 fruitful purpose. For the aforesaid reasons, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings pending in C.C. No. 3733/2007 arising out of crime No.302/2004 of Mangaluru East police station, pending on the file of JMFC (II Court) Mangaluru, in so far as it relates to petitioner (accused No.4) is concerned is hereby quashed and petitioner-
accused No.4 is hereby acquitted for the offences punishable under Sections-507, 506, 12-B, 307 read with 34 of IPC.
In view of disposal of main petition, IA-1/2017 for extension of interim order does not survive for consideration and same stands disposed of.
Sd/-
JUDGE Vr