Karnataka High Court
Vinay Kumar vs State Of Karnataka By on 1 December, 2020
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.8368 OF 2016
BETWEEN
1. Vinay Kumar
S/o Late Rama Shastry,
Aged about 35 years,
Residing at Sri Kalika
Durga Parameshwari Temple,
Vidyaranyapura, Thindlu,
Bangalore-560 097
Now residing at No.213,
A.M.S. Layout,
Vidyaranyapura,
Bangalore-560 097.
2. Hanumanthegowda
S/o Late Muniyappa,
Aged about 62 years,
Residing at No.140,
'B' Colony,
Nagashettyhalli,
R.M.V.II Stage,
Bangalore-560 094.
3. G. Dayanand
S/o Late Giriyappa,
Aged about 47 years,
Residing at No.42,
8th Main, 16th Cross,
Malleshwaram,
Bangalore-560 003.
:2:
4. H.S.Somashekar
S/o Late H. Shivaram,
Aged about 57 years,
Residing at No.971,
11th 'B' Main Road,
III Block, Rajaji Nagar,
Bangalore-560 094.
5. Ravi Kumar
S/o Chikkamuniyappa,
Aged about 47 years,
Residing at No.5,
10th 'A' Cross,
Munesh Kumar Nilaya,
Jakkur Village,
Jakkur Post,
Bangalore-560 064.
... Petitioners
(By Sri.Hashmath Pasha., Senior Counsel for
M/s. Hashmath Pasha and Associates)
AND
1. State of Karnataka by
Vidyaranyapura Police Station,
Bangalore-560 097.
2. Smt. Radhamma
W/o Late Rama Shastry,
Aged about 49 years,
Residing in the premises
Behind Sri Kalika Durga
Parameshwari Temple,
Vidyaranyapura, Thindlu,
Bangalore-560 097.
... Respondents
(By Smt. Rashmi Jadhav, HCGP for R-1;
Sri. B.Anand, Advocate for R-2 (absent))
:3:
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to quash the
proceedings initiated in PCR No.26195/2009 which is now
pending in C.C.No.4015/2016 on the file of the IV ACMM,
Bangalore as an abuse of process of law.
This Criminal Petition coming on for Admission, this
day, the court made the following:
ORDER
This petition is filed by the petitioners who are arraigned as Accused Nos.1, 3 to 6 in C.C.No.4015/2016 arising out of PCR No.26195/2009 seeking to quash the entire criminal proceedings initiated against them for the offences punishable under Sections 406, 120A and B, 378, 464, 468, 420 of IPC which is pending before the IV Addl.CMM, Bangalore City.
2. Heard Sri Hashmath Pasha, learned senior counsel for the petitioners and learned HCGP for respondent No.1 - State who are physically present before the Court. There is no representation for second respondent either through video conference or physically present before the Court. Therefore, it is taken as there are no arguments on behalf of second respondent. :4:
3. It is transpired in the complaint filed by Smt.Radhamma, the second respondent herein and the defacto complainant that she is none other than the mother of accused No.1 - Vinay Kumar. It is stated that there is a temple by name Sri Kalika Durga Parameshwari at Vidyaranyapura, Thindlu, Bangalore. There is a Trust by name 'Sri Kalika Durga Parameshwari Trust.' The founder Trustees of this Trust are second respondent - Radhamma and the first petitioner - Vinay Kumar. Later after marriage of the first petitioner, his wife Smt.Sandhya was added as another Trustee. Thereafter, by amendment of Trust deed, petitioners 2 to 4 and one D.Srinivas Murthy were appointed as additional Trustees as per Clause (c) of the Trust Deed dated 25.08.2006. The amended Trust Deed was executed on 05.03.2009
4. Learned senior counsel- Sri Hashmath Pasha for the petitioners has taken me through the sworn statements said to be given by complainant/respondent No.2 and PW.2 - Gundappa to state that the allegations made in the complaint and the averments in the sworn statement do not constitute any offence. Hence, the :5: impugned order of issuing process against the petitioners is abuse of process of law.
5. Further, the order of issue of process on 19.01.2016 discloses that the 'B' report has been set-aside which is not in accordance with law because the Magistrate has not taken cognizance on the investigation material collected culminated with 'B' report but he has set aside the same. Therefore, no cognizance is taken on the police report before recording sworn statement. Under such circumstance, before recording sworn statement, taking of cognizance on the complaint is mandatory. But in the present case, the order sheet does not disclose taking of cognizance as contemplated under Section 190 of Cr.P.C. On this ground he seeks for intervention of this court under Section 482 of Cr.P.C., for exercising inherent power to avoid abuse of process of court.
6. The second limb of the arguments advanced by the learned senior counsel is that Petitioner No.1 - Vinay Kumar is said to have purchased the house premises bearing No.436 formed in Sy.Nos.34 to P.39 and P.41 to P.51 of Narasipura village, Yalahanka Hobli, Bengaluru :6: North Taluk for a sale consideration of Rs.32 lakhs by sale deed dated 27.08.2007 utilizing the amount of the Trust. The same is not an offence since the said purchase of house property was for the purpose of benefit of the trust and development of the temple and it has been used for extension of the temple area. The petitioner No.1 has not misused or misappropriated any part of the amount, but it was done with a good faith for the benefit and development of the Trust and temple. Therefore, he has not committed any offence of criminal breach of the trust or misappropriation of funds of the Trust. The first petitioner has executed Gift Deed in respect of the said property in favour of the second respondent. Hence, no offence of criminal breach of trust is constituted.
7. Further, it is contended that in the entire complaint, no specific allegation is made against petitioner Nos.2 to 5 who are merely trustees having no power either to sign the cheques or to act on behalf of the Trust and they are only the nominal trustees who are not involved in the day to day affairs of Trust. But they have been falsely implicated in the aforesaid private complaint initiated by :7: the second respondent. They have contributed their own money to a larger extent for the day to day development of temple. Further, petitioners 2 to 5 are nothing but devotees of the temple and they have contributed huge sum of money and it is the second petitioner who initiated Annadanam scheme in the temple and even now, he continued to contribute for the same. These petitioners have no role to play in the running of day to day affairs of the temple trust.
8. Whereas, in Crime No.278/2009, the first respondent - Vidyaranyapura Police have filed 'B' report stating that the allegations made in the complaint are false after securing the materials during the course of the investigation. Therefore, the order setting aside the 'B' report by the Court below vide order dated 19.01.2016 and consequently issuing the process to these petitioners is prima-facie illegal and hence, the same is liable to be quashed. The entire materials produced by the second respondent do not constitute any sort of an offence against these accused. The proceedings initiated against the petitioners is with a malafide intention to harass and :8: humiliate them and the same is abuse of process of law. On all these grounds, learned senior counsel seeks for intervention of this Court by exercising powers under Section 482 of Cr.P.C.
9. Whereas learned HCGP for the respondent No.1 - State in support of the initiation of the proceedings against the petitioners would submit that mere because the protest petition has not been filed in detail to the 'B' report, it cannot be a ground for quashing of the entire criminal proceedings relating to the case in C.C.No.4015/2016. Hence, she seeks for dismissal of the petition filed by the accused persons.
10. It is in this context, it is relevant to refer the averments made in the complaint that the temple by name Sri Kalika Durga Parameshwari at Vidyaranyapura, Thindlu, Bangalore and there is Trust by name 'Sri Kalika Durga Parameshwari trust' and the first petitioner and second respondent are said to be the founder trustees. Subsequent to the marriage of the first petitioner, his wife was added as another Trustee. Thereafter, by amending :9: the trust deed, the petitioners 2 to 4 and one D.Srinivasa Murthy came to be appointed as additional trustees.
11. Due to the differences that developed in between the trustees, the second respondent colluding with her first son Vasanth Kumar filed a private complaint on 27.10.2009 before the IV Addl.CMM, Bangalore City alleging that the first petitioner has taken away the original documents of the temple and he has purchased a house premises bearing site No.436 situated at Narasipura village, Yalahanka Hobli, Bangalore North taluk which is attached to this temple in his personal name from the amount of the trust. Subsequent to the initiation of the criminal proceedings against the accused, the case was referred to first respondent - police for investigation and to submit report. Accordingly, the first respondent - police registered the case in Crime No.278/2009 by recording the FIR. Thereafter, the matter was taken up for investigation and 'B' report came to be laid before the court below. On receipt of the 'B' report submitted by the investigating agency, the second respondent/complainant did not file any protest petition : 10 : to resist the 'B' report. The court below by setting aside the 'B' report issued process by order dated 19.01.2016. The same is not in accordance with law, since on filing of the 'B' report the Magistrate has power to take cognizance on the 'B' report itself. But in the instant case, the court below did not take any cognizance on the investigation material collected by the investigating agency, but set- aside the same. But before recording sworn statement no cognizance is taken on the police report. Before recording the sworn statement, taking of cognizance on the complaint, protest petition is mandatory as contemplated under Section 190 of Cr.P.C.
12. In this regard, it is relevant to refer the reliance placed in the case of Anand Kumar Mohatta and Another vs. State (Govt. of NCT of Delhi) Dept. of Home and Another reported in AIR 2019 SC 210, and also in many number of judgments referred relating to quashing of FIR u/s.482 of Cr.PC., restricting exercise of power of court to prevent abuse of process of court or miscarriage of justice only to stage of FIR - High Court : 11 : can exercise jurisdiction u/s.482 Cr.PC., even if charge sheet is filed during pendency of application. In this judgment, the decision rendered in Indian Oil Corporation vs. NEPC India Ltd., & others reported in 2006(6) SCC 736, the court observed that "13. ... any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged ....." Further, he court noticed a growing trend in business circles to convert purely civil dispute into criminal cases. In the said reliance, the case of State of Karnataka vs. L.Muniswamy and others reported in AIR 1977 SC 1489 held as under:
"In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's has : 12 : inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice."
In the instant case, the prosecution has registered the private complaint filed by the second respondent before the court below is malafide and untenable and solely unintended to the petitioners who are arraigned as accused. Therefore, in this petition the power vested with this Court under Section 482 of Cr.P.C. has to be exercised, if not, certainly there shall be miscarriage of justice and also abuse of process of law since, the petitioners/accused being the gravamen of the charges leveled against them.
: 13 :
In terms of the aforesaid reasons, I am of the considered opinion that the petition deserves to be allowed and accordingly, I pass the following:
ORDER The Petition filed by the petitioners u/s.482 of Cr.PC., is hereby allowed. Consequently, the criminal proceedings against the petitioners in PCR No.26195/2009 now pending in C.C.No.4015/2016 on the file of the IV Addl. CMM, Bengaluru City, are hereby quashed.
Sd/-
JUDGE DKB