Karnataka High Court
Basavarajappa vs Abdulsab Majidasab S/O Chamanasab on 6 March, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.100219/2017
BETWEEN:
BASAVARAJAPPA S/O SIDDAPPA SHIRGUMBI
AGE:67 YEARS, OCC:AGRICULTURE AND MEMBER
CUM PRESIDENT OF SRI. VINAYAKA VIDYA VARDHAKA
SANGHA, R/O MEDUR, TQ:HIREKERUR, DIST:HAVERI.
...PETITIONER
(BY SRI. G.K. HIREGOUDAR, ADVOCATE)
AND:
ABDULSAB MAJIDSAB S/O CHAMANSAB ADVANI
AGE:66 YEARS, OCC:AGRICULTURE,
R/O MEDUR, TQ:HIREKERUR.
DIST:HAVERI.
...RESPONDENT
(BY SRI. A.A. PATHAN, ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 482 OF Cr.P.C.
PRAYING TO QUASH THE COMPLAINT DATED 26.09.2016
AGAINST THE PETITIONER AND ALL FURTHER PROCEEDIGNS
IN PC No.20/2016 ON THE FILE OF THE CIVIL JUDGE AND
JMFC, HIREKERUR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 20 READ WITH SECTIONS 28 AND 29 OF THE
KARNATAKA SOCIETIES REGISTRATION ACT, 1960.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
Heard the petitioner's counsel and also respondent's counsel.
2. The petitioner in this petition invoking Section 482 of Cr.P.C. prayed this Court to quash the complaint dated 26.09.2016 filed against him and further proceedings in PC No.20/2016 on the file of the Civil Judge and JMFC, Hirekerur for the offences punishable under Section 20 read with Sections 28 and 29 of the Karnataka Societies Registration Act, 1960 (for short, 'the Act') and issue such other order or direction as this Court deems fit in the facts and circumstances of the case.
3. The factual matrix of the case is that the respondent has filed a private complaint before the Civil Judge and JMFC, Hirekerur in PC No.20/2016 making allegations against this petitioner that he being the 3 President of Sri. Vinayaka Vidhya Vardhaka Sangha, took registers and other documents of the Society which should be in the custody of the complainant and same violates the bye-laws and he has stolen the documents of the Society and the President is not having any authority to take possession of the same to his custody and the same should be in the custody of the Secretary. In order to make wrongful gain, the petitioner herein has indulged in creating all the documents of the Society and concealed the documents of the Society and the President is also not having any authority to call for any meting and same is vested with the Secretary and he also indulged in creating of the Resolution using his presidential power as Secretary and indulged in the creation of the documents. Hence, the complaint is filed before the Magistrate. The Magistrate by entertaining the complaint and also an application filed under Section 96 of Cr.P.C. issued search warrant in respect 4 of the concerned jurisdictional police to produce the same before the Court.
4. Being aggrieved by the order of allowing the said application, the petitioner herein has approached the District and Sessions Judge by filing Revision Petition No.223/2016 and the District and Sessions Judge vide his order dated 24.12.2016 dismissed the said revision petition and consequently, vacated the stay granted by the Court.
5. The petitioner herein before this Court invoking Section 482 of Cr.P.C. sought for an order of quashing the very initiation of the proceedings against him.
6. The main grounds urged in the petition before this Court is that the allegations leveled against the petitioner in the complaint are not only false, vague and imaginary but are not based on any material and 5 also the said allegations leveled against this petitioner does not disclose any commission of the offences punishable under Sections 28 and 29 of the Act. The other contention is that the respondent is not a Secretary of the Sangha and he has already given resignation much before filing of the complaint and the same was accepted by Sangha. The respondent has not obtained any permission to file the complaint against this petitioner on behalf of the Sangha. The other contention is that the complaint is the result of malice and ill-motive and same amounts to gross abuse of process of law. The respondent has also filed police complaint on the very same subject and in turn, the police have given notice to the petitioner and he has also filed the complaint before the Registrar under Section 25 of the Act. Therefore, it is necessary to invoke the powers under Section 482 of Cr.P.C. The other contention is that the complaint is frivolous, 6 speculative and same amounts to gross abuse of process of law. Hence, prayed this Court to quash the proceedings.
7. The petitioner's counsel in support of his arguments, he reiterated the grounds urged in the petition and mainly contended that Section 15 of the Act contemplates that prior permission of the Society is required for filing of any suit by or against the Society and the said permission is not taken. In support of his contention, he relied upon the judgment of this Court in the case of Sajjan K Sanyasi Vs. Padmavathi Montessori School reported in ILR 1985 KAR 1354 and brought to my notice paras-32 to 35 of the judgment with regard to obtaining permission for initiation of the proceedings. The counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of Tukaram Annaba Chavan and Another Vs. Machindra Yeshwant Patil and Another reported in (2001) 3 SCC 33 and 7 brought to my notice paras-10 and 11 of the judgment with regard to determining the validity or otherwise of the change report submitted by the appellants. On perusal of the record, they find that a contention that in the proceeding relating to the confirmation or otherwise of the change report a contention has been raised that the documents on the basis of which the report has been submitted have been forged and fabricated by the appellants. In all probability that question will also arise for consideration by the authority. Further held that in the interest of justice and for a fair trial, the proceedings in the criminal case should remain suspended till the pending disposal of the proceedings and accordingly, disposed of the appeal.
8. The counsel also brought to my notice rules and regulations and duties of the Managing Committee members, particularly Rule 7(XI), which reads thus: 8
"The Secretary shall be necessary part to all the litigation for and against the Society he shall be a person authorized to appoint legal advisor etc. with the occurrence of the managing committee."
9. The counsel relying upon the above judgments, he contends that no permission is obtained to initiate the proceedings against this petitioner and he has already resigned from the said post and same is accepted by the Society and the respondent is not having any locus standi to continue the proceedings against this petitioner and same has to be quashed.
10. Per contra, learned counsel for the respondent in his arguments, he contends that the complaint averments substantiate that the documents of the Sangha should be with the custody of the complainant and the same has been stolen by the petitioner, retained the same in his custody and 9 creating false documents to suit his convenience, he violated the provisions under Sections 20 and 28 of the Act. The respondent's counsel also brought to my notice the Rules and Regulations of the Act, particularly Rule 7 of the Rules and Regulations speaks with regard to the duties of the managing committee member. He also brought to my notice Rules 7(vii) and 7(viii)- powers given to the Secretary-The Secretary has to call for the meetings of the managing committee, to prepare agenda therefore to submit the details of the accounts for the previous period as per the bye-laws and to record the minutes of the meeting so held. Hence, the documents should be with the custody of the Secretary and any proceedings take place in the Society that should be in the name of the Secretary. The counsel contends that the registers and other documents are stolen by the petitioner and hence, the application under Section 91 of Cr.P.C. is filed before the Court below along with the 10 complaint. The Court below allowed the said application with a direction to the concerned jurisdictional Police to search and seize the documents which are in possession of the petitioner herein. The same has been challenged before the District Court by filing revision petition and the revisional Court confirmed the same. The petitioner instead of challenging the order of confirmation passed in the revision petition, has filed this petition invoking Section 482 of Cr.P.C.
11. The counsel further contends that the allegation made in the complaint that the respondent herein is not a Secretary and he has already resigned the said post and same has been accepted by the Society is false and no such resignation is tendered. Hence, the very ground invoking in the petition cannot be accepted. The counsel also brought to my notice Sections 28 and 29 of the Act regarding taking of the 11 cognizance of the offence and also Section 28 with regard to Offences and Penalties etc.- If (a) the president, chairman, principal secretary or any member of the governing body or any officer of a society contravenes the provisions of sub-section (2) of Section 9, or sub-section (2) of Section 10, or sub-section (1) and (2) of Section 11, Section 12 or Section 13; (b) the president chairman, principal secretary or an officer or the member of the governing body of society willfully makes or furnishes a false return or makes or furnishes a return or statement which he does not believe to be true; or any person willfully or without any reasonable excuse disobeys any summons, requisition or lawfully written order issued under the provisions of this Act or does not furnish any information lawfully required from him by a person authorized in this behalf under the provisions of this Act; such president chairman, principal secretary, member or person shall, on conviction, be punishable with fine 12 which may extend to one thousand rupees. He also contends that not only the offence of Section 28 is invoked but also Section 29 is invoked with regard to power vested with the Magistrate. Hence, the Secretary has filed a complaint before the Magistrate and the Magistrate has rightly applied its judicial mind and passed an order with regard to initiation of the proceedings and allowed the application filed under Section 91 of Cr.P.C. and the same is challenged and confirmed and also attained its finality. Hence, this Court cannot invoke Section 482 of Cr.P.C. The grounds urged before this Court that the complainant is not a Secretary and he has already been resigned and same is the disputed fact and this Court cannot decide the issue of disputed fact in the petition under Section 482 of Cr.P.C., hence, prayed this Court to dismiss the petition.
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12. Having heard the arguments of the petitioner's counsel and also respondent's counsel, this Court has to examine whether this Court can exercise the power under Section 482 of Cr.P.C. to quash the proceedings initiated against the petitioner herein.
13. Before considering the legal issue involved in the matter, first I would like to make a mention in nutshell the contents of the complaint on perusal of the contents of the complaint which is marked as Annexure-D; a private complaint is filed before the Magistrate and the specific allegation is made against this petitioner that the documents of the Society should have been in the custody of the Secretary and the same has been stolen and the President keeping those documents in his custody and also indulged in creating all the documents, tampering and forging of the documents to suit his convenience and the very petitioner is exercising the powers of the Secretary by 14 misusing the powers of the President. Hence, the complaint is filed to take action against the petitioner invoking Section 20 read with Sections 28 and 29 of the Act.
14. Before proceeding in the matter, I would like to refer Sections 20 and 28 of the Act, which reads as under:
"20. Members guilty of offences punishable as strangers.- Any member of the society who shall steal, purloin, or embezzle any money or other property, or willfully and maliciously destroy or injure any property of such society, or shall forge any deed, bond, security for money, receipt or other instrument, whereby the funds of the society may be exposed to loss, shall be subject to the same prosecution, and if convicted, shall be liable to be punished in like manner, as any person not a member would be subject and liable to in respect of the like offence.
28. Offences and Penalties etc.- If (a) the president, chairman, principal secretary or any member of the governing body or any officer of a society contravenes the provisions of sub-section (2) of Section 9, or sub-section (2) of 15 Section 10, or sub-section (1) and (2) of Section 11, Section 12 or Section 13; (b) the president, chairman, principal secretary or an officer or the member of the governing body of society willfully makes or furnishes a false return or makes or furnishes a return or statement which he does not believe to be true; or any person willfully or without any reasonable excuse disobeys any summons, requisition or lawfully written order issued under the provisions of this Act or does not furnish any information lawfully required from him by a person authorized in this behalf under the provisions of this Act; such president, chairman, principal secretary, member or person shall, on conviction, be punishable with fine which may extend to one thousand rupees."
15. Section 29 is also invoked which is with regard to taking of cognizance of the offence which contemplates that Cognizance of offences.- No Court inferior to that of a Magistrate of the First Class shall try an offence under this Act. The complaint is filed before the Civil Judge and JMFC, Hirekerur, hence, it is clear that under Section 29 of Act, the Magistrate of the first class shall try the offences under this Act. 16
16. On bare reading of the provisions of Section 20 of the Act, it is clear that with regard to any members of the Society, who shall steal, purloin or embezzle any money or other property, willfully or maliciously destroy are guilty of the offences punishable for the offence of destroying or injuring any property of such society and also Section 28 with regard to offences and penalties and with regard to contraventions of Sections 9 to 13, I would like to refer Sections 9 to 13 of the Act.
17. Section 9 of the Act is in respect of alteration of memorandum of association and same is not applicable to the case on hand and there is no allegation of the alteration of the memorandum of association. Section 10 of the Act with regard to Change of name, rules and regulations of the Society and the said proviso says that the same has to be amended by a resolution passed at a special general meeting convened for the 17 purpose of which written or printed notice. In the complaint, specific allegation is made in para-4 of the complaint in order to make wrongful gain, the petitioner herein is having intention to create the documents and indulging in creating of forged documents of the society exercising the powers of the Secretary and it attracts Section 10 of the Act.
18. Section 11 is with regard to General Meeting which contemplates that Every society registered under this Act shall hold every year a general meeting called the annual general meeting at which the report of the management of the society for the previous year together with an audited copy of the balance sheet, income and expenditure account and the auditor's report shall be submitted for approval. In the case on hand, as I have already referred the rules and regulations of the society and minutes of the Society, it is the duty of the Secretary to convene the meeting and record a minutes 18 of the meeting and the allegation is that the accused who is not having any authority to keep the documents, has stolen the documents of the society and the same should be with the custody of the Secretary and the Secretary could not be able to either convene meeting or taking approval for placing the materials before the Society. Section 11 also attracts with regard to contravention of the violation of the rules and regulations of the society.
19. Section 12 is with regard to Accounts that has to be approved in the meeting and the specific allegation against the petitioner is, all the documents of the society are stolen by him. Section 13 is with regard to Balance sheet and annual list of governing body to be filed with Registrar. The Society has to place the documents with regard to the balance sheet and annual list of governing body to be filed with the Registrar, since the Society comes under the control of the 19 Registrar and the affairs of the Society should be scrutinized by the Registrar, who is having authority to scrutinize the papers of the society. Having taken note of the allegations made in the complaint, it is specific that the petitioner took all the relevant documents of the society and kept the same in his custody and as a result, the Magistrate of First Class passed an order allowing the application under Section 91 of Cr.P.C. and the same has been challenged by this petitioner before the revisional Court which came to be dismissed and the said dismissal order has attained its finality and same has not been challenged by this petitioner before this Court, instead of that, invoked Section 482 of Cr.P.C.
20. The main ground urged by the petitioner in this petition before this Court is that the allegation leveled against him does not disclose commission of any offences punishable under Sections 28 and 29 of the 20 Act. While referring the ground urged in the petition and taking note of the proviso of Sections 9 to 13 as well as Sections 20 and 28 of the Act which are invoked by the respondent, this Court has come to the conclusion that the act of the petitioner amounts to violation of the rules and regulations of the bye-laws as well as Sections 10 to 13 and Sections 20 and 28, the Court has to take note of the prima facie material while considering the petition under Section 482 of Cr.P.C.
21. It is well settled law that while invoking Section 482 of Cr.P.C., this Court has to sparingly exercise the power and same is not a rule and same is an exception; the Court has to examine whether any abuse of process in initiation of the criminal proceedings against the persons and if the Court comes to a conclusion that it amounts to miscarriage of justice only, under the circumstances, the Court can exercise 21 the power under Section 482 of Cr.P.C. or not otherwise.
22. In the case on hand, the other contention of the petitioner that the complainant is not a Secretary and he has resigned the said post and same has been accepted by the Sangha and to that effect, the petitioner relied upon Annexure-D and Annexure-E for having passed the resolution and the complainant/respondent disputed the very documents at Annexure-D and E and this Court invoking Section 482 of Cr.P.C. cannot decide the question of disputed fact and same has to be decided before the appropriate authority and not before this Court. I have already pointed out that the scope of Section 482 of Cr.P.C. is very limited and question of disputed fact cannot be decided in the proceedings under Section 482 of Cr.P.C.
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23. The other contention raised by the petitioner's counsel that the complainant has not taken any prior permission of the Society to initiate the proceedings and he brought to my notice Section 15 of the Act as well as Rule 7(XI) and on perusal of the Rule 7(XI), it says with regard to Secretary shall be necessary part of all the litigations for and against the society and he shall be a person authorized to appoint legal advisor etc. with the concurrence of the Managing Committee. On reading of this provision makes it clear that the Secretary must be part of all the litigations whether it is for the society or against the society, he has to appoint legal advisor that too with the concurrence of the managing committee. This rule does not help the petitioner and this is with regard to the Secretary must be part of all the litigations and while appointing the legal advisor, he has to take concurrence of the managing committee.
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24. The other contention raised by the petitioner that the complaint is given to the Registrar and also to the police. In support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of Tukaram Annaba Chavan (supra) and brought to my notice paras-10 and 11 of the judgment and in the said case, it is with regard to determination of the validity or otherwise of the change report and in the case on hand, the allegation against the petitioner is that he has stolen the documents of the Society and kept the same in his custody without having any authority. Hence, the proceedings is initiated under Section 20 read with Sections 28 and 29 of the Act and the Magistrate has taken the cognizance under Section 29 of Cr.P.C. and passed an order issuing search warrant to the jurisdictional Police to search and seize the documents which are in the custody of the petitioner herein. The said judgment of the Apex Court is not applicable to the 24 case on hand with regard to the contention of the petitioner that the Magistrate has to enquire into the matter. The power vested with the Registrar under Section 25 of the Act with regard to malafide administration and misuse of the powers vested with the members of the Society not in respect of the criminal act of the President or members of the Society. Hence, the said contention of the petitioner's counsel also cannot be considered either to stay the proceedings or to quash the proceedings. Though police complaint was given, no action was taken and hence, approached the Court by filing complaint.
25. Section 15 of the Act is with regard to initiation of any suit for and against the society and in the case on hand, it has to be noted that the documents must be in the custody of the Secretary as per the rules and regulations and same has been alleged that the petitioner has stolen the documents of the society by 25 keeping the same in his custody. When such allegation is made against the petitioner with regard to theft of the documents of the Society, Section 20 is clear that if any member of the Society who shall steal, purloin, or embezzle any money or other property, or willfully and maliciously destroy or injure any property of such society, shall face consequences and hence, the complainant has approached the Magistrate invoking Section 200 of Cr.P.C. and sought for direction to issue the search warrant and seizure of the documents. The order has been passed by the Magistrate permitting the concerned jurisdictional Police to make search and seize the documents in the possession of the petitioner herein and the said order has been challenged before the revisional Court in the revision petition and the revisional Court dismissed the said revision petition confirming the order of the Magistrate. The said order 26 of confirmation has not been challenged by the petitioner and same has attained its finality.
26. For having discussed with regard to the question of fact and question of law and the order has already been attained its finality with regard to permission to search and seize the documents, by exercising the power under Section 482 of Cr.P.C., this Court cannot quash the proceedings; only the complaint is entertained in the beginning permitting the concerned jurisdictional police to search and seize the documents which are in the custody of the petitioner. For having taken note of the averments made in the complaint and the Magistrate while passing such an order has assigned the reasons and applied its judicial mind and passed the order. When such being the case, this Court cannot invoke the Section 482 of Cr.P.C. to quash the proceedings initiated against the petitioner and the same is done in accordance with law. Hence, I do not 27 find any merit in the petition to exercise the power under Section 482 of Cr.P.C. to quash the proceedings as sought.
27. In view of the above discussions, I pass the following order:
Petition is dismissed.
Sd/-
JUDGE JTR