Karnataka High Court
Sri K P Chamapakadhamaswamy vs The State Of Karnataka on 3 December, 2024
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NC: 2024:KHC:49829
CRL.P No. 3890 of 2018
C/W CRL.P No. 3891 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 3890 OF 2018
C/W
CRIMINAL PETITION NO. 3891 OF 2018
IN CRL.P NO. 3890/2018
BETWEEN:
1. SRI. K.P. CHAMAPAKADHAMASWAMY
AGED ABOUT 60 YEARS,
S/O LATE K.S. PUTTASWAMY
RESIDING AT NO.291
1ST 'A' MAIN ROAD, WEST
OF CHORD ROAD, 2ND STAGE,
BANGALORE - 560 086.
2. SRI. CHAMUNDAIAH
AGED ABOUT 72 YEARS,
S/O CHAMAIAH
RESIDING AT NO.1357/A
5TH MAIN ROAD, 'E' BLOCK,
2ND STAGE, RAJAJINAGAR,
Digitally signed BANGALORE - 560 010.
by SWAPNA V
3. SRI. C.R. HALAPPA
Location: High AGED ABOUT 69 YEARS,
Court Of RETIRED BESCOM EMPLOYEE
Karnataka
RESIDING AT NO.8, 4TH MAIN ROAD,
SHIVANAGAR, BANGALORE - 560 010.
4. SRI. A.H. KOTRAPPA
AGED ABOUT 72 YEARS,
S/O LATE HANUMANTHAPPA
RESIDING AT NO.184
SIRIDI SAI SOUDHA, R.M.S.
COLONY, BATTARAHALLI
OLD MADRAS ROAD,
BANGALORE - 560 049.
...PETITIONERS
(BY SRI. P.N. HEGDE, ADVOCATE FOR P1, 3 & 4
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NC: 2024:KHC:49829
CRL.P No. 3890 of 2018
C/W CRL.P No. 3891 of 2018
V/O DT.9/9/24 PETITION AGAINST P2 DISMISSED AS ABATED)
IN CRL.P NO. 3891/2018
BETWEEN:
1. SRI. B.K. SUBHASCHANDRA
AGED ABOUT 67 YEARS,
S/O LATE K. KRISHNAPPA
RESIDING AT NO.1/61/2
7TH CROSS, 1ST MAIN ROAD,
PADMANABHANAGAR
BANGALORE - 560 070
2. SRI. B. NAGARAJ
MAJOR IN AGE,
S/O LATE BOREGOWDA
RESIDING AT NO.20/195
2ND CROSS, 2ND STAGE,
KIRLOSKAR COLONY
BASAVESHWARANAGAR
BANGALORE - 560 079
PRESENTLY RESIDING AT
NO.313, 10TH CROSS,
IDEAL HOMES, R.R. NAGAR
BANGALORE - 560 098
...PETITIONERS
(BY SRI. P.N. HEDGE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SUB
INSPECTOR OF POLICE, HIGH
GROUNDS POLICE STATION
BANGALORE CITY/COD - 560 001.
...COMMON RESPONDENT
(BY SRI. B. VENKAT RAO, SPL.P.P. FOR RESPONDENT STATE)
CRL.P N.3890/2018 IS FILED U/S.482 CR.P.C PRAYING TO
A. SET ASIDE THE ORDER DATED 24.03.2018 PASSED BY THE LI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN
CRL.RP.NO.563/2017. B. SET ASIDE THE ORDER DATED
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NC: 2024:KHC:49829
CRL.P No. 3890 of 2018
C/W CRL.P No. 3891 of 2018
24.06.2017 PASSED BY THE I A.C.M.M., BANGALORE IN
C.C.NO.25491/2011 AND CONSEQUENTLY DISCHARGE THE
ACCUSED/PETITIONERS FOR THE OFFENCE P/U/S 418, 465,
467, 468, 471, 474, 201, 120B OF IPC.
CRL.P.NO.3891/2018 IS FILED U/S.482 PRAYING TO A. SET
ASIDE THE ORDER DATED 24.03.2018 PASSED BY THE LI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN
CRL.RP.NO.562/2017. B. SET ASIDE THE ORDER DATED
24.06.2017 PASSED BY THE I A.C.M.M., BANGALORE IN
C.C.NO.25491/2011 AND CONSEQUENTLY DISCHARGE THE
ACCUSED/PETITIONERS FOR THE OFFENCE P/U/S 418, 465,
467, 468, 471, 474, 201, 120B OF IPC.
THESE CRIMINAL PETITIONS, COMING ON FOR FURTHER
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
COMMON ORAL ORDER
The petitioners in Crl.P.No.3890/2018, being accused Nos.1, 3, 4 and 5 and petitioners in Crl.P.No.3891/2018 being accused Nos.13 and 14 are seeking to set aside the order dated 24.06.2017 passed in CC No.25491/2011 on the file of the learned I Additional Chief Metropolitan Magistrate, Bengaluru rejecting the application filed by the petitioners under Section 239 of Cr.P.C and refusing to discharge them, which was confirmed in Crl.R.P.No. 563/2017 on the file of the learned LI -4- NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 Additional City Civil and Sessions Judge, Bengaluru, vide order dated 24.03.2018.
2. Brief facts in the case are that one B.T. Gnaneshwara, the President of Kadabagere KPTCL Employees Co-operative Society (hereinafter referred to as 'the Society') filed the first information against accused No.1 alleging commission of the offence punishable under Section 406 and 420 of Indian Penal Code (for short 'IPC'). In the meantime, one L. Mahadevaya filed a similar complaint against the accused on 13.10.2007 alleging commission of the offence punishable under Sections 406 and 409 of IPC making similar allegations and accordingly Cr.No.208/2007 and Cr.No.209/2007 of the High Grounds Police station (CID Police) came to be registered.
3. The informant V.T.Gyaneshwar, in Cr.No.208/2007 alleged that accused No.1 being the Honorary Secretary and the Executive Director of the Society, registered the sites in the name of the informant and others after receiving the full consideration amount but he had not delivered the original sale deed to the purchasers. In Cr.No.209/2007, the informant alleged that accused No.1 collected huge amounts from various -5- NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 members for the purpose of allotting the sites in their favour but had not allotted the sites as promised. Instead, accused No.1 sold the land purchased on behalf of the society in favour of Golden Gates Builders and Developers without obtaining permission from the competent authority and without following the rules and regulations. Since the allegations in both the complaints were similar, the investigation was undertaken by the investigating officer and a common charge sheet came to be filed on 02.06.2011 against accused Nos.1 and others for the offence under Section 409, 418, 419, 465, 467, 468, 471, 474, 420, 201 and under Section 120b of IPC. While filing the charge sheet, the Investigating Office sought permission to undertake further investigation under Section 173(8) of Cr.PC. After taking cognizance, the learned Magistrate registered CC No.25491/2011 against accused Nos.1 to 14. In the meantime, additional charge sheet came to be filed by the investigating officer after considering the audit report, submitted by the Auditor Economic Crimes Unit CID Bengaluru,
4. The petitioners herein filed application under section 239 of Cr.PC before the Trial Court seeking their discharge. The trial court passed the impugned order dated -6- NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 24-06-2017 rejecting the applications filed by Accused No. 1, 3 to 6, 8 to 11, 2, 12, 13 and 14. Being aggrieved by the same, the petitioners preferred Crl.R.P.No.563/2017. The Revisional Court after reconsidering the contentions taken by the parties, dismissed the same vide order dated 24.03.2018. Impugning both the orders, the petitioners are before this Court.
5. Learned counsel for the petitioner contended that bald allegations are made in the first information by both the informants. Moreover, the said allegations were only against accused No.1. Accused No.1 is the Honorary Secretary of the society, which came into existence for purchasing the land from various farmers in and around Bengaluru to form layouts and to allot sites to its members. Accused No.3 is the auditor of the society. Accused Nos.4 and 5 are the vice president and the president of the society, respectively. The petitioners in the Crl.P.No.3891/2018 being the accused Nos.13 and 14 are the Additional Registrars of Cooperative Societies.
6. Learned counsel submitted that initially, the FIR came to be registered for the offence under Section 420 of IPC amongst others. The charge sheet was also came to be filed for -7- NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 all other offences along with Section 420 of IPC. However, after further investigation, while filing additional charge sheet, Section 420 of IPC is dropped. Under such circumstances, it is the contention of the prosecution that the petitioners have not committed the offence under Section 420 of IPC. But they have committed the offence only under Section 418, 465, 467, 468, 474, 201 and 120B of IPC.
7. The Society had purchased various lands and formed four layouts. Several sites were formed in the layouts. However, few sites were retained for further development of the layout and for providing common amenities. The only allegation made against the petitioners in the Crl.P.No.3890/2018 is that they have not provided water, electricity, domber roads, etc. after forming the lay out. Similarly, only allegation made against accused Nos.13 and 14, who are the petitioners in Crl.P.No.3891/2018 is that they being the Additional Registrars of Cooperative Societies, permitted the society to sell the land for the purpose of liquidating the loans for which they have not obtained permission from Registrar of Cooperative Societies. -8-
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8. Learned counsel submitted that as per Section 28C(f) of the Karnataka Cooperative Societies Act, the Board has power to acquire and sell the property. No permission is required from either the Registrar or the Additional Registrar of Cooperative Societies. Under such circumstances, accused Nos.13 and 14 cannot be held responsible for any of these offences. Similarly, the charge against the other accused that they have sold the land without seeking permission cannot be an offence at all.
9. Learned counsel submitted that admittedly, the petitioners being the Honorary Secretary, Auditor, President, Vice President of the Society and Additional Registrar of Cooperative Societies are the public servants. Section 127A of the Karnataka Cooperative Societies Act makes it clear that every office bearers and every member of the board of the society are deemed to be the public servants as referred to in Sections 21 of the Indian Penal Code. When all these petitioners are the public servants within the meaning of Section 21 of IPC, sanction to prosecute was very much required but admittedly, no sanction was obtained for prosecuting them. Under such circumstances, the Trial Court and Revisional Court committed -9- NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 an error in rejecting the application filed by the petitioners seeking their discharge.
10. Learned counsel submitted that before filing the additional charge sheet, the investigating officer called for audit of the accounts of the society by the auditor, Economic Crimes Unit, CID, Bengaluru. Accordingly, audit was undertaken and the audit report is filed which is as per Annexure-F. As per this report, the documents for the period from 1991-92 to 2007-08 pertaining to the society were audited. It is found that as many as 978 sites were formed in various layouts by spending more than Rs.33.24 crores by selling 835 sites. An amount more than Rs.77.33 crores was earned. Remaining 143 sites were not yet sold. Out of them, 14 sites were sold by the managing committee for an amount of about Rs.2.14 crores. 129 sites are still in the possession of the society. Therefore, the auditor has formed an opinion that the society has earned Rs.14.86 crores profit. No amount was misappropriated. When such a categorical audit report is filed by the auditor of CID Bengaluru, the investigating officer has no justification to file the additional charge sheet alleging commission of the offence under sections 418, 465, 467, 468, 471, 474, 201 and 120B of IPC. When the
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 main offence under Section 420 of IPC is dropped, there is absolutely no reason to allege the other offences against the petitioners.
11. Learned counsel submitted that the investigating officer is not alleging either forgery, misappropriation, cheating against the petitioners. The auditor has given a clean chit to the office bearers of the society. Under such circumstances, no offence whatsoever is made out against the petitioners and accordingly, prays for allowing the petition.
12. Learned counsel placed reliance on the decision of the Hon'ble Apex in P. Vijayan v. State of Kerala and another1, in support of his contention that when there are no sufficient grounds for proceeding against the accused, and when the allegations are groundless, the Court is required to discharge the accused at the threshold. If the Trial Court forms an opinion that there are sufficient grounds to proceed and rejects the application filed by the accused, reasons are to be assigned for doing so. He also placed reliance on the decision of the Hon'ble Apex Court in L. Krishna Reddy v. State by 1 2010 2 SCC 398
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 Station House Officer and Others2 in support of his contention that the Trial Court is required to find out as to whether there are prim-facie case against the accused. On the basis of vague and bald allegations, the accused is not required to face the trial. When the criminal prosecution is launched on the basis of such baseless and bald allegations, it should be brought to a quick end by discharging the accused.
13. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in M.E.Shivalingamurthy v. Central Bureau of Investigation, Bengaluru3 to contend that the Hon'ble Apex Court after referring to its earlier decisions, laid down legal principles applicable to the application seeking discharge. The same were not followed either by the Trial Court or by the Revisional Court. Leaned counsel placed reliance on the decision of the Hon'ble Apex Court in Rumi Dhar (Smt.) V. State of West Bengal and another4 in support of his contention that once the application seeking discharge is filed, the Trial Court is required to go into the details of the allegations made against each of the accused and form an 2( 2014) 14 SCC 401 3 2020 2 SCC 768 4 (2009) 6 SCC 364
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 opinion as to whether there are strong suspicions to proceed against the accused. When such opinion could not have been formed in the present case, the Trial Court and the revisional courts have committed an error in rejecting the application seeking discharge.
14. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in Ram Prakash Chandha V. State of Uttar Pradesh5 in support of his contention that Section 227 and 239 of Cr.P.C are enacted to ensure that the accused will not be made to stand the ordeal of trial without there being sufficient cause or ground to proceed against him. Learned counsel placing reliance on these decisions, contended that while deciding the application seeking discharge, the Court is duty-bound to highlight the reasons in detail either for finding sufficient grounds for rejecting the application or for allowing the same. Such reasoning to be given by the Courts will enable the higher Courts to examine the validity of forming such opinion. Since in the present case, the impugned orders do not highlight any reason whatsoever, but the same is passed mechanically. 5 2024 SCC OnLine SC 1709
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 Under such circumstances, learned counsel for the petitioner prays for allowing the petition.
15. Per contra, learned SPP for the respondent opposing the petition submitted that serious allegations are made against the petitioners for having committed the offence. The additional charge sheet discloses that no documents are maintained regarding the expenses meted by the Society. It is specifically endorsed that for the expenses meted for the years 1991 to 1998, vouchers were not maintained. On the other hand, it is stated that those vouchers were disposed of as scrap papers, assigning a lame excuse that there is lack of space to keep the records. When it is alleged that the petitioners being at the helm of affairs, are responsible for maintaining the relevant documents, the offence as alleged is made out.
16. Learned SPP submitted that initially the petitioner No.1 filed the Crl.R.P.No.563/2017 under Section 482 of CrPC., seeking to quash the criminal proceedings initiated against him. The said petition was came to be dismissed by the coordinate bench of this court. The said order was challenged by Petitioner No.1 by filing the WA.No.3776/2009. Subsequently, the same
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 was withdrawn. When this Court has already formed an opinion that there are sufficient grounds to proceed against the petitioners, petitioner No.1 along with other petitioners Could not have approached this Court once again.
17. Learned SPP further submitted that a specific contention is taken by the prosecution that without any valid permission, the Society sold several sites and lands and thereby cheated the members. Even though Section 420 of IPC is dropped by the investigating officer, while filing the additional charge, the Court can take into consideration the allegations made against the accused and form suitable charges based on the materials that are placed by the Investigating Officer.
18. Learned SPP further submitted that the Investigating Officer has specifically stated that the Society has not maintained any documents for the expenses meted by it, which gives raise to a reasonable doubt regarding the motive of the petitioners, who were at the helm of affairs. He while drawing the attention of the Court to his statement of objections contended that specific grounds were urged that sale of several lands without valid permission from the Registrar of Co-
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 operative Societies (RCS) amounts to cheating the members. There is manipulation in the agreement entered into between the builder and accused No.2. The word 'yard' is intercalated by the word 'feet'. The excess amount was paid to the builder to make wrongful gain for the builder and also to the accused personally and wrongful loss to the Society.
19. Learned SPP further submitted that even though specific allegations are made against accused No.2 with regard to forgery and cheating, the petitioners being accused Nos. 1, 3, 4, 5 and 6 who are part of the managing committee are equally responsible for the criminal action of accused No.2 in view of clause No.57 of the By law of the Society. Accused No.1 had issued a requisition to the members of the Society bringing it to their notice about the value of the site in question, which makes the position very clear that the accused have overvalued the land when they entered into agreement with the builder and the excess amount was paid to the builder. He further submitted that as per FSL report, it was accused No.2 who committed forgery and since all these petitioners are also part of the managing committee, being the directors of the society, are equally responsible for the offence alleged.
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20. Learned SPP submitted that before filing the additional charge sheet, the preliminary charge sheet is filed by the Investigating Officer, where the offence under section 420 of IPC is alleged. There is no reason to ignore the primary charge sheet filed by the Investigating Officer. The materials that are produced by the Investigating Officer, along with the charge sheet, prima facie discloses that all the accused in connivance with one another committed the offence in furtherance of common intention. He further submitted that even though the audit report as per Annexure-F was obtained by the Investigating Officer, the same was pertaining to 28.06.2010, 05.01.2011 and 11.01.2011, which is specifically mentioned in the audit report. Therefore, it is clear that the auditor has not audited the accounts of the Society for the period during which the offence in question was committed. Hence, the report of the auditor is to be ignored, which was filed without considering the documents that are produced by the Investigating Officer. The auditor has also not verified the expenses meted by the society with regard to which, no vouchers were available. Therefore, the audit report is incomplete and is liable to be rejected. The accused were working as office bearers during 1993 to 1994 and
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 1994-95, the audit report did not refer to the said period and hence, the same is not required to be considered by the Court.
21. Learned SPP submitted that the scope under Section 482 of Cr.PC is very limited, when there are prima facie materials that are placed before the Court, and that too when there is concurrent finding by the Trial Court as well as by the Revisional Court dismissing the application filed by the petitioners seeking discharge, this Court cannot venture to interfere with the order for any reason. He placed reliance on the decision of the Hon'ble Apex Court in Srilekha Senthilkumar v/s Deputy Superintendent of Police, Central Bureau of Investigation, ACB, Chennai6 in support of his contention that, when there is disputed questions of fact that are on record, it is for the Trial Court to hold full-fledged trial and to find out as to whether the accused is guilty or not. Therefore, the accused are not entitled for discharge under Section 239 of Cr.PC under such circumstances.
22. Learned SPP placed reliance on the decision of the Hon'ble Apex Court in State of Madhya Pradesh v/s 6 (2019) 7 SCC 82
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 Yogendra Singh Jadon and Another7 in support of his contention that, when there are prima facie materials placed by the Investigating Officer to constitute the offence under Section 420 and 120B of IPC, this Court cannot exercise the power under section 482 of Cr.PC to grant the relief in favor of the petitioners.
23. Learned SPP placed reliance on the decision of the Hon'ble Apex Court in Dr. Lakshman v/s State of Karnataka and Others8, in support of his contention that, this Court while exercising its power under Section 482 of Cr.PC is not expected to go deep into the matter for quashing the proceedings.
24. Learned SPP submitted that, since the petitioners have committed the criminal offence of forgery, manipulation of the records, criminal conspiracy etc., no sanction is required to prosecute them as commission of forgery, criminal conspiracy, etc., do not come under the purview of discharge of official duty.
25. Learned SPP also placed reliance on the decision of the Hon'ble Apex Court in Devendra Prasad Singh v/s State 7 (2020) 12 SCC 588 8 (2019) 3 SCC (Cri) 760
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 of Bihar and Another9, to contend that the offence alleged against the petitioners do not come under the purview of discharge of public duty and therefore, it is clear that the petitioners have committed the offence not as public servants and therefore, sanction under section 197 of Cr.PC is not at all required.
26. Learned SPP contended that the decisions relied on by the learned counsel for the petitioners are not at all applicable to the facts of the case and it is the settled position that when two views are possible, the Court should be slow to entertain the petition and therefore, prays for dismissal of the petitions.
27. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the Petitioners have made out any grounds to allow the petition and to quash the criminal proceedings initiated against them?"9
(2019) 4 SCC 351
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 My answer to the above point is in 'Affirmative' for the following:
REASONS
28. The petitioners in Crl.P.No.3890/2018 are accused Nos. 1, 3, 4 and 5. It is stated that they are the office bearers of the Society in question and they have committed various offences as stated above during their tenure in the Society. The petitioners have filed the application under Section 239 of Cr.PC seeking their discharge.
29. Section 239 of Cr.PC permits discharge of the accused, if upon considering the police report and the documents sent with it under section 173 of Cr.PC and also making such examination, if any of the accused and after giving an opportunity to the prosecution forms an opinion that, the charge against the accused is groundless. If the Court proceeds to discharge the accused, it has to record its reasons for doing so. The Trial Court and the Revisional Court have refused to discharge the accused by forming an opinion that, there are sufficient materials to proceed against the accused. The said orders are impugned by the petitioners in the present case.
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30. Learned SPP for the Respondent has produced a portion of the primary charge sheet filed by the Investigating Officer under Section 173 of Cr.PC filed for the offence under Sections 409, 418, 419, 420, 465, 467, 468, 471, 201 and 120B of IPC. As per this final report, accused Nos. 1, 3, 4 and 5, who are the petitioners in Crl.P.No.3890/2018 are charged by the Investigating Officer stating that, accused No.1 was the Honorary Secretary, accused No.3 was the Auditor, accused No.4 was the Vice President of the society for the period from 2003 to 2008. Accused Nos. 6 to 12 were the Directors. During their period, several acres of lands as mentioned therein were purchased from the agriculturists, by entering into various agreements, formed layouts and divided it into several sites. Even though, they have spent more amount than the amount i.e., being spent by BDA, the accused have not provided nor completed the work of supplying water, electricity, dambar road or other amenities. It is also alleged that the accused even though executed the registered sale deed in favor of 24 members at Kadubagere extension, they have demanded additional amount from them. It is further alleged that, the accused even without obtaining permission from the registrar of
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 co-operative society, sold few acres of land in favor of Golden Gate Properties for Rs.14,35,800/- and the land in Gubbalalu for Rs.5,00,000/- and thereby, committed the offence. It is further alleged that the accused have entered into agreements with the farmers to purchase their lands and paid Rs.1,27,23,675/-. But the said lands were acquired by BDA and recovered only Rs.95,00,000/- from the farmers. The remaining amount of Rs.32,23,675/- was still in the Courts concerned, which has become a dead investment. It is further relayed that these petitioners concocted fake permission letters said to have been issued by the office of RCS and committed criminal conspiracy with one another. These documents were recovered from accused No.12 during investigation and therefore, it is stated that accused Nos.1, 3, 4 and 5, who are the petitioners herein in Crl.P.No.3890/2018 have committed the offence as stated above.
31. The Investigating Officer stated that accused No.13 was the Additional Registrar of co-operative society, during 2002, and accorded permission in favor of the society to sell 47.6 acres of land, without obtaining any permission from the office of RCS. He had not verified the documents, signatures and
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 the signatures of the attesting witnesses and therefore, he has misused his authority as ARCS. Similar allegations are made against accused No. 14 that, he was the Additional Registrar of co-operative societies during 2006 and he accorded permission to sell 10.20 acres of land, without following the procedure of getting prior permission from the office of RCS. Thus, the allegations against Accused No. 1, 3, 4, 5, 13 and 14 are very clear from the primary charge sheet filed by the Investigating Officer. On the basis of the primary charge sheet, the Trial Court took cognizance of the offence and registered the criminal case. In the meantime, the Investigating Officer appears to have requested the Trial Court to permit him to further investigate into the matter under Section 173(8) of Cr.PC and after holding further investigation, the additional charge sheet came to be filed. As per additional charge sheet produced as per Annexure- E, similar allegations as found in the original charge sheet is made against accused Nos. 1, 3, 4 and 5 and also against the accused Nos. 13 and 14, who are the petitioners in Crl.P.No.3891/2018.
32. It is pertinent to note that in both the charge sheets, the allegations made against the accused No.2, B. Ramu
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 is that, he was the Secretary of the society for the period during 1991 and entered into an agreement dated 09.09.1991 with B.M.Narasimhamurthy, representing Sri Vinayaka Enterprises and in the said agreement, manipulated the word 'yard' with the word 'feet'. He has also manipulated the figure '32,000' by adding a zero, made it as '3,20,000' and thereby, he criminally conspired with other office bearers, collected exorbitant amount from the members and committed cheating. It is also stated that the signature found on the agreement dated 09.09.1991 sent for examination by the handwriting expert and the report of the expert reveals that it was the signature of accused No.2 and therefore, it is stated that he has committed the offence as stated above.
33. It is pertinent to note that the allegations are only against accused No.2 and not against accused Nos. 1, 3, 4 and 5 who are the petitioners herein. The copy of the said agreement dated 09.09.1991 is produced for perusal of the Court, wherein accused No.2 said to have signed the document as executant and it is stated that the other accused have signed it as attesting witnesses.
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34. The meaning of the word "attested" as defined under Section 3 of Transfer of Property Act in relation to an instrument or a document, means and shall be deemed always to have meant attested by two or more witnesses each of whom have seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant. Therefore, it is clear that the attestation does not mean that he should know the contents of the documents or in any manner he is responsible for interpolation or alternations made in the document. It is the settled position of law that the attester is required to see the executant signing the document and nothing more than that. The Investigating Officer even though has stated while making allegations against accused No.2 that he had conspired with the other office bearers, has never made such allegations against accused Nos. 1, 3, 4 and 5 in column No.17 of the charge sheet. On the other hand as highlighted above, specific allegations are made against accused Nos. 1, 3, 4 and 5 about not providing the basic amenities in a proper manner and demanding for higher amount from the members, even after registration of the sites in favor of 24 members.
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35. Learned SPP for the respondent contended that, even though there is no such allegations in column No.17 pertaining to the petitioners, the allegations against accused No.2 is very specific and the act of accused No.2 also binds the other office bearers and the forgery and concoction of the agreement was in collusion with one another and it is a criminal conspiracy. The Investigating Officer has not made any such allegation against any of these petitioners. Learned SPP has no explanation whatsoever, as to why the Investigating Officer has restricted the allegations against these petitioners only with regard to not providing the proper basic amenities such as water, electricity, road, etc and demanding additional amount from 24 members after registration of the sites.
36. Learned SPP has put forth a strange and very dangerous proposition that since the Investigating Officer has produced voluminous documents along with the final report, the Court is required to consider each and every such document to make out commission of the offence against the accused even when the Investigating Officer has not made such allegations. In this regard, I may refer to Section 173 of Cr.PC, which speaks about the report of the police officer on completion of
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 investigation. 173(2) of Cr.PC mandates the Investigating Officer to forward the final report to take cognizance of the offence on his report in the form prescribed by the State Government. The contents of such final report to be submitted by the Investigating Officer to the learned Magistrate is also provided in clause (a) to (h) of Section 173 of Cr.PC. It is important to refer to clause (d) where it is the requirement of law for the Investigating Officer to mention as to whether any offence appears to have been committed and, if so, by whom. In the present case, the Investigating Officer has filed two charge sheets in the sense, he filed the primary charge sheet and later undertook further investigation under Section 173(8) of Cr.PC and filed additional charge sheet. In none of these two charge sheets, I find any such allegations to constitute the offence under sections 409, 418, 419, 465, 467, 471 474, 420, 201 and 120B of IPC.
37. As per section 211 of Cr.PC, every charge framed against the accused by the learned Magistrate shall state the offence with which the accused is charged. If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. If it is not given
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 any specific name, it is to be described to give the accused notice of the matter with which he is charged. The law and Section of law against which the offence is said to have been committed shall be mentioned in the charge. The Charge shall state the time, place and the person against whom such offence is committed. It also shall state the manner in which the offence was committed.
38. As per Section 239 of Cr.PC, if upon considering the police report and the documents sent with it under Section 173 of Cr.PC, the Magistrate may make examination of prosecution and the accused after opportunity to him of being heard, finds that the charge against the accused to be groundless, he shall be discharged. If on the other hand, the Court finds that there are grounds for proceeding against the accused for having committed the offence, he shall proceed to frame the charge against the accused. Therefore, while filing the charge sheet by the Investigating Officer, the Investigating Officer is required to highlight the details of the offence committed by the accused and even when the learned Magistrate frames the charge, he is required to mention the same to enable the accused to understand the allegations against him and to defend on his
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 behalf. Under such circumstances, when the primary and the additional charge sheets filed by the Investigating Officer only make the allegation against accused Nos. 1, 3, 4 and 5 that they have demanded additional amount from the members in favor of whom the registered sale deed is already executed in respect of few sites and that they have not provided proper amenities as required, will not constitute any of the offence against them. Apart from this, there is no such allegations that could be made available, even if the charge sheet materials produced before the Court by the petitioners as well as by the respondent are taken into consideration.
39. Learned SPP has produced copy the agreement dated 09.09.1991 said to have been executed by accused No.2 in favor of Sri. Vinayaka Enterprises represented by its managing partner. Even according to the prosecution the signatures found on each page of the agreement is that of accused No.2 Only on the last page of the agreement, 9 persons have signed as witnesses. Neither the Investigating Officer nor the learned prosecutor before this Court stated that who are these witnesses, whether the petitioners who are accused Nos. 1, 3, 4 and 5 have signed this document. This document makes
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 it clear that only the signature of accused No.2 - B Ramu is found on each page of the agreement is identified as questioned document/signature and referred to the handwriting expert at Hyderabad. Copy of the extract from the report is produced before the Court which reveals that the questioned signatures and the admitted signatures were written by one and the same person i.e., accused No.2. The signature of B.K.Subhash Chandra, B.Nagaraju, Siddhagangappa and B.M.Narasimhamurthy, which are marked in the disputed document separately are identified by the handwriting expert that they were written by the named persons only. It is pertinent to note that there is no reference to the signatures made by accused No.1, 3, 4 or 5, nor it is the contention of the prosecution that these petitioners are the attesting witnesses to the disputed document. Under such circumstances, the contention of the learned SPP that as per clause 57 of By-law of the Society, the act of one of the person in the managing committee would bind the other cannot be taken to the extreme extent of holding that the petitioners are vicariously liable for the criminal acts of accused No.2.
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40. Learned SPP contended that in the agreement dated 09.09.1991, there is interpolation by replacing the word 'yard' with the word 'feet' and further the amount mentioned as Rs.'32,000' is replaced with Rs.'3,32,000' and thereby, caused heavy loss to the Society. The learned SPP has not placed any material before the Court to contend that as to what is the basis for the prosecution to contend that the amount mentioned or the amount i.e., to be mentioned in the agreement in question was only Rs.32,000/- and not Rs.3,32,000/- . Learned SPP refers to a requisition dated 25.10.1994 said to have been made by accused No.1 as the Honorary Secretary, where the value of the sites in various layouts is fixed at Rs.41-46 paise per sq.ft. and therefore, it is his contention that the Court has to calculate the price of the site at Rs 41-46 paise per sq.ft. and find out the value of the land in question. Even if such exercise is to be done by the Court, it is pertinent to note that the disputed agreement is dated 09.09.1991, but the requisition produced and relied on by the learned SPP is dated 25.10.1994. There is absolutely no reason to relate this requisition of the year 1994 to the agreement of the year 1991 to contend that there is either undervaluation or overvaluation to cause loss to the Society.
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41. It is important to refer to the additional charge sheet filed by the Investigating Officer. The Investigating Officer refers to the report of the auditor in column No.17 of the final report and states that as per the audit report several sites were sold in favor of the members and the remaining sites are in possession of the Society and the Society has earned profit of Rs.14.86 crores. He certifies that there is no misappropriation of any amount. Thus, the auditor, who is none other than from the Economic Offence Unit, CID, Bengaluru has given a clean chit to the office bearers of the Society rather, he has complimented that the Society has earned a huge profit of Rs.14.86 crores, without there being any misappropriation. Strangely, this audit report is relied on by the Investigating Officer and refers to its findings in column No.17 of the additional charge sheet. It is relevant to note that the Investigating Officer is not disputing the authenticity of the audit report nor he has rejected it.
42. Learned SPP has no reasonable explanation for the Investigating Officer referring to the audit report, where the Society is complemented for having earned the profit without there being any misappropriation. If at all the accused have committed the offence, caused financial loss as contended, the
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 Investigating Officer was at liberty to reject the report submitted by the auditor Economic Offence Unit, CID, Bengaluru and could have appointed another auditor for conducting the audit. It is pertinent to note that the auditor of Economic Offence Unit, CID was appointed by the Investigating Officer himself while conducting further investigation in the matter with the approval of the Trial Court. Under such circumstances, there is absolutely no reason to ignore the report of the auditor, more so when the Investigating Officer himself acknowledges the report of the auditor and refers to it in his final report.
43. It is also pertinent to note that the auditor has referred to the expenses of Rs.78,14,124/- spent by the Society during 1991 to 1998 and stated that, no vouchers are available with the Society for having met these expenses. He also reiterates the reasoning given by the secretary who was working at that time, that these vouchers were disposed of since there is a lack of space to store the same. The auditor do not find any illegality nor he suspects any foul play on the part of any of the accused in giving such explanation. As per the audit report, the bank passbook, cheque counter files and the agreement to sell were verified along with the vouchers and the auditor satisfied
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 himself about the total expenses of Rs.33.24 crores for purchase of the land, forming of layout and for providing amenities. After verifying all these records the auditor has given the clean chit and commanded the society for its performance, which was also accepted by the Investigating Officer. Under such circumstances, I do not find absolutely no grounds to accept the contention of the learned SPP that there are prima facie materials to constitute any of the offences against accused Nos.1, 3, 4 and 5.
44. In Crl.P.No.3891/2018, the petitioners being accused Nos. 13 and 14 were the additional registrars of co- operative societies at a relevant point of time. As for the original charge sheet, accused No.13, was working as the ARCS during 2002 and accorded permission for sale of the land by the Society without getting permission from RCS. Similar allegation is made against accused No.14 that he being the ARCS for the year 2006 accorded permission for sale of the land without getting prior permission from registrar of Co-operative Societies. Learned SPP could not draw the attention of the Court to any of the provisions in the Karnataka Co-operative Societies Act to contend that the law mandates such permission from the Office
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 of Registrar of Cooperative Societies. The Investigating Officer should have highlighted as to how the acts of accused Nos.13 and 14 constitute the offence as alleged. When the Investigating Officer has not made any allegations against accused Nos.13 and 14 regarding they colluding with accused Nos. 1, 3, 4 and 5 and making wrongful gain for themselves, the contention of the learned SPP that they are also sharers in the booty cannot be accepted. It is to be stated that unfortunately the submissions made by the learned SPP do not get support from the final report filed by the Investigating Officer. The contention of the learned SPP that the Court is required to go through each and every document produced by the Investigating Officer to form an opinion that the petitioners and the other accused have committed the offence under various provisions of law invoked by the Investigating Officer, despite the fact that, the Investigating Officer has not narrated any such commission of the offence in his final report is absurd. The Court can not assume the role of the investigating officer to make out and offence against the accused. To constitute an offence against the accused and to enable the Trial Court to frame charge, there must be prima facie materials, meaning thereby on the face of
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 the record the Court must be in a position to form an opinion that there are sufficient grounds for proceeding against the accused. When the materials on record including the audit report exonerates the accused regarding commission of the offence, the petitioners are entitled for discharge as the charge against them made by the Investigating Officer by invoking various penal provisions is groundless.
45. The other point highlighted by the learned counsel for the petitioners is lack of sanction to prosecute the petitioners. He drawn the attention of the Court to section 127A of Karnataka Co-operative Societies Act, according to which, every office bearers and every member of the board of the society are deemed to be public servants as referred to in section 21 of IPC. Accused Nos.13 and 14 are undisputedly the public servants, they being the Additional Registrars of Cooperative societies. Therefore, the petitioners before this Court are the public servants within the meaning of Section 21 of IPC and the sanction is necessary to prosecute them as required under Section 197 of Cr.PC.
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46. Learned SPP has placed reliance on the decision of the Hon'ble Apex Court in Devendra Prasad Singh(supra) to contend that since the petitioners have committed the criminal offence punishable under the provisions of IPC, these acts do not fall under the purview of discharging of official duty and therefore, the sanction is not necessary. Admittedly, the Investigating Officer has not sought for any sanction to prosecute the petitioners.
47. The Hon'ble Apex Court has considered an order passed by the High Court allowing the application filed by the accused under section 482 of Cr.PC and held that the High Court was not justified in quashing the criminal proceedings by holding that, there are prima facie materials against the petitioners to proceed against. The facts of the case are not narrated in this decision, but the Court observed that it cannot be contended that respondent No.2 committed the alleged offences while discharging of his official duty or purporting to act in discharge of his official duties so as to attract the Section 197 of Cr.PC. The Court has made it very clear that to attract Section 197 of Cr.PC, the offence against the Government officer must have some nexus/relation with the discharge of his official duty as a
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 Government servant. The Court did not find such a nexus or relation and therefore, held that the sanction was not necessary. But in the present case, the allegations against the petitioners squarely falls within the discharge of the official duty by the petitioners. It will have nexus and relation to the discharge of their official duty and under such circumstances, it cannot be held that the act was not done in the discharge of official duties. Therefore, I do not find any substance in the contention of the learned SPP.
48. Learned SPP also placed reliance on the decision of the Hon'ble Apex Court in Srilekha Senthilkumar (supra). Unfortunately, learned SPP was placing reliance on the head notes of the decisions. The Court has not discussed at length about the facts of the case and the materials that are considered to form an opinion that the accused is required to face the trial by the Trial Court. Under such circumstances, the decision relied on by the learned SPP cannot be the basis to reject the prayer made by the petitioners.
49. In Yogendra Singh Jadon(supra), the Hon'ble Apex Court held that the High Court has examined the entire
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 issue as to whether the offence under Section 420 and 120B of IPC is made out or not at pre-trial stage which was not required to be done while exercising the power under section 482 of Cr.PC. That was a case under section 420 and 120B of IPC and under section 13(1)(d), 13(2) of the PC Act. Under such circumstances, the Court held that the charge under Section 420 of IPC is not an isolated offence, but it has to be read along with the offence under the Act which the respondents may be liable i.e., under the PC Act with the aid of Section 120 of IPC. But in the present case, as discussed above, even the Investigating Officer is not making the allegations against the petitioners for having committed the offence under Section 420 of IPC rather while filing the further investigation report, Section 420 of IPC is dropped. Even though, Section 120B of IPC is invoked, it is not even suggested as to why the same was invoked. Under such circumstances, learned SPP will not stand to gain by placing reliance on the decision of Hon'ble Apex Court.
50. He also placed reliance on the decision of the Hon'ble Apex Court in Dr. Lakshman (supra) to contend that, since voluminous documents are placed before the Court, the petitioners are required to face the full-fledged trial. But that
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 was not the intention expressed by the Hon'ble Apex Court, where there are absolutely no material to constitute the offence as alleged. Therefore, none of the decisions relied on by the learned SPP would help him in seeking dismissal of the petition.
51. Learned counsel for the petitioners placed reliance on the decision of the Hon'ble Apex Court in P Vijayana (supra), the Court has referred to Section 227 of Cr.PC and held that if at the threshold the accused seeks discharge and if, upon consideration of the records and the documents, the Court finds that there are no sufficient grounds, it can proceed to discharge the accused. If, on the other hand, the learned Magistrate forms an opinion that there are sufficient grounds to proceed, he shall proceed to frame the charge under Section 228 of Cr.PC.
52. He placed reliance on the decision of the Hon'ble Apex Court in L. Krishnareddy (supra), where the Hon'ble Apex Court has cautioned the Trial Court that once the case is presented by the prosecution, it is the bounden duty of the Court to go through the materials to ascertain as to whether a prima facie case has been established, which would justify and
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 merit the prosecution of the person. It has stated that the interest of the person arrayed as an accused must be kept in mind and rejection of such application for discharge cannot be on the basis of flippant or vague or vindicated allegations, bereft of probative evidence. The Court has highlighted the ordeals of a trial, which the accused has to suffer needlessly.
53. In M.E. Shivalingamurthy (supra), the Hon'ble Apex Court has summarized the legal principles applicable with regard to the application seeking discharge and after referring to its earlier decision in P. Vijayan (supra) laid down the following principles in paragraph No.17 which reads:
"17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial". 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused."
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54. In Rumidhar (supra) the Hon'ble Apex Court has held in paragraph No.17 as under:
"17. At the stage of framing the charge, the appellant filed an application for discharge. One of the main accused is the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law."
55. In Ramprakash Chada (surpa) the Court was referring to invilable right of an accused and the obligation of the learned Magistrate before committing the matter to the Sessions Court and held that even though Section 227 of Cr.PC, couched a negative obligation on the Court concerned to consider the records and the documents submitted, hear the submissions of the accused and the prosecution and to arrive at a conclusion as to whether or not sufficient ground for proceeding against the accused is available there under or not.
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 The Court has again cautioned the Courts about the ordeal of an accused to face the full-fledged trial, without there being any sufficient grounds in support of the accusation made against the accused. It is held that the Court is required to record its reasons for discharging the accused as the same could be considered by the superior Courts when the order is challenged.
56. I have gone through the imputed orders passed by the Trial Court as well as by the Revisional Court. Even though they have concurred with one another for not discharging the accused, I do not find any positive reasons assigned for forming such an opinion. It is only stated that on meticulous consideration of the rival submissions and the allegations in pursuance of the documents available on record, on the face of it there are lot many suspicious circumstances regarding commission of offence. Therefore the Courts formed an opinion that, there are sufficient prima facie materials against the accused to proceed for a trial. But the prosecution has miserably failed to draw the attention of the Court to any of those sufficient prima facie materials to constitute the offence against the petitioners. Therefore, I am of the opinion that it is a futile exercise made by the prosecution to try the petitioners for
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NC: 2024:KHC:49829 CRL.P No. 3890 of 2018 C/W CRL.P No. 3891 of 2018 various penal provisions, without there being any sufficient grounds to proceed against them. In other words, on perusal of the final report, the documents that were highlighted by the prosecution and after hearing both the parties, I am of the opinion that the accusation made against the petitioners are groundless and hence, they are entitled for discharge.
57. Accordingly, I answer the above point in the Affirmative and proceed to pass the following:
ORDER
(i) The petitions are allowed.
(ii) The order dated 24.06.2017 passed in C.C.No.25491 of 2011, on the file of the learned I ACMM Bengaluru and the order dated 24.03.2018, passed in the Crl.RP.No.563 of 2017, on the file of the learned ACMM Bengaluru, are set aside in so far as it relates to the petitioners before this Court.
(iii) Consequently, the applications filed by accused Nos.
1, 3 4 & 5 13 & 14 under Section 239 of Cr.PC are allowed. They are discharged for the offence punishable under Sections 418, 465, 467, 468, 471, 474, 201, 120B of IPC.
Sd/-
(M G UMA) JUDGE BH/SPV List No.: 2 Sl No.: 19