Karnataka High Court
Chandrumal S/O Morandmal Parchani vs The State Of Karnataka on 18 November, 2021
-1-
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.P NO.100651/2018
BETWEEN
1. CHNDRUMAL S/O MORANDMAL PARCHANI
AGE: 63 YEARS,
OCC: BUSINESS,
R/O: ADARSH NAGAR,
VADGAON,
BELAGAVI-590006.
2. SANJAY S/O CHANDRUMAL PARCHANI,
AGE: 40 YEARS,
OCC: BUSINESS,
R/O: ADARSH NAGAR,
VADGAON,
BELAGAVI-590006.
3. NANDKUMAR S/O CHANDRUMAL PARCHANI,
AGE: 35 YEARS,
OCC: BUSINESS,
R/O: ADARSH NAGAR,
VADGAON, BELAGAVI-590006.
4. VIJAY S/O APPAJI ANGOLKAR
AGE: 65 YEARS, OCC: BUSINESS,
R/O: GONDHALI GALLI,
BELAGAVI-590002.
...PETITIONERS
(BY SRI.A.P.MURARI, ADV.)
-2-
AND
1. THE STATE OF KARNATAKA
REP. BY THE POLICE INSPECTOR,
KHADE BAZAR POLICE STATION, BELAGAVI,
BY THE ADDITIONAL STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
2. SADIQ B. HANCHINMANI
AGE: 40 YEARS, OCC: BUSINESS,
R/O: PLOT NO.52, BESIDES PAI RESORTS,
AZAD NAGAR, BELAGAVI-16
RESPONDENTS
(BY SRI.PRAVEEN K.UPPAR, HCGP FOR R1,
SRI.PRADEEPKUMAR, ADV. FOR SRI.JAGADISH PATIL, ADV. FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE ORDER AT ANNEXURE-E DATED 18.01.2018
PASSED BY THE JMFC-III COURT, BELAGAVI, IN PCR NO.01/2018
REFERRING THE PRIVATE COMPLAINT AT ANNEXURE-D FOR
INVESTIGATION UNDER SECTION 156(3) CR.P.C., TO THE POLICE
INSPECTOR, KHADE BAZAR, P.S., BELAGAVI AND CONSEQUENTLY TO
QUASH THE REGISTRATION OF FIR AS PER ANNEXURE-F IN KHADE
BAZAR POLICE STATION CRIME NO.12/2018 DATED 03.02.2018, IN
SO FAR AS PETITIONERS ARE CONCERNED.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.11.2021 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
-3-
ORDER
The petitioners who are arrayed as accused Nos.2, 5, 6 and 7 in crime No.12/2018 of Khade Bazar Police Station registered on the basis of the order dated 18.01.2018 passed by the learned JMFC-III Court at Belagavi in PCR No.1/2018, for the offences punishable under Sections 120B, 201, 419, 471, 468 an 420 of IPC, are before this court seeking to quash the criminal proceedings initiated against them, in the interest of justice.
2. Brief facts of the case are that, respondent No.2 being the complainant filed the private complaint in PCR No.1/2018 before the trial court against accused Nos.1 to 7 alleging commission of the offence as stated above. It is contended that respondent No.2 had filed a suit in O.S.No.43/2009 before the learned II Additional Senior Civil Judge, Belagavi, seeking declaration that he is the owner in possession of the suit property as per the oral gift by his father and also to declare that the sale deed executed by his father in favour of accused No.1 is illegal, void and is not binding on him. The said suit came to be dismissed, vide judgment and decree -4- dated 28.03.2013. Being aggrieved by the same, respondent No.2 preferred an appeal in RFA No.4095/2013 before this court and an interim application under Order 41 Rule 5 r/w Section 151 of CPC was filed seeking stay of the operation of the impugned judgment and decree passed by the trial court. It is stated that this court had passed an order to maintain status- quo regarding title and possession of the suit property. During pendency of the first appeal, respondent No.2 came to know on 18.06.2015 that accused No.1 and her husband along with others break opened the lock put to the suit property without permission and trespassed into the same. When this fact was brought to the notice of the court by filing an application under Order 39 Rule 2A of CPC, the contempt proceedings were initiated against accused No.1.
3. In the meantime, respondent No.2 filed an application before the Inspector General of Registration and Commissioner of Stamps, Bengaluru, Department of Stamps and Registration, Government of Karnataka for getting certified copy of the document, which was produced by the contemnor/accused -5- No.1 before the court in the first appeal, styled as lease deed. Respondent No.2 received the copy of the document engrossed on an E-Stamp Paper, which is completely different from the copy of the E-Stamp Paper produced before this court in the regular first appeal. From this document, it was evident that, all the accused in collusion with each other, concocted, forged, fabricated and manufactured the document and produced before this court with malafide intention to obtain a favourable order and to get possession of the suit property and they have played fraud upon the court and also caused obstacle in the stream of justice delivery system. They have also concocted rent receipts to justify their possession over the property. Thereby the accused have mislead the High Court to save their skin. Complaints were addressed to several authorities including the Hon'ble Chief Justice of India and also Hon'ble Chief Justice of Karnataka.
4. It is stated that, a complainant was also lodged with Khade Bazar Police Station, Belagavi to enquire about the forgery and concoction of the document. When no steps were -6- taken by the police on the said complaint, the complainant filed a private complaint, seeking initiation of criminal proceedings. It is stated that in the meantime, Inspector General of Registration and Commissioner of Stamps, Bengaluru, addressed a letter to the Registrar, High Court of Karnataka, Bengaluru, stating that, on going through the reports of the Area Manager (E-Stamping), Bengaluru and the authorized signatory of Karnataka State Souharda Federal Co-operative Ltd., Bengaluru, prima facie it appears that E-Stamp purchased by Chandrumal Marandma Parchani i.e., accused No.2 and used for rent agreement is a fake E-Stamp. It is also stated that, in this regard District Registrar, Belagavi has been directed to file a police complaint against accused No.2, the purchaser of E-Stamp Paper and Sri.Gajanana Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur, Belagavi, which sold the fake E-Stamp Paper. Therefore, it is stated the there are sufficient prima facie materials to constitute the offence as alleged in the complaint and requested the trial court to take cognizance of the offence and to initiate legal action.
-7-
5. The trial court vide order dated 18.01.2018 felt that the matter is to be referred for investigation under Section 156(3) of Cr.P.C. and referred for investigation to Khade Bazar Police Station. Accordingly, FIR was registered against accused Nos.1 to 7 in crime No.12/2018, for the offence punishable under Sections 120B, 201, 419, 471, 468 and 420 of IPC and the investigation was undertaken.
6. The petitioners being arrayed as accused Nos.2 and 5 to 7 have approached this court invoking the inherent jurisdiction of this court under Section 482 of Cr.P.C. seeking to quash the criminal proceedings initiated against them.
7. Heard the learned counsel Sri.A.P.Murari for the petitioners and learned HCGP Sri.Praveen K.Uppar for respondent No.1 and learned counsel Sri.Pradeepkumar for Sri.Jagadish Patil for respondent No.2.
8. Learned counsel for the petitioners submits that there are absolutely no prima facie materials to invoke any of the penal provisions. The learned Magistrate has not applied his mind while referring the matter for investigation. Even though -8- the status-quo order was passed in RFA No.4095/2013, the same was to protect the possession, that was with accused Nos.1 and 2. The trial court in O.S.No.43/2009 categorically held that it was accused No.1 who was in possession of the property and not respondent No.2. Therefore, this court dropped the contempt proceedings initiated against accused No.1 and the appeal is still pending for consideration on merits.
9. Learned counsel further submitted that accused Nos.1 and 3 against whom the criminal proceedings were initiated, approached this court by filing similar petition in Crl.P.No.100549/2018, which was came to be allowed vide order dated 24.07.2019. The Coordinate Bench of this court categorically held that there is non-application of mind by the learned Magistrate in referring the matter for investigation and also held that no offence is made out against accused Nos.1 and
3. Therefore, criminal proceedings against them was quashed. The petitioners also stand on similar footing. Therefore, the present petition also deserves to be allowed by extending the benefit of parity.
-9-
10. Learned counsel further submitted that the allegations made in the private complaint is ceased off in RFA No.4095/2013, which is pending for consideration before this court. As per the impugned judgment and decree passed by the trial court, accused No.1 is the person who was in possession of the property, as the property was sold under the registered sale deed by the father of respondent No.2. Respondent No.2 filed a suit in collusion with his father and therefore, the father of respondent No.2 has never contested the matter and remained ex-parte. Learned counsel further submitted that, when the trial court categorically held in the civil suit that it was accused No.1 who is the owner of the property and respondent No.2 is not entitled for any declaration as sought in O.S.No.43/2009, respondent No.2 is no-way concerned to the property in question. Under such circumstances, he could not have filed any complaint making frivolous allegations. Since the matter is ceased off before this court in RFA No.4095/2013, where the document in question was produced, no criminal proceedings could be initiated against the accused. Since no offence is made out against any of these petitioners, criminal proceeding is liable
- 10 -
to be quashed, in the interest of justice. Accordingly, he prays for allowing the petition.
11. Per contra, learned counsel for respondent No.2 opposing the petition submitted that quashing of criminal proceedings against accused Nos.1 and 3 would not enure to the benefit of the present petitioners, as the Coordinate Bench of this court has made distinction between the allegations made against accused Nos.1 and 3 and accused No.2, who is one of the petitioners herein. Therefore, the benefit of parity could not be extended to the present petitioners.
12. Learned counsel drawn my attention to the report submitted by the Karnataka State Souharda Federal Co- Operative Ltd., Bengaluru, to contend that it substantiates the contention taken by respondent No.2. There is specific allegation against accused No.2 by referring to his act about concoction of the documents. A separate complaint was also field against Shree Gajanana Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur, Belagavi by the department itself. Respondent No.2 filed separate private complaint against
- 11 -
accused Nos.1 to 7. Since there are prima facie materials to constitute the offence, the criminal proceedings against these petitioners cannot be quashed.
13. Learned counsel further submitted that disputed document was first produced before this court in RFA No.4095/2013 and then only the existence of such a document came to the knowledge of respondent No.2. After getting copy of the said document from the department concerned and also after obtaining report from the Karnataka State Souharda Federal Co-Operative Ltd., Bengaluru, it is evident that it was accused No.2 who forged E-Stamp Paper and the document styled as lease/rent agreement before this court. Under such circumstances, a detailed investigation is required to be undertaken.
14. Learned counsel relied on the decision of the Hon'ble Apex Court in the case of 1M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, to contend that criminal proceeding should not be thwart at the initial stage and 1 ILR 2021 SC 1918
- 12 -
the police should be allowed to investigate into the matter and to submit final report, when there are prima facie materials against the accused.
15. Learned counsel also placed reliance on the decision 2 of the Hon'ble Apex Court in the case of Saraswatibai Vs Lalitabai and Others, to contend that, when the final report is filed, the accused are required to be relegated to approach the learned Magistrate to seek discharge. Therefore, he submits that the petitioners can move necessary application before the trial court seeking their discharge. Even they can seek acquittal, but they cannot seek quashing of the criminal proceedings, at this stage. Accordingly, he prays for dismissal of the petition, in the interest of justice.
16. Learned HCGP, representing respondent No.1 submitted that since the investigation in the matter is still pending, appropriate orders may be passed.
17. Perused the materials on record. The point that would arise for my consideration is:
2
(2019) 16 SCC 272
- 13 -
Whether the criminal proceedings initiated against the petitioners under Sections 120B, 201, 419, 471, 468 an 420 of IPC is liable to be quashed under Section 482 of Cr.P.C.?
My answer to the above point is in the 'Affirmative.' for the following:
REASONS
18. Respondent No.2 filed private complaint against the petitioners and others alleging commission of the offence punishable under Sections 120B, 201, 419, 471, 468 and 420 of IPC. It is the specific contention of the complainant that on 18.06.2015, he came to know that accused No.1, her husband Mr.Mahadev Dongre and others have break opened the lock of the property in question and trespassed over the same, when RFA No.4095/2013 was pending before this court and an order to maintain status-quo was in force. It is also brought to the notice of the complainant that, they have started work and renovation/construction in the suit property after which the complainant got issued a notice calling upon them to stop the work of renovation/construction. Accordingly, the said work was
- 14 -
stopped. The complainant again came to know that on 18.10.2015, accused Nos.1 and 2 and others again break opened the lock put to the property and started to work again. Therefore, he filed an application under Order 39 Rule 2A of CPC, i.e, I.A.No.1/2015 in RFA No.4095/2013 before this court seeking initiation of contempt proceedings. Accused No.1 filed his reply to I.A.No.1/2015 and produced a document engrossed as an E-Stamp Paper dated 20.05.2013, styled as rent agreement and some rent receipts, only to mislead this court and for getting some favourable orders. The complainant came to know that the said E-Stamp Paper is a fake one, as he obtained the stamp paper bearing similar serial number, which was not tallying with the stamp paper which was produced before this court. Therefore, it is contended that, all the accused in collusion with one another created and produced the forged, fabricated and manufactured document before this court with malafide intention to obtain some favourable orders and to obtain possession of the suit property and thereby they have played fraud on the court and also caused obstacle in the
- 15 -
process of justice delivery. It is also stated that accused have hatched a conspiracy in committing the offence.
19. While appreciating the contention of the complainant, the dispute between the parties with regard to the property in question is to be taken into consideration. Admittedly, the complainant is the son of one Sri.Basheerahamed Hanchinamani. The said Basheerahamed had executed a registered sale deed in favour of accused No.1 on 03.02.2009, in respect of the suit property, i.e., shop premises bearing T.S.No.1906/1A measuring 102 sq.mts. The complainant filed O.S.No.43/2009 against his father Basheerahmed and accused No.1 Mahadev Dongre, seeking declaration that he is the owner in possession of the suit property, as per the oral gift declared by his father and also to declare that the sale deed dated 03.02.2009 executed by his father in favour of accused No.1, is illegal, bogus, null and void, the same is not binding on the plaintiff and for grant of permanent injunction restraining the defendants i.e., the father of the complainant and accused No.1
- 16 -
from disturbing the lawful possession of the suit property by the complainant.
20. It is pertinent to note that defendant No.1 Basheerahmed remained ex-parte and has not contested the suit. Accused No.1 contested the suit and the suit was came to be dismissed, vide judgment and decree dated 28.03.2013 on the file of the learned II Additional Senior Civil Judge, Belagavi. Challenging the judgment and decree passed by the trial court, the complainant preferred appeal before this court in RFA No.4095/2013 and the same is still pending for consideration. During the pendency of the appeal before this court, an order of status-quo was passed with reference to the title and possession. In the meantime, it is alleged by the complainant that accused No.1 with the help of others break opened the lock put to the premises and started construction work, thereby violated the order to maintain status-quo passed by this court and it amounts to disobedience of the order of the court. Accordingly, an application to initiate contempt proceedings against accused No.1 was filed.
- 17 -
21. It is pertinent to note that, an application in I.A.No.2/2016 was filed by accused No.1 to vacate the interim order of status-quo passed by this court. The said application was considered by this court along with I.A.No.3/2016 seeking direction to handover the key from the registry in favour of accused No.1. The said I.A.No.3/2016 was allowed and registry was directed to handover the key to accused No.1 by holding that, it was accused No.1 who was in possession of the property by virtue of the sale deed and the said possession is to be protected pending disposal of the appeal vide order dated 28.03.2016. However, the name of accused No.1 which was already entered in CTS records on 30.03.2015 was ordered to be subject to the final result of the appeal.
22. In the meantime, the contempt proceedings initiated against accused No.1 and two others, i.e., one Vicky Jay Sons and D.A.Kamble who is City Survey Officer, was also came up before the Division Bench of this court in C.C.C.No.100157/2016 (Civil) and the proceedings was closed, with liberty to the parties to agitate their respective claim in RFA No.4095/2013, vide
- 18 -
order dated 14.02.2017. It is pertinent to note that there is reference to lease deed dated 20.05.2013 executed by accused No.1 in favour of accused No.2 and it was alleged by the complainant that lease deed was ante-dated to show that the same was came into existence prior to the date of status-quo order which was passed on 03.06.2013. However, the Division Bench which was dealing with contempt application gave a clear finding that the "allegations against the accused that the document was ante-dated to circumvent the ex-parte order dated 03.06.2013 does not impress us". With this background in mind, the contention of the complainant against the petitioners is to be taken into consideration.
23. It is pertinent to note that Sections 419 and 420 of IPC are invoked against the accused. To invoke these provisions, there must be cheating and dishonestly inducing delivery of property. The cheating is defined under Section 415 of IPC. There must be deceiving of a person, fraudulently or dishonestly inducing him to delivery any property to any person etc. Similarly, Section 468 of IPC is also invoked, which refers to
- 19 -
forgery for the purpose of cheating with an intention to use the forged document for the purpose of cheating. Section 120B of IPC is also invoked contending that accused have criminally conspired to commit an illegal act.
24. The facts of the case narrated above, discloses that right claimed by respondent No.2 is inchoate right, which is not yet recognized by any court. He is contending that property in question was gifted in his favour by his father orally. But whereas, it is the specific contention of accused No.1 that, father of respondent No.2 sold the property under a registered sale deed in his favour. Even though, respondent No.2 filed a suit before the civil court seeking declaration of his right over the property claiming to be the owner of the property on the basis of the oral gift deed and that the registered sale deed executed by his father in favour of accused No.1 is not binding on him, admittedly, the said suit filed in O.S.No.43/2009 came to be dismissed and it is held that registered sale deed is executed by the father of respondent No.2 conveying the title over the property in favour of accused Nos.1, and respondent No.2 is not
- 20 -
entitled for the declaration as sought for. Challenging the said judgment and decree, RFA No.4095/2013 is filed before this court, which is still pending for consideration. Even though status-quo order was passed in respect of the title and possession of the property, it is made clear by this court that it is only to protect the title and possession of accused No.1, who is held to be in possession over the schedule property. Even though the said finding given by the trial court is under challenge before this court, the fact remains that there are no prima facie materials to contend that the possession of the property was handed over in favour of respondent No.2 by his father at any time. On the other hand, the order dated 28.03.2016 passed in RFA No.4095/2013 discloses that there was categorical admission on the part of respondent No.2 that he was never in possession of the scheduled property.
25. Under the above circumstances, the question arises as to what is the right of respondent No.2 to file the complaint against the accused to invoke the penal provisions referred to above. Learned counsel for respondent No.2 failed to
- 21 -
substantiate his contention about the right of respondent No.2 to invoke Sections 120B, 419, 420, 468 of IPC.
26. Respondent No.2 has also invoked Section 417 of IPC making specific allegations in the complaint that the accused in collusion with each other concocted, forged, fabricated and manufactured the document. The same was produced before this court with malafide intention to obtain a favourable order and to get possession of the suit property and thereby accused have played fraud on the court and also caused obstacle in the stream of justice delivery. It is pertinent to note at this juncture again that it was accused No.1 who said to have produced the document in question before this court with ulterior motive as contended by respondent No.2. but it is not these petitioners.
27. It is also pertinent to note that accused No.2 and 5 to 7 who are petitioners herein, are not parties either in O.S.No.43/2009 or in RFA No.4095/2013 before this court. Under such circumstances, respondent No.2 should have made clear about the role played by these petitioners in concocting the
- 22 -
document as contented by him and producing the same before the court to take advantage of the same in the first information.
28. It is to be noticed that this court vide order dated 03.06.2013 made it clear that status-quo order to be maintained in respect of the suit property means the title and possession of the purchaser i.e., accused No.1 was to be maintained in terms of the said order. Even in the order dated 14.02.2017 in C.C.C.No.100157/2016 (Civil), which is produced as Annexure-C, the Division Bench of this court specifically referred to the order dated 28.03.2013 wherein it is made clear that the status-quo order dated 03.06.2012 is only to protect the title and possession of accused No.1, who succeeded in the suit. It is also to be noticed that lease deed in question executed by accused No.1 in favour of accused No.2 is dated 20.05.2013 i.e., prior to the date of status-quo order and it is held that the allegations against the accused that the document was ante-dated to circumvent the ex-parte order dated 03.06.2013 does not impress the court. However, liberty was reserved with the parties to agitate their respective claims in the pending regular
- 23 -
first appeal and held that the contempt proceedings initiated against accused No1 is to be dropped.
29. It is also pertinent to note that lease/rent agreement in question is said to have executed by accused No.1 as owner of the property in favour of accused No.2 as tenant. Execution of the document is not disputed by accused No.1 and he himself has produced it before this court in RFA No.4095/2013. When the right of respondent No.2 over the suit property is not yet recognized, he cannot found fault with accused No.1 or accused No.2 about the document in question, as accused No.1 succeeded before the trial court in O.S.No.43/2009. It is also pertinent to note here that, father of respondent No.2 against whom declaration was sought in O.S.No.43/2009 remained ex- parte and has not chosen to contest the matter. Even in RFA No.4095/2013 before this court, he is placed ex-parte, which cannot be lost sight off. However, admittedly, RFA No.4095/2013 is pending and rights of the parties will be decided by the court. Since the disputed document is produced
- 24 -
before the court, the same will be considered in the light of the contentions taken by both the parties in the pending appeal.
30. The lease/rent agreement dated 20.05.2013 is said to be entered into between accused No.1 as owner and accused No.2 as tenant in respect of the disputed property. Whether accused No.1 was having right to execute the agreement in question and to induct accused No.2 as tenant, is a question that has to be decided by the court in the pending RFA. Admittedly, accused No.2 is not a party either in the suit or in the RFA.
31. It is also pertinent to note that accused Nos.1 and 3 have approached this court with similar prayer for quashing the criminal proceedings initiated against them by filing Crl.P.No.100549/2018. The Coordinate Bench of this court considered the contentions taken up by the parties and proceeded to allow the petition, quashed the criminal proceedings initiated against accused Nos.1 and 3 by setting aside the impugned order dated 18.01.2018 passed by the JMFC III Court, Belagavi. It is also pertinent to note that, it is categorically held that, when the private complaint has been
- 25 -
filed, the trial court directly proceeded to pass the order referring the matter for further investigation without any justifiable reasons and therefore, the impugned order itself appears to be not justifiable, as the court has not applied its mind. Therefore, it was held that the impugned order is not sustainable in the eye of law. Thus, the observation of the Coordinate Bench of this court does not refer only to accused Nos.1 and 3, but it is in general. When the order itself is already held to be not justifiable, passed without application of mind and not sustainable in the eye of law, I do not find any reason to reject the benefit of the said observations to the petitioners herein. Admittedly, the said order passed in favour of accused Nos.1 and 3 is not under challenge before any court of law and it has reached finality.
32. It was accused No.1 who produced the disputed document before this court in RFA No.4095/2013 while filing objections to the interlocutory application. Admittedly, accused No.2 who is petitioner No.1 herein, had not produced the said document before any authority. Even in the complaint,
- 26 -
respondent No.2 has not made it clear, as to the role played by accused Nos.2 and 5 to 7, who are petitioners herein, in concocting and forging the document or committing cheating against anybody including the court. Accused No.2 is arrayed as an accused only on the basis of the letter said to have been written by Inspector General of Registration and Commissioner of Stamps, Bengaluru and other than that, I do not find any prima facie materials to implicate accused No.2 in the offence in question. Against accused Nos.5 to 7, even such material is not available.
33. Admittedly, a separate complaint is already filed against Sri.Gajanana Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur, Belagavi, which sold the fake E-Stamp paper, by the Karnataka State Souharda Federal Co-operative Ltd., Bengaluru. The petitioners herein are not the accused in the said complaint. It is the specific contention taken in the said complaint that Sri.Gajanana Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur, Belagavi, which is arrayed as accused, sold the fake E-Stamp Paper and committed the
- 27 -
offence. When such is the allegation, what is the role played by these petitioners is not made clear. Therefore, I am of the opinion that there are absolutely no prima facie materials to proceed against these petitioners for the above said offenses. Moreover, learned counsel for the petitioners submit that, in the complaint that registered against Sri.Gajanana Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur, Belagavi, the further investigation is entrusted to the CEN Crime Police Station, Belagavi which has registered crime No.8/2018 and the investigation is undertaken. Under such circumstances, I do not find any reason for continuation of the criminal proceedings initiated against the present petitioners.
34. Learned counsel for respondent No.2 placed reliance on the decision of the Hon'ble Apex Court in the case of M/s Neeharika Infracture Pvt.Ltd (supra) to contend that inherent jurisdiction of the court under Section 482 of Cr.P.C. cannot be exercised casually and that the courts should find that there is abuse of process of court to exercise the said jurisdiction. The Hon'ble Apex Court in the said decision
- 28 -
discussed at length regarding the grounds on which inherent jurisdiction under section 482 of Cr.P.C. can be exercised to quash the criminal proceedings and under what stage. However, the Hon'ble Apex Court made it very clear that, criminal proceedings ought not to be scuttled at the initial stage and quashing of a complaint/FIR should be an exception rather than an ordinary rule. But at the same time, it is also held that, where no cognizable offence or offence of any kind is disclosed in the complaint or in the first information, the court shall not permit an investigation to go on. It is also held that where non- interference would result in miscarriage of justice, the court shall interfere to quash the proceedings. Therefore, the decision relied on by the learned counsel for respondent No.2 is not helpful to him.
35. Learned counsel for respondent No.2 also placed reliance on the decision of the Hon'ble Apex Court in Saraswatibai (supra), to contend that the accused are to be relegated to the trial court to seek remedy of their discharge. Learned counsel also contended that, even the accused can seek
- 29 -
acquittal by taking specific defence which were raised herein as the grounds for quashing the criminal proceedings. I have gone through the said decision of the Hon'ble Apex Court wherein the final report was already filed by the investigating officer after a detailed investigation for the offence punishable under Section 420, 464, 465, 468 and 471 r/w Section 34 of IPC. In spite of that, the High Court proceeded to quash the criminal proceedings including the final report. The said order passed by the High Court was found fault with by the Hon'ble Apex Court by observing as under:
"Once the final report was submitted under Section 173 of the Code of Criminal Procedure, normally the Accused, if aggrieved by the Final Report shall be relegated to approach the Magistrate for discharge. Even the High Court in the impugned order has also observed so. Despite the above, the High Court has without further discussing anything on merits of the Final Report has quashed the entire criminal proceedings, including the Final Report. On reading of the impugned order and judgment passed by the High Court, it appears that the High Court has not even observed anything on merits of the Final report and solely relying upon the statement of the counsel for the Accused as recorded in paragraph, 4 has believed the same and has quashed the criminal proceedings and the Final Report."
36. In the present case, admittedly, the investigation is still at the initial state and final report is not yet filed. The
- 30 -
discussions held above disclose that there are no prima facie materials to proceed against the petitioners for the offences alleged against them. Under such circumstances, the contention of the learned counsel for respondent No.2 that accused can be relegated to approach the trial court seeking discharge or acquittal cannot be accepted.
37. From the discussions held above, it is evident that the criminal proceeding is foisted with malafide intention, since the civil dispute is pending between respondent No.2 and accused No.1. But no prima facie materials are forthcoming to constitute the offence alleged against these petitioners. Therefore, I am of the opinion that, such criminal proceeding is liable to be quashed.
38. In view of the above discussions, I answer the above point in the 'Affirmative' and proceed to pass the following:
ORDER The criminal petition is allowed.
- 31 -
The proceedings initiated against the petitioners/accused Nos.2 and 5 to 7 in crime No.12/2018 of Khade Bazar Police Station registered on the basis of the order dated 18.01.2018 passed by the learned JMFC-III at Belagavi in PCR No.1/2018, for the offences punishable under Sections 120B, 201, 419, 471, 468 an 420 of IPC is quashed.
Sd/-
JUDGE MBS/-