Karnataka High Court
Mrs. Veena vs The State Of Karnataka on 24 July, 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.100549/2018
BETWEEN
1. MRS. VEENA, W/O MADHAV DONGRE
(HUSBANDS NAME WRONGLY DESCRIBED
AS MAHADEV)
AGE:52 YEARS, OCC. BUSINESS
RESIDENT OF KADOLKAR GALLI
BELAGAVI-01
2. MADHAV
(WRONGLY DESCRIBED AS MAHADEV)
S/O RANOJI DONGRE, AGE:60 YEARS
OCC. BUSINESS
RESIDENT OF KADOLKAR GALLI
BELAGAVI CITY. ...PETITIONERS
(BY SRI. A. P. MURARI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP. BY THE POLICE INSCPTOR
KHADE BAZAR POLICE STATION
BELAGAVI
BY THE ADDITIONAL STATE PUBLIC
PROSECUTOR, HIGH COURT OF KARNATAKA
DHARWAD BENCH
2. SADIQ B. HANCIHMANI
AGE:40 YEARS, OCC. BUSINESS
:2:
RESIDENT OF PLOT NO.52
BESIDES PAI RESORTS
AZAD NAGAR, BELAGAVI-16. ...RESPONDENTS
(BY SMT. SEEMA SHIVA NAIK, HCGP FOR R1
SRI. PRADEEP KUMAR, FOR SRI A.A.PATHAN,
ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
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 SECTIONS 120B, 201, 419, 471, 468 AND 420 IPC
AND 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 PETITIONERS CONCERNED.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The present petition has been filed by petitioners/accused Nos.1 and 3 under Section 482 of the Code of Criminal Procedure praying this Court to quash the order dated 18.01.2018 passed by the learned JMFC-III Court, Belagavi, in PCR NO.1/2018, for the offences punishable under Sections 120B, 201, 419, 471, 468 and 420 of the Indian Penal Code, 1860. :3:
2. I have heard learned counsel for the petitioners/accused and the learned counsel for respondent No.2 and the learned High Court Government Pleader for respondent No.1-State.
3. It is the submission of learned counsel for the petitioners/accused that respondent No.2 filed O.S. No.43/2009 for a declaration that he is the owner in possession of the suit property as per the oral gift (hiba) by defendant No.1. The said suit came to be dismissed. Against the said judgment and order, R.F.A. No.4095/2013 has been filed before this Court and the said appeal is still pending consideration by this Court. It is his further submission that respondent No.2 has filed a private complaint in P.C.R. No.1/2018 against the petitioners/accused. The learned Magistrate has passed the impugned order for further investigation by the police under Section 156(3) of Cr.P.C. Challenging the same, the petitioners/accused are before this Court. :4:
4. It is the submission of the learned counsel for the petitioners/accused that the impugned order is nothing but an abuse of process of law. The stamp papers were purchased by the lessee. The Petitioner No.1 is the lessor and he is nothing to do with the purchase of the said stamp paper through which the rent agreement has been created. It is his further submission that, the said E-Stamp papers have been purchased from Sri. Gajanan Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur Belagaum. It is further submitted that the complainant has written a letter to various authorities including the Hon'ble Chief Justice of Karnataka. In turn, the Secretary to Chief Justice through his letter dated 14.09.2017 has instructed to follow up with the investigation on the complaint filed against the purchaser of fake E-Stamp and Sri. Gajanan Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur Belagaum the issuer of the fake E-Stamp. Basing upon that, the Inspector :5: General of Registration and Commissioner of Stamps, Bengaluru has investigated and he has come to the conclusion that the E-Stamp purchased by Chandrumal Marandmal Parchani used for rent agreement is a fake E-Stamp. In that light, he directed the District Registrar, Belagavi to file a police complaint against Sri. Chandrumal Marandmal Parchani the purchaser and Sri. Gajanan Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur Belagaum. It is his further submission that already the investigation has been done by the Inspector General of Registration and Commissioner of Stamps, Benagaluru regarding the said fake Stamps and already much water has been flowed in O.S.No.43/2009 and in RFA No.4095/2013. It is his further submission that, the respondent No.2 has filed repeated application therein and after he becoming unsuccessful the present complaint has been filed. When the civil disputes are pending and the matter is under sub-judice and consideration before the Court, :6: then under such circumstances filing of the complaint and the issuance of the direction under Section 156(3) itself is not sustainable and it is abuse of process of law and as such he prays to allow the petitioner and to quash the proceedings against the petitioners are concerned.
5. Per contra, the learned counsel appearing on behalf of the respondent No.2 vehemently argued and submitted that the petitioner-accused Nos.1 & 3 have created the fake stamp paper in collusion with the other accused and entered into a rent agreement. He further submitted that there is a prima facie case made out by the complainant to show that it is a fake stamp paper. Even the investigation done by the Inspector General of Registration and the Commissioner of Stamps has clearly given his opinion stating that prima facie the E- Stamp purchased by Chandrumal Marandmal Parchani and used for the rent agreement is a fake E-Stamp. Under such circumstances, the complaint was came to :7: be filed. It is his further submission that, this Court can exercise the power under Section 482 of Cr.P.C, only if the complaint and other records produced have taken at their face value and accepted in entirety do not constitute any offence or make out the case against the accused. It is his further submission that if the entire records do not disclose the commission of any offence, then under such circumstances also the Court can exercise its power under Section 482. He is further relying upon the decision in the Case of State of Hariyana and others Vs. Ch. Bhajan lal and others reported in 1992 AIR 604 submitted that the Hon'ble Apex Court has elaborately given the guidelines under what circumstances the power can be exercised. In the instance case on hand no such situation is existing. Prima facie there exists a case as against the petitioner- accused having used the fake stamp paper with collusion with the other accused persons. As such it is not a case to quash the proceedings. He also further by :8: relying the decision in the case of Madhu Vs. State of Maharastra he reiterated the same. It is his further submission that the learned Magistrate after applying his mind has rightly issued the process and there is no illegality or irregularity in passing such orders. Taking into consideration the above facts and circumstances, the petition is devoid of merits the same is liable to be dismissed and accordingly he prays to dismiss the petition. The learned HCGP also supports the arguments of the learned counsel for the respondent No.2 and prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions of the learned counsels appearing for the parties and perused the records.
7. It is not in dispute from the facts and circumstances of the case that the present respondent No.2-complainant has filed O.S.No.43/2009 before the II Addl. Senior Civil Judge, Belagavi for declaration and :9: mandatory injunction and the matter was heard and the suit came to be dismissed by order dated 28.03.2013. It is also not in dispute that thereafter, the respondent No.2 has filed RFA No.4095/2013 and therein the Status-quo order has been granted and subsequently it was vacated and the matter is still pending. Though it is clearly goes to show that the said litigation is pending between the parties and it is also not in dispute that the stamp papers which has been stated to be fake and they have been challenged in the said suit and the said issue is also under consideration before the Civil Courts. The question which arises for the consideration before this Court is whether the order passed by the learned JMFC III Court by order dated 18.01.2018 is sustainable in law in view of the submissions made by the learned counsel for the petitioner. Before going to consider the said facts, in the decision quoted by the learned counsel for the respondent in the case of State of Hariyana stated supra at paragraph No.8.1, the Hon'ble Apex : 10 : Court has given certain guidelines under which categories of cases the power of this Court can be exercised either under Section 226 or under Section 482 of Cr.P.C. For the purpose of gravity I extract paragraph 8.1. which reads as under:
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- ï7 myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in : 11 : support of the same do not disclose 265 the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. [305D-H; 306A-E] 8.2. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justi- ï7 on and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself. [307B] State of West Bengal v. S.N. Basak, [1963] 2 SCR 52; distinguished.": 12 :
8. It is well proposed principles of law that the above said principles have also been reiterated by the Hon'ble Apex Court in the case of Taramani Parakh Vs. State of Madhya Pradesh and others reported in 2015 (11) SCC 260, wherein at paragraph No.11 it has been observed as under:
"11. Referring to earlier decisions, in Amit Kapoor vs. Ramesh Chander and Anr.[4], it was observed:
"27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is : 13 : needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to : 14 : determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.: 15 :
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
9. On close reading of the above citations, the Hon'ble Apex Court has made it very clear that more power of the Court under Section 482 of the Code, but more the power the more due care and caution has to be exercised in invoking these powers. The power of quashing the criminal proceedings particularly the charge framed in terms of 228 of the Code should be exercised very sparingly and with the circumspection and that too in a remote rare cases. Keeping in view the : 16 : said facts and circumstances let us consider the case on hand. A private complaint was came to be filed in P.C.No.1/2018. As could be seen from the order sheet made available at Annexure-E the order dated 18.01.2018 is as under:
"The aforesaid case is filed by the complainant against the accused No.1 to 7 for the offence punishable under Section 419, 420, 468, 471, 201, 120-B of IPC.
The complainant has complied with the directions issued by the Hon'ble Supreme Court in Priyanka Shrivatsava Vs. State of UP in (2015) 6 SCC 287.
On perusal of the private complaint, it is noticed that the aforesaid case needs to be further investigated by the police. Hence, this Court feels that the aforesaid case needs to be referred under Section 156(3) of Cr.P.C.
Hence, the above matter is referred to Khade Bazar P.S. for investigation under Section 156(3) of Cr.P.C.
Call on to await report.
By....
Sd/-
JMFC - III, Belagavi."
10. On close reading of the said order, it indicates that he has not applied his mind before : 17 : passing the order. He has only mentioned that the complaint has been filed as against the accused Nos.1 to 7 for the offences punishable under Sections 419, 420, 468, 471, 201 and 120B of IPC and the complainant has complied the direction issued by the Hon'ble Apex Court in Priyanka Srivatsava Vs. State of U.P. reported in 2015 (6) SCC 287 and on perusal of the private complaint, it is noticed that the afore said case needs to be further investigated by the police. Hence, referred under Section 156(3) of the Cr.P.C. The order itself shows the reference made in this behalf under Section 163(3) is for further investigation. If that word is used then it indicates that already the investigation is either in progress or the investigation has been completed or the some more investigation is required on the material which has been placed before the Court. Without mentioning anything the learned Magistrate has passed the order for further investigation though no law contemplated the learned Magistrate to : 18 : go for further investigation. If at all any further investigation has to be made that will be only after if any final report is filed by the investigating agency and if there are any deficiencies and if any request is made by the police under Section 173(8) Cr.P.C, then under such circumstances the Court can exercise. But when the private complaint has been filed and directly the court has passed for further investigation without any justifiable reasons in that light, the said order itself appears to be not justifiable since the court has not applied its mind and it is not sustainable in the eye of law.
11. Be that as it may. On perusal of the records, it goes to show that the respondent-complainant has written a letter to the Hon'ble Chief Justice and Hon'ble Chief Justice of Karnataka has directed for investigation on the complaint filed against the purchaser and the seller of the said fake stamp. In pursuance of the same, the Inspector General of Registration and Commissioner : 19 : of Stamps, Bengaluru investigated and has come to the conclusion that there is a prima facie appers that the E- Stamp purchased by Chandrumal Marandmal Parchani used for the rent agreement is a fake E-Stamp and he has also requested to file a complaint against Sri. Chandrumal Marandmal Parchani the purchaser and Sri. Gajanan Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur Belagaum as the seller of the said fake E-Stamp. When already the investigation has been done by the Inspector General of Registration and he has come to the consluion that it is the purchaser and the seller that who has played the fraud and issued the fake E-Stamp. Then under such circumstances, if any complaint is filed by the complainant, then under such circumstances he must substantiate the fact what is the role played by the present petitioner-accused in doing the fake E-Stamp. It is admitted fact that, Sri. Gajanan Multipurpose Souharda Sahakari Niyamit, Danegalli, Shahapur Belagaum has issued the said fake E-Stamp : 20 : and it is also admitted fact that it is purchased by Chandrumal Marandmal Parchani. If it is issued by one authority and purchased by another person, then under such circumstances what role has been played if it is not narrated in the complaint, then under such circumstances it will not be constituting any offence as contemplated under Indian Penal Code. There must be specific averments in the complaint in order to proceed under Section 156(3). It is well proposed preposition of law that before taking the cognizance and issuance of any of the orders by the Court, there must be application of mind and prima facia there must be material. If there is no prima facie material, then under such circumstances, the complaint ought to have been dismissed.
12. I have carefully and cautiously gone through the decision quoted by the learned counsel for the respondent in the State of Hariyana and others (supra), wherein it has been observed by the Hon'ble : 21 : Apex Court that, where a criminal proceeding is manifestly attended with a malafide and where the proceeding is maliciously instituted with an ulterior motive for breaking vengeance on the accused with a view to spite him due to private and personal grudge then under such circumstances also the proceeding are to be quashed and even it is observed that if prima facie it does not disclose the commission of any offence made out from the reading of the records, then also the proceedings can be quashed. Looking from any angle when admittedly the civil disputes are pending and the matter is under consideration and also he has written a letter and investigation has also been done and in the investigation already it is revealed the fact it is the Society and the purchaser who have played the fraud they be made as accused. If this particular facts if it could have been brought to the notice of the leaned JMFC, then under such circumstances he ought not to : 22 : have taken any steps proceeding under Section 156(3) of Cr.P.C.
13. Be that as it may. Even as could be seen from the records, the Stamp papers have been purchased in the year 2009 and the suit is also filed in the year 2009 and all the facts which were within the knowledge of the complainant that the E-Stamp has been obtained the documents have been created. No complaint registered. Keeping in view the above facts and circumstances, the ratio laid down by the Hon'ble Apex Court quoted supra, the petitioner has made out a case and it deserves to be allowed and accordingly the petition is allowed and the proceedings initiated against the petitioners-accused Nos.1 and 3 by order dated 18.01.2018 by the JMFC III Court, Belagavi is hereby quashed.
Sd/-
JUDGE Kms/*Svh/-