Karnataka High Court
K Janardhana Reddy vs State By on 3 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 830, (2019) 201 ALLINDCAS 455, (2019) 4 KCCR 3375, (2019) 5 KANT LJ 582
Author: Alok Aradhe
Bench: Alok Aradhe
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3rd DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
CRIMINAL PETITION NO.7847 OF 2018
BETWEEN:
K.JANARDHANA REDDY
S/O LATE VEMANARAYANAREDDY
AGED ABOUT 40 YEARS
PARTNER OF M/s S.B.LOGISTICS
PARTNERSHIP FIRM
NO.179/A, BEHIND JUDGE QUARTERS
NEW AMARAVATHI, HOSPET
BELLARY DISTRICT
R/A NO.145, 23RD CROSS
12TH MAIN, 3RD BLOCK
JAYANAGAR
BANGALORE - 560 011 ... PETITIONER
(By Mr.HASHMATH PASHA, ADV.)
AND:
STATE BY
C.B.I/A.C.B/BANGALORE
560 032
REP BY LEARNED SPECIAL
PUBLIC PROSECUTOR ... RESPONDENT
(By Mr.P.PRASANNA KUMAR, ADV.)
---
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE PROCEEDINGS
INITIATED AGAINST HIM IN SPL.C.C.NO.105/2014 ON THE
FILE OF LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE
AND SPL. JUDGE EXCLUSIVELY FOR MPs. AND MLAs.,
BANGALORE CITY, FOR THE OFFENCES UNDER SECTIONS
2
120-B R/W 409, 420, 434, 447, 468 AND 471 OF IPC AND
UNDER SECTION 13(2) R/w SECTION 13(1)(c) AND (d) OF
PREVENTION OF CORRUPTION ACT, 1988, WHICH IS
ARISING OUT OF R.C.NO.16-A/2012 ON THE FILE OF
CBI/ACB/BANGALORE AS AN ABUSE OF PROCESS OF LAW.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Sri.Hashmath Pasha, learned Senior counsel for the petitioner.
Sri.P.Prasanna Kumar, learned counsel for the respondent.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Section 482 of Code of Criminal Procedure, 1973, the petitioner seeks quashment of proceeding in Spl.C.C.No.105/2014 pending on the file of Special Judge, Bengaluru City for offences under Sections 120B, 379, 409, 420, 434, 447, 468, 471 of Indian Penal Code, 1860 (hereinafter 3 referred to as 'the IPC' for short) and Section 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. In order to appreciate the petitioner's challenge to the proceeding, few facts need mention which are stated infra.
4. The Supreme Court in W.P.No.562/2009 directed the Central Bureau of Investigation to conduct a preliminary enquiry in respect of 32.27 lakh tones of iron ore exported from Belekeri port from 01.01.2009 to 31.05.2010. The Supreme Court further directed that for conducting the aforesaid investigation, the reports dated 24.07.2012 and 05.09.2012 of Centrally Empowered Committee, filed before the Supreme Court may form the basic material for the purposes of investigation. In compliance of the order passed by the Supreme Court, the respondent conducted a preliminary enquiry. After completion of the enquiry, the respondent filed an interlocutory application seeking permission to register a criminal case. The Supreme 4 Court allowed the aforesaid application filed by the respondent and permitted the Central Bureau of Investigation to register criminal cases against the exporters who had exported 50,000 metric tones of iron ore without valid permits. A complaint was filed on 13.09.2012 for offences under Sections 120-B, 420, 379, 411 and 447 of the IPC as well as 13(1)(d) of Prevention of Corruption Act and also under Section 21 read with Section 4(1), 4(1-A) and 23 of the Mines and Minerals Development and Regulation Act, 1957 and Section 24 of Karnataka Forest Act, 1963. The respondent filed a charge sheet on 16.12.2013 before the Special Judge for offences under Sections 120-B, 409, 420, 434, 447, 468 and 471 of the IPC and also under Section 13(2) and 13(1)(c) and (d) of the Prevention of Corruption Act against the petitioner and 17 other accused persons. Thereafter, on further investigation, a supplementary charge sheet was filed on 20.12.2013 as against the petitioner and 52 others 5 for offences under Sections 120-B, 409, 420, 434, 447, 468 and 471 of the IPC.
5. It is the case of the prosecution that the petitioner entered into a criminal conspiracy with various other accused persons and purchased 1.62 lakh metric tones of illegal iron ore which was sourced from accused Nos.4, 5 and 11 and the aforesaid iron ore was excavated without valid permits. The investigation further revealed that accused Nos.4, 5, 10, 16 and 17 supplied 20,000 metric tones of illegally excavated and transported iron ore to M/s. SMS Private Limited. It is further stated in the charge sheet that accused persons had fabricated documents by obtaining invoices from various firms in order to pass off the said iron ore to show that the same has been procured from legal sources. The petitioner filed an application under Section 239 of the Code before the Special Judge on the ground that he has been made accused in Spl.C.C.No.135/2005 and initiation of second case in 6 respect of similar transaction would amount to breach of constitutional provision and sought discharge. The Special Judge, by an order dated 03.10.2018, has rejected the aforesaid application. In the aforesaid factual background, the petitioner has visited this Court.
6. Learned Senior counsel for the petitioner submitted that selling stolen articles is not an offence under the IPC. It is further submitted that second charge sheet has been filed against the petitioner in respect of same offence which is not permissible in law. It is also submitted that the firm is a body or corporate and until and unless the firm is impleaded as an accused, its partners cannot be prosecuted. It is also pointed out that the CBI, Chennai has filed a 'B' report which has been accepted by the Special Judge and no challenge has been made by the CBI to the order of the Special Judge at Chennai, accepting the 'B' report. It is also urged that even though the application filed by the petitioner for discharge has been rejected by the Special 7 Judge yet the petitioner can approach this Court in exercise of powers under Section 482 of the Code and seek quashment of the case on the ground that no case against him is made out. In support of his submissions, learned Senior counsel for the petitioner has placed reliance on the decisions of the Supreme Court in 'PEPSI FOODS LIMITED AND ANOTHER Vs. SPECIAL JUDICIAL MAGISTRATE AND OTHERS' (1998) 5 SCC 749, 'STANDARD CHARTERED BANK AND OTHERS Vs. DIRECTORATE OF ENFORCEMENT AND OTHERS' (2005) 4 SCC 530, 'ANEETA HADA Vs. GOD FATHER TRAVELS AND TOURS PRIVATE LIMITED' (2012) 5 SCC 661 AND 'SUNIL BHARTI MITTAL Vs. CENTRAL BUREAU OF INVESTIGATION' (2015) 4 SCC 609.
7. On the other hand, learned counsel for the respondent has invited the attention of this Court to Section 4 of the Indian Partnership Act, 1932 and has submitted that partnership is the relation between the 8 persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Attention of this Court has also been invited to Section 305 of the Code and it has been pointed out that the aforesaid provision provides for a procedure for dealing with an incorporated company or other body corporate as well as a society but does not include partnership firm. It is argued that the firm is not a juristic person. In support of aforesaid submissions, reference has been made to decisions of the Supreme Court in 'DULICHAND LAXMINARAYAN Vs. COMMR., OF INCOME TAX, NAGPUR' AIR 56 SC 354, 'COMPTROLLER AND AUDITOR GENERAL Vs. KAMLESH VADILAL MEHTA' (2003) 2 SCC 349, 'TANNA AND MODI Vs. CIT, MUMBAI XXV (2007) 7 SCC 434. It is further submitted that the decision rendered in STANDARD CHARTERED BANK, supra has no application to the obtaining factual matrix of the case as the Supreme Court in the aforesaid decision was dealing with the issue whether a company or corporate 9 body could be prosecuted for offences for which sentence of imprisonment is a mandatory punishment. While referring to the charge sheets in both the special cases, it is submitted that the allegations leveled against the petitioner in both the cases are different. It is further submitted that even in 'B' report filed by the CBI, Chennai, the fact has been taken note of that matter pertaining to excavation of all illegal quantity of iron ore has been taken care of by the CBI, Bengaluru. It is further submitted that charges leveled against the petitioner in both the cases are discharged and since the application for discharge has already been rejected, therefore, no interference is called for in exercise of inherent powers under Section 482 of the Code as the order does not suffer from any patent error of jurisdiction. It is also pointed out that the trial has commenced and about 25-30 witnesses have already been examined. Lastly, it is urged that the issue with regard to the patent error of jurisdiction has neither been treated nor has been argued before this Court. In 10 support of aforesaid submission, reference has been made to the decisions of the Supreme Court in 'ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. AND ANR. Vs. CENTRAL BUREAU OF INVESTIGATION' AIR 2018 SC 2039 AND IN 'NAYAN PRASAD AND OTHERS Vs. STATE OF BIHAR AND ANOTHER' (2018) 7 SCC 713.
8. By way of rejoinder reply, learned Senior counsel for the petitioner reiterated that the charge sheet previously filed covers the entire purchase of material by the petitioner and he is being dragged into second trial. It is also urged that an order under Section 239 of the Code against an accused is not a bar to exercise jurisdiction under Section 482 of the Code.
9. I have considered the submissions made by both the sides and have perused the record. It is well settled law that once first information report is registered, the accused can always approach this Court 11 by filing a petition under Section 482 of the Code of Criminal Procedure. A Two Judge Bench of this Court in the case of 'STATE OF HARYANA AND ORS VS CH. BHAJAN LAL AND ORS', AIR 1992 SC 604 after taking note of the decisions in the cases of 'HAZARI LAL GUPTA VS RAMESHWAR PRASHAD & ANR', 1972 (1) SCC 452, 'JEHAN SINGH VS DELHI ADMINISTRATION', AIR 1974 SC 1146, 'AMAR NATH VS. STATE OF HARYANA', AIR 1977 SC 2185, 'KURUKSHETRA UNIVERSITY VS. STATE OF HARYANA', AIR 1977 SC 2229, 'STATE OF BIHAR VS. J.A.C. SALDANHA', AIR 1980 SC 326, 'STATE OF WEST BENGAL VS. SWAPAN KUMAR GUHA', AIR 1982 SC 949, 'SMT.NAGAWWA VS. VEERANNA SHIVALINGAPPA KONJALGI', AIR 1976 SC 1947 and 'MADHAVRAO JIWAJIRAO SCINDIA VS.
SAMBHAJIRAO CHANDROJIRAO ANGRE', AIR 1988 SC 709, 'STATE OF BIHAR VS. MURAD ALI KHAN', AIR 1989 SC 1 dealt with the contour of exercise of inherent powers of the High Court under Section 482 of 12 the Code. The view taken by the Supreme Court has been reiterated in the case of BHAJAN LAL, supra.
10. The principles laid down in the aforesaid decisions have been reiterated by the Supreme Court in the case of 'THE STATE OF TELANGANA VS. HABIB ABDULLAH JEELANI & ORS', (2017) 2 SCC 779. The illustrations read as under:
(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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 55 of the Code.13
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) 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.
(5) 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 or proceeding against the accused.
(6) 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 14 proceeding 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.
(7) 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. It is worthy to note that the court has clarified that the said parameters for guidelines are not exhaustive but only illustrative.
Nevertheless, it throws light on the circumstances and situations where courts inherent power can be exercised.
11. In the backdrop of the well settled legal position, facts of the case in hand may be examined. From the material available on record, it is evident that the petitioner herein being partner of M/s. S.B.Logistics in conspiracy with accused Nos.4, 5, 10, 11 and 16 supplied 20,000 metric tones of illegal iron ore to M/s. 15 SMSPL during the year 2009-10. The principal allegation against the petitioner is that he had supplied iron ore without possessing valid permits issued by authorized Government agency. The activities of the petitioner in conspiracy and connivance with the other accused persons have caused wrongful loss of more than 90 crores to the Government exchequer and corresponding wrongful gain to the accused persons including the petitioner. The prosecution has filed various documents in the charge sheet which show that a prima facie case has been made out against the petitioner. The petitioner admittedly has filed an application under Section 239 of the Code for his discharge, which has been rejected by an order dated 03.10.2018. However, in the instant case, there is ample material on record against the petitioner.
12. Insofar as submission made by the learned Senior counsel for the petitioner that since the firm has not been made a party, therefore, the petitioner who is 16 a partner of the firm does not deserve consideration as the Supreme Court in the case of STANDARD CHARTERED BANK, supra was dealing with the question whether a company or a corporate body could be prosecuted for offences for which sentence of imprisonment is a mandatory punishment, which is evident from para 4 of the report. Therefore, the aforesaid decision, by no stretch of imagination can be considered to be an authority for the proposition that the term corporate body would include even a partnership firm. The aforesaid submission is therefore sans substance. Similarly, the contention that the second charge sheet has been filed against the petitioner in respect of the same offence does not deserve any acceptance as in first and second charge sheets, following allegations have been made which are reproduced below for the facility of reference:
"4. That Shri K.Janardhan Reddy (A-17), Partner, M/s. S.B.Logistics in conspiracy with Shri B.Nagendra (A-10), Shri Kuruba Nagaraj 17 (A-16), Shri G.Janardhana Reddy (A-4), Shri Alikhan (A-5), Shri Anand Singh (A-11) had supplied 20000 MTs illegal iron ore to M/s SMSPL during the period 2009-10. The said iron ore was transported from SBM Plot P.K.Halli (5041.14 MTs), Kiran Enterprises (MRK Plot) Bevinahalli (10897.99 MTs) and SVK Plot Vyasanakere Belekere (4073 MTs) which were controlled by the above mentioned accused persons and did not possess valid permits issued by DMG/Forest departments."
"16. Shri.K.Janardhana Reddy (A-15) is the managing partner of M/s S.B.Logistics. He exported a total quantity of 7,74,058 MT of iron ore through 17 shipments from Belekeri Port during the period from 01.01.2009 to 31.05.2010. Out of the exports made by M/s. S.B.Logistics a total quantity 7.58 MT of iron ore was found to be illegally excavated and transported without valid permits from various places of Bellary district to Belekeri port during the period from 01.01.2009 to 31.05.2010. He is also the proprietor of M/s S.B.Logistics (Transport Contractors), who 18 transported major portion of the said illegal iron ore purchased from various traders to Belekeri port through various stockyards without valid transportation documents. He has not produced the fake transportation documents on the basis of which he has transported illegal iron ore to Belekeri port by his proprietorship firm, M/s S.B.Logistics (Transporters and Contractors). Shri K.Janardana Reddy is also involved in the illegal transportation of iron ore in other mining related cases filed before this Hon'ble Court on the orders of Supreme Court of India."
13. Thus, from perusal of aforesaid averments contained in the charge sheets, it is evident that the charges against the petitioner are not the same. Therefore, the contention that the second charge sheet has been filed for the same offence also does not deserve acceptance.
14. Insofar as the submission that selling the stolen article is not an offence under the IPC is 19 concerned, the same is a plea which the petitioner can urge during the course of trial which has already commenced and about 25-30 witnesses have already been examined.
15. In view of the fact situation of the case, no case for exercise of inherent powers under Section 482 of the Code is made out as the case does not fall under any of the categories referred to supra. In the result, the petition fails and is dismissed.
16. In view of the dismissal of the petition, the pending interlocutory application does not survive for consideration and is accordingly dismissed.
Sd/-
JUDGE RV