Karnataka High Court
Sri Srihari vs State By Karnataka on 20 October, 2020
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.1295 OF 2013
BETWEEN
Sri Srihari
S/o M V V Sathyanarayana
Proprietor
Sri Laxmi Balaji Trading Co.,
#1076, APMC Yard, 'D' Block
Davanagere
Davanagere Dist:-577001.
... Petitioner
(By Sri. Deepak S Shetty, Advocate)
AND
1. State by Karnataka
Rural Police
Tumkur - 572103
Represented by Special Prosecutor
Bangalore - 560001.
2. Sri T.S. Siddalingappa
S/o T.K. Shivanna
'Siddalingeshwara Nilaya'
Balaji Rao Street, Agrahara
Tumkur, Tumkur Dist.-572103.
... Respondents
(By Sri. K. Nageshwarappa, HCGP for R-1;
Sri M. Shashidhara - Adv., for R-2)
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This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to quash the
entire proceedings in Cr. No.405/2011 on the file of the
I-Addl. Civil Judge (Jr. Dn.,) and JMFC, Tumkur.
This Criminal Petition coming on for hearing,
through video conferencing this day, the court made the
following:
ORDER
This petition is filed by the petitioner / accused seeking to quash the entire proceedings initiated in Cr.No.405/2011 registered by Rural Police Station, Tumkur for the offences punishable under Sections 409, 419, 420, 463, 464, 465, 467, 468 and 379 of IPC.
2. Heard the learned counsel Shri Deepak S. Shetty for the petitioner and the learned counsel Shri M. Shashidhara for Respondent No.2 who appear through video conferencing. But learned HCGP for Respondent No.1 is present before court physically. Consequently, heard his arguments as well.
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3. It transpires in the case relating to Cr.No.405/2011 registered by the Tumkur Rural P.S. as per the complaint filed on 10.11.2011 that the complainant / second respondent herein namely T.S. Siddalingappa was running "Shree Siddalingeshwara Rice Industries" at Plot No.9/10, 2nd Phase, Antharasanahalli Industrial Area, Tumkur. The complainant was said to be purchasing paddy and hulling and was trading the same in Karnataka, Tamil Nadu and Andhrapradesh. In order to do the said business, the complainant used to purchase paddy from paddy growing areas and paddy markets. During the course of his business, the complainant was regularly approached by a good number of dealers who came to do business in the complainant's place. In the course of his business, the complainant was also approached by the accused / petitioner herein who had come to Tumkur in search of prospective buyers for sale of paddy. The accused is said to have mesmerized the complainant to purchase paddy from him even though the complainant was purchasing paddy from some others. Thus, the petitioner / accused started supplying paddy to :4: the second respondent / complainant on credit basis. He had supplied paddy from 29.05.2009 to 27.06.2009 on various dates under different bills. Thus, the accused / petitioner had supplied a total quantity of 6,042.29 quintals of paddy, even though the complainant did not place such orders. Though the second respondent had expressed his inability to store the said paddy in respect of which orders were not placed by him, the petitioner / accused had stated that he did not have sufficient space to store the same and that he would take back the paddy in respect of which orders were not placed, if they were not used. Further, the second respondent / complainant had paid Rs.55,10,000/- as part payment to the petitioner / accused through Bank transfers for supply of paddy.
4. Thereafter, the second respondent is said to have requested the accused to take back the paddy, for which the petitioner had told that as already promised, he would not demand any money for the remaining stock of paddy supplied by him. Subsequently, the second respondent had made use of the remaining stock of paddy and had :5: also made payments for the same by way of cash, in respect of which the complainant is said to have maintained records.
5. However, it is stated in the complaint that the accused / petitioner herein used to visit the complainant's office in the course of his business and was acquainted with the complainant's staff and had free access to the office of the complainant. As on 25.03.2011, the complainant / second respondent had noticed that five cheques drawn on ING Vysya Bank Ltd., Tumkur had gone missing from the complainant's Rice Mill office. Subsequently, he had received notice from the accused / petitioner, after which he came to know that this petitioner had stolen the cheques from the office of the complainant and had misused the same forging his signature. Hence, the complainant had filed the said private complaint, after which the case in Cr.No.405/2011 came to be registered for offences under the IPC.
6. The learned counsel for the petitioner has taken me through the averments made in the complaint relating :6: to PCR No.450/2011 and submits that the said PCR has been filed by the complainant / second respondent as a counter blast to avoid the proceedings initiated by the petitioner under Section 138 of the NI Act. Though in the memorandum of the complaint itself there is a specific allegation with regard to issue of notice by the accused / petitioner to the complainant / second respondent under Section 138 of the NI Act, the Trial Court, without noticing the same has ordered to register the case and has referred the same for investigation.
Further, Respondent No.2 while filing his private complaint, has categorically admitted that paddy was supplied to him by the petitioner and further that he had also used the entire paddy supplied by the petitioner. However, second respondent had not placed any material before the Trial Court to show that he had paid the entire amount to the petitioner towards supply of goods. Though respondent no.2 has asserted that he had maintained the records towards the entire payment made, he has not at all placed any material before the Trial Court, in spite of which the Trial Court had ordered for an investigation into :7: the matter. On receipt of information from the Court of the I Addl. Civil Judge and JMFC, the first respondent / police has proceeded with the case for investigation on the strength of the allegation made in the complaint against the accused.
It is the contention of the learned counsel for the petitioner / accused that after supply of paddy, the complainant had made payment in part and for the balance amount, he had issued post-dated cheques. When the petitioner / accused presented the said cheques, the same were dishonoured. Hence, petitioner got issued a mandatory notice and thereby instituted proceedings under Sections 138 and 142 of the Negotiable Instruments Act against the complainant / second respondent herein. The said proceedings are pending before the JMFC-I Court at Davanagere. These are the contentions taken by the learned counsel for the petitioner seeking to quash the entire proceedings in Cr.No.405/2011.
In support of his contentions, he has produced the documents namely the FIR in Cr.No.405/2011, the :8: complaint in PCR No.450/2011 and the entire order-sheet maintained in the aforesaid private complaint and so also complaint in PCR No.350/2011 filed by the petitioner against the second respondent herein and the order-sheet relating to C.C.No.1359/2012 which came to be registered before the JMFC-II Court, Davanagere. These are all the documents produced by the learned counsel for the petitioner in support of the grounds urged, seeking to quash the entire proceedings.
7. On the other hand, learned counsel Shri M. Shashidhara for Respondent No.2 has taken me through the initiation of the criminal proceedings against the accused in PCR No.450/2011. Based upon referring the complaint to the Jurisdictional Circle Inspector of Police, Tumkur Rural, he had entrusted the matter to the PSI of Tumkur Rural P.S. Based upon the complaint, Cr.No.405/2011 came to be registered against the accused / petitioner for offences punishable under Sections 409, 419, 420, 463, 464, 465, 467, 468 and 379 of IPC. On the basis of the said complaint filed by the :9: complainant, the case has been proceeded for investigation by the Investigating Agency relating to commission of offences. As revealed from the complaint, a sum of Rs.55,10,000/- had been paid by the complainant to the accused by way of bank transfers. Thereafter, the accused / petitioner herein had stolen the cheques of the complainant from the office of the complainant, since he was very much acquainted with the staff members in the Rice Mill office of the complainant. Thus, taking possession of the cheques of the complainant and thereby forging his signature in the cheques, the accused / petitioner herein has initiated a criminal complaint against the second respondent under Section 138 of the N I Act.
However, the case in Cr.No.405/2011 came to be registered by the Tumkur Rural P.S. in respect of the complaint filed by the complainant / second respondent herein. Though the Investigating Officer has proceeded with the case for investigation, the petitioner had approached this court seeking to quash the entire proceedings in Cr.No.405/2011. This court by order : 10 : dated 20.03.2013 had granted stay of the proceedings in Cr.No.405/2011, which stay was continued from time to time. Hence, the Investigating Officer though proceeded with the case for investigation, in view of stay operating in this petition, the entire proceedings in Cr.No.405/2011 has been halted. As on 5.9.2019, the interim order of stay granted earlier has been lifted by this court and the matter was listed for hearing.
On a previous occasion as on 12.09.2019, the petition came to be dismissed for non-prosecution in view of the fact that none appeared for the petitioner to prosecute the matter. However, on the very same date, i.e. on 12.09.2019 itself, the learned counsel for the petitioner filed a memo to recall the said order on the pretext that he was prepared to argue the matter and hence the petition was restored to file. Thereafter, though the matter was listed for hearing on several occasions, the learned counsel for the petitioner / accused had sought for time and got the same adjourned from time to time.
Even this day when the matter is called out, the learned counsel for the petitioner seeks a short : 11 : accommodation to produce certain citations in support of his case. This is a petition of the year 2011 and till now, there is no progress in the case such as filing the charge- sheet against the accused or collecting materials in respect of the offences lugged against the accused or to record the statement of witnesses. Hence, the learned counsel for Respondent No.2 seeks for dismissal of this petition, as there is no substance in the contention taken by the counsel for intervention and also for exercise of power under Section 482 Cr.P.C. Therefore, he prays for dismissal of this petition so that the case in Cr.No.405/2011 before the Trial Court could be proceeded for investigation. These are the contentions of the learned counsel for Respondent No.2 seeking for dismissal of this petition.
8. Learned HCGP for Respondent No.1 supports the contentions of the learned counsel for Respondent No.2, wherein subsequent to the complaint in PCR No.450/2011, the case came to be registered as Cr.No.405/2011 for the offences reflected in the FIR. : 12 : Therefore, the Investigating Officer is required to proceed with the case for investigation. Due to the institution of the present petition and stay granted in the petition, the entire proceedings have been halted and hence he submits that there are no justifiable grounds urged in this petition seeking to quash the entire proceedings in Cr.No.405/2011.
9. In the context of the contentions taken by the learned counsel for the petitioner and the learned counsel for Respondent No.2, it is relevant to refer to Sections 173 and 154 of the Cr.P.C.
As per Section 173 of Cr.P.C. the police officer concerned is required to give his report after completion of investigation in respect of the case. But however, in this case, the police officer has not been able to submit the report in respect of the case in Cr.No.405/2011 due to the fact of stay having been granted in this petition which was in force till prior to 5.9.2019.
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Further, Section 154 of the Cr.P.C. reads thus:
"Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf."
On the filing of a private complaint by the complainant, the same has been referred to the Circle Inspector of Police, Rural Circle, Tumkur and based upon referring the complaint, a case in Cr.No.405/2011 for offences reflected in the FIR is said to have been recorded by the police and thereafter proceeded with the case for investigation.
But in this matter, the case in Cr.No.405/2011 and also FIR was recorded. Thereafter, it is the duty cast on the Investigating Agency by collecting material documents : 14 : in order to lay a charge-sheet against the accused as contemplated under Section 173(2) Cr.P.C.
It is relevant to refer to Section 173(2) of the Cr.P.C., which reads thus:
173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the : 15 : person, if any, by whom the information relating to the commission of the offence was first given.
According to Section 173(2) Cr.P.C., every investigation under this Chapter shall be completed without unnecessary delay. As soon as it is completed, the officer-in-charge of Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating, a) name of the parties,
b) nature of information, c) names of the persons who appear to be acquainted with the circumstances of the case, d) whether any offence appears to have been committed and is so, by whom, e) whether the accused has been arrested, f) whether he has been released on his bond and if so, whether with or without sureties and g) whether he has been forwarded in custody under Section 170 Cr.P.C.
These are the formalities which are very much required to be followed by the Investigating Officer as contemplated under Section 173(2) Cr.P.C. Nothing in : 16 : this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).
But however, in the instant case, after registering the FIR in Cr.No.405/2011, there is no progress in the investigation even though the matter has been referred for investigation and to submit a report, in view of the stay granted in this petition. Thus, the entire proceedings have come to a halt where it requires to lay the charge- sheet against the accused as contemplated in law. Thus, in this case, there is no progress in the investigation. If the charge-sheet as contemplated under Section 173(2) Cr.P.C. is laid, then the accused has the right to seek : 17 : discharge. But however, there is no progress of the case since there is no power vested with the Investigating Authority to proceed with the case for investigation in order to record the statement of witnesses and to conduct mahazar. But when power under Section 173(2) and Section 173(8) is exercised, the Investigating Officer obtains further evidence, oral and documentary and then forwards the same to the Magistrate in the form prescribed. Such conclusion should be taken cognizance by a competent court under Section 190(1)(b) of the Cr.P.C. to proceed with the case for trial relating to investigation.
10. In the case on hand, when there is no such progress by the Investigating Agency, the question of quashing the proceedings under Section 482 Cr.P.C, would not arise. Therefore, there is no substance in the contention of the learned counsel for the petitioner for seeking intervention by exercising power under Section 482 Cr.P.C. Consequently, the petition deserves to be rejected. Accordingly, I proceed to pass the following: : 18 :
ORDER The petition filed by the petitioner / accused under Section 482 Cr.P.C. is hereby rejected. It is made clear that whatever observation made by this court in this order, shall not come in the way of the Investigating Agency or the Trial Court relating to the case in Cr.No.405/2011. Thus, the Trial Court shall proceed with the case, in accordance with law based upon the merits of the allegations.
Sd/-
JUDGE KS