Karnataka High Court
Pradeep Gurusiddappa Hoskoti vs State By Hubli City on 24 March, 2011
Author: V.Jagannathan
Bench: V. Jagannathan
I
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24Th DAY OF MARCH, 2011
BEFORE
THE HON'BLE MR. JUSTICE V. JAGANNATHAN
CRL.P. NO.2066/2010
BETWEEN:
1. PRADEEP GURUSIDDAPPA HOSKOTI,
Sb SHRI.GURUSIDDAPPA HOSKOTI,
AGED ABOUT 34 YEARS,
RESIDING AT NO.135/3,4Th CROSS, 8w" MAIN,
JAYANAGAR II BLOCK, BANGALORE-560 011.
2. SHREYAS PAUL,
S/O SHRI. SATHYASHEELA,
AGED ABOUT 39 YEARS,
RESIDING AT NO.14, 1 t' MAIN,
HEBBAL MAIN ROAD,
GANGANAGAR EXTENSION, BANGALORE.
3. SMT.PREETHINI,
W/O MR. ARUN KUMAR PAUL,
AGED ABOUT 35 YEARS
RESIDING AT NO.410/4a, 15TH CROSS,
JAYANAGAR II BLOCK,
BANGALORE-560 011.
.PETITIONERS
(BY SRI.SACHIN V.R., ADV. FOR SRI.DINESH M.KULKARNI, ADV.)
AND:
STATE BY HUBLI CITY POLICE STATION,
HUBBALLI.
.RESPONDENT
(BY SRI.VINAYAK KULKARNI, ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C. BY THE ADVOCATE FOR THE PETITIONERS PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.667/2003 PRESENTLY
PENDING BEFORE THE II JMPC COURT HIJBLI, AGAINST THE
PETITIONERS.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners who are the accused Nos. 2 to 4
respectively in C.C.No.667/2003 seeking to quash the entire proceedings against them b filing this appeal under Section 482 of Cr.P.C.
2. Following the complaint lodged by one S.D.Naik to the Police Inspector, Hubli Sub-Urban, Hubli, stating that in respect of the investment made by him in a sum of 1,00,000/- with East-West Investment and Marketing Services Ltd., controlled by its managing partner Arun Kumar Paul (Al in this case), the complainant received certificate of deposit and post dated cheques, but later on he came to know that the firm had closed down its business and owners were absconding and therefore the complainant felt that he was cheated and accordingly a case being registered against the firm and also the owners of the firm namely accused No. 1-Arunkumar Paul, accused No.2- Pradeep Hoskote and accused No.3-Shreyas Paul.
3. The said complaint lead to a case being registered in respect of the offences punishable under Sections 406, 420 r/w Section 34 of IPC and after completion of the investigation, charge sheet was filed against four accused persons namely, accused No.1- Arunkumar S. Paul and three petitioners herein. The petitioners filed an application under Section 239 of Cr.P.C. seeking discharge from the case and the said application was dismissed by the trial Court on 29.09.2006. Thereafterwords petitioners filed criminal revision petition before the learned Sessions Judge, Dharwad in Crl.R.P. No.175/2006 and following the memo filed by the petitioners, the said criminal revision petition was dismissed by the revision Court. Afterwords, the petitioners moved this Court in revision criminal petition 2025/2009 and that petition was also dismissed as withdrawn by order dated 31 .03.2009. 4
4. Now, the petitioners have filed this petition under Section 482 of Cr,P.C. seeking to quash the entire proceedings against them on the ground that petitioners 2 to 4 are not the accused against whom the complainant got any grievance inasmuch as it is accused No.1 who said to be the managing partner, whose name has been mentioned in the charge sheet material as the person who was dealing with the entire business transactions and even as per the panchamana mahazer drawn, all the materials which were seized under the mahazar were from the office of the accused No.1 and not these petitioners. Secondly, some of the persons who were in the same position as the present complainant also had filed complaint before the police and the complaint that ultimately came before the trial Court in the form of C.C.No.909/04, 748/04, 750/04 and 747/04 and C.C.No.746/04. The present petitioners were mentioned as accused Nos. 2 to 4 along with accused No. 1-Arunkumar Paul in all these cases. The trial Court after finding that the respective complainant5 had turned hostile, there being no other evidence to support the prosecution case, acquitted all 5 the accused persons Al to A4 in respect of the very same offence under Sections 406 and 420 of IPC.
5. Further the ground urged in the petition is that in respect of the very same complaint, some of the aggrieved persons like present complainant also filed the private complaint and those cases are PCR No.1004/04 and PCR No.10950/04 and in those cases, 'B' report was filed and after investigation, the trial Court accepted the 'B' report and thereafterwords the respective complainant did not question the 'B' report nor filed any protest petition to keep the case alive.
6. Learned counsel also pointed out apart from aforesaid material, some of the persons filed the complaint under Section 12 of the Consumer Protection Act and in the complaint, the respondents were East-West Investments & Marketing (I) Services Ltd., and Arunkumar S. Paul (accused No.1 in the present case). Thus, even in the complaint before the Consumer Redressal Forum, the main grievance k 6 was against accused No.1 and in the present case not against the petitioners 2 to 4.
7. Referring to all these factors into consideration, learned counsel argued that the proceedings against the present petitioners is nothing but abuse of process of law and moreover to attract Section 406 of the IPC, the prosecution will have to establish that there was entrustment of any property and as such the main ingredient is missing in the present case and so far as the petitioners 2 to 4 are concerned, therefore the question of petitioners committed breach of trust does not arise.
8. Apart from referring to the aforesaid grounds, learned counsel for the petitioners also relied upon several decisions of the Apex Court and this Court to contend that although revision petition to the High Court can be filed under Sub Section 1 of Section 397 inherent power of High Court is confined under Section 482 of the Cr.P.C and the High Court therefore can interfere with the order passed by the Courts below, if it is found that the it is necessary to 7 prevent abuse of process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order.
9. Reliance is also placed on Apex Court decision reported in MR 2009 SC 3250 to submit that in the said case most of the allegations were mainly against the proprietor and allegations against the others was only helping the accused in diverting paddy to other rice mill and in purchasing the property Benami - no specific role described to the others bald, and vague -- proceedings were held liable to be quashed. MR 2001 SC 2960. pressed into service by petitioners counsel to contend that, to attract Section 405 of Cr.P.C., it is necessary to show that there was entrustment of any property to the accused. As far as the complaint filed before the District Consumer Forum, Dharwad is concerned, though the xerox copies are produced, submission made is that where the documents are admitted, there is no bar to consider the same while exercising the power under Section 482 of Cr.P.C.
10. In the light of aforesaid decisions and the grounds, learned counsel for the petitioners sought for quashing of the proceedings against the present petitioners oni.
11. Learned Government Pleader for the respondent- State argued that the petitioners are at liberty to take all the grounds urged before this court, before the Trial Court and secondly the application for discharge was dismissed by the Trial Court and against that, the revision preferred by the petitioners was also dismissed and therefore the present petition is not maintainable.
12. It is then submitted that, though the petitioners counsel has brought to the attention of the court the various proceedings wherein the present petitioners were acquitted in criminal cases filed by the other complainants like the present one and also the police having filed the 'B' report in respect of some of the private complaints filed, apart from the petitioners being not shown as the respondents in the complaints filed before the District Consumer Forum, yet 9 according to the learned Government Pleader, in all those cases particularly in cases which ended in acquittal, the petitioners did take part in the trial and it was only after trial that the order of acquittal that was passed.
13. In the instant case, the petitioners therefore can ver well take the same defence before the Trial Court by contesting the matter and as such, even for this reason also, this petition under section 482 of Cr.P.C is liable to be dismissed.
14. Having thus heard both sides, the points that arise for consideration are the following:
15. The first one is, whether the petition under section 482 of Cr.P.C is maintainable and second point is as to whether interference by this court is called for in respec t of the proceedings so far as the present petitioners are concerned.
16. Before referring to the law laid down by the Apex Court in respect of the power conferred on the High Courts 10 u/s 482 of Cr.P.C, it has to be mentioned at the outset that against the dismissal of the application filed for discharge, the petitioners did file criminal revision petition before the Sessions Court at Dharwad in CR.R.P.No,175/06. They also filed a memo on 26. 11.08 stating that, in view of the objections raised by the court as regards the maintainability of the petition, the petitioners therefore sought for permission to withdraw the criminal revision petition and to move the High Court.
17. Learned Judge of the Sessions Court at Dharwad passed the order on the said memo on 27.11.08 and in the said order which is part of the order sheet produced, the court declined to give permission to withdraw the petition but instead dismissed the petition on the ground that it was not pressed in view of the grounds stated in the memo.
18. The above said order of the learned Sessions Judge is erroneous, in the sense, the prayer in the memo was not that the petition be dismissed as withdrawn, but on 11 the other hand, the prayer was, in view of the objections raised regarding maintainability, the petitioners sought for withdrawal of the petition and to permit them to move the High Court. Under these circumstances, all that the court below could have done was to have passed the order permitting the petitioners to withdraw the petition with liberty to move the High Court. This was not the order that was passed by the learned Sessions Judge.
19. The petition that was filed before the court in Crl.R.P.No.2025/09 by all the accused persons was dismissed as withdrawn. Under the said circumstances, whether the present petition is maintainable is the point to be considered.
20. The Apex Court in the case of Krishnan Vs Krishnaveni (MR 1997 S.C.987) has considered the scope of section 397, 401, 482, 483 of the Cr.P.C and has held that the High Court can entertain a revision petition u/s 481 notwithstanding the prohibition contained u/s 397(3) on the revisional powers of the High Court and went on to hold that 12 the inherent power of the High Court is still available u/s 482 of the code and the High Court on examination of the record, if it finds that there is grave miscarriage of justice or abuse of the process of the court or the required statutory procedure has not been complied with, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified under such circumstances, to exercise the inherent power and in an appropriate case even revisional power u/s 397(1) r/w section 401 of the Code and the said power can be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.
21. The court also observed that the object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. 1
I-,
22. In another decision of the Apex Court in the case of Popular Muthaiah Vs State (2006) 7 S.C.C 296, the Apex Court has gone on to observe that the High Court can exercise its inherent jurisdiction suo motu in the interest of justice and it can do so while exercising other jurisdiction such as appellate or revisional jurisdiction and no formal application for invoking inherent jurisdiction is necessary and the inherent jurisdiction can be exercised in respect of substantive as well as procedural matters.
23. Keeping the aforesaid law laid down by the Apex Court, in the instant case, in the light of the grounds put forward by the petitioners counsel, I am of the view that this court therefore can exercise its inherent power u/s 482 of the Cr.P.C to meet the ends of justice and also to prevent the abuse of the process of the court. Accordingly, I hold that the present petition u/s 482 of Cr.P.C. is perfectly maintainable as the petitioners have invoked the inherent powers of this court to prevent needless multiplicity of procedure and protraction of the proceedings. 14
24. Coming to the second point raised for consideration, the petitioners counsel submits that, going on with the proceedings in respect of the petitioners who are A- 2 to A-4 will serve no purpose, but on the other hand, the petitioners would be subjected to prolonged proceedings in the criminal court and when the very petitioners were acquitted by the Trial Court in the cases referred to earlier in respect of the ver same allegations made by the other complainants and when the private complaints filed in respect of the same complaint allegations against some other persons also having ended in filing of the 'B' report and only A-i being shown as the prime accused even in the complaint filed before the District Consumer Forum, under the said circumstances, continuation of the proceedings against petitioners 2 to 4 would not be in the interest of justice.
25. The said contentions put forward deserves to be accepted as in my view, the respondent-State has not denied the aforesaid proceedings referred to by the Learned counsel for the petitioners.
I. 15
26. The petitioners have also enclosed along with the present petition the orders of acquittal passed in C.C.Nos.909/2004, 748/2004, 750/2004, 747/2004 and a perusal of the judgment of acquittal passed by the Trial Court makes it clear that in all those cases the complainant had not supported the prosecution case and therefore the Trial Court acquitted the present petitioners in respect of the venj same offences viz., Sections 406 and 420 of the IPC. It is also pertinent to mention that the complainants in both cases which ended in acquittal were some of the witnesses who are cited in the present charge sheet against the present petitioners and A- 1. That apart, even the 'B' report filed was accepted by the Trial Court in the private complaints lodged by some of the complainants and the order sheet produced by the petitioners in respect of the P.C.No. 1095/94 and 1004/04 confirm that the Thai Court accepted the 'B' report d a t ty andtd not deem it fit to continue the proceedings.
27. The present complaint is also similar to the complaints that gave rise to the filing of the 'B' report in some cases and order of acquittal being passed in other 16 cases and therefore when the complaint allegations are directed mainly against A-i and even the charge sheet material indicating that all the material objects which were seized under the mahazars were all from the custody or possession of A-i and not the present petitioners and even in the complaint flied before the District Consumer Forum, the respondents being the 1 accused herein along with the S private firm in question i.e. East and West Investments Marketing Service Company and the present petitioners not being shown as the respondents in all those complaints filed before the District Consumer Forum, which factor is also not denied by the learned Government Pleader for the State, taking all these factors into account, continuation of proceedings against the present petitioners therefore would not be in the interest of justice. The petitioners will be exposed to unnecessary hardship once again going through the entire trial and when they were acquitted in all the earlier cases, no purpose would be served by once again asking the petitioners to go through one more innings before the Trial Court.
17
28. For the aforementioned reasons and in the light of the decisions referred to by the petitioner's counsel, the present petition requires to be allowed and the proceedings pending against the petitioners also will have to be quashed to meet the ends of justice. Hence, I pass the following order.
29. The petition is allowed and the proceedings which are pending against the present petitioners who are A- 2 to A-4 in C.C.No.667/03 on the file of the JMFC Court, Hubli stands quashed.
30. As this court has not considered the case of accused No.1, it is obvious that the Trial Court will have to proceed against A-i and as the matter is very old one, the Trial Court is directed to expedite the trial and complete it before the end of June 2011.
Sd/ JUDGE MBS/Dvr/