Karnataka High Court
Rajshekar vs State By Banavasi Ps on 3 November, 2020
Author: K.Somashekar
Bench: K.Somashekar
:1: R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.8846 OF 2016
BETWEEN
Rajshekar
S/o. Basvanthappa Chalwadi
Aged about 26 years
R/at Hulugina Koppa
Kortagere Post
Shikaripura Taluk
Shimoga District-577 427.
... Petitioner
(By Sri. Mohammad Niyaz S, Advocate)
AND
1. State by Banavasi PS
Sirsi Taluk, Uttar Kannada District
Rep. by State Public Prosecutor
High Court of Karnataka
Bangalore-01.
2. Suresh
S/o. Kotrappa Harijan
Aged about 42 years
R/at Sakina, Tigani
Sirsi Taluk
Uttar Kannada District-518 318.
... Respondents
(By Sri.Vinayaka V.S., HCGP for R1;
Sri. H.S.Sureshappa Gowda., Adv., for R2 (Absent))
:2:
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to quash the FIR
in CR No. 111/2015 registered on the file of the 1st
Respondent police on the private complaint filed by the 2nd
Respondent before the learned magistrate at Annexure-A
and etc.
This Criminal Petition coming on for Hearing, this
day, the court made the following:
ORDER
In this petition, the petitioner is seeking to quash the FIR in Cr.No.111/2015 which came to be registered on a private complaint filed by the second respondent and further to quash the private complaint in PCR No.13/2015 for the offence punishable under Sections 418, 420, 468 of IPC.
2. Heard the arguments advanced by learned counsel for the petitioner and learned HCGP for respondent - State who are physically present before the Court. None appear for second respondent either through video conference or physically present before the court.
3. The first respondent - police registered a crime in Cr.No.111/2015 based upon a private complaint filed by :3: the second respondent who is a defacto complainant. It is averred in the complaint that the second respondent is the owner of the property bearing Sy.No.263, 261, 259 measuring 2 acre 1 guntas, 1 acre 7 guntas and 3 acres 13 guntas respectively. The second respondent was not cultivating the land even though they were belonging to him. Second respondent was in search of professional agriculturist to cultivate the lands. The petitioner being a close relative of second respondent and also a good agriculturist approached the second respondent with an offer to cultivate the land of second respondent.
4. It is further stated in the complaint as well as the materials available on record that the petitioner has put his endeavor along with all the fertilizer, labour and money in order to cultivate the landed properties. The petitioner day in and day out has made hectic efforts to cultivate the land belonging to the second respondent. It is further stated that due to mutual understanding, the second respondent had paid a sum of Rs.6,60,000/- to the petitioner by way of cheque dated 17.08.2015 drawn at Corporation Bank, Banavasi Branch, Sirsi Taluk with :4: an assurance that the cheque will be honoured. On receipt of the cheque, the petitioner relinquished all his rights over the aforesaid lands along with standing crop. When the said cheque was presented by the petitioner for encashment at his banker Corporation Bank, Shiralakoppa Branch, Shikaripura Taluk, Shimoga, to his shock and surprise, the said cheque was returned with shara stating "insufficient fund" and "signature differs". Subsequent to dishonour of cheque, the petitioner got issued legal notice to the second respondent calling upon him to pay the cheque amount within 15 days. Inspite of receipt of legal notice, the second respondent did not comply the demand of the petitioner.
5. Further, the second respondent in order to avoid the payment of legally enforceable debt to the petitioner filed a private complaint in PCR No.13/2015 on the file of the Civil Judge (Sr.Dn) and JMFC, Sirsi, U.K.District for the offence punishable under Sections 418, 420 and 468 of IPC. The court below took cognizance of the offences and directed the respondent to register the case for the aforesaid offences. As per the order of the court below the :5: first respondent - Police registered crime against the petitioner/accused in Crime No.111/2015 arising out of PCR No.13/2015. Aggrieved by the said order, the petitioner is before this Court for quashing of entire proceedings in Crime No.111/2015.
6. Learned counsel for the petitioner has taken me through the initiation of criminal proceedings against the petitioner. Based upon the private complaint filed by the respondent/defacto complainant in PCR No.13/2015, crime came to be registered in Crime No.111/2015. It is contended that subsequent to issuance of legal notice by the petitioner, the second respondent had initiated the criminal prosecution by filing private complaint in order to avoid payment of cheque amount. Therefore, it is contended that the cognizance taken by the court below is illegal and unsustainable in law and facts, since the complaint filed by the second respondent is a counter blast to the private complaint initiated by the petitioner under Section 138 of N.I.Act. It is further contended that taking cognizance by the court below is without subjective :6: satisfaction as required under the law and the same has resulted in miscarriage of justice.
7. The second limb of the arguments advanced by the petitioner's counsel is that the ingredients of Section 418, 420 and 468 of IPC relating to forgery of cheque and presenting the same for encashment is absolutely creative for initiating the private complaint against the petitioner. On that ground alone, the proceedings have to be quashed if not, certainly it is an abuse of process of law. On all these grounds, petitioner's counsel seeks for allowing the present petition by quashing the entire criminal proceedings against the petitioner/accused.
8. On the other hand, though the second respondent is a defacto complainant, none appear on his behalf though the matter is listed for final hearing. Whereas learned HCGP for the first respondent - State who is physically present before the court submits that based upon the private complaint initiated by the complainant who is arraigned as second respondent, the case in PCR No.13/2015 came to be registered. The case was referred for the purpose of investigation to the jurisdictional police :7: and consequently, Crime No.111/2015 came to be registered for the offences punishable under Sections 418, 420 and 468 of IPC relating to forging of cheque and presenting the cheque for encashment by the petitioner/accused. He contends that mere because the second respondent is said to be close relative and so also issued cheque in question, it cannot be a ground for quashing of the entire criminal proceedings in Crime No.111/2015. The investigating agency ought to have proceeded with the case without any obstacles in order to laying of the charge sheet as contemplated under Section 173(2) of Cr.P.C. On all these grounds, learned HCGP seeks for dismissal of this petition as there is no justifiable ground for quashing of the entire proceedings.
9. It is in this context of the contention as taken by learned counsel for the petitioner and so also, counter made by the learned HCGP for the State, it is relevant to state that there is no dispute that the second respondent/defacto complainant had initiated criminal prosecution against the petitioner/accused in PCR No.13/2015. The FIR is said to be recorded under Section :8: 154 of Cr.P.C. But an FIR cannot be used as substantive evidence but only to corroborate or contradict its maker and no one else. The FIR can be relied upon only if it is corroborated by other evidence which is cogent. In the instant case, the second respondent had initiated private complaint in PCR No.13/2015 for the aforesaid offences. But Section 155 (1) of Cr.P.C. states that "when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate."
10. However, keeping in view the scope and object of Section 154 and 155(1) of Cr.P.C. as well as other clauses of Cr.P.C. it is relevant to refer Section 173(1) and 173(2) of Cr.P.C. which states that as soon as the investigation is completed by the investigating agency, it ought to have laid the charge sheet against the accused. But in the instant case, the crime came to be registered by the first :9: respondent based upon the private complaint initiated by the second respondent in PCR No.13/2015.
11. Section 190 of Cr.P.C. is relating to the cognizance which ought to have been taken by the Judicial Magistrate First Class. Whereas the aforesaid section reveals that "Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section(2), may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
12. In the instant case, the second respondent who is a defacto complaint initiated criminal prosecution against the petitioner who is arraigned as accused by registering private complaint in PCR No.13/2015 based upon which Crime No.111/2015 came to be registered by the first respondent for the aforesaid offences. As already stated in detail that the petitioner/accused when he : 10 : presented cheque which was issued by the second respondent for a sum of Rs.6,60,000/- at his banker Corporation Bank, Shiralakoppa branch, Shikaripura Taluk, Shimoga, the said cheque was returned with a shara stating " insufficient fund" and "signature differs". This ground was also urged in this petition for seeking intervention of the criminal prosecution initiated against the petitioner/accused. The petitioner/accused is a close relative of second respondent and also a progressive agriculturist who approached the second respondent offering to cultivate the land belonging to him.
13. Further the offence alleged against the petitioner under Section 418 of IPC that the petitioner has cheated the second respondent is also not correct as the allegations made in the complaint does not attract the ingredients of Section 418 of IPC. Similarly the ingredients of Sections 420 and 468 of IPC also does not attract in the present case. These are all the facts that reveals in the materials available on record.
14. It is relevant to refer the scope and object of Section 482 of Cr.P.C. which deals with the inherent : 11 : powers of the Court which has to be exercised judicially, judiciously, sparingly and cautiously, if not, there shall be miscarriage of justice and so also, abuse of process of law. While exercising the jurisdiction under Section 482 of Cr.P.C. the Court would not ordinarily embark upon an enquiry whether evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation would not be sustained. Section 482 Cr.P.C it is only to intervene with judicially and judiciously in order to avoid the abuse of process of law and also to secure the ends of justice. Having regard to the facts and circumstances of the case and so also, I feel that the grounds urged in this petition seeking quashing of criminal proceedings are found to be justifiable, it needs intervention of this Court, if not, there shall be miscarriage of justice in respect of petitioner who is arraigned as accused in crime No.111/2015 arising out of PCR No.13/2015.
15. In terms of the aforesaid reasons and findings, I am of the considered opinion that the criminal : 12 : proceedings initiated against the petitioner/accused deserves to be quashed. Accordingly, the following:
ORDER The criminal petition filed under Section 482 of Cr.P.C. is hereby allowed. The entire criminal proceedings initiated against the petitioner/accused in Crime No.111/2015 which came to be registered on a private complaint filed by the second respondent/defacto complainant in PCR No.13/2015 on the file of Civil Judge (Sr.Dn) and JMFC, Sirsi, are hereby quashed.
Consequent upon disposal of the petition, I.A.1/2018 does not survive for consideration. Accordingly, it is rejected.
Sd/-
JUDGE DKB