Karnataka High Court
Shri.A.Anup S/O T.V. Aravindakshan vs The Station House Officer And Anr on 10 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201045/2019
BETWEEN:
SHRI A. ANUP
S/O T.V. ARAVINDAKSHAN
AGED ABOUT 40 YEARS
RESIDING AT K.1203
PURVE VENEZIA
YALAHANKA NEW TOWN
BANGALORE-560009
... PETITIONER
(BY SRI UDAY HOLLA, SENIOR COUNSEL A/W
SRI VISHWAKRMARAJ NAYAK, ADVOCATE)
AND:
1. THE STATION HOUSE OFFICER
STATION BAZAR POLICE STATION
KALABURAGI-585102
REPRESENTED BY ADDL. STATE
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
2. SHRI UDAYSHANKAR SHETTY
S/O SHRI SUBASHCHANDRA SHETTY
CARRYING ON BUSINESS
AT PLOT NO.3
S.NO.1/1B, BRAHMAPUR VILLAGE
2
KALABURAGI-585102
... RESPONDENTS
(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
SRI MAHANTESH H. DESAI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE
ORDER DATED 07.09.2018 PASSED IN C.C.NO.1139/2013 BY
THE PRINCIPAL CIVIL JUDGE AND JMFC AT KALABURAGI FOUND
AT ANNEXURE-A AND SET ASIDE THE ORDER DATED
08.07.2019 PASSED IN CRL.RP.NO.186/2018 BY I- ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT KALABURAGI FOUND AT
ANNEXURE-D. CONSEQUENTLY DISCHARGE THE PETITIONER IN
C.C.NO.1139/2013 PENDING BEFORE THE PRINCIPAL CIVIL
JUDGE AND JMFC AT KALABURAGI.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.11.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C., praying this Court to set aside the order dated 07.09.2018 passed in C.C.No.1139/2013 by the Principal Civil Judge and JMFC, Kalaburagi, which is marked at Annexure-A and also to set aside the order dated 08.07.2019 passed in 3 Criminal Revision Petition No.186/2018 by I-Additional District and Sessions Judge, Kalaburagi, which is marked as Annexure-D and consequently, discharge the petitioner in C.C.No.1139/2013 and grant such other relief as deemed fit in the facts and circumstances of the case.
2. Factual matrix of the case is that based on the information of the informant the police have registered the case against the petitioner and other two accused persons for the offences punishable under Sections 419, 420, 468, 471 and 109 of IPC. It is the case of the prosecution that accused Nos.1 to 3 in furtherance of common intention affixed photo of accused No.1 and obtained exemption of entertainment tax by impersonating the first informant. The police have investigated the matter and filed chargesheet before the trial Court. The Trial Court after considering the material on record i.e., chargesheet and its enclosures took cognizance for the offences alleged against the petitioner and other accused persons. Hence, the petitioner had approached this Court in Criminal Petition 4 No.200623/2017 praying this Court to quash the proceedings in C.C.No.1139/2013 and this Court vide its order dated 12.06.2017 dismissed the petition and observed that the learned Magistrate has to consider the contentions regarding discharge, all the contentions can be appreciated by the said Court and gave liberty to the accused/petitioner to file appropriate application before the Trial Court. This Court also made it clear that the observations made in the said order shall not come in the way of the Trial Court while disposing the application filed under Section 239 of Cr.P.C. After dismissal of the said criminal petition, the petitioner herein filed an application before the Trial Court under Section 239 of Cr.P.C. The trial Judge, after considering the said application and on hearing both side, has observed that the function of the Court under Section 239 of Cr.P.C., is not to marshal the evidence and judge the truth, veracity and effect of such evidence which the prosecution proposes to adduce and what weight to be attached to the probable defence of the accused. If there is strong suspicion which leads the Court 5 to think that there is a ground for presuming that the accused persons have committed the offences, then the Court can pass order under Section 240 of Cr.P.C., by framing charges against the accused persons. Having perused the report filed under Section 173 of Cr.P.C., the Court found that there is prima facie case made out for the alleged offences against the accused and the contention of the accused that there are no grounds to proceed against him was not accepted. The trial Court has observed that the police have examined eighteen witnesses and collected various evidence relating to the transaction made by accused No.1 relating to the impersonation of first informant and dismissed the application. The said order has been challenged before I-Additional District and Sessions Judge, Kalaburagi, in Criminal Revision Petition No186/2018. The revisional Court having heard the respective counsels and perusing the grounds urged in the revision petition and also relying upon the scope of Section 239 of Cr.P.C., has observed that the material discloses the petitioner is the Vice President of M/s. Fun Multiplex 6 Private Limited and allegation in the chargesheet is that they have cheated and impersonated the complainant. The allegation against the petitioner is that he has affixed photo on the application filed by the complainant for seeking rebate of the entertainment tax to the concerned Entertainment Tax Officer and thereby he got benefit from the concerned authority. It is also alleged that the petitioner has allegedly created documents by forging the signature. Considering the allegations made in the complaint and the dispute raised by the revision petitioner, comes to the conclusion that the Trial Court has not committed any error in dismissing the discharge application and it is a case for the trial and not for discharge. The revisional Court also comes to the conclusion that from the materials available on record the prosecution has made out prima facie case against the petitioner herein for the offences of cheating and impersonation and dismissed the revision petition. Hence, the present petition is filed invoking Section 482 of Cr.P.C. 7
3. The grounds urged in the petition is that both the Courts have failed to consider the fact that the complainant was unsuccessful before the appropriate authority under Karnataka Entertainment Tax Act, 1958 (for short 'the Act') seeking exemption on the ground that owner of the building is only entitled for exemption and not the person running the theater by holding licence. It is contended that the respondents cannot be allowed to re- agitate the very same issue before the criminal Court. When an order has been passed by the concerned appropriate authority under the Act, the issue of exemption has attained finality between the parties. Both the Courts could have allowed the discharge application stating that the charges levelled against the petitioner have become groundless. Both the Courts below have failed to consider the fact that the petitioner having made application for and on behalf of Fun Multiplex Private Limited and having paid the same, there is no forgery and Section 468 of IPC is not attracted and also no grounds are made out to invoke Section 420 of IPC. Both the Courts 8 have failed to take note of the order passed by the appellate authority under Annexure-F wherein the appeal filed by the first informant was dismissed on merits. The learned counsel for the petitioner also would vehemently contend that when the appeal was dismissed by the concerned appropriate authority, there cannot be any criminal prosecution against the petitioner herein.
The learned counsel in support of his arguments relied upon the judgment of the Patna High Court in the case of Hari Prasad Sawa and others vs. The State of Bihar and another reported in 1990 SCC Online Pat
98. The learned counsel referring to this judgment vehemently contended that factual aspects of the case dealt with by the Patna High Court is also similar to the facts of the case on hand. When the dispute regarding the payment of tax is ultimately decided by the concerned authorities and once the Tribunal or competent authority comes to a finding that there is no committal of offence, then the same has to be accepted in criminal Court and 9 criminal prosecution cannot be proceeded if the accused had succeeded either in appeal or before the Tribunal or before the Special Authority. An assessee who was found to have contravened certain conditions of the Income Tax Act or in not filing return within time and the appellate Court comes to the conclusion that he had not committed any offence, that assessee cannot be prosecuted for criminal liability in view of that finding. The learned counsel referring to this judgment and the principles laid down in the said judgment would vehemently contend that this case is aptly applicable to the case on hand and contends that once the appeal filed by the first informant was dismissed vide Annexure-F, the Trial Court ought not to have entertained the criminal prosecution against the petitioner and hence, prays this Court to allow this petition and to quash the proceedings initiated against the petitioner by invoking Section 482 of Cr.P.C.
4. Per contra, the learned counsel for respondent No.2 would submit that lease holder cannot be treated as 10 owner under Section 2(k) of the Act. It is clear that Proprietor in relation to any entertainment other than an entertainment referred to in sub-clause (iii) of clause (e) includes any person responsible for the management thereof and in relation to any entertainment referred to in sub-clause (iii) of clause (e) includes any person conducting, organising, sponsoring or patronizing any such entertainment. The learned counsel referring to this Section 2(k) of the Act, submits that the same defines meaning of Proprietor, who would be proprietor and not applicable to the lease holder. The learned counsel would vehemently contend that here it is not the question of exemption being granted, but it is the question of committing criminal offences of impersonation, cheating and fabrication of documents and the same has to be tried by the trial Court. The Trial Court cannot conduct mini trial at the time of invoking Section 239 of Cr.P.C. Once the strong suspicion is made out against the petitioner herein, the Court can proceed against the accused and also material available on record has to be looked into and not 11 the defence. Hence, the trial Court has applied its judicious mind and rightly rejected the application filed under Section 239 of Cr.P.C., and the same has been rightly confirmed by the revisional Court. Hence, no grounds are made out to set aside the orders passed by both the Courts and discharge the accused/petitioner herein.
The learned counsel in support of his arguments has relied upon the judgment of the Hon'ble Apex Court in the case of State of Rajasthan vs. Fatehkaran Mehdu passed in Criminal Appeal Nos.216/2017 and 217/2017 decided on 03.02.2017. The learned counsel referring to this judgment brought to the notice of this Court paragraph-26 wherein the Hon'ble Apex Court has discussed that the scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C., has been time and again explained by the Court. Further, observed that scope of interference under Section 397 of Cr.P.C., at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the Court is concerned 12 not with the proof of allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure. The learned counsel referring to this judgment and relying on paragraph-26 has vehemently contended that the Hon'ble Apex Court observed in paragraph-29 also that 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 13 facie. The learned counsel referring to this judgment contended that when both the Courts have come to the conclusion that it is not a case for discharge exercising power under Section 239 of Cr.P.C. This Court cannot find fault with the orders of both the Courts, as contended by the petitioner herein. The learned counsel vehemently contended that the issue is not with regard to claiming exemption of entertainment tax, but the question involved in the matter is manipulation of documents, impersonation and cheating and the same has to be tried.
5. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondent No.2 and also considering the factual aspects of the case and the principles laid down in the judgments referred to supra by the respective counsel, the points that would arise for consideration of this Court are, i. Whether both the Courts have committed an error in dismissing the application filed under Section 239 of Cr.P.C.?
14ii. Whether it requires interference of this Court by exercising power under Section 482 of Cr.P.C.,?
Point Nos.1 and 2:
6. Having heard the learned counsel appearing for the respective parties, it is not in dispute that the petitioner and the accused persons have taken premises belonging to the first informant for exhibiting films. It is also not in dispute that the lease was created in favour of the petitioner and other two accused persons. The Court while exercising power under Section 239 of Cr.P.C., has to look into the contents of the complaint as well as allegations made in the charge sheet. The charge sheet is filed for the offences punishable under Sections 419, 420, 468, 471, 109 r/w Section 34 of IPC. The present petitioner is accused No.1. This Court first would like to refer to column No.17 of the charge sheet wherein it is mentioned that Fun Multiplex Private Limited belongs to the first informant and the same was given on lease and 15 the first informant is entitled to claim benefit under Section 7A(4) of the Act for exemption and the first informant is entitled for the said amount. It is alleged that with a common intention, the petitioner and other accused persons in order to get the said benefit and to cheat the first informant who has been arrayed as CW.1 manipulated the document filed by CW.1 which is in Form No.3 and accused No.1 i.e., petitioner herein affixed his photograph on the said form and created documents as original and used the same and obtained exemption of Rs.1,25,00,000/- for the period from 04.10.2006 to 14.10.2011. It is also an undisputed fact that the petitioner earlier had approached this Court in Criminal Petition No.200623/2017 and this Court has rejected the petition and given liberty to the petitioner herein to file appropriate application before the trial Court. Accordingly, an application was filed before the trial Court and the same came to be rejected. While rejecting the said application also, the trial Court has observed that while invoking Section 239 of Cr.P.C., it is not the duty of the Court to 16 marshal the evidence and judge the truth and the Court has to take note of veracity and effect of such evidence which the prosecution proposes to produce and what weight to be attached to the probable defence of the accused. It has also observed that if there is strong suspicion which leads the Court to think that there is a ground for presuming that the accused person committed the offences, then the Court should not exercise power under Section 239 of Cr.P.C. The scope and ambit of Section 239 of Cr.P.C., has been discussed by the trial Court. The trial Court has also taken note of the final report filed under Section 173 of Cr.P.C., and observed that it can be seen that prima facie case is made out against the petitioner for the alleged offences and comes to the conclusion that there is no ground to consider that the charge against the petitioner is groundless. Having perused the charge sheet and its enclosures, the trial Court comes to the conclusion that prima facie case is made out against the petitioner. It is settled law that while considering the application under Section 239 of Cr.P.C., 17 the Court should not venture to conduct mini trial and evaluate the material collected by the Investigating Officer as to whether it ends in conviction or leads to acquittal, but the Court can only see whether any prima facie case is made out to proceed against the accused/petitioner. No doubt, the learned counsel for the petitioner has relied upon the judgment of Patna High Court wherein Patna High Court while dealing with the case with regard to tax exemption dealt with and exercised power under Section 482 of Cr.P.C. The principle laid down in the judgment of the Patna High Court is not applicable to the case on hand since an allegation of cheating, impersonation and fabrication of documents is alleged in the chargesheet.
7. No doubt, the first informant who had challenged granting of exemption in favour of the petitioner herein was unsuccessful as contended by the learned counsel for the petitioner and his appeal came to be dismissed. But the factual aspect of the case is different. As I have already pointed out, as per column 18 No.17 of the charge sheet, specific charges leveled against the petitioner is that he manipulated the document of Form No.3 filed by the first informant, the petitioner has affixed his photograph on the said document, manipulated the document and claimed benefit and charges of impersonation and fabrication of document is alleged against the petitioner. When such specific allegation of impersonation and fabrication of document has been alleged in the charge sheet, it is a matter of trial and the Court cannot invoke Section 239 of Cr.P.C., I have already pointed out that the trial Court while dismissing the application made observation that it is the case of the prosecution that accused Nos.1 to 3 in furtherance of common intention affixed photo of accused No.1/petitioner herein and obtained exemption of entertainment tax by impersonating the first informant i.e., CW.1. The police have investigated the matter and filed charge sheet. The revisional Court also while considering the order of the trial Court, dealt with in detail and particularly, in paragraph-12 it has observed that it is reflected in the complaint that the 19 petitioner has pasted the photo on the application filed by the complainant for seeking rebate of the entertainment tax to the concerned Entertainment Tax Officer and thereby, he got benefit from the concerned authority. It is also observed that the petitioner has also allegedly created document by forging the signature. The Court cannot decide the issue as to whether he rightly availed the benefit of tax exemption or not and the same is outside the jurisdiction of the Court. The specific charge against the petitioner is impersonation and creation of documents and the same has to be adjudicated by the criminal Court.
The only dispute is, whether the petitioner has indulged in creation of document and impersonated the first informant by pasting his photograph on the application-Form No.3 given by the first informant. Hence, I do not find any error committed by the trial Court in dismissing the application.
8. In the judgment referred to supra by the learned counsel for respondent No.2, the Hon'ble Apex Court discussed with regard to the revisional powers, 20 scope and interference under Section 397 of Cr.P.C., wherein it has observed that the Court is not concerned with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that accused has committed an offence, which if put to trial, could prove his guilt. As I have already pointed out, it is also settled law that the Court cannot evaluate the evidence available on record while considering the application filed under Section 239 of Cr.P.C. The Court can exercise power under Section 239 of Cr.P.C., only if it finds that continuing of proceedings against the accused is groundless. Hence, I do not find any error committed by the trial Court as well as revisional Court in dismissing the application filed under Section 239 of Cr.P.C. The petitioner has not made out any ground to invoke Section 482 of Cr.P.C., to quash the proceedings initiated against the petitioner.
9. In view of the discussions made above, I pass the following:
21
ORDER The petition is dismissed.
Sd/-
JUDGE NB*